Ch. Nageshwar Rao v. The Union of India and 2 others

Executives. The benefits under the said MOU were agreed to be given with effect from 01.01.2007.

3. Pursuant to the notification of the Revision Pay Scales and other benefits of Board and below Board Level Executives, the Government of India, Department of Public Enterprises, an office memorandum dated 25.11.2008 was issued. The ECIL Officers Association (ECOA) requested to implement the pay revision for Executives of ECIL with effect from 01.01.2007 and the same was approved for implementation and according to the learned counsel for the petitioner, the ECIL Management implemented all the terms and conditions of the MOU, except Clause 17 of MOU i.e., under the heading of Superannuation Benefits, wherein the ceiling for superannuation benefits, which may include Provident Fund, Gratuity, Pension and Post- retirement Medical Scheme, shall be 30% of the Basic Plus DA.

4. It is submitted that subsequently, an office memorandum dated 02.04.2009 was issued, according to which, the ECIL Management issued personal circular dated 29.05.2009 and Clause 16 of the said circular was with regard to the Superannuation Benefits Pension and Post-Retirement Medical

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benefit of 30% of the Basic Plus DA and it was directed to be implemented from the year 2011. With regard to the Post- Retirement Medical benefit, it was decided to introduce medical insurance for retired ECIL employees, irrespective of the date of retirement or superannuation. The petitioner and other similarly placed persons made a representation to the respondent No.2 on 13.12.2021, with a request to implement the pension scheme to all the Executives, who retired from ECIL on or after 01.01.2007 as per the MOU between the ECIL Management and ECOA, dated 26.05.2009 and to give all the retired ECIL employees the Post-Retirement Medical benefit at free of cost by charging nominal amount, as is done by BEL & HAL, Hyderabad, who were extending such Post-retirement Medical benefits to all its ex-officials. Before making such a representation, the petitioner and others had obtained information under the Right to Information Act with regard to the financial capacity of the respondent No.2 and according to the information furnished under the Right to Information Act, the Corporation was making sufficient profits and was in a sound financial condition to extend such benefits to the petitioner and similarly placed persons also. The representation

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of the petitioner was considered and vide letter dated 07.03.2022 the petitioner was informed that the proposal of extending the pension scheme to all the retired executives with effect from 01.01.2007 was considered by the Board and keeping in view of affordability factor in mind and also future pay out capacity of the Corporation, the implementation of the pension scheme was approved for Executives with effect from 01.04.2015 only and that the same was ratified by the Administrative Ministry.

5. As regards the extension of medical facilities for the retired employees at the cost of the Corporation is concerned, it was submitted that ECIL Medi-claim insurance scheme was introduced for retired employees wayback in the year 2007, wherein option to all retirees irrespective of year of retirement, to enroll was given and the same is in operation from 2007 onwards.

6. As regards the request of the petitioner to make the scheme free of cost or at nominal cost as was done by the CPSE's (Central Public Sector Enterprises), it was pointed out that each CPSE has an individual identity having different levels

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of profitability and the organizations of HAL and BEL have different business climate having large order book positions and better profitability margins and hence, have the leverage of sustaining medical expenditure on its own without any contribution from the employees.

7. Aggrieved by the said denial at the request of the petitioner and others, the present writ petition has been filed seeking a writ of Certiorari and a direction to the respondents to implement the MOU entered into by the respondent No.2 with ECOA including the superannuation benefits and Post- retirement Medical benefits to all the employees who retired with effect from 01.07.2007.

8. Learned counsel for the petitioner placed reliance upon the averments made in the writ affidavit filed along with the writ petition and has also drawn the attention of this Court to the MOU entered into between the respondent No.2 and ECOA and the consequential circulars issued from time to time. He has also drawn the attention of this Court to the information furnished to the petitioner under the Right to Information Act to demonstrate that the respondent No.2 Corporation was making

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sufficient profits and it can afford the payment of premium for extending the medical benefits to the retired employees who retired after 01.01.2007 free of cost. It is submitted that all the clauses and conditions of the MOU have been implemented by the respondent No.2, except the superannuation benefits and post superannuation medical benefits. Therefore, according to him, even though the respondents have earned profits due to the efforts of the employees, the respondent No.2 should be directed to pay out the pensionary benefits and also the post superannuation medical benefits with effect from 01.01.2007. In support of his contentions that treating the petitioners who retired after 01.01.2017 and employees who retired before 01.04.2015 separately is arbitrary, illegal and violative of Article 41 of Constitution of India, he placed reliance upon the following judgments:

(1) Shri Naini Gopal, S/o.Dhirendra Mohan Roy Vs. Union of India and others¹;

(2) Elagurthi Rajender & Others Vs. State of Telangana²;

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(3) Official Memorandum: No.W-02/0028/2017- DPC(WC)-GL-XIII/17, Government of India, Department of Public Enterprises.

9. Learned Standing counsel for the respondents No.2 and 3, on the other hand, placed reliance upon the averments in the counter affidavit and submitted that the question of whether extension of the monetary benefits to the retired employees of the respondent No.2 Corporation should be with effect from 01.01.2007 or 01.04.2015 is a policy decision of the respondent corporation and therefore, this Court under Article 226 of Constitution of India, cannot interfere with the same. It is submitted that the Administrative Ministry has considered the proposals of the respondent No.2 and as accorded permission for extending the said benefits with effect from 01.04.2015 and therefore, the respondent No.2 has extended the benefits from such date only.

10. With regard to the Post-retirement Medical Benefits Scheme, it was submitted that a scheme was formulated for sharing of premium amount by ECIL and its employees and though the scheme was formulated and notified in the year 2007 dated 01.08.2007, it became operational only with effect

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from 24.08.2011, as number of employees enrolled in the scheme in the year 2007 was minimal.

11. Learned Standing counsel also placed reliance upon the following judgments in support of his contentions.

(1) Himachal Road Transport Corporation & Another Vs. Himachal Road Transport Corporation Retired Employees Union³;

(2) Order of this Court in W.P.Nos.9399, 10496 of 2021 and batch⁴.

12. Having regard to the rival contentions and the material on record, this Court finds that the grievance of the petitioner in this writ petition is that though an agreement has been entered into between ECIL i.e., respondent No.2 and ECOA Officers Association in the year 2009, to give effect to the terms and conditions therein with effect from 01.01.2007, the respondents have failed to implement the same in toto and particularly with regard to the superannuation benefits and post retirement medical benefits. The case of the petitioner is that it is only because of the efforts of the past employees of the respondent

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No.2 organization, who have worked hard that the respondent Corporation has been able to withstand the competition and was making profits and inspite of the same, it is only the future employees who were being benefited and not the employees who have put in hard work. It is submitted that most of the employees are suffering from ailments and are not financially sound to meet the medical expenditure and therefore, the superannuation benefits as well as the medical facilities should be extended to all the employees who retired on or after 01.01.2007 as agreed to with the Union.

13. However, this Court is of the opinion that the MOU between the ECIL and Employees Association is purely an understanding between two parties and is not a statutory obligation enforceable by this Court under Article 226 of Constitution of India. Further, the issue of the date from which a benefit is to be extended, is also as per the understanding between the parties and as per the approval given by the Administrative Ministry after taking into consideration various factors and therefore, it is purely a policy decision of the respondents. In such circumstances, this Court under Article 226 of Constitution of India cannot interfere or direct the

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respondents to implement the scheme with effect from a particular date, even if it was agreed to between the parties. The Memorandum Of Understanding itself makes it clear that it is applicable from the date the Administrative Ministry and the Department of Establishment gives its consent for the same and it is only subsequently that the proposal has been put up before the Administrative Ministry which has given its approval to give effect to it from a prospective date. In view of the same, this Court cannot interfere with the same and cannot direct the respondents to give effect to the scheme with effect from a particular date. The decisions relied upon by the petitioner are distinguishable on facts and are therefore not applicable to this case.

14. On the issue as to whether a Court can interfere in a policy decision, the Hon'ble Supreme Court in the cases of

(i) M.P. Oil Extraction Vs. State of Madhya Pradesh⁵, has expressed that :

"unless a policy decision is absolutely capricious, unreasonable and arbitrary and based on mere ipse dixit of the executive authority or is violative of any Constitutional or Statutory mandate, Courts'

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interference is not called for. The executive authority of the State must be held to be within it's competence to frame a policy for the administration of the state. Policy decision is in the domain of the executive authority of the State and the Courts should not question the efficacy or otherwise of such policy so long as it falls within the Constitutional limitation and does not offend any provisions of the statue".

(ii) Ugar Sugar Works Ltd. Vs. Delhi Administration and others⁶, has expressed that :

"It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with policy decisions unless such policy framed, could be faulted on ground of malafide, unreasonableness arbitrariness, unfairness".

(iii) Small Scale Industrial Manufactures Association Vs. Union of India (UOI) and Ors., has expressed that :

"So far as the submission on behalf of the Petitioners that the relief packages which were offered by the UOI/RBI/Bankers/Lenders were not sufficient and some better and/or more reliefs should be offered was concerned, it was not within the judicial scope of the courts to issue such directions. No mandamus could be issued to grant some more reliefs/packages. The Court cannot interfere with the economic policy decisions on the ground that either they were not sufficient or efficacious and/or some more reliefs should have been granted".

15. Accordingly, this writ petition is dismissed. There shall be no order as to costs.

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Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.

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JUSTICE P.MADHAVI DEVI

Date: 30.01.2023

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(PD)

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

W.P.No. 24462 of 2022

Date: 30.01.2023

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