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Judgment
K. Chandru, J.—The petitioner is the State owned Transport Corporation. Aggrieved by the award passed by the first respondent/Industrial
Tribunal in I.D. No. 3 of 1990 dated 30.12.1997, the present writ petition has been filed.
The writ petition was admitted on 31.3.1999 and an order of Status quo was granted on the same day and it is still in force. The grievance of
the petitioner/Corporation is that the Industrial Tribunal, in passing the award, nullified the resolution passed by the Board of Directors vide 61st
meeting held on 29.6.1979, which reads as under:
To consider fixing of recognised hospital at Gobi Branch.
The existing arrangements for inpatient treatment will continue for the existing employees. In respect of fresh entrants in future, inpatient treatment
will be provided in the Government Hospitals only by paying the prescribed charges to Government.
The grievance of the second respondent/Union is that there is no justification in bringing cut off date, viz. 1.7.1999 in respect of medical facilities
extended to the employees of the Corporation. Whereas, the stand of the petitioner/Corporation was that the Corporation was formed after
nationalising several private operators operating in that District and subsequently, certain medical facilities were extended to the those employees,
whose services were taken over from private operators. Whereas, the newly appointed persons were large in numbers. The Corporation does not
want to deny the existing benefit to those old employees. Even with reference to the new recruits after 1.7.1979, they are eligible to get treated at
Government Hospitals free of charge and therefore, there is no discrimination.
The second respondent/Union raised an industrial dispute u/s 2(k) of the Industrial Disputes Act. Since the conciliation could not end in any
settlement, a failure report was sent by the Conciliation Officer to the Government. The State Government, by G.O.Ms. No. 2232, Labour and
Employment Department dated 22.12.1989, referred the following issue for adjudication by the first respondent Industrial Tribunal, viz.
Whether the discrimination in the Medical Concession (Facilities) shown by the management between the workmen who were made permanent
before 1.7.1979 and after 1.7.1979 is justified?
If not, to determine the type of medical concessions to be given for the workmen, who were made permanent after 1.7.1979?
The Industrial Tribunal took the reference as I.D. No. 3 of 1990 and issued notice to the parties. The second respondent/Union filed their claim
statement and the petitioner/Corporation filed their counter statement before the Tribunal. The petitioner/Corporation examined their office bearer
one Surali as W.W. 1. On the side of the petitioner/Corporation, one Liaghat Ali was examined as M.W. 1. The petitioner/Corporation filed
twelve documents and they were marked as Exs. M1 to M12. On the side of the second respondent/Union, twelve documents were filed and
marked as Exs.W1 to W12. The Industrial Tribunal, after examining the rival contentions, held that the cut off date fixed by the
petitioner/Corporation was arbitrary and violative of Article 14 of the Constitution of India. In coming to the said conclusion, the Tribunal also
relied upon the judgment of the Supreme Court in All India Reserve Bank Retired Officers Association and others Vs. Union of India and others,
and D.S. Nakara and Others Vs. Union of India (UOI), . In page 19 of the award, the Tribunal held as under:
Thus, it can be seen that the respondent has failed to submit any reason for choosing 1.7.1979 as cut off date to confer certain privilege to only
those employees who have joined the respondent''s services prior to 1.7.79 and denying the same to the employees who joined thereafter. The
treatment of the employees in Government hospitals has been regularised by collection of Rs. 120/- from each employee towards the hospital
expenses for every year. There is no dispute with regard to treatment at the Government hospitals. The dispute is only with regard to treatment in
recognised private hospitals. The discrimination between the employees who joined the respondent management before 1.7.79 and after 1.7.79 is
unjustified. The choice of the cut off date is without any reason and the same cannot hold good. The reasons for such discrimination are also not
submitted by the respondent management. In the above circumstances, I hold that the action of the respondent management in discriminating in the
medical concession (facilities) between the workmen who were made permanent before 1.7.79 and after 1.7.79 is not justified.
Mrs. Vijayakumari Natarajan, learned Counsel for the petitioner submitted that the petitioner/Corporation is fully justified in fixing the cut off
date and no exception could be taken to the same. She also relied upon the judgment of the Supreme Court in R. Mukhopadhyay and Anr. v.
Coal India Ltd. and Anr. 1998 (2) LLJ 28. In the said decision, the Supreme Court held that the introduction of two different LTC Schemes was
valid and therefore, there cannot be any discrimination by an employee who was subsequently appointed. She also submitted that the Corporation
was obliged to maintain the existing scheme in respect of earlier employees and whereas for the new employees, there is no such obligation and
therefore, two different schemes can be adopted inasmuch as the employees are not prejudiced, because, even today, they can get treated at the
Government Hospital at the headquarters, for which, they need not make any payment and therefore, the cut off date does not suffer from any
infirmities. She also submitted that the other Unions have not raised any dispute and therefore, the dispute should not be entertained at the instance
of the second respondent/Union.
Per contra, Mr. Saravana Bhavan, learned Counsel for the second respondent/Union submitted that introduction of cut off date, viz. 1.7.1979,
in the matter of medical facility, is clearly illegal and violative of Article 14 of the Constitution of India, as rightly found by the Tribunal. He also
submitted that the petitioner/Corporation had obtained an exemption u/s 90 of the Employees State Insurance Corporation Act, 1948. The pre-
condition for such exemption is that the benefits provided by the Corporation is substantially similar or superior to the benefits granted under the
Employees State Insurance Act. Having got such an exemption from the Employees State Insurance Act, it is not open to the
petitioner/Corporation to make a discrimination. The Tribunal rightly held that the introduction of cut off date is clearly a case of arbitrariness and
therefore, it is violative of Article 14 of the Constitution of India. The Tribunal also held that no reason was given except the reason of finance and
therefore, it refused to accept the stand of the petitioner/Corporation.
In this context, it is necessary to refer to the judgment of the Supreme Court in AIR India Vs. Nergesh Meerza and Others, . The Supreme
Court in paragraphs 115, 116 and 117 of the said judgment, observed as follows:
This brings us now to the question as to whether or not the impugned regulation suffers from any constitutional infirmity as it stands. The
fixation of the age of retirement of AHs who fall within a special class depends on various factors which have to be taken into consideration by the
employers. In the instant case, the Corporations have placed good material before us to show some justification for keeping the age of retirement
at 35 years (extendable up to 45 years) but the regulation seems to us to arm the Managing Director with uncanalized and unguided discretion to
extend the age of AHs at his option which appears to us to suffer from the vice of excessive delegation of powers. It is true that a discretionary
power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without
laying down any guidelines or principles or norms the power has to be struck down as being violative of Article 14.
The doctrine of a provision suffering from the vice of excessive delegation of power has been explained and discussed in several decisions of
this Court. In Anwar Ali Sarkar case19 which may justly be regarded as the locus classicus on the subject, Fazal Ali, J. (as he then was) clearly
observed as follows:
But the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by Article 14 and
it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power.
...
Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the
discrimination involved in the application of the Act is too evident to be explained away.
and Mahajan, J. agreeing with the same expressed his views thus:
The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick
or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are
outside the purview of the special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government.
Mukherjea, J. observed thus:
In the case before us, the language of Section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State
Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act.... I am
definitely of opinion that the necessity of a speedier trial is too vague, uncertain, and elusive a criterion to form a rational basis for the
discriminations made.... But the question is: how is this necessity of speedier trial to be determined? Not by reference to the nature of the offences
or the circumstances under which or the area in which they are committed, nor even by reference to any peculiarities or antecedents of the
offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide
or control its action. This is not a reasonable classification at all but an arbitrary selection.
and Chandrasekhara Aiyar, J. elucidated the law thus:
If the Act does not state what exactly are the offences which in its opinion need a speedier trial and why it is so considered, a mere statement in
general words of the object sought to be achieved, as we find in this case, is of no avail because the classification, if any, is illusive or evasive. The
policy or idea behind the classification should at least be adumbrated if not stated, so that the Court which has to decide on the constitutionality
might be seized of something on which it could base its view about the propriety of the enactment from the standpoint of discrimination or equal
protection. Any arbitrary division or ridge will render the equal protection clause moribund or lifeless.
Apart from the absence of any reasonable or rational classification, we have in this case the additional feature of a carte blanche being given to the
State Government to send any offences or cases for trial by a Special Court.
and Bose, J. held thus:
It is the differentiation which matters; the singling out of cases or groups of cases, or even of offences or classes of offences, of a kind fraught with
the most serious consequences to the individuals concerned, for special, and what some would regard as peculiar, treatment.
The five Judges whose decisions we have extracted constituted the majority decision of the Bench.
In Lala Hari Chand Sarda v. Mizo District Council it was highlighted that where a regulation does not contain any principles or standard for
the exercise of the executive power, it was a bad regulation as being violative of Article 14. In this connection, the Court observed as follows:
A perusal of the Regulation shows that it nowhere provides any principles or standards on which the Executive Committee has to act in granting or
refusing to grant the licence.... There being no principles or standards laid down in the Regulation there are obviously no restraints or limits within
which the power of the Executive Committee to refuse to grant or renew a licence is to be exercised.... The power of refusal is thus left entirely
unguided and untrammelled.
...
A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. Section 3 of the Regulation is one
such provision and is therefore liable to be struck down as violative of Article 19(1)(g).
The Supreme Court has clearly held that among the same group of employees, if there is any discrimination in the matter of service condition, then,
it is clearly violative of Article 14 of the Constitution of India.
Though the learned Counsel for the petitioner/Corporation brought to the notice of the Court that the Corporation has now introduced a new
medical insurance scheme (in tie up with Star Agencies) with effect from 3.10.2008 providing for medical reimbursement and also stated that the
second respondent/Union has also agreed for the implementation of the scheme, this Court is not concerned with the future arrangement between
the Corporation and its employees. The short question that arises for consideration is whether the impugned award of the Tribunal suffers from any
infirmity or illegality. The Tribunal has correctly held that there was no justification for introduction of a cut off date in the matter of extension of
health scheme. It must also be noted that the Courts have repeatedly emphasised the right to health as a right flowing from Article 21 of the
Constitution of India. Therefore, any interpretation of a scheme must have its basis based upon Article 21 of the Constitution of India. In the light of
the above, there is no merit in the writ petition.
The writ petition stands dismissed. No costs. Consequently, WPMP No. 7647 of 1999 is also dismissed.