TaxTMI 
TaxTMI 
2005 (10) TMI 620
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....rned) without recourse to the proper procedure prescribed for changing them? This group of appeals by special leave raises the same issues of facts and law for a decision by this Court. Hence, they can all be dealt with by a common judgment. For the sake of convenience, the facts shall be mentioned from the appeal arising out of Special Leave Petition (Civil) Nos. 3759-3760/04. A Survey of the Facts 3. These appeals have been filed by a registered Trade Union, which represents nearly 30,000 employees of the Tamil Nadu Electricity Board ("the Board"). Prior to 1.7.57, the State of Tamil Nadu was departmentally carrying on the work of distribution and supply of electric energy. On 1.7.57, the Board was constituted by the State Government under Chapter III of the Electricity (Supply) Act, 1948 ("the 1948 Act"). The employees of the Board consisted of two different classes: (i) Employees who were already employed by the State Government and were taken over into the service of the Board upon its constitution; and (ii) Employees directly recruited by the Board after its constitution. In exercise of its powers under Section 79(c) of the 1948 Act, the Board brought into force a se....
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....amendment to the provision of the said regulations shall be made without the prior approval of the Central Provident Fund Commissioner and mere (sic) any amendment is likely to affect adversely the interest of the employees of the Board the Central Provident Fund Commissioner shall before giving his approval give reasonable opportunity to the employees to explain their view-point." Similar exemption was granted by the Central Government (by another notification dated 25.6.86) from the provisions of the Employees' Deposit Linked Insurance Scheme, 1976, on the same ground (i.e. that the Board's Family Benefits Subsidiary Scheme provided no-less-favorable benefits to the employees), but again subject to a condition of a similar nature. 4. On 26.6.86, after the workers made representations, the Board passed a resolution (numbered B.P.Ms (F.B.) No. 5) by which it ordered that all the Regular Work Establishment Workmen retiring/expiring on or after 1.7.86 would be governed by the pension scheme of the Board. On 17.2.95, the Board passed a resolution (No. B.P. (F.B.) No. 7) which amended Regulation 9 of the 1960 Regulations. In the proceedings of the Board it was pointed out....
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....ddition to and not in derogation of the provisions in the Tamil Nadu Pension Rules and Tamil Nadu Pension Rules, 1978, as amended from time to time by the Government of Tamil Nadu." These amendments were directed to take effect respectively from 18.7.76 and 1.1.79. 6. On 8.7.98, a Memorandum of Settlement under Section 18(1) of the Industrial Disputes Act, 1947 was reached between the Board and its workmen. Although the settlement pertained to several conditions of service (Clauses 1 to 13 in the Memorandum of Settlement covered the following topics: Revision of Scales of Pay; Fixation of Pay in the Revised Scale; Minimum Benefit; Service Weightage; Dearness Allowance; House Rent Allowance; City Compensation Allowance; Allowances and Special Pays; Revised rates of House Rent Allowance; City Compensatory Allowance; Allowance and special pays; Payment of Arrears; Selection grade; Stagnation in promotion; Work norms and Staff Pattern etc.), we propose to examine only the most relevant clauses. Clause 14 of the settlement provides that a settlement under Section 12(3) of the Industrial Disputes Act, 1947 would be secured immediately on wage revision and on workload revision, a....
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....tion B.P. (Ch) No. 64 (dated 31.3.03) brought about corresponding changes in the rules of pension applicable to its employees. This Board Proceeding is the crucial one and necessitates reproduction in its entirety. "Tamil Nadu Electricity Board Abstract Pension - Qualifying Service for pension and calculation of pension Revised orders - Issued. SECRETARIAT BRANCH (Per.) B.P. (Ch) No. 64 Dated : 31st March, 2003 Chittrabanu, Panguni 17, Thiruvalluvar Aandu 2034 Read. 1) (Per) B.P.(CH) No. 253 (SB) dated 23.9.96. 2) G.O. Ms. No. 71 Finance (Pension) Department, dated 19.3.2003. PROCEEDINGS: In the B.P. first cited orders have been issued reducing the maximum qualifying service from 33 years to 30 years to become eligible for full pension by a Board employee after retirement. It has also been ordered therein that pension shall be determined based on 50% of average emoluments drawn during the last 10 months service rendered or 50% of pay last drawn (sic) Board employee, whichever is higher. 2. The Government have (sic) now issued orders in the Government Order second cited enhancing the maximum qualifying ser....
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....hanges brought about in their pensionary conditions by G.O. Nos. 71 to 74. A Division Bench of the High Court of Madras dismissed their Writ Petitions (through order dated 23.10.03). A survey of this judgment becomes necessary because it is heavily relied upon while disposing off the present impugned judgment. The High Court in its order dated 23.10.03 held that the, action of the Government in G.O. Nos. 71 to 74 was motivated by financial constraints and was, therefore, not arbitrary. It observed that the cut-off date of 1.4.03 for the revised pension package was not arbitrary since only the terminal benefits of future retirees were being affected and that no accrued rights were affected. Moreover, the High Court held that the Government could alter the service conditions of its employees in exercise of its powers under Article 309 of the Constitution of India. However, the High Court set aside G.O. Nos. 72 and 73 by which the State Government increased the discount rate of commutation of pension and curtailed the encashment of leave on retirement on the ground that these were accrued rights which could not be prejudicially affected by the Government. 9. Now for the present ....
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....igh Court of Madras dated 23.10.03 in W.P. 10727/03 etc. Civil Appeals arising out of S.L.P.(C) Nos. 16305-16306/04 are filed by the Tamil Nadu Electricity Workers Federation challenging the impugned common judgment in dismissing their Writ Petitions Nos. 12349 and 12351 of 2003 by common order of the High Court of Madras dated 23.10.03 in W.P. 10727/03 etc. Civil Appeals arising out of S.L.P.(C) Nos. 8882-8883/04 are filed by the Tamil Nadu Electricity Board Workers Progressive Union challenging the impugned common judgment dated 23.10.03 in W.P. 10727/03 etc insofar as it dismisses their Writ Petitions Nos. 11935 and 12370 of 2003. The Contentions 11. Ms. Indira Jaising, learned Senior Counsel for the appellant-employees, who led the arguments on behalf of the appellants, raised several contentions, arguing on construction of the regulations and the settlement, and on constitutional grounds. Ms. Jaising's contention on the construction of the Regulation was that the Board had reduced the pensionary benefits through executive orders without amending 1960 Regulations, an action which Ms. Jaising contends is ultra vires the powers of the Board. Turning to the S....
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....nce settled can never be changed except by being substituted by a fresh settlement or award. This may be true with regard to conditions of service, which have been settled by a binding settlement/ award. With regard to matters which are in the realm of virgin territory, we are afraid that this may not be the rule. In fact, we called upon Ms. Jaising to show as to which provision of the Industrial Disputes Act, other than Section 9A, prohibits the change by an employer of a condition of service that it was not brought about by a settlement or award. No such provision was cited before us. We are, hence, unable to accept the contention of Ms. Jaising that the Board could not have changed, by executive action, even those conditions of service that were not the subject matter of regulations, a settlement or an award. In our judgment, Clause 15(iii) of the Settlement merely operates to exempt the employer (the Board) from giving a notice under Section 9A of the Industrial Disputes Act, 1947. It was not pleaded by the Board before the High Court, nor was it so held by the High Court in the impugned judgment, that there was any waiver of rights generally by reason of the said clause ....
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....ords, the intention declared by Clause (ii) is that the persons covered by the Civil Service Regulations would be entitled to the benefits thereunder and also to the benefits flowing from the 1960 Regulations. In 1995, however, the Board proposed to amend Regulation 9 as it stood. The perambulatory portion in the Board Proceedings (B.P. (FB) No. 7 dated 17.2.95) clearly sets forth the reasons, which motivated the Board to amend Regulation 9. This became necessary, because in the period after the 1960 regulations were first operative, the State Government had replaced the then existent Civil Service Regulations with the Tamil Nadu Pension Rules and Tamil Nadu Pension Rules, 1978. Correspondingly, by the 1995 amendment, the expression "Civil Service Regulations" in Regulation 9 was replaced by "Tamil Nadu Pension Rules" and "Tamil Nadu Pension Rules, 1978". Regulation 9(ii) was also amended on the same lines. However, there were no other changes either formal or substantive in Regulation 9. The amended Regulation 9 took effect from the dates on which the Tamil Nadu Pension Rules and Tamil Nadu Pension Rules, 1978 were brought into force (i.e. 18.7.76 and 1.1.79 respectively). 1....
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....t employees taken over in the service of the Board were not prejudiced with regard to their conditions of service, particularly pension and death-cum-retirement gratuity. Secondly, the saving clause ensures that with regard to matters which were not covered by the State Government rules but covered by the Board's Regulations, the benefit covered under the Board Regulations would be in addition to and not in derogation of what was already available in the Civil Service Regulations. It was open to the Board in exercise of its statutory powers under Section 79(c) of the Electricity (Supply) Act, 1948 to amend its pension regulations in such manner as to bring it precisely in line with the Tamil Nadu Government Rules with regard to pension and other benefits as applicable to the State Government employees. Instead of expressly amending the Regulations, the Board appears to have fallen back on Regulation 9, which was merely a saving clause intended to insulate the employees against erosion of their benefits granted in the provisions. Whether such an amendment could have been successfully challenged on its substantive merits is not a question with which we are concerned. We are on....
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....change is concerned, it would appear that Regulation 7 as framed in 1960 permitted a maximum commutation of one-third. By a Board Proceeding B.P.(Ch) No. 208 (dated 18.8.98), the commutation percentage was increased to 40%. This has now been reduced to 33 1/3% by another Board Proceeding B.P. (Ch) No. 66 (dated 31.3.03). In other words, what was granted by a Board Proceeding, without amending the Regulations, is sought to be taken away by another Board Proceeding with a view to following G.O.Ms. No. 74 (dated 19.3.03) issued by the State Government in respect of its own employees. As far as this change is concerned, the argument of not following the proper procedure (i.e. amending the Regulations) does not apply. In fact, the change made by B.P.(Ch) No. 66 (dated 31.3.03) actually brings the level of commutation to what was originally given by the 1960 Regulations. In our view, what was granted by a mere Board Proceeding could be validly altered by another Board Proceeding. Therefore, the challenge to the change in the commutation percentage brought about by B.P.(Ch) No. 66 fails by the same token. Ms. Jaising further contended that, with regard to the reduction in the percentag....
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....3d ed. 1975) at p.371 where this exchange is mentioned in its entirety.): "... Mr. Arnold pleaded with the Court that he would not like to win the case on the narrow procedural, statutory ground to which a majority of the members of the bench was evidently inclining. Responded Mr. Justice Frankfurter: "The question is not whether you want to win the case on that ground or not. This Court reaches constitutional issues last, not first." He might well have quoted Mr. Justice Brandeis's famous assertion that the "...most important thing we do is not doing."" This is precisely the principle, which we intend to adopt. This Court must be parsimonious on the grounds on which it chooses to decide a particular case. If a case can be decided upon any ground other than constitutional grounds, such as by statutory construction or the like, this Court must do so. Despite the characteristic acuity with which Ms. Jaising argued the constitutional grounds, in our opinion, they are not ripe for adjudication, as we have been able to decide the matter on other narrower grounds. Where a paring knife suffices, a battle axe is precluded. The Final Conclusions 19. In the result we ho....