PIR MOHD SHAFI Vs. CANTONMENT BOARD
HIGH COURT OF JAMMU AND KASHMIR
PIR MOHD. SHAFI
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(1.) ORDER :- Petitioners pray that respondents 1 and 2 be directed to file the arbitration agreement arrived at between the petitioners and the authorities and respondent No. 3 be directed to file the award before this Hon'ble Court and the same be set aside. This composite type of application under Ss.20 and 33 of the Arbitration Act has a peculiar history.
(2.) PETITIONERS are retired employees of the respondent No. 1 who were retired from service in 1978, 1982 and 1979 respectively. Services before the Cantonment Board, Badamibagh came under the control of respondent No. 2 in 1954. In 1954 Ministry of Defence, Govt. of India took over the control of the Cantonment Board and the service conditions of the petitioners continued to be governed by the Cantonment Fund Servants Rules framed under S.280 of the Cantonment Act, 1924.
In 1969 a settlement appears to have been arrived at between the representatives of the employees of the Cantonment Boards of India and other workmen of the Cantonment Boards with the authorities. This settlement was in respect of revision of their emoluments and wages. Prior to this settlement an award was made by National Industrial Tribunal. However, it is denied that the said award was not applied to the State of Jammu and Kashmir. In para 8 of the memorandum of settlement option was given to the employees either to opt for revised scale of pay in accordance with the terms of settlement or to continue, on the then existing terms, that is, terms of service effective up to 19-5-1969. This option was to be exercised within thirty days in writing. Option once exercised was final. If option was not given by an employee he was to be deemed as an employee entitled to draw pay on the basis of the then existing pay scales i.e. which were operative up to 19-5-1969. Petitioner's case is that they were not given the benefit of the award passed by the National Industrial Tribunal. The conditions of settlement were not acceptable to them, therefore they did not exercise the option as provided under para 8 of the settlement. Petitioners further submit that their conditions of service were governed by KCS rules up to the stage when they came to be governed by Cantonment Board Act and prior to 1954 labour laws were not applicable in the Jammu and Kashmir State. Petitioners were not therefore treated equally with the other employees of the Cantonment Board of India. Respondents have denied these contentions. The memorandum of settlement provides, in its para 20, that if any question arises relating to the interpretation or implementation of these terms of settlement and also in cases of error or discrepancy, the matter shall be referred for decision to such person as the Secretary, Ministry of Defence may nominate. It will be open to the Secretary, Ministry of Defence, to nominate any officer of the Ministry of Defence. This provision is termed by the petitioners as arbitration clause and the respondents deny the contention and submit that there is no arbitration clause in the terms of settlement. Petitioners seem to have aired their grievance which was sent on 24-7-1984 to the respondent No. 3 for decision. Under para 20 of the memorandum of settlement, the Chief Secretary of the Cantonment Board and Cantonment Board Federation was granted liberty to be heard in the matter and present the case. After hearing the said organisation the representation was dismissed and the decision thereon conveyed to the petitioners. Petitioners have quoted some communication in para 11 of their petition, which other side says are irrelevant. Petitioners claim that they were entitled to get higher pay than what they were drawing at the time of their retirement. Respondents 1 and 2 seem to have forwarded their representation to respondent No. 3 which is termed by the petitioners as acceptance of their claim by the other side.
(3.) I have heard learned counsel for the parties. Memorandum of settlement is Annexure-A to the petition. Para 20 of the said memorandum reads as under :-
"If any question arises relating to the interpretation or implementation of these terms of settlement and also in cases of error or discrepancy, the matter shall be referred for decision to such person as the Secretary, Ministry of Defence may generally or specially nominate in this behalf, and the decision of such nominee shall be final and binding. It will be open to the Secretary, Ministry of Defence, to nominate any officer of the Ministry of Defence. The nominee will, however, give an opportunity to a representative of the Federation on (of ?) being heard before giving his decision.";
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