Partly allowed

S Harsha Vardhana Rao v. Hmt Limited

Karnataka HC8 Aug 2024WP/17094/2012

Case brief

AI extract

What is this about?

An employee transferred out of HMT (International) Limited before the office order implementing the Government of India's 1997 pay revision claimed its benefit. The Court held the employer could not alter the Government's cut-off date without approval, set aside the rejection letter, and directed grant of the revision with consequential benefits, while denying extended retirement age.

What did the court decide?

Impugned letter dated 09.01.2019 set aside; respondent No.2 directed to grant 1997 pay revision from 01.01.1997 with consequential benefits within three months; retirement-age claim denied.

S Harsha Vardhana Rao Vs Hmt Limited — Pension and Retirement Benefits | Karnataka HC (2024)

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1 - NC: 2024:KHC:31875 WP No. 17094 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 17094 OF 2012 (S-RES)

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BETWEEN:

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S. HARSHA VARDHANA RAO S/O B.S. SUBBA RAO, AGED ABOUT 58 YEARS, WORKING AS ASST.GEN.MANAGER (HR), HMT WATCHES LIMITED, WATCH MARKETING DIVISION, HMT BHAVAN, NO.59, BELLARY ROAD, BANGALORE-560032

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…PETITIONER

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(BY SRI. V.S. NAIK, ADVOCATE)

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AND:

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1 HMT LIMITED, 59 BELLARY ROAD BENGALURU 506 032, KARNATAKA STATE REPRESENTED BY ITS MANAGER (LEGAL)

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Digitally signed by MARKONAHALLI RAMU PRIYA Location: HIGH COURT OF KARNATAKA

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SUBSTITUTED IN PLACE OF RESPONDENT NOS.1 AND 2 VIDE ORDER DATED 04.07.2023 PASSED BY THIS COURT ON I.A. NO.1/2023

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HMT (INTERNATIONAL) LIMITED HMT BHAVAN, NO.59, BELLARY ROAD, BANGALORE -560 032 REPRESENTED BY ITS MANAGING DIRECTOR

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…RESPONDENTS

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(BY SRI. H.M. MURALIDHAR, ADVOCATE FOR RESPONDENT NOS.1 AND 2 (PRESENTLY RESPONDENT NO.1);

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2 - NC: 2024:KHC:31875 WP No. 17094 of 2012

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SRI. B.S. JEEVAN KUMAR, ADVOCATE FOR RESPONDENT NO.3 (PRESENTLY RESPONDENT NO.2))

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE RESPONDENTS, PERUSE THE SAME AND QUASH THE IMPUGNED ORDER BEARING NO.HWL/WMD/HRM/40248/2012-13 DATED 09.04.2012 VIDE ANNEXURE-A, CONSEQUENTLY ISSUE WRIT IN THE NATURE OF MANDAMUS TO THE 3^RD RESPONDENT (PRESENTLY RESPONDENT NO.2) TO CONSIDER THE REPRESENTATION OF THE PETITIONER DATED 09.09.2011 VIDE ANNEXURE-J AND ETC.

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has assailed the correctness of an order bearing No.HWL/WMD/HRM/40248/2012-13 dated 09.04.2012 passed by the Managing Director, HMT Watches Limited, Watch Marketing Division. He has also assailed the correctness of a letter bearing reference No.HRM/EX-6311 dated 09.01.2019 issued by the Joint General Manager [HR] of HMT (International) Limited / respondent No.2. The petitioner has also sought for a writ

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in the nature of mandamus to the respondent No.3 (presently respondent No.2) to consider his representation dated 09.09.2011. He has also sought for a writ in the nature of mandamus to the respondents to extend the benefit of revision of pay scales and payment of arrears of salary etc. arising out of such revision with further direction to extend all other terminal benefits, based on the revised pay scales as per the directions contained in the letter of the Ministry of Heavy Industries and Public Enterprises, Government of India, Department of Heavy Industry, dated 15.06.2011 and the office order dated 01.07.2011 issued by the HMT (International) Limited, revising the pay scales.

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The petitioner contends that he was employed as a Personnel Officer at HMT Watches Limited, Marketing Division, Bangalore, and was later transferred to respondent No.2 as per the order dated 19.07.1995. He continued to work with the respondent No.2 till he was transferred to the HMT Watches Limited, Watch Factory I

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and II, Bengaluru, as Manager (Administration and Canteen), MAC, on 31.08.2004. The petitioner contends that as per the transfer policy of the parent Company dated 15.12.1987 effective from 01.10.1987, the employees of the parent Company were liable to be transferred from one place to another. However, their pay was protected in the following terms:

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“ 5.1 He will continue to draw his existing pay in his existing grade without affecting the date of his next annual increment.

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xxx

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5.3 His contractual obligations, if any, will continue to be in force.

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xxx

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5.11 He shall be liable for transfer in any Unit / Office or Department of the Company anywhere in India and Abroad, in any of the Subsidiaries or any Assisted Units of the Company or anywhere else.

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5.12 All other terms and conditions of his original Appointment Order will continue to remain in force."

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The respondent No.1 had framed transfer policy applicable to all its employees in terms of which, seniority of service was regulated as per the Company's Rules on seniority and all other terms and conditions mentioned in the appointment order would continue to remain in force. The petitioner contends that when the petitioner was working at the respondent No.2, the Government of India vide Order dated 15.06.2011, implemented the 1997 pay / wage revision and also increased the retirement age from 58 years to 60 years in so far as it related to the respondent No.2. The benefit of pay revision was available to all such regular Executives and non-unionized Supervisors who were on rolls of the respondent No.2 as on 31.12.1996. The petitioner therefore submitted a request for implementation of the 1997 pay scales by his letter dated 09.09.2011. The petitioner contends that the benefit of such 1997 pay revision was granted to (1) Sri

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K.R. Panth, Manager and (2) Sri S. Dasarathan, Assistant General Manager who retired from service prior to 01.07.2011. Similarly, Sri C.S. Somashekhar, Sri K. Shivakumar and Sri Samala Somaiah, who were working as Assistant General Managers and Smt. C.N.Saralakumari, who was working as Manager, were also granted the benefit of the pay revision and it was only the petitioner who was singled out and meted discriminatory treatment. The petitioner contends that the request of the petitioner dated 09.09.2011 was rejected by the Joint General Manager (HR) of respondent No.2 in terms of the communication dated 09.01.2019 on the ground that the 1997 pay revision was implemented only to those employees who were on the rolls of the Company as on 29.06.2011. Reliance was placed on the office order No.5/2011 dated 01.07.2011.

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Being aggrieved by the said letter by which the request of the petitioner was rejected and order dated 09.04.2012, this petition is filed.

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NC: 2024:KHC:31875 WP No. 17094 of 2012

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5. Learned counsel for the petitioner contends that

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the pay revision in the year 1997 was in exercise of the powers conferred on the President of India under Article 91(a) of the Articles of Association of the respondent No.2. He contends that the pay scales, fitment formula, D.A guidelines and ceiling on perquisites for Board level and below Board level executives and non-unionized Supervisors had to be implemented with effect from 01.01.1997 in respect of all those regular executives and non-unionized Supervisors who were on the roll of the Company as on 31.12.1996. He contends that the basis

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for rejecting the request of the petitioner was an office order bearing No.5/11 dated 01.07.2011 issued by the Managing Director of respondent No.2 in terms of which the pay revision was given effect to, from 01.01.1997 and was made applicable only to officers holding posts below the Board level and who were on the rolls of the Company as on the date of issue of the said order. He contends that the basis of issuing the impugned letter dated 09.01.2019 by the Joint General Manager (HR) of respondent No.2 is

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erroneous as the same was not reserved for the approval of the Government of India. He also contends that the question whether the respondent No.2 had any constraints of finance never fell for consideration before the President of India when His Excellency issued the direction to implement 1997 pay revision. He therefore contends that the petitioner is entitled to the benefit of the 1997 pay revision.

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The writ petition is opposed by the respondents

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who inter alia contend that the petitioner joined the HMT Machine Tools Limited on 18.08.1977 as Stenographer 'B' in Wage Grade III. While he was so working and consequent to formation of different business groups in the Company, the petitioner was transferred to Business Group-Machine Tools with effect from 04.10.1978. He was then promoted as Stenographer 'A' with effect from 01.04.1981 and was re-designated as Senior Clerk with effect from 31.01.1983. He was promoted as Assistant Superintendent with effect from 01.04.1984 and held

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various promotional posts as stated in the statement of objections.

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It is contended that though the petitioner had

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served the respondent No.3 till 21.08.2004, he was not on

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the rolls of the respondent No.3 when the office order dated 01.07.2011 was issued and therefore, the petitioner is not entitled to the benefit of the pay revision. It is also contended that one of the considerations for implementing the 1997 pay revision to officers holding posts below the Board level and who were on the rolls of the Company as on 01.07.2011 was that the Government of India did not provide any budgetary support to respondent No.2 to meet the additional liability on account of pay revision and therefore, respondent No.2 requested the Department of Heavy Industries for budgetary support for payment of the salary at revised pay scales. They contended that pursuant

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to the directions of the Government of India dated 15.06.2011, respondent No.2 issued the office order dated 01.07.2011 announcing the revised Pay Scales and

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Dearness Allowance benefits with effect from 01.01.1997 for officers holding posts below the Board level and who were on the rolls of the Company as on the date of issue of the said office order i.e., 01.07.2011. The respondents contend that the petitioner was transferred out of respondent No.2 to HMT Watches Limited, Watch Factory I

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and II as Manager (Administration and Canteen) on 31.08.2004 and therefore, he was not entitled to the benefit of the order dated 15.06.2011. Therefore, it is contended that there is no merit in the claim of the petitioner that he is entitled for pay revision of the year 1997.

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Learned counsel for respondent Nos.1 and 2 (presently respondent No.1) and learned counsel for respondent No.3 (presently respondent No.2) reiterated the above contentions. Learned counsel for respondent No.2 contended that fixation of a cut-off date for the purposes of implementing the pay revision is the domain of the executive and that Courts should not tamper with

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such discretion. He contended that in respect of pay revision of the year 2007 that was implemented in the respondent No.2 with effect from 01.04.2012, certain employees who had retired in November 2010 and March 2011 filed Writ Petition No.5091/2016 and that a coordinate Bench of this Court in terms of the order dated 08.11.2022, rejected the writ petition on the ground that fixing a cut-off date for implementing the revised pay scale is the executive discretion based on various considerations and therefore, cannot be interfered with. He contended that this order of the learned Single Judge was upheld by the Division Bench of this Court in W.A. No.92/2023 (decided on 06.02.2023). He therefore contends that in the present case too, the pay revision of the year 1997 is sought to be implemented from a subsequent date in respect of an employee who was not in service of the respondent No.2 as on 01.07.2011. Thus, he contends that it is within the discretion of the respondent No.2 to decide the date of implementation of 1997 pay revision and this Court should not interfere with the said discretion.

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He also relied on the judgment of the Hon'ble Apex court

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in the case of Union of India and others vs.

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M.V.Mohanan Nair [AIR 2020 SC 5107] and in the case of Government of Andhra Pradesh and others vs. N. Subbarayudu and others [(2008) 14 SCC 702].

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondents.

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The fact that the petitioner was serving the respondent No.3 as on 31.12.1996 is not in dispute. The pay revision during the year 1997 was ordered to be implemented by the Government of India vide its letter dated 15.06.2011 in respect of regular executives and non-unionized Supervisors of the Company who were on the roll of the Company on 31.12.1996. Ordinarily speaking the petitioner who was on the rolls of the respondent No.2 as on 31.12.1996, was entitled for the 1997 pay revision. The contention of the respondents that the petitioner was transferred out of the respondent No.2

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to HMT Watches Limited, Watch Factory I and II as Manager (Administration and Canteen) as on 31.08.2004 and that therefore, he was not entitled for the pay revision is liable to be rejected as the Government of India did not contemplate a situation of allowing any discretion in the respondent No.2 to fix a different cut-off date for the implementation of the revised pay scale. The reliance placed by the respondents on the office order No.05/11 dated 01.07.2011 issued by the Managing Director of respondent No.2 to contend that the revised pay scales and dearness allowance for officers holding posts below the Board level with effect from 01.01.1997 was to be applicable only in respect of those employees who were on the rolls of the Company as on 01.07.2011 is liable to be rejected on the simple ground that this office order was not placed before the Government of India for approval. If the Government of India had specified a cut-off date, the respondent No.2 had no authority to prescribe a different cut-off date and deprive those employees who were on the rolls of the Company as on 31.12.1996 the benefit of 1997

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pay revision. The reliance placed by the learned counsel for the respondent No.2 on the judgment of a coordinate Bench of this Court in W.P. No.5091/2016 which was confirmed by a Division Bench of this Court in Writ Appeal No.92/2023 is not applicable to the facts of this case as in that case, the Government of India while revising the pay scales with effect from 2007 had fixed a particular cut-off date and the same cut-off date was also followed by the respondent No.2 in so far as the other employees were concerned. The judgment of the Hon'ble Apex Court in M.V.Mohanan Nair's case and N. Subbarayudu’s case referred supra are distinguishable on facts.

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In so far as the relief to extend the benefit of the extended age of retirement, the petitioner is not entitled to the said benefit since after his transfer from respondent No.2, he retired from service of the then HMT Watches Limited on 31.05.2012. Hence, the petitioner did not retire from the respondent No.2 and therefore, he is not entitled to extension of his age of retirement.

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In that view of the matter, the petitioner is

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bound to succeed ands therefore, the following:

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ORDER

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i. The writ petition is allowed in part.

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ii. The impugned letter bearing No.HRM/EX6311 dated 09.01.2019 addressed by the Joint General Manager (HR) of respondent No.2 to the petitioner is set aside and the respondent No.2 is directed to grant the benefit of the 1997 pay revision to the petitioner from 01.01.1997 and grant all consequential benefits. This shall be complied by the respondent No.2 within a period of three months from the date of receipt of a certified copy of this order.

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Sd/(R. NATARAJ) JUDGE

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SMA

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List No.: 1 Sl No.: 43

S Harsha Vardhana Rao v. Hmt Limited

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S Harsha Vardhana Rao v. Hmt Limited

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