- (1.) THE Court:- The petitioner in this WP under art.226 dated May 18,2011 is seeking a mandamus commanding the respondents to pay him the benefits mentioned in para.7 of the WP with interest and costs. The relevant part of para.7 of the WP is quoted below:- "7.Your petitioner states that as per settlement dt.19.1.2010 between five major Federation operating in Mazor port trusts and Dock Labour Boards and Management petitioner is entitle to get (a) arrear gratuity amounting to Rs.319401/- more or less (b) Arrear leave salary for 4 days amounting to 1028.69/ more or less (c) Arrear HRA TR, washing allowances from 1.1.2007 to 31.12.2010 amounting Rs.75,000/- more or less (d) Arrear less payment of pension from May 2007 to 31.12.2010 @ 3000/- per month amounting to Rs. 132000/- and (e) Arrear medical allowances @ Rs.150/- per month from May 2007 to 31.12.2010 amounting to Rs.6600/- but the respondents did not pay the same to the petitioner. It is further stated by your petitioner that as per revised scheme your petitioner is entitle to get pension @ 12500/- per month by the respondents used to pay Rs.6469/- per month to the petitioner i.e.Rs.6031/- less per month. "
(2.) THE respondents have filed an Affidavit-in-opposition (in short AO) dated August 9, 2011. In para.6 of the AO they have dealt with the petitioner 's case stated in para.7 of the WP; the paragraph is quoted below:-. "6.With regard to the Statements made in paragraphs 1,2,3,4,5, 6 and 7 of the writ application, I do not admit any statement and/or averment contrary to and/or inconsistent with the records. The writ petitioner is a retired worker of the Board having Ex. Bkg No. Signallar-558 and he retired on 1.5.2007 on superannuation under the pension scheme. I deny that the Board sat tight over the claim of the petitioner. I say that due to financial crisis the Board has not paid the fringe retiral benefits of the retired employees. " The settlement dated January 19, 2010 referred to in para.7 of the WP has not been produced by the parties with their pleadings. However, a copy thereof has been produced at the time of hearing. It appears that the settlement was arrived at under s.12(3) of the Industrial Disputes Act, 1947 before the Dy. Chief Labour Commissioner (Central) over charter of demands of wage structure and allied matters between five major federations operating in Major Port Trusts and Dock Labour Boards and Management. It was stated that the parties to the settlement agreed that the wage structure, terms and conditions of employment applicable to Group 'C ' and 'D ' employees of Major Port Trusts and Dock Labour Boards would be revised in the manner stated in the settlement: para.3; that the settlement would take effect from January 1, 2007 and remain operative for five years: para.5. It is not disputed that the petitioner was working in Calcutta Dock Labour Board as a Group-D employee, and that the settlement was applicable to him. The petitioner retired from service on May 1, 2007. In para.39 of the settlement it was said that all efforts would be made to make payment of arrears under the settlement within two months from the date of signing of the settlement. In para.41 provision was made for pension; para.41.1 is quoted below:- "41.1- Ports which are having their own Pension Regulations should update their Pension Regulations incorporating upto date amendments issued to CCS(Pension) Rules as advised by the Ministry within a period of six months. Similarly Ports which have not so far framed their own Pension Regulations in line with Central Government Rules should do so within a period of six months. "
(3.) MR Gupta appearing for the respondents and referring to and relying on settlement para.41.1, an OM No.2(7)/2006 DPE-(WC)GL.III dated February 26, 2008 of the Department of Public Enterprises, Government of India, and a letter No.A-29018/5/2006-PE-1 dated February 18, 2011 of the Ministry of Shipping, Government of India, has submitted that since the financial condition of the loss making Calcutta Dock Labour Board does not permit the Board to give the settlement benefits, it is not under any obligation to give the petitioner the claimed benefits. Mr. Gupta has said that the Dock Labour Board is not, however, saying that because of financial crisis it is unable to give the petitioner the benefits of the settlement, but that the Central Government, as will appear from the OM dated February 26, 2008, did not want it, a loss making enterprise, to pay the benefits. Mr. Gupta has relied on the following whatever-it-means-case stated in para.4(b) of the AO:- "(b) .....As a result, an amount of Rs.156.40 crores is the outstanding arrear liability as on 31.3.2009 and yearly pension liability is around Rs.44.45 crores per year and Rs.3.60 crores per amount at revised rate while there is no pension fund to meet the said liability. The Board has no scope the separate revenue to meet the aforesaid liabilities of the retires/pensioners as also benefits of the existing employees/workers as stated above. " Mr. Gupta has also relied on the following whatever-it-means�case stated in para.4(h) of the AO:- "(h) It is respectfully submitted that though the Board is not in a position to release all the aforesaid dues of the retires/pensioners without having the financial assistance from the Central Government, the Board shall on receipt of the said one time financial grant from the Government the Board releases all the arrear dues of the retirees/ pensioners including the petitioner at the earliest. " ;