Gauhati High Court
Sri Nani Gopal Ghosh vs The Life Insurance Corporation & Ors on 28 August, 2012
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) NO. 9084 of 2003
Petitioner :
Sri Nani Gopal Ghosh,
Son of Late Nripendramay Ghosh,
C/o Mrs. Maya Rani Ghosh,
Dr. J.C. Das Road, Pan Bazar,
Guwahati-781001.
By Advocates :
Mr. B.C. Das,
Sr. Advocate,
Mr. M. Chanda.
Respondents :
1. The Life Insurance Corporation of India (represented by its Chairman), "Yogakshema" Jeevan Bima Marg, Bombay - 400 021.
2. The Regional Manager (P & IR)/ Zonal Manager, Life Insurance Corporation of India, Easter Zonal Office, 4 C-R Avenue, Calcutta - 700 072.
3. The Senior Divisional Manager, Gauhati Divisional Office, Jeevan Prakash, S.S. Road, Guwahati -781 001.
W.P(C) No. 9084/2003 Page 1 of 1 2
4. The Manager (P & IR), Gauhati Divisional Office, Jeevan Prakash, S.S. Road, Guwahati -781 001.
5. The Union of India, Represented by the Secretary to the Government of India, Ministry of Finance, New Delhi - 110 001.
By Advocates :
Mr. B. R. Dey, Sr. Advocate, Mr. D. Choudhury.
BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN.
Dates of hearing : 21.08.2012, 23.08.2012
& 28.08.2012.
Date of Judgment : 28.08.2012
J U D G M E N T AND O R D E R (ORAL)
Heard Mr. B.C. Das, learned senior counsel for the petitioner. Also heard Mr. B.R. Dey, learned senior counsel for the respondents.
2. By way of this writ petition, the petitioner seeks benefit of the circular dated 2.6.1989 and challenges the order dated 5.6.2003 passed by the Respondent No.3, rejecting the claim of the petitioner for pay protection/re-fixation in terms of the aforesaid circular. W.P(C) No. 9084/2003 Page 2 of 2 3
3. Brief narration of the facts is considered necessary.
4. The petitioner was serving in the Life Insurance Corporation of India ("the Corporation") and retired from service on attaining the age of superannuation on 31.12.1997 in the rank of Assistant. He had served the Indian Army as an Emergency Commissioned Officer from 1964 to 1969, whereafter, he was released from his service in the Army. He was appointed as an Assistant in the Corporation on 17.3.1970 in the scale of Rs.249 - 500/-
p.m. At the time of release from the Army, the petitioner was drawing pay and allowance totalling Rs.860/- p.m. as per the Last Pay Certificate. The Corporation had issued a circular dated 2.6.1989 framing revised instructions regarding the methodology and manner of fixation of pay of Ex-servicemen consequent upon their re-employment in the Corporation. As per the said circular, the last pay drawn by the Ex-servicemen in the Army was to be protected in the employment in the Corporation. When option was called for from the Ex-servicemen, the petitioner exercised his option to have his salary re-fixed as per pay fixation formula contained in the circular dated 2.6.1989. According to the petitioner, since his pay in the Corporation was lower than the last pay drawn in the Army, as per the afore mentioned circular, the incremental difference that would emerge on such fitment should be added to his basic pay as on date of re-employment and that arrears were required to be released accordingly effective from 1.1.1988. Petitioner contends that the authorities in the Corporation had worked out a formula as per the aforementioned circular vide departmental communication dated 14.11.1990 and had fixed his salary at Rs.4366/- thereby conferring a financial benefit of Rs.1880/- over the pay drawn by him effective from 1.1.1988. He, therefore, W.P(C) No. 9084/2003 Page 3 of 3 4 claims pay protection of Rs.1880/- p.m. w.e.f. 1.1.1988. His claim was, however, rejected by the Corporation by order dated 22.3.1991.
5. At this stage, the petitioner approached this Court in Civil Rule No.6760/1998. This Court by order dated 13.2.2003 disposed of the said writ petition directing the petitioner to approach the Corporation by filing a fresh application, whereafter, the competent authority of the Corporation would consider the case of the petitioner for re-fixation of his salary thoroughly in accordance with law and also in the light of the circular dated 2.6.1989, specially, clause 4 thereof as well as the departmental communication in this regard.
6. When the petitioner submitted application before the competent authority in terms of the aforesaid order of this Court, the claim of the petitioner was considered but rejected by order dated 5.6.2003.
7. Aggrieved, the petitioner has moved this Court by way of the present writ petition.
8. The Corporation has filed the counter affidavit. In the counter affidavit, the Corporation has stated that the petitioner was initially recruited as a general employee in the Corporation. He was not recruited as an Ex- serviceman. While serving in the Corporation, the petitioner was granted lien to join the Army as Emergency Commissioned Officer. After his release from the Army, he was allowed to re-join the post which he was holding prior to joining the Army as Emergency Commissioned Officer and was granted pay and allowances which he would have drawn had he not joined the Army, but W.P(C) No. 9084/2003 Page 4 of 4 5 continued in the Corporation. The contention of the Corporation is that the petitioner is not an Ex-serviceman and, therefore, is not entitled to benefit as per the circular dated 2.6.1989. Further contention of the Corporation is that the petitioner cannot take advantage of inter-departmental communication between the officials of the Corporation as such communication was part of the decision making process while finalizing the claim of the petitioner. Additionally, it is stated that as the petitioner was enjoying the maximum in the revised pay scale as on 1.1.1988, there was no scope to consider addition either to his basic pay or in his personal allowance in terms of the above circular dated 2.6.1989. The respondents have stated that the case of the petitioner in the light of the aforementioned circular and the order of this Court was thoroughly examined whereafter it was found that he was not entitled to any benefit.
9. In his rejoinder affidavit, the petitioner reiterated his status as Ex-serviceman. He, however, admitted that he had initially entered the service in the Corporation as Assistant in May, 1961, but subsequently he was released by the Corporation in the public interest to enable him to join the Indian Army on Short Service Commission. After his release by the Army, he rejoined the Corporation as Assistant. The petitioner has contended that notwithstanding the above, his status as Ex-serviceman cannot be denied.
10. Learned counsel for the petitioner referring to various clauses of the circular dated 2.6.1989 has contended that the petitioner would come within the definition of Ex-serviceman as provided in the circular and therefore submitted that the petitioner would be entitled to the benefit of the aforesaid circular which provides for protection of pay of Ex-servicemen on their re- W.P(C) No. 9084/2003 Page 5 of 5 6 employment. If it is found that the pay fixed on re-employment is lower than the last pay drawn by the Ex-serviceman in the Army, then clause 4 would come into play. As per clause 4 of the said circular, if the basic salary determined on such comparison is higher than the basic salary at which the employee was fitted on the date of re-employment, incremental difference that would emerge on such fitment would be added to the individual's basic pay as on 1.1.1988 and arrears would be released accordingly from 1.1.1988 only. He, therefore, submits that necessary direction may be issued to the Corporation to extend the benefit of the said circular to the petitioner. In support of his submission, the learned senior counsel refers to and relies on a decision of the Hon'ble Supreme Court in the case of O.K. Udayasankaran & Ors v. Union of India & Ors, reported in AIR 1996 SC 1901.
11. Learned senior counsel for the respondents on the other hand, submits that the petitioner cannot be termed as an Ex-serviceman. He was not employed in the Corporation as an Ex-serviceman. In the course of his employment, on being released by the employer, he had joined the Army on Short Service Commission and after completion of the period, he rejoined his parent employment. That being the position, he submits that the rejoining of the petitioner in the Corporation cannot be termed as re-employment of Ex- serviceman in terms of the circular dated 2.6.1989. He also places reliance on the decision of the Apex Court in the case of O.K. Udayasankaran & Ors (supra).
12. Rival submissions have been considered.
W.P(C) No. 9084/2003 Page 6 of 6 7
13. At the outset, it may be relevant to dilate on the relevant provisions of the circular dated 2.6.1989. The said circular was issued as revised instructions on the subject of fixation of pay of Ex-serviceman employees including the Emergency Commissioned Officers on their re- employment in the Corporation. As per clause 1, the instructions contained in the circular would hold the field superseding all the existing instructions in this regard. The term "Ex-serviceman" has been defined in clause 2, which is quoted hereunder :-
"(2) 'EX-SERVICEMAN \' TO INCLUDE :
The word 'XSM' wherever used in these instructions shall refer to all categories of Ex-servicemen including released Emergency Commissioned Officers, Short Service Commissioned Officers and Retrenched Commissioned Officers unless otherwise specified."
14. Clause 3 provides for pay fixation on re-employment. Relevant provisions of clause 3 are as under:-
"3.1 Basic Salary of a re-employed Ex-serviceman shall be fitted at the minimum of the scale in which he is appointed. However, if the gross salary as per 'Y' below at the minimum of the scale does not produce an amount equal to or more than the last drawn gross salary as per 'X' below in the Defence Services, additional increment/s as may be necessary, over minimum of the scale shall be allowed to make up the difference and, thus, provide protection to the last drawn gross salary. W.P(C) No. 9084/2003 Page 7 of 7 8 3.2 If in exceptional cases, fitment, even at the ceiling of the entry grade does not provide full protection, personal allowance shall be granted which may be absorbed against future increase in emoluments.
3.3 'X' i.e. last drawn gross salary in the Defence Service at the time of release shall be the aggregate of the following components :
i) Pay as defined in sub-para 3 (ix) of the Dept. of Personnel & Training O.M. No.3/1/85-Estt (P II) dated 31.7.1986. Relevant extracts of the O.M. are given in the Appendix 'A';
ii) Dearness Allowance;
iii) Additional Dearness Allowance;
iv) Interim Relief ;
v) City Compensatory Allowance;
vi) Compensation in lieu of Quarters (C.I.L.Q)/
House Rent Allowance;
vii) Ration Allowance.
3.4 'Y' i.e. gross salary in L.I.C. shall be the
aggregate of the following :
i) Basic salary in which the Ex-serviceman is
re-employed;
ii) Dearness Allowance;
iii) House Rent Allowance;
iv) City Compensatory Allowance.
3.5 Components of last drawn salary in the
Defence Services ('X') including such allowances as are W.P(C) No. 9084/2003 Page 8 of 8 9 indicated at (3.3) above are to be taken into account on the basis of discharge certificate/Last Pay Certificate of the individual employee. If the Last Pay Certificate does not show details of such allowances e.g. Ration Allowance or C.I.L.O., the same may be ascertained as per rankwise entitlement with proper proof from the concerned employee. In case of difficulties in this regard, reference may be made to Central Office with full details.
3.6 The component of pension will not be considered for pay fixation.
3.7 If the Ex-serviceman was re-employed within a period not exceeding 3 years from the date of discharge from the Defence Services 'X' (Last Drawn Salary in Defence Services) to be compared shall be as drawn on the date of release of the Ex-
serviceman whereas the 'Y' (Starting salary in L.I.C.) to be compared shall be as on date of re-
employment in L.I.C."
15. Clause 4 may now be examined. It provides that if the last salary determined is higher than the basic salary at which the employee was fitted on the date of re-employment, the incremental difference that would emerge out on such fitment would be added to individual's basic pay as on 1.1.1988 and the arrears released accordingly from 1.1.1988 only. Clause 4 along with the example appended thereto is extracted hereunder :- W.P(C) No. 9084/2003 Page 9 of 9 10
"4. If the basic salary determined on such comparison is higher than the basic salary at which the employee was fitted on the date of re-employment, incremental difference that would emerge out on such fitment would be added to individual's basic pay as on 1.1.1988 and arrears released accordingly from 1.1.1988 only.
Example :
Suppose an Ex-serviceman's basic salary as on 1.11.1979 i.e. the date of re-employment was fitted at Rs.175/- in the Assistant's scale, his basic salary determined on the basis of above formula in para 3.1 comes to Rs.195/- thus resulting in 2 more incremental stages in the Assistant's scale. He continued in the same i.e. Assistant's scale on 1.1.1988 and was drawing basic salary of Rs.850/-. He is due to get benefit of two increments. So, his basic salary as on 1.1.1988 would be stepped up from Rs.850/- to Rs.970/-. He may be paid arrears of difference in salary from 1.1.1988.No arrears are to be paid for the period before 1.1.1988. Similar procedure is to be adopted for those who entered in the scale of Officers or Development Officers and continued in the same scale on 1.1.1988."
16. The Apex Court had the occasion to examine the aforesaid scheme in O.K. Udayasankaran & Ors (supra). The issue before the Apex Court was as to whether the benefit of the said circular should be given to W.P(C) No. 9084/2003 Page 10 of 10 11 those Ex-servicemen who were employed by the Corporation after 1.1.1988. The stand taken by the Corporation was that the benefit of pay fixation was given only to those Ex-servicemen who were already employed in the Corporation prior to 1.1.1988 and that this benefit is not available to those Ex-servicemen who were employed in the Corporation after 1.1.1988. After examining various provisions of the circular, the Apex Court held that the Ex- servicemen employed prior to 1.1.1988 would be entitled to such benefit as the scheme of the circular particularly, paragraphs 3.8 and 4 deals with the existing Ex-servicemen i.e. Ex-servicemen who had been employed prior to 1.1.1988 whether serving or not. While deciding the aforesaid case, the Hon'ble Supreme Court examined the scheme as framed by the Corporation and observed that since Ex-servicemen including released Emergency Commissioned Officers, Short Service Commissioned Officers and retrenched Commissioned Officers are relieved from military service at a comparatively young age, certain facilities had been given to them for re-employment in various Government and Public Sector Undertakings including the Corporation. This is the real intent and purport of the circular dated 2.6.1989.
17. Paragraphs 5, 6 and 7 of the aforesaid judgment being relevant are quoted hereunder :-
"5. To resolve the dispute it is necessary to examine the scheme framed by the Life Insurance Corporation on 2nd of June, 1989, for pay fixation which is in supersession of earlier existing scheme. Paragraph 3 deals with fixation of pay on re-employment of ex- servicemen in Life Insurance Corporation. Since ex- servicemen including released emergency commissioned W.P(C) No. 9084/2003 Page 11 of 11 12 officers, short service commissioned officers and retrenched commissioned officers are relieved from military service at a comparatively young age, certain facilities have been given to them for re-employment in various Government and Public Sector Undertakings including the Life Insurance Corporation.
6. Under Paragraph 3.5 when the ex-
serviceman is re-employed by the Life Insurance Corporation he is normally fitted at the minimum of the scale for the post to which is appointed. However, if his last drawn gross salary in Defence Service as specified in Paragraph 3.3 was more than the gross salary which he will get in Life Insurance Corporation as specified in Paragraph 3..4 his salary to be paid in Life Insurance Corporation is adjusted so that he does not get less than his last drawn pay in the Defence Services. This adjustment is done as per Paragraph 3.1 adding to his minimum of the scale additional increments as may be necessary to make up the difference so that his last drawn gross salary is protected. This adjustment is made so as to protect the last drawn salary of ex-servicemen in the case of all re-employed ex-servicemen whether they were appointed prior to 1.1.1988 or subsequent to 1.1.1988.
7. Paragraph 3.7 however, provides that if an ex-serviceman was re-employed within three years from the date of his discharge from Defence Services then his W.P(C) No. 9084/2003 Page 12 of 12 13 last drawn salary in the Defence Services will be compared to his starting salary on the date of his re- employed in Life Insurance Corporation so as to adjust the salary first drawn by him on the date of re- employment to equal the last drawn salary."
18. Having noticed the intent and purport of the aforesaid circular, let us now examine the claim of the petitioner.
19. The petitioner did not disclose in his writ petition that he was already in employment in the Corporation. Case that is projected by him in the writ petition is that he had joined the Indian Army as an Emergency Commissioned Officer in the year 1964 and was released from the Army in July, 1969 whereafter he was appointed as an Assistant in the Corporation on 17.3.1970 as Ex-serviceman (Paragraphs 3, 4 and 5 of the writ petition may be seen). Only when he was confronted by the respondents in the counter affidavit that he was originally recruited in the Corporation as a general employee and while he was in the employment of the Corporation, he was released to enable him to join the Army on Short Service Commission in the national interest and after completion of his stint in the Army, he re-joined the Corporation in the said post which he had held earlier that the petitioner in the rejoinder affidavit admitted that he was initially appointed in the Corporation as Assistant in May, 1961 and subsequently, he was released by the Corporation in the public interest to enable him to join the Army in Short Service Commission.
W.P(C) No. 9084/2003 Page 13 of 13 14
20. Firstly, the petitioner did not disclose this fact in the writ petition. By suppressing the relevant fact that he was already in employment in the Corporation, the petitioner tried to project an altogether different case that his initial appointment in the Corporation was as an Ex-serviceman, which is factually not correct. Secondly, in the considered opinion of this Court, the petitioner cannot be termed as an Ex-serviceman for the purpose of the circular dated 2.6.1989. He may be an Ex-serviceman in general terms but not so in terms of the aforesaid circular. The stand taken by the respondents in the counter affidavit that the petitioner cannot be termed as an Ex- serviceman, appears to be a correct understanding of the position.
21. In view of the aforesaid, this Court finds no good ground to accede to the prayer of the petitioner. Accordingly, the writ petition stands dismissed. Parties to bear their own costs.
JUDGE kotoki W.P(C) No. 9084/2003 Page 14 of 14