Smt. Nasreen vs Uttarakhand Jal Sansthan And Others

Sharad Sharma, J

The late husband of the petitioner Mr. Parvez Mukhtar was appointed as a Clerk Grade-II initially on temporary basis with Jal Kal Vibhag of Nagar Palika Parishad, District Haridwar, which constituted to be the part and parcel of the Nagar Palika Parishad as it then existed. Since having rendered services satisfactorily from 06.02.1970 the Jal Kal Vibhag of Nagar Palika Parishad, Roorkee had regularized the services on 06.08.1971. Consequent thereto, he was posted permanently in the said department of the Nagar Palika Parishad, which has now been on its upgradation declared as the Nagar Nigam, Roorkee. The husband of the petitioner on 10.11.1990 had applied for voluntary retirement due to continuous ill health. The same was accepted by respondent no. 3 on 25.02.1991.

There had been number of controversies as detailed above including controversy of termination of services of the late husband of the petitioner, but that becomes irrelevant for the consideration of the present Writ Petition, owing to the adjudication, which has already taken place in Adjudication Case No. 435 of 1994, by the Labour Court vide its reference dated 13.09.1994 because ultimately the controversy pertaining to the determination of the services of the late husband of the petitioner on an adjudication of the Labour Court's proceedings the matter went to the Writ Court and the Allahabad High Court by way of Writ Petition (M/S) No. 2961 of 2001, 'Pervez Mukhtar vs. The Presiding Officer, Labour Court, Meerut and another' vide its order dated 01.10.2001 had set aside the award dated 30.03.1998 and remitted the matter back to the Labour Court for adjudication of the case of the husband of the petitioner in the light of the provisions contained under Retention and Retirement of Servants of Municipal Board Regulation, 1965 meaning thereby a fresh determination was to be made. It is thereafter that on the remand made by the judgment on 01.10.2001 by the Allahabad High Court the matter was decided afresh by the Labour Court, which was put to challenge by the Nagar Palika Parishad in the Writ Petition (M/S) No. 495 of 2003, 'Nagar Palika Parishad, District Haridwar vs. Presiding Officer, Industrial Tribunal, Haldwani & others', and Writ Petition (M/S) No. 217 of 2004 'Nagar Palika Parishad, Roorkee District Haridwar vs. Assistant Labour Commissioner, Devpura, Haridwar & others and an another Writ Petition (M/S) No. 520 of 2003, 'Parvez Mukhtar vs. Presiding Officer, Industrial Tribunal, Haldwani' on 30.01.2003. All the three Writ Petitions were clubbed together by this Court and in all the Writ Petitions invariably the Uttarakhand Jal Sansthan was also made as a party because of the fact in the meantime during the intervening period the Jal Kal Department of the Nagar Palika Parishad stood merged after its bifurcation with the Jal Sansthan w.e.f. 29.07.2002.

The Uttarakhand Jal Sansthan and as effect of merger of Jal Kal Department since being the successor department would be bound to bear the assets liabilities of Jal Kal Department also in view of the provisions contained under U.P. Water Supply Sewerage Act, 1975. Therefore, being the successor department the liability to comply with the directions issued by the Labour Court ultimately affirmed by the Hon'ble Apex Court would automatically fall upon the successor department in view of the provisions contained under Section 18 (C) of U.P. Industrial Disputes Act, 1947, which reads as under:

"Persons on whom settlements and awards are binding-

(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates."

Consequently, the three Writ Petitions were decided on 22. 09.2005 by this Court, and as a result of the judgment the petitioner's husband was directed to be reinstated with 50% of the back wages. The judgment of the learned Single Judge directed that to comply with the directions issued by the High Court and coupled with the provisions contained under the Industrial Disputes Act since the liability was to be met with the Uttarakhand Jal Sansthan, which was the subsequent employer of late husband of petitioner, also a direction was issued to the Nagar Palika Parishad to ensure that the entire service records of the husband of the petitioner are ensured to be sent to the Uttarakhand Jal Sansthan within a period of one month, and subsequently affirmed by the decision of the High Court dated 22. 09.2005 was complied with.

The said judgment of the learned Single Judge was challenged by the Jal Sansthan by preferring SLP No. 2132 of 2006 before the Hon'ble Apex Court and it is during the intervening period that the petitioner's husband was met with the sad demise on 24. 02.2006. Consequently, the SLP stood abated by the Hon'ble Apex Court by the order dated 28.08.2009. The subsequent applications for setting aside the abatement as moved by the Uttarakhand Jal Sansthan before the Hon'ble Apex Court too stood dismissed by the order dated 5.04.2010. After culmination of the aforesaid proceedings atleast directions, which were issued by the Hon'ble Single Judge of this Court for remittance of the record by the Nagar Palika now Nigam to the Uttarakhand Jal Sansthan, has now attained finality and has remained undisturbed.

It is the case argued by the counsel of Nagar Nigam Mr. Parikshit Saini before this Court that in compliance of the order passed by this Court they have already complied the directions and served the entire service records of the late husband of petitioner to the Uttarakhand Jal Sansthan and it was only after the scrutiny of the records received and being satisfied by the same Uttarakhand Jal Sansthan that their service benefits including the benefit of appointment under the Harness Rules has been accorded by the Uttarakhand Jal Sansthan to the family members of the deceased employee Parvez Mukhtar. Practically, when the certain benefits were paid to the petitioner by order dated 28.10.2003, Nagar Palika had to file a Writ Petition being Writ Petition (M/S) No. 59 of 2003 'Nagar Palika Parishad, Roorkee vs. Assistant Labour Commissioner, Haridwar and Others' which was decided on 17.11.2003, which was decided on 17.11.2003, wherein, the Uttarakhand Jal Sansthan was directed to consider the reinstatement as far as the back wages and other benefits was concerned, the same was to be considered and decided by the Nagar Palika Parishad. The operative portion of the order passed by the High Court on 17.11.2003 is quoted hereunder;

"Further Sri Braham Singh Verma, Advocate has very farily conceded that reinstatement order will be considered by Jal Sansthan and so far as back wages and other benefits are concerned the same are within the dominion of Nagar Palika and the same shall also be considered in accordance with the award of the Labour Court.

In view of the aforesaid facts and circumstances both the parties have agreed that benefits given to the employee pursuance to the award shall be considered expeditiously."

This Court in Writ Petition No. 583 of 2010 filed by son of deceased Parvez Mukhtar for claiming appointment on compassionate grounds, Writ Petition was allowed by this Court on 8. 05.2012 and mandamus was issued to provide suitable compassionate appointment.

When the back wages, gratuity and other retiral dues were not being paid to the petitioner, the petitioner has preferred the instant Writ Petition for the following reliefs:

"I. To issue a writ, order or direction in the nature of mandamus, commanding the respondents to pay the pension, gratuity, provident fund and other retiral benefits to the petitioner, to which the petitioner is entitled to get after the death of her husband late Shri Parvez Mukhtar.

II. Any other relief which this Hon'ble Court may deem fit and proper, may kindly be awarded in favour of the petitioner and against the respondents.

III. Award the cost of the petition in favour of the petitioner and against the respondents."

This Court called upon the counter affidavit from the respondents and the counter affidavit has been filed by respondent no.3 as well as respondent nos. 1 & 2. The rejoinder affidavit is still awaited. In the meantime, the Writ Petition came up for consideration before this Court today.

The learned counsel for the Uttarakhand Jal Sansthan, i.e. respondent nos. 1 & 2, submits that, as a matter of fact, in accordance with the directions, which he has received from his authorities, all amount claimed by the petitioner in the Writ Petition already stands remitted and, hence, he submits that no cause survives as of now.

This fact is not disputed by the learned counsel for the petitioner, who submits that as per the instructions he had been remitted with, all dues claimed for, except the provident fund.

The fact that the provident fund has not been remitted is also a fact, which stands admitted by the employer of the deceased husband of the petitioner, i.e. respondent nos. 1 & 2. Learned counsel for respondent nos. 1 & 2 submits that the payment of the provident fund could only be payable at their behest only when he has being provided with the entire service records of the deceased husband of the petitioner by his previous employer, i.e. Nagar Nigam, because in the absence of the same it may not be practically possible for him to compute and determine the provident fund, which the petitioner would otherwise be entitled to receive and respondent would be liable to pay. Objection to the said response as extended by the learned counsel for Nagar Nigam is that they have sent all the service records, which was available in their office to respondent nos. 1 & 2 and these service records were also placed on record in the earlier Writ Petition, which was preferred before this Court, the propriety of the records placed by the Nagar Nigam in the writ proceedings before this Court was not disputed by respondent nos. 1 & 2, i.e. Uttarakhand Jal Sansthan. Rather to the contrary, based on the service records as supplied by the Nagar Nigam in the Writ Courts as well as to the respondent nos. 1 & 2, the respondent nos. 1 & 2 has proceeded to extend certain benefits including benefits of granting an appointment under the Harness Rules. Hence, as far as the sanctity of the documents supplied by the Nagar Nigam to respondent nos. 1 & 2 is concerned, the same has been judiciously reckoned by this Court and had been no controversy in relation thereto. Now the question comes as to whether for the purposes of remittance of provident fund amount, which is only amount left due to be paid to the petitioner could at all be stopped from being paid to the widow of the deceased on the pretext that Nagar Nigam had not been able to supply the original records to respondent nos. 1 & 2. Be whatsoever the arrangement may exists between respondent nos. 1, 2 & 3 pertaining to the controversy regarding the supply of original records of the Late husband of the petitioner atleast due to their action or inaction on part of respondent no. 3 or respondent nos. 1 & 2, the petitioner, who is the widow of the deceased employer, who is otherwise entitled to get provident fund under law cannot be made to suffer due to any uncalled for stalemate, which traveled between respondent nos. 1, 2 & 3. Hence, the same will and ought not to create any impediment for the payment of provident fund amount, which is otherwise legally due to be paid to the petitioner.

Mr. Rakesh Thapliyal, Advocate, submits that he does not disputed the entitlement of the petitioner to receive the provident fund. The only difficulty which he submits is and which is faced by him is that he is not in possession to process the same in the absence of service records, and also he expresses the inability to make an appropriate recommendation to respondent no. 5 to remit the provident fund in the absence of there being any particulars made available to him with regards to the contribution made by respondent no. 3 to respondent no. 5 for the period of service, which he has rendered with respondent no. 3.

To this, a statement has been made at the Bar by Mr. Parikshit Saini, learned counsel for respondent no. 3, that whatsoever period the late husband of the petitioner has rendered his services legally with Nagar Nigam and the period for which the salary was paid by the Nagar Nigam to him the provident fund contribution has been duly remitted by the Nagar Nigam to respondent no. 5. For the said stand he fortifies thereto by his correspondence dated 05.03.2016 (Annexure-1 to the counter affidavit) where all the details of contribution paid by him has been given.

In such a circumstances, in fact since there is now no controversy pertaining to the non-payment of contribution of the provident fund atleast before this Court. This Court is of the view that there may not be any impediment for respondent nos. 1 & 2 to issue an appropriate direction/recommendation to respondent no. 5 to disburse the provident fund to the petitioner in accordance with law. However, the embargo, which is being attempted to be carved out by respondent nos. 1 & 2 pertaining to non supply of the original documents on record by respondent no. 3 will not create any impediment for respondent no. 3 to deny the remittance of the provident fund to the petitioner. They would process the same and recommend it based on the service records already supplied to them by Nagar Nigam, on the basis of which they had already processed other service benefits of Late husband of the petitioner.

Consequently, the Writ Petition is disposed of issuing writ of mandamus directing the respondent nos. 1 & 2 to issue an appropriate direction/recommendation to respondent no. 5 within a period of two weeks from today for making the payment of provident fund amount to respondent no. 5, and respondent no. 5 will simultaneously ensure that the entire amount due to be paid to the widow of the deceased employee must be paid within a period of six weeks from the date of representation of the petitioner.

Subject to the above observations, this Writ Petition stands disposed of. There will be no order as to cost.