Managing Director And Ors vs Sita Ram Patel And Others

R.S. Jha, J

All these writ appeals have been filed by the appellants against a common order of the learned Single Judge dated 03.04.2019 passed in W.P.No.14591/2014 and connected matters and, therefore, they are heard and decided concomitantly by this common order.

The learned counsel appearing for the appellants, at the very outset, submits that the only ground on which the orders passed by the learned Single Judge are assailed is for grant of pensionary benefit to the respondents/employees. He submits that the appellants are not aggrieved by the other directions issued by the learned Single Judge and the appeals are confined to the relief granted to the respondents in paragraph 32(iv), in other words, the appellants have not assailed the directions issued by the learned Single Judge regarding grant of parity in the pay-scale as per the decision of the Supreme Court in the case of M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. vs. Uma Shankar Dwivedi, 2018 SCC Online SC 1461 :Civil Appeal No.9146-9148/2018, benefit of 6th Pay Commission, denial of prayer for counting of past services rendered by the respondents employees in the societies and grant of benefit of clause 4 of the order dated 15.02.2014 from the date of absorption.

The learned counsel for the appellants submits that the benefit of pension to the respondents/employees, who are all erstwhile employees of the Rural Electricity Cooperative Societies and whose services have been absorbed in the Board vide order dated 18.05.2004 with effect from 15.03.2002, has been granted to them by the learned Single Judge by following the decision of the Division Bench of the Indore Bench of this Court in the case of M.P. State Electricity Board (Now known as M.P. Paschim Kshetra Vidyut Vitaran Co. Ltd.) Indore vs. Bijli Karmchari Sangh, W.A.No.334/2015. The learned counsel for the appellants submits that the aforesaid writ appeal had been filed by the M.P. P.K.V.V. Co. Ltd. against an order passed by the learned Single Judge in W.P. (s)No.1151/2005 dated 17.05.2015, directing payment of pension to the absorbed employees of the societies. It is submitted that the order passed by the learned Single Judge, Indore Bench as well as the decision of the Division Bench at Indore are based on the decision of the Supreme Court rendered in the case of Panchraj Tiwari vs. M.P. State Electricity Board, (2014) 5 SCC 101 and Brajendra Singh Kushwah and others vs. M.P. State Electricity Board and others, SLP (C) No.28516/2013.

The learned counsel for the appellants submits that the learned Single Judge as well as the Division Bench at Indore, have also taken into consideration the order passed by this Court in W.P.No.1962/2010 (Electricity Supply Employees Union vs. State of M.P. & other) and in the writ appeal arising there from W.A.No.685/2011.

The learned counsel for the appellants submits that none of the petitions decided by this Court prior to the decision in the case of Bijli Karmchari Sangh (supra) dealt with the issue of pension. It is submitted that all the previous petitions and litigations before this Court related either to grant of pay-scale or promotion and the issue of pension to the absorbed employees of the societies did not, at any point of time, come up for consideration before this Court. It is submitted that even before the learned Single Judge in the case of Bijli Karmchari Sangh (supra), the issue related only to grant of similar benefits relating to pay and fringe benefits and the issue of pension was not directly involved as is evident from a perusal of paragraph 12 of the order passed by the learned Single Judge in W.P.No.1151/2005 dated 07.05.2015 wherein the learned Single Judge has clearly recorded the fact that all the benefits arising out of the absorption policy had admittedly been granted to the absorbed employees of the societies except pension.

The learned counsel for the appellants, taking this Court extensively through the orders passed by the Supreme Court in the case of Brajendra Singh Kushwah (supra) and Panchraj Tiwari (supra), submits that a bare perusal of the judgments of the Supreme Court make it clear that the Supreme Court was dealing only with the issue of pay-scale and promotion and has infact specifically stated and observed that all other conditions of absorption would remain the same.

The learned counsel for the appellants, taking this Court extensively through the terms and conditions of absorption that have been enumerated and reproduced by the Supreme Court in paragraph 3 of its judgment in the case of Panchraj Tiwari (supra), submits that as per condition No.5 reproduced in paragraph 3 of the judgment in the case of Panchraj Tiwari (supra), the pension/gratuity payable to the absorbed employees would remain the same that was being paid to them by the society concerned as per the rules and regulations of the societies. It is submitted that once the Supreme Court has clearly enumerated the condition of absorption and affirmed and confirmed the same by making a specific observation in this regard in paragraph 17, the respondent/absorbed employees are not entitled to the benefit of pension even after absorption. It is submitted that the learned Single Judge as well as the Division Bench in the case of Bijli Karmchari Sangh (supra), while relying upon the decision rendered in the case of Panchraj Tiwari (supra), have failed to take into consideration the aforesaid specific observation of the Supreme Court wherein all other principles/conditions of absorption, except those relating to promotion and pay-scale have been affirmed and, therefore, the learned Single Judge has erred in placing reliance upon the decision of the Indore Bench while allowing the petitions filed by the respondents/employees.

It is submitted by the learned counsel for the appellants that the impugned orders passed by the learned Single Judge as well as the decisions of the Division Bench and the Single Bench at Indore are based on the presumption and assumption that the issue of pension has already been considered and decided in favour of the respondent/employees whereas there is no such decision. It is submitted that the decision in the case of Panchraj Tiwari (supra), on which heavy reliance is placed by the learned counsel for the appellants, specifically upholds the terms of absorption relating to pension of the absorbed employees which would remain in accordance with the Rules and Regulations of the concerned society.

It is submitted that in such circumstances, the impugned order passed by the learned Single Judge deserves to be set aside.

The learned counsel appearing for the respondent No.1, per contra, submits that the issue of pension was specifically considered and decided by the Division Bench of this Court in the case of Bijli Karmchari Sangh (supra) which was binding on the learned Single Judge and, therefore, he has rightly allowed the claim of pension. It is submitted that the said Division Bench decision of the Indore Bench is a binding precedent and is also binding in these appeals also. It is submitted that as the issue of pension has been considered and decided by a co-ordinate Bench of this Court after taking into consideration the decision of the Supreme Court rendered in the case of Panchraj Tiwari (supra) and Brajendra Singh Kushwah (supra), therefore, the appeals filed by the appellants deserve to be dismissed.

It is further submitted that apart from the aforesaid decision of the Indore Bench, a Single Bench of this Court in the case of Uma Shankar Dwivedi vs. M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. and others, W.P.No.3547/2015 decided on 06.10.2015 has also held that the employees of the ertwhile cooperative societies that have been absorbed in the M.P. Electricity Board, are entitled to the benefit of the same terms and conditions on absorption. It is submitted that the decision of the Single Judge in the case of Uma Shankar Dwivedi (supra) has been affirmed and confirmed by a Division of this Court in W.A.No.883/2015 on 19.11.2015 and the review petitions filed by the appellants have also been dismissed on 18.12.2015 and 03.02.2016 and the appeal filed by the appellants before the Supreme Court, SLP (Civil) No.9146-9148/2018 was disposed of with certain observations. It is further pointed out that an SLP filed by the respondents against the decision of the Division Bench of the Indore Bench in the case of Bijli Karmchari Sangh (supra) has also been dismissed by the Supreme Court on 30.11.2018 in SLP (C.C.) No.24772/2016.

The learned counsel appearing for the respondent submits that in view of the aforesaid facts and circumstances, as the order passed by the Indore Bench directly deals with the issue of pension which has been granted to similarly situated employees of the Manawar Society and as the order passed by the Indore Bench has been affirmed and confirmed by the Supreme Court and has also been implemented pursuant to the contempt petition filed by the concerned employees, the learned Single Judge has rightly allowed the petitions filed by the respondent/employees granting them benefit of pension on the concept of parity. It is submitted that once the issue regarding pension has been considered and decided by a coordinate Bench of this Court and as the decision has been affirmed and confirmed by the Supreme Court, there is no merit in the appeals filed by the appellants, and, therefore, the same deserves to be dismissed.

The learned counsel appearing for the respondent No.3 submits that in none of the petitions that have been considered and decided by this Court, there is no prayer for grant of benefit and relief of pension and in such circumstances, the learned Single Judge has erred in granting the benefit to the respondents. The learned counsel for the respondent No.3 supports the stand taken by the appellants.

We have heard the learned counsel for the parties at length.

As the order passed by the learned Single Judge as well as the order passed by the Division Bench in the case of Bijli Karmachari Sangh (supra) have mainly been relied on the decision of the Supreme Court in the case of Panchraj Tiwari (supra), it would be appropriate to consider relevant portion of the statute. It is worth noting that the petitioner in the case of Panchraj Tiwari (supra) was claiming promotion for all times to come after integration and absorption in the Board.

In paragraph 3 of the judgment, the Supreme Court has reproduced the terms and conditions of absorption of employees of the erstwhile societies in the Electricity Board as enumerated in the correspondence dated 15.6.2004 in the following terms:-

"3. The principles of merger were clarified by M.P. SEB after prolonged correspondence as per Annexure P-12 dated 15-6-2004. For the purpose of ready reference, we shall extract the contents:

"Please refer to this office order cited under reference. It is requested to issue necessary orders for absorption of employees of REC societies falling under your area of jurisdiction on the same terms and conditions of the societies. The terms and conditions of the societies may be obtained from DE (STC), Jabalpur.

Further other terms and conditions on which employees can be absorbed:

The regular employees of the above societies shall be taken over on the same terms and conditions as existing in the society except that no deputation allowance shall be paid.

Their pay scale will be the same which they were getting before the absorption.

The above employees may not be transferred out of the circle concerned, so that no anomaly arises.

Their age of superannuation will be the same as applicable in the societies.

Pension/gratuity will be payable to the employees absorbed in the Board as per the rules/regulations of the society concerned.

Their designation will be maintained as it was in the society."

(emphasis supplied)

The Supreme Court has thereafter analyzed these terms and conditions in paragraph 4 in the following terms :-

"4. The principles of absorption as extracted above would clearly show that the employees of the society have been taken over and absorbed in M.P. SEB. However, their pay scale on the date of absorption was protected, their designation was maintained as it was in the society at the time of absorption and the age of superannuation, pension and gratuity of such employees were to be governed by the rules/bye-laws of the society concerned."

Ultimately, the Supreme Court while allowing the claim of the petitioner in the case of Panchraj Tiwari (supra) relating to promotion has observed that all other principles and conditions of absorption shall remain as such, in paragraph 17 which is in the following terms:-

"17. In the above circumstances, we set aside the judgment in appeal. The absorbed employees of the Rural Electricity Cooperative Societies, having due regard to their date of appointment/promotion in each category in the respective societies, shall be placed with effect from the date of absorption viz. 15-3-2002 as juniors to the juniormost employee of the Electricity Board in the respective category. Thereafter, they shall be considered for further promotions as per the rules/regulations of M.P. SEB. All other principles/conditions of absorption shall remain as such. However, it is made clear that on such promotions, in the exigencies of service, the employee concerned would also be liable to be transferred out of the circle, if so required."

From a perusal of the aforesaid decision of the Supreme Court, it is apparent that it did not relate to pension and that while considering the claim of the petitioner therein regarding promotion, the Supreme Court has enumerated the terms and conditions of absorption and affirmed and has not interfered with Clause 5 of the Conditions which relates to pension and had specified and clarified that the pension and gratuity payable to an absorbed employee would be as per rules and regulations of the society concerned.

The decision of the Supreme Court in the case of Panchraj Tiwari (supra) has been quoted and relied upon by various Single Benches of this Court in the cases of Uma Shankar Dwivedi (supra), Brajendra Singh Kushwah (supra) and Bijli Karmachari Sangh (supra) and have also been referred to and relied upon by the Division Benches in the writ appeals in the cases of Uma Shankar Dwivedi (supra), Brajendra Singh Kushwah (supra) and Bijli Karmachari Sangh (supra).

It is also apparent from the order passed in the aforesaid cases, that the case of Uma Shankar Dwivedi (supra) and Brajendra Singh Kushwah (supra) did not relate to pension but related to the denial of pay-scale to the employee and grant of benefit of 2001 Pay Regulations framed by the respondent Board. Even in the case of Bijli Karmachari Sangh (supra) the employees had only challenged the general terms of absorption in the Board as per the Rules and Regulations of the concerned society and grant of same benefits to the employees of the erstwhile societies and in these petitions while the learned Single Judge has observed that all the necessary benefits have already been granted to the employees except pension, the issue of pension was decided against the Board, granting benefit to the employees on the strength of the decision of the Supreme Court rendered in the cases of Panchraj Tiwari (supra) and Brajendra Singh Kushwah (supra) which infact did not relate to denial or grant of pension but related to promotion and pay-scale.

It is further evident from a perusal of the impugned order passed by the learned Single Judge that this aspect has also not been considered by the learned Single Judge who has relied upon the previous decisions treating them to be in relation to pension. It is also apparent from a perusal of the decision in the case of Uma shankar Dwivedi (supra) that the said decision did not relate to claim of pension by the absorbed employees but only related to claim of pay as well as revision thereof and it was in that context that this Court, in the case of Uma shankar Dwivedi (supra) allowed the petition.

From a perusal of the terms and conditions of absorption specially condition No.5, it is apparent that there is a specific condition which prescribes that pension/gratuity will be payable to the employees absorbed in the Board as per the Rules and Regulations of the concerned society. The Supreme Court in the case of Panchraj Tiwari (supra) in paragraph 4 has considered this condition which provides for grant of pension and gratuity to the absorbed employees in accordance with the Rules and bye-laws of the society concerned and thereafter in paragraph 17, while allowing the claim of the petitioners therein regarding promotion, has observed "all other principles/conditions of absorption shall remain as such".

From a perusal of the order passed by the Supreme Court in the case of M.P. Poorva Kshetra Vidyut Vitran Company and another Vs. Umashankar Dwivedi, dated 5.9.2018, it is further evident that the Supreme Court in paragraph 12 has clearly observed "there cannot be any dispute that the employees who have been absorbed shall be governed by the terms of absorption".

In the circumstances, when there is no dispute in relation to the terms of absorption and as observed by the Supreme Court, the absorption of the employees of the society concerned was and is governed by the terms of absorption which in turn clearly prescribe that pension/gratuity will be payable to the employees absorbed in the Board as per Rules/ Regulations of the society concerned and this aspect has been affirmed and confirmed by the Supreme Court in the case of Panchraj Tiwari (supra) and Uma Shankar Dwivedi (supra) and as all the decisions of this Court, whether of the Single Judge or the Division Bench prior to the decision in the case of Bijli Karmachari Sangh (supra), relate only to claim of pay-scale and promotion and not to pension, the submission of the learned counsel for the appellants that the decision in the case of Bijli Karmachari Sangh (supra) being contrary to the orders passed by the Supreme Court in the cases of Panchraj Tiwari (supra) and Uma Shankar Dwivedi (supra) deserves to be referred to a Larger Bench as the aforesaid aspect has not been considered or discussed, therefore, the decisions by the Division Bench at Indore in the case of Bijli Karmachari Sangh (supra) and Uma Shankar Dwivedi (supra)Uma Shankar Dwivedi (supra) are judgments per incuriam supported by the judgment of the Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680, has force.

As the Supreme Court has clearly held in the case of Panchraj Tiwari (supra) that the employees of the Society who have been absorbed in the Board would be governed by the terms and conditions of absorption and as there is no challenge specifically to the aforesaid terms and conditions regarding pension and as the same has not been set aside after application of mind, we are of the considered opinion that the decision in the case of Bijli Karmachari Sangh (supra) deserves to be referred to a Larger Bench as prima facie we are of the opinion that the respondents are not entitled to the benefit of pension in view of the clear and specific decision of the Supreme Court rendered in the cases of Panchraj Tiwari (supra) and Uma Shankar Dwivedi (supra).

Though the learned counsel for the appellant has placed before this Court the fact that the SLP filed by the appellant against the decision of the Indore Bench in the case of Bijli Karmachari Sangh (supra) has been dismissed, however, from a perusal of the order passed by the Supreme Court dismissing the appeal, it is evident that the same was dismissed in limine without adverting to the issue or passing any order on merits and, therefore, would not preclude this Court from examining the issue in view of the law laid down by the Supreme Court in the case of Khoday Distilleries Ltd. v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., 2019 (4) SCC 376.

In the circumstances, the following questions are referred for adjudication to a Larger Bench:-

(i) "Whether the decision in the case of M.P. State Electricity Board (Now known as M.P. Paschim Kshetra Vidyut Vitaran Co. Ltd.) Indore vs. Bijli Karmchari Sangh, W.A.No.334/2015 wherein it has been held that the employees of the society are entitled to pension in view of the decision rendered in the case of Panchraj Tiwari vs. M.P. State Electricity Board, (2014) 5 SCC 101, lays down the correct law?

(ii) Whether in view of the decisions of the Supreme Court rendered in the case of Panchraj Tiwari vs. M.P. State Electricity Board, (2014) 5 SCC 101, M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. vs. Uma Shankar Dwivedi, 2018 SCC Online SC 1461:Civil Appeal No.9146-9148/2018 and Brajendra Singh Kushwah and others vs. M.P. State Electricity Board and others, SLP (C) No.28516/2013, the respondents are entitled to the benefit of pension as claimed by them or whether they are governed by the terms of absorption which provides for payment of pension/gratuity as per the Rules and Regulations of the society concerned?"

The matter be placed before Hon'ble the Chief Justice on administration side for constitution of a Larger Bench.