Uttarakhand High Court
The New India Assurance Company Ltd And ... vs Arvind Kumar Chaudhary on 31 July, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Special Appeal No. 446 of 2017
The New India Assurance Company Ltd. & others ...... Appellants
versus
Arvind Kumar Chaudhary .... Respondent
Mr.P.C. Maulekhi, Advocate for the appellants.
Mr. H. K. Chaturvedi with Mr. Aditya Sah, Advocates for the respondent.
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
K.M. Joseph, C.J. (Oral) There is delay of 21 days in filing the appeal, which is not seriously opposed by the learned counsel for the respondent. In the circumstances, the delay is condoned. The delay condonation application (CLMA No.8686 of 2017) is allowed.
2. Appellants are the respondents in the writ petition. The writ petition was filed seeking to quash Annexure no. 1 impugned order dated 18.10.2016 passed by the appellant. Annexure no. 1 is a sequel to the judgment of the learned Single Judge passed in Writ Petition No. 958 of 2014 dated 23.08.2016. The said writ petition was filed by the very same writ petitioner. The complaint of the writ petitioner was that though he was an employee of the Appellant-company and he had voluntarily retired under the General Insurance Employees Special Voluntary Retirement Scheme, 2004 (from hereinafter referred to as the "Scheme of 2004"), he was not paid pension. The case -2- of the writ petitioner was that the matter stood covered by the judgment of Hon'ble Punjab and Haryana High Court, which had been upheld by the Hon'ble Apex Court in the case of National Insurance Company Ltd. & another Vs. Kirpal Singh. We further notice paragraph nos. 4 and 5 of the said judgment, which reads as under:
"4. Mr. I.P. Kohli, learned counsel for the Insurance Company fairly submits that the present matter is squarely covered by the decision of Hon'ble Apex Court (referred above) and the petitioner is also entitled for pensionary benefits, as claimed by him in the present writ petition.
5. In view thereof, in case, the petitioner makes a representation before the Officer in-charge, the same shall be decided, as expeditiously as possible, by passing speaking order, particularly in view of the decision of Hon'ble Apex Court (referred above), within a period of four weeks from the date of production of a certified copy of this order."
It is pursuant to the same that the impugned order was passed.
3. In the impugned order, the appellant has referred to Clause 5 of the 2004 Scheme, besides para 6 (1) (c) and paragraph nos. 38 and 39 of the judgment rendered by the Hon'ble Apex Court in the case of Manojbhai N. Shah & Ors. Vs Union of India & Ors. (Annexure 2) and held as follows:-
"It is seen that you had opted for voluntary retirement under the Special Scheme and as per the judgment in the case of Manojbhai N. Shah vs. Union of India, your falls into the class of employees who have retired under the Special Scheme as held by the Hon'ble Supreme Court of India in the case of Manojbhai N. Shah & Ors. Vs. Union of India & others as quoted above in this order.
It is noted that you are claiming that his case is covered by the case of National Insurance Company Ltd. vs. Kirpal Singh. We have considered the contention and find that the case of National -3- Insurance Co. Ltd. & Anr. Vs. Kirpal Singh (being relied upon by you) has been specifically cited in the judgment dated January 7, 2015 passed by the Hon'ble Supreme court of India in Manojbhai N. Shah & Ors. Vs. Union of India & Ors. Accordingly, the Hon'ble Supreme Court of India has while noting the cited judgment has held that the employees who retire under the Special Scheme are a distinct class. The judgment dated January 7, 2015 of Manojbhai N. Shah being a later judgment and having specifically cited the judgment being relied upon by you is the binding judgment.
The Hon'ble Supreme Court in the case of Manojbhai N. Shah has held that employees who retired under Special Scheme form a separate and distinct class of employees who retire under the General Scheme and are not similarly situated. The Hon'ble Supreme Court has also noted that a large ex-gratia amount was already paid to these specially situated employees in addition to retrial dues.
It is, therefore, considered that your case falls under the ratio of the judgment of the Hon'ble Supreme Court in the case of Manojbhai N. Shah vs. Union of India and is accordingly in a class of employees distinct than that of employees retiring under the General Scheme. As per the Special Scheme, you were paid the Ex-gratia amount over and above all his retrial dues. You are, accordingly, not entitled to any further payment such as pensionary benefit as prayed for in your subject representation and it is decided accordingly.
Therefore, in deference to the order of the Hon'ble High Court dated 23.08.2016 as well as by duly examining the facts and circumstances of the case, the undersigned is of the considered view that you are neither entitled for the pensionary benefits nor any notional benefit of 5 years' service as stipulated in para 30(1) and para 30(5) of the General Insurance (Employees) Pension Scheme, 1995 as you had exited under Special VRS Scheme 2004 and not under the General Insurance (Employees) Pension Scheme, 1995.
Hence, your representation is not tenable on merits and in accordance with the law, and the same is disposed of accordingly."-4-
4. The learned Single Judge allowed the writ petition taking the view that the matter is covered in favour of the writ petitioner by virtue of the judgment in the case of National Insurance Company Limited and another Vs. Kirpal Singh reported in (2014) 5 Supreme Court Cases 189 and after setting aside the impugned order directed the respondents to release the pension within a period of ten weeks with interest of 10 per cent per annum.
5. We heard Mr. P.C. Maulekhi, learned counsel for the appellant and Mr. H.K. Chaturvedi, learned counsel for the respondent/writ petitioner.
6. Learned counsel for the appellant would submit that the case is covered by the judgement of the Hon'ble Apex Court in the case of Manojbhai N. Shah (supra). He would further submit that as far as the judgment in Kirpal Singh's case (supra) is concerned, the provisions of the 1995 Scheme and of the 2004 Scheme were not considered by the Hon'ble Apex Court. In particular, he referred to paragraph nos. 8 and 9 of the 2004 Scheme. He also referred to paragraph 2 (s) of the 1995 Scheme which defines qualifying service, which reads as follows:
"2(s) "qualifying service" means the service rendered while on duty or otherwise which shall be taken into account for the purpose of pension under this scheme."
7. Learned counsel for the appellant further drew our attention to paragraph no. 30 of 1995 Scheme, which reads as follows:-
"30. Pension on voluntary retirement (1) At any time after an employee has completed twenty years of qualifying service, he may, by giving -5- notice of not less than ninety days, in writing to the appointing authority, retire from service:
Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year:
Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement.
(2) The notice of voluntary retirement given under sub-paragraph (1) shall require acceptance by the appointing authority:
Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
(3) (a) An employee referred to in sub-paragraph (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor;
(b) On receipt of request under clause (a), the appointing authority may, subject to the provisions of sub-paragraph (2), consider such request for the curtailment of the period of notice of ninety days on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of ninety days on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days.
(4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority:
Provided that the request for such withdrawal shall be made before the intended date of his retirement.-6-
(5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement.
(6) The pension of an employee retiring under this paragraph shall be based on the average emoluments as defined under clause (d) of paragraph 2 of this scheme and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension; Explanation- For the purpose of this paragraph, the appointing authority shall be the appointing authority specified in Appendix-I to this scheme."
8. Learned counsel for the appellant also drew our attention to paragraph 6 (1) (c) of the 2004 Scheme and would contend that it refers to the words "if eligible". He also referred to paragraph nos. 8 and 9 of the 2004 scheme. He would submit that the judgment of Hon'ble Apex Court was, therefore, rendered without considering the provisions as aforesaid. He would also submit that the writ petitioner had applied for Voluntarily Retirement under the 2004 Scheme and received the entire payments and he cannot, therefore, file the writ petition, as being done. Learned counsel for the appellant contended that the judgment of the Hon'ble Apex Court also may not bind the appellant, as the appellant was not a party before the Hon'ble Apex Court.
9. Per contra, Mr. H.K. Chaturvedi, learned counsel for the writ petitioner would point out that immediately after the voluntary retirement of the petitioner, he had been addressing the Company to release the pension, but he was being told from time to time that the matter is subjudice, pending before other Courts. He would further -7- point out that he has approached the Court in the earlier round of litigation, which we have already noted in the form of the earlier judgment of the learned Single Judge. It is pointed out that the stand of the appellant was that the mater is squarely covered by the decision in Kirpal Singh's case (supra) and the writ petition was disposed of directing the representation of the writ petitioner to be considered in the light of the said judgment. Having not raised the question relating to delay in approaching the Court, it may not lie in the mouth of the appellant to contend that the petition should be dismissed on the said ground. He would submit that the appellant was wrong in relying on the decision of Manojbhai N. Shah's case (supra), which is not applicable, as it related to a case where consequent upon the revision of the salary in the year 2005, but with retrospective effect from 2002, the question posed was whether the employee who had taken voluntary retirement under the 2004 Scheme would be entitled to enhanced pension. That is not the issue involved in this case. He would also point out that the Hon'ble Apex Court in Manojbhai N. Shah's case (supra) has not disagreed with the dicta in Kirpal Singh's case (supra) and on the other hand, approbated of the position obtaining in law on the basis of Kirpal Singh's case (supra). Learned counsel for the writ petitioner would point out that actually the appellant-Company was also a party in Kirpal Singh's case (supra). He would submit that the writ petitioner has been knocking at the doors of the appellant right from the beginning and he was being told that matter is pending and on the basis of the pendency of the matter, though others are getting the pension, he is not getting the benefit, which otherwise he is entitled to. He would point out that these are judgments of other High -8- Court after the judgment of the Hon'ble Apex Court wherein the appellant has been mulcted with the liability to pay pension.
10. We have already noticed that in earlier round, when the writ petition was filed by the very same petitioner seeking benefit of pension, the stand of the appellant- Company, as revealed by the submission of the learned counsel appearing on behalf of the appellant was that the case is covered by the judgment in Kirpal Singh's case (supra). The representation was directed to be disposed of particularly, in view of the decision of the Hon'ble Apex Court within a period of four weeks. At that stage, we notice that there was no contention taken regarding the period, within which the writ petition which was filed or rather the question of laches. Therefore, at this stage, in the second round, we would think that in the facts of this case which involves the question relating to pension, it may not be appropriate to allow the appellant to raise the plea of the period of time, within which the writ petition has been filed.
11. Coming to the merits of the case, we are in agreement with the learned Single Judge that the issue at hand is squarely covered by the judgment of the Hon'ble Apex Court in Kirpal Singh's case (supra). The precise issue which was raised in Kirpal Singh's case (supra) related to the entitlement to the pension for those who have taken voluntarily retirement under the 2004 Scheme. The question raised in Kirpal Singh's case (supra) also was whether a party who did not have 20 years of qualifying service within the meaning of the General Insurance (Employees) Pension Scheme, 1995 (paragraph 30 thereof) -9- would still be entitled to get the benefit of pension under the Special Voluntary Retirement Scheme, 2004, if he had 10 years qualifying service. This question was answered by the Hon'ble Apex Court by looking into paragraph no.14 of the 1995 Scheme which in fact reads as follows:-
"14. Qualifying Service - Subject to the other condition contained in this scheme, an employee who has rendered a minimum ten years of service in the Corporation or a Company, on the date of retirement shall qualify for pension."
12. Besides this, the Court also referred to the definition of the retirement in paragraph 2 (t) of the 1995 Scheme. The Hon'ble Apex Court proceeded to hold as follows:-
"11. The SVRS of 2004 does not obviously rest the claim for payment of pension on any one of the above two provisions. That is because what is claimed by the employees-respondents before us is not superannuation pension nor is it pension on voluntary retirement within the meaning of para 30 (supra). As a matter of fact, para 6 (1)(c) of the SVRS of 2004 specifically provides that the notional benefit of additional five years to be added to the service of the retiring employee as stipulated in para 30 of the pension scheme shall not be admissible for purposes of determining the quantum of pension and commutation of pension. It follows that the SVRS of 2004 did not for the purposes of grant of pension adopt the scheme underlying para 30 of the Pension Scheme 1995. Such being the case, the question is whether the provisions of para 6 of the SVRS of 2004 read with para 14 of the Pension Scheme 1995 which stipulates only ten years qualifying service for an employee who retires from service to entitle him to claim pension would entitle those retiring pursuant to the SVRS of 2004 also to claim pension. Our answer is in the affirmative. If paras 29 and 30 do not govern the entitlement for those seeking the benefit of SVRS of 2004, the only other provision which can possibly be invoked for such pension is para 14 (supra) that prescribes a qualifying service of ten years only as a condition of eligibility. The only impediment in adopting that interpretation lies in the use of the word 'retirement' in Para 14 of the Pension Scheme 1995. A restricted meaning to that expression may mean that -10- Para 14 provides only for retirements in terms of Para (2)(t) (i) to (iii) which includes voluntary retirement in accordance with the provisions contained in Para 30 of the Pension Scheme. There is, however, no reason why the expression 'retirement' should receive such a restricted meaning especially when the context in which that expression is being examined by us would justify a more liberal interpretation; not only because the provision for payment of pension is a beneficial provision which ought to be interpreted more liberally to favour grant rather than refusal of the benefit but also because the Voluntary Retirement Scheme itself was intended to reduce surplus manpower by encouraging, if not alluring employees to opt for retirement by offering them benefits like ex-gratia payment and pension not otherwise admissible to the employees in the ordinary course. We are, therefore, inclined to hold that the expression "Retirement"
appearing in Para 14 of the Pension scheme 1995 should not only apply to cases which fall under Para 30 of the said scheme but also to a case falling under a Special Voluntary Retirement Scheme of 2004. So interpreted, those opting for voluntary retirement under the said SVRS of 2004 would also qualify for payment of pension as they had put in the qualifying service of ten years stipulated under Para 14 of the Pension Scheme 1995."
13. Thereafter the Court proceeded to take the view that though the word 'retirement' has been defined by using the "means" mechanism, having regard to the fact that what was involved is the right to pension, the Court took the view that the term 'retirement' must in the context of the two schemes, and the admissibility of pension to those retiring under the 2004 Scheme, include retirement not only under para 30 of the Pension Scheme 1995 but also those retiring under the Special Scheme of 2004. Having regard to the decision of the Hon'ble Apex Court, we would think that the petitioner, who admittedly had more than 10 years (16 years and eight months) of service would certainly be entitled to pension having regard to the -11- judgment of the Hon'ble Apex Court in Kirpal Singh's case (supra).
14. We are not impressed by the attempts made by learned counsel for the appellant to contend that the provisions of scheme were not appreciated by the Hon'ble Apex Court and, therefore, the judgment of the Hon'ble Apex Court would not bind this Court. It is settled law that the binding nature of the judgment of the Hon'ble Apex Court which is law under Article 141 of the Constitution of India cannot depend upon whether the arguments which the appellant seeks to raise were raised before or considered by the Hon'ble Apex Court. The Courts are forbidden to embark upon the inquiry as to whether if a particular argument was addressed before the Hon'ble Apex Court, the decision of the Hon'ble Apex Court would be different and the law would be laid down differently. It may be true that Clause 6 (1) (c), which deals with the entitlement to pension for a person who has taken voluntarily retirement under the 2004 Scheme is not as such automatic, but the words "if eligible" are used. There is also, no doubt, reference to the 1995 Pension Scheme in this regard, but as far as 1995 Pension Scheme is concerned, it has been considered by the Hon'ble Apex Court in paragraph 11, which we have extracted and it apparently has clearly taken the view that paragraph 30 of the 1995 Scheme was not adopted when the 2004 Scheme was implemented.
15. Therefore, in such circumstances, in view of the law laid down by the Hon'ble Apex Court in Kirpal Singh's case (supra), which was the decision, which was applicable to the facts of this case, the appellant was not justified in -12- placing reliance on the subsequent decision of the Hon'ble Apex Court in Manojbhai N. Shah's case (supra) which, in fact, has no bearing at all to the question, which is raised in the writ petition.
16. In the light of the above discussion we see no reason to interfere with the judgment of the learned Single Judge. Accordingly, the Appeal will stand dismissed. No order as to costs.
(Alok Singh, J.) (K.M. Joseph, C.J.)
31.07.2017
Ravi