Ganesh Chandra Baruah and Others vs Union of India and Others

Heard Mr. A. Dasgupta, learned counsel for the petitioners and Ms. B. Dutta, learne counsel for the respondents - Hindustan Fertilizer Corporation Ltd.

By this common judgment both the Civil Rule No. 6451/98 and WP(C) no. 2822/99 are being disposed of as common question of facts and law arises in both the cases.

Three writ petitioners were serving in Hindustan Fertilizer Corporation Ltd. (hereinafter referred to as ''HFC'') which is a Govt. of India Undertaking. The age of retirement in the public sector undertakings was 58 years and vide office memorandum No. 20.5.1998 it was enhanced to 60 years. The three writ petitioners, therefore, approached this Court in Civil Rule No. 6451/98 for a direction that they should be allowed to continue till attaining the age of 60 years. Some interim order was passed by this Court. The respondent - HFC contested the matter by filing written statement stating, inter alia, that HFC is a sick organisation and in view of subsequent office memorandum dated 21.8.98 sought exemption from operation of the Memo dated 20.5.1998. The Memo dated 21.8.98 provides:

"In case any administrative Ministry or Public Sector Undertaking does not want to increase the age of retirement of its employees, specific exemption from operation of the aforesaid decision would be necessary".

The HFC accordingly applied for exemption in exercise of the provisions made in the above office memorandum. During the pendency of the proceedings, exemption was granted by the Government of India vide their letter dated 31.12.99. In view of the above exemption granted by the authority, the counsel for the petitioner fairly submits that the earlier prayer for the extension of age upto 60 years may not be available ; but the limited prayer of the petitioner is that exemption shall be made effective from the date of issue of letter dated 31.12.99 and till then the petitioners should be deemed to be in service.

The learned counsel for the respondents submits that decision not to raise the retirement age beyond 58 years was taken by the HFC long back and as required exemption was sought for and it was subsequently given and as such Govt. circular regarding enhancement of age of retirement from 58 years to 60 years will not be applicable to HFC.

Mr. Dasgupta, learned counsel for the petitioners vehemently urged that it is a case of exemption and not of approval of the action and as such exemption will be valid from the date on which it was granted. The learned counsel has referred to the observation of the Apex Court in the case of M/s Dhanrazamal Gobindram, Appellants v. M/s. Shamji Kalidas Co., Respondents reported in AIR 1961 SC 1285 wherein the Apex Court has distinguished the meaning of ''permission'' and ''exemption'' as follws :

"Para 13. It is contended that S. 21 uses the word "permission", while S.5 speaks of the exemption and that Ss. 21(2) and 21(3) do not cover the prohibition in S.5. The Foreign Exchange Regulation Act, no doubt, uses diverse words like "authorises", "exempt" and "Permission" in different parts. The word "exempt" shows that a person is put beyond the application of law, while "Permission" shows that he is granted leave to act in a particular way. But the word "Permission" is a word of wide import. "Permission" in this section means only leave to do some act which but for the leave would be illegal. In this sense, exemption is just one way of giving leave. If one went only by the word and searched for those sections where the word "Permission" is expressly used, Ss. 21(2) and (3) are likely to prove a dead letter. This could not have been intended, and the very elaborate provisions in these sub-sections show that those matters were contemplated which are the subject of prohibition in S.5. In our opinion, the argument is without foundation."

On perusal of the various Memorandum issued by Government of India as regards the Government decision of raising the age, it is seen that public sector undertakings were given a liberty to take decision whether to raise the age or not. But such liberty is subject to specific exemption to be granted by the Central Govt. In the Govt. Circular nowhere it is provided that prior approval was required. At this stage it would be pertinent to reproduce the relevant portion (paragraph-2) of the exemption letter dated 31.12.99:

"2. I am directed to convey the approval of the Government for granting Hindustan Fertilizer Corporation Limited (HFC) exemption from implementing Government''s decision on raising the age of superannuation from 58 to 60 years in respect of below Board level employees till the final decision by FIFR on its revival package."

From the above it is seen that company was given approval of the Government granting exemption from implementing the said decision. There is nothing to show that exemption will be effective from the date of issue of letter dtd. 31.12.99 or otherwise.

The question of approval or special approval etc. has been decided in the case of Life Insurance Corporation of India Vs. Escorts Ltd. and Others, and the Apex Court''s observations at paragraph 6 page 458 are as follows :

"6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. considering the distinction between "special permission" and "general permission", "previous approval" or "prior approval" in para 63 held that: "We are conscious that the word "prior" or "previous" may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into section 29(1) of the Act.". Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act. As to the word "approval'' in section 33(2)(b) of the Industrial Disputes Act, it was stated in Lord Krishna Textiles Mills Limited v. Workmen, that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in section 33(1)."

The above decision was followed in U.P. U.P. Avas Evam Vikas Parishad and another Vs. Friends Co-op. Housing Society Ltd. and another,

In the present case, exemption was granted mainly on the ground of Company''s sick status and it is operative till filing the decision by BIFR. The learned counsel for the petitioner submits that exemption granted to MFC should be considered to be effective from the date of issue of exemption letter dated 31.12.99.

There is another aspect of the mater also. If the submission of the counsel for the petitioner is accepted in that case, there will be various class of employees of RFC those who have retired at the age of 58 years, and those who were allowed to continue or deemed to have continued in service till 31.12.99 in pursuance of the said exemption letter. This will be a case of discrimination without any reasonable basis.

As per Standing Orders of HFC [Clause 37(a)], HFC has discretion to grant extension to its retiring employees upto maximum period of 2 years. In view of the impugned direction passed by this Court, all the petitioners were granted extension under the above clause and subsequently those extensions were cancelled. Till the said cancellation, petitioners will be allowed extension of service under Clause 37(a) of Standing Orders.

Mr. Dasgupta, counsel for the petitioners submitted that pay and allowance till the above date have not been paid to the petitioner, it is, therefore, directed that in case payment has not been made, respondent HFC shall release the pay and allowance as per rules till the cancellation of the extension under clause 37(a) of Standing Orders.

With the above direction, the writ petitions stand dismissed.