Hrishikesh Roy, J.@mdashHeard Mr. P. J. Saikia, learned Counsel appearing for the petitioner/Management. Also heard Ms. A. Bhattacharyya, learned Counsel who appears for respondent Nos. 2 & 3 who are representing the interest of the workmen.
2. The filing this writ petition, the Management challenges the award dated February 12, 2002 in Reference Case No. 5/1999 published on June 28,2002 rendered by the learned Labour Court, Dibrugarh whereby the reference was answered in favour of the workmen by holding that the Management is not justified in not paying pension to the concerned employees under the Pension & Retirement Benefits Scheme (hereinafter referred to as the "Retirement Scheme") (Annexure-A).
3. Under the aforesaid retirement scheme dated September 23, 1968 it was provided that with effect from January 1, 1968 certain pensioner/benefits would be given to those employees who joined the services of the participating Companies prior to January 1, 1950 and who did not contribute to the then existing Provident Fund Scheme of the Company. In pursuant to the retirement scheme which was signed by the agent of the participating companies and the General Secretary of the Assam Chan Karmachari Sangha, the eligible employees were being paid pensionery benefits under the aforesaid retirement scheme.
4. While the retired eligible workmen were receiving the pension under the said scheme, the Payment of Gratuity Act, 1972 (hereinafter referred to as the "Gratuity Act") was enacted. The provisions of the Act were brought into force with effect from September 16, 1972.
Under Section 4 of the Gratuity Act, it was made obligatory to make payment of gratuity to all employees and sub-section 5 of Section 4 of the Act provided that it does not affect the right of an employee to receive better terms of gratuity under agreement on contract with the employer, beyond what is provided by the Gratuity Act.
Section 5 of the Gratuity Act permits the appropriate Government to exempt any establishment or a class of employees horn the provisions of the Gratuity Act.
5. In the instant case, the Management of the concerned Companies, after the Gratuity Act came into force, decided to pay only, gratuity to its employees instead of the pensioner/benefits under the Retirement Scheme. However, as this was objected to by the affected employees and an industrial dispute was raised in this regard, a reference was made 11 rider Section 10 of the Industrial Dispute Act, 1947 (hereinafter referred to as the "I.D. Act") by the Assam Government by notification dated May 17, 1999 referring the following 2 issues for a decision by the Labour Court:
1. Whether the managements of Selong T.E., Boisahabi T.E. at Selenghat P.O. and Melong T.E. at Makuchari P.O. are justified in not paying pension under the inherited Balmer Lawrie Pension & Retirement Scheme to those who have retired or will retire on gratuity and denial of gratuity under the payment of gratuity Act to those who have retired on pension under the said scheme.
2. If not what relief the retirees are entitled to?
6. The learned Labour Court by the impugned award dated February 12, 2002 considered the issue as to whether the payment of pension under the Retirement Scheme is an alternative to the gratuity payable under the Gratuity Act and held that the Gratuity payable under the Gratuity Act is not an alternative to the pension receivable under the Retirement Scheme.
The submission of the Management that, if the employees are allowed the benefit of gratuity under the Gratuity Act and also the pension under the Retirement Scheme there will be no unanimity in the retirement benefits receivable by the employees under the Tea Estates, was considered and not accepted by the learned Labour Court, as it was considered to be an issue beyond the scope of reference made u/s 10 of the Industrial Disputes Act.
On the basis of the conclusion reached that the payment under the Retirement Scheme is not an alternative to the gratuity payable under the Gratuity Act, it was held in the impugned award that the Management is not justified in denying pension under the Retirement Scheme.
7. Mr. P.J. Saikia, learned Counsel appearing for the management submits that the impugned award is unsustainable in law in as much as the award has been rendered on a stale issue and there was no Industrial Dispute raised at an appropriate time by the workmen to demand continuation of pensionery benefits under the Retirement Scheme when the Management decided to discontinue the pensionary benefits after they started paying gratuity under the Gratuity Act with effect from 1972
Next contention raised by the learned Counsel is with regard to the justification of the claim of the workmen who are sought to be given double retirement benefits under the Retirement Scheme and also under the Gratuity Act.
8. Ms. A. Bhattacharyya, learned Counsel for the respondent Nos. 2 and 3 on the other hand submits that the Retirement Scheme dated September 23, 1968 was formulated through collective bargaining effort and settlement was arrived at by and between the concerned Management and their employees and there is no basis for the Management to deny the benefits under the Retirement Scheme, merely because gratuity has become payable under the Gratuity Act. It is specifically contended that the Management is under an obligation for payment of pension under the Retirement Scheme as well as gratuity under the Gratuity Act.
The learned Counsel also contends that the scope of interference by a writ Court with an award passed by the learned Labour Court is limited and unless there is a patent error committed by the Labour Court or a perverse award has been passed or there is a jurisdictional error, the interference by the Writ'' Court would not be justified. In support of this contention, the learned Counsel has referred to the decision of the Supreme Court in the case of
9. In order to support the contention raised on behalf of the Management that a stale claim was erroneously entertained by the learned Labour Court, Mr. P.J. Saikia, learned Counsel for the petitioner has referred to the decision of the Supreme Court in the case of
10. In the instant case, it is seen that although reference of the dispute raised was referred u/s 10 of the Industrial Disputes Act as far back as on May 17,1999 by the Government, no challenge to the said reference was made by the Management on the ground that a stale issue is being referred for adjudication by the Labour Court. Under the circumstances, it may not be justified to entertain a challenge from the Management after the award is passed on the said reference, when the reference itself was left unchallenged by the Management.
11. The learned Labour Court has discussed the entitlement of the workman under the Retirement Scheme by holding that the gratuity payable to the workman under the Gratuity Act is not an alternative to the pension receivable by the workman under the scheme.
This stand of the learned Labour Court cannot be described as patently erroneous or be considered as a finding which would justify the interference of the Writ Court.
12. Benefits receivable under the Retirement Scheme dated September 23,1968 was made available only to a specified class of employees, who had joined services of the concerned companies prior to January 1, 1950 and who did not contribute to the provident fund scheme of the concerned companies. This benefit was conferred through settlement reached through collective bargaining and nothing was incorporated in the scheme to indicate that the benefits payable under the Retirement Scheme would be withdrawn if similar benefits are made available to the workman under statutory obligation or some other obligation. When some pensioner/benefits are agreed to be paid to a specific class of workmen through mutual agreement, the Management in my view would not be right in withdrawing such benefits unilaterally merely because some additional benefits by way of gratuity is required to be paid under statutory obligation.
13. As regards the submissions made that a belated claim has been considered by the learned Labour Court, it is seen that the Management did not challenge the reference made in the year 1999 to the Industrial Court and therefore, I am of the opinion that the submission made by the management of entertainment of a state claim by the Labour Court cannot be accepted at the stage of. examining the legality of the award passed by the learned Labour Court.
14. The benefits under the Retirement Scheme is meant to be provided to only the eligible retiring employees who joined in service in the concerned Companies nearly 58 years ago prior to January 1,1950 find it would be highly unjust to hold that the Management is justified to withhold the pensionery benefits payable under a bilaterally agreed Retirement Scheme, only because certain additional payments would be coming in the way of a retiring workman under the Gratuity Act, which in my view was not intended to be a substitute or replacement for the Retirement Scheme.
In view of above discussion, this Court does not find that the impugned award suffers from any patent or substantial error justifying interference by a Writ Court and accordingly the writ petition is dismissed.
