Madras High Court
A.K.Jayakumar vs The Life Insurance Corporation Of India ... on 18 November, 2016
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS (Orders reserved on 21.10.2016) DATED : 18.11.2016 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH W.P.No.32595 of 2016 A.K.Jayakumar ... Petitioner Vs. The Life Insurance Corporation of India Ltd., rep. by its Sr.Divisional Manager, Divisional Office-II, OS Department, C-47, Second Avenue, Anna Nagar, Chennai-600 040. ... Respondent Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus, to direct the respondents to revise the scale of pay of the petitioner by extending all the allowances and increments from the date of his reinstatement and to disburse all terminal benefits, such as pension and other benefits and arrears of increment and allowances with reasonable interest from the date of the dues. For Petitioner : Mr.Yogesh Kannadasan For respondent : Mr.T.Ravi Kumar * * * * * ORDER
This writ petition has been filed by the petitioner praying for issuance of a Writ of Mandamus, to direct the respondents to revise the scale of pay of the petitioner by extending all the allowances and increments from the date of his reinstatement and to disburse all terminal benefits, such as pension and other benefits and arrears of increment and allowances, with reasonable interest from the date of the dues.
2.In the affidavit filed in support of the writ petition, it has been averred by the petitioner as follows_ 2-1.The petitioner belongs to Hindu Kammara Community, which is a Scheduled Tribe Community. The petitioner joined the service of the respondent-Department on 27.11.1980 as Assistant. At the time of his appointment, he has produced a valid community certificate date 22.09.1980, issued by the Tahsildar, Mylapore, Triplicane Taluk, who is the competent authority at the relevant point of time. In the year 1990, the petitioner was promoted as Higher Gr. Assistant.
2-2.In the meanwhile, on the basis of certain third party complaints, the petitioner's community certificate was sent for verification to the District Level Vigilance Committee, Chennai. However, the District Level Vigilance Committee, which was not constituted in accordance with law, by an adverse order dated 20.07.2000, cancelled the petitioner's community certificate. Against the cancellation of his community certificate, the petitioner had filed a writ petition before this Court and the said writ petition was dismissed by a learned Single Judge of this Court, against which he had preferred a writ appeal in W.P.No.1532 of 2005.
2-3.While so, the petitioner was terminated from service on 11.08.2000 by the respondent. Against the termination order, the petitioner had filed a writ petition, which was dismissed by the learned Single Judge of this Court. Again the petitioner preferred a writ appeal in W.A.No.1533 of 2005. Thereafter, both the said writ appeals were allowed by the Division Bench of this Court by orders dated 08.08.2005, whereby the order passed by the District Level Vigilance Committee was set aside, with a direction to the respondents to reinstate the petitioner into service with the last scale of pay drawn by him. Pursuant to the said orders of the Division Bench of this Court, the petitioner was reinstated into service on 22.10.2005.
2-4.It is stated by the petitioner that though he was reinstated into service with the last drawn scale of pay, the petitioner was not given any annual increment and other allowances, to which he is legally entitled to. When the petitioner approached the respondent, the respondent by letter dated 12.01.2016 informed the petitioner that he would be retiring from service with effect from 30.07.2016 and he is entitled for all benefits such as provident fund, gratuity, benefits under GSL, free insurance and benefits under Group Insurance Scheme, if due and applicable. Thereafter, the petitioner retired from service on 30.07.2016. Even though, he retired from service, the respondent has not disbursed any of the terminal benefit to the petitioner. The petitioner made a representation dated 10.08.2016 to the respondent, but no terminal benefit was disbursed to the petitioner. The petitioner was informed by the respondent that verification of his community certificate is still pending. According to the petitioner, there is no justification in withholding his terminal benefits. Hence, the petitioner has come forward with the present writ petition for the relief as stated supra.
3.When the matter was taken up for consideration, the learned counsel appearing for the petitioner made a detailed argument by advertting to the averments made in the affidavit. The learned counsel for the petitioner relied upon the judgment of a Division Bench of this Court delivered in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), dated 07.07.2015, and submitted that while dealing with an identical issue in that case, the Division Bench of this Court has directed the petitioner therein-Railway Administration to pay the terminal benefits to the 2nd respondent therein-employee. Relying upon the said decision, the learned counsel for the petitioner submitted that following the above said decision, similar order could be passed in the present writ petition also.
4.Per contra, the learned counsel appearing for the respondent, by filing a detailed counter, would contend that the petitioner was appointed as Assistant in LIC of India on 27.07.1980 under the reserved category (Schedule Tribe-Kammara) on the basis of the community certificate Ref.D.Dis.33179/80 issued by the Tahsildar, Mylapore, Triplicane Taluk and the Community Certificate dated 25.05.1979 issued by the Tahsildar, Madurantakam. It was found that in the SSLC Certificate of the petitioner submitted at the time of his appointment indicated that his community was Hindu-Naidu, but in the community certificate obtained by him from the Tahsildar it was mentioned as ST-Kammara. Therefore, the respondent-Corporation vide letter dated 11.04.1998 requested the Collector of Chennai to cause an enquiry into the community status of the petitioner and also wrote to the Headmaster, Santhome High School to send a copy of the Transfer Certificate issued to the petitioner at the time of his discharge from school to enable the respondent-Corporation to decide the community status of the petitioner/employee. The respondent received a letter dated 13.05.1998 from the Collector, Chennai, directing the petitioner herein to appear for an enquiry on any of the working day with all documentary evidences in support of his claim. However, the petitioner did not attend the enquiry and in the meanwhile, the petitioner availed EOL for 20 days from 03.07.1998 to 22.07.1998. Meanwhile, the respondent received a copy of the Transfer Certificate and a copy of the admission register sheet from the Santhome High School, wherein the petitioner's caste was clearly mentioned as Hindu-Naidu. Thereafter, the respondent had received a copy letter from the Collector, Chennai, addressed to the petitioner asking him to appear for an enquiry on 12.08.1998. On 26.05.2000, the Collector of Chennai has sent a Show cause notice to the petitioner vide No.23/306778/98, dated 06.05.2000, asking him to produce the documents to prove the community status and the said show cause notice was served on the petitioner on 19.06.2000. Thereafter, the respondent received a copy of the proceedings dated 27.07.2000 from the District Level Vigilance Committee, Chennai, informing that the petitioner does not belong to ST-Kammara community and his community certificate No.33170/80, dated 22.09.1980 issued by the Tahsildar, Mylapore, Triplicane Taluk was cancelled. Subsequently, the respondent received a letter dated 07.08.2000 from the Deputy Secretary to Government of Tamil Nadu advising the respondent to terminate the petitioner from service based on the orders passed by the District Level Vigilance Committee, Chennai. Pursuant to the same, the Sr.Divisional Manager, Division-II, Chennai vide his order dated 11.08.2000 dismissed the petitioner from service of the respondent-Corporation.
5.The learned counsel for the respondent would further submit that subsequently, in the writ proceedings initiated by the petitioner before this Court, this Court by order dated 08.08.2005 in W.A.No.1533 of 2005 directed the respondent to reinstate the petitioner into service. However, this Court has indicated in the said order that the petitioner would not be entitled to any backwages from the date of termination till the date of reinstatement and the same would depend upon the outcome of the decision to be taken by the Committee to be newly constituted pursuant to G.O.Ms.No.111, Adi-dravidar and Tribal Welfare Department (ADW-10), dated 06.07.2005. However, the petitioner would be entitled to salary from the date of his reinstatement in the last scale of pay drawn by him. It is further submitted by the learned counsel for the petitioner that wherever the genuineness of the certificate is confirmed by the authorities concerned, all the benefits (including the terminal benefits etc) are allowed. Sometimes, in some cases, the Scrutiny Committee has not taken any decision with regard to the verification of community, till the retirement of the employees, wherein the payment of terminal benefits is kept in abeyance till the Scrutiny Committee clears the case and passes orders. In the instant case, the issue with regard to the community status of the petitioner is pending before the Scrutiny Committee. The respondent is yet to receive the decision with regard to the community status of the petitioner from the Scrutiny Committee. Till such time, the petitioner is not entitled for payment of terminal benefits.
6.The learned counsel for the respondent has also relied upon the decision of the Hon'ble Supreme Court reported in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) and submitted that the very basis of the appointment of an employee viz., the community category was taken away, there is no appointment in the eyes of law and such employee could not claim any right to a post to which he was appointed on the basis of false community certificate, thereby usurping the post meant for a Scheduled Caste. A genuine reserved candidate was deprived of the benefits conferred on him. Hence, no relief could be granted as the right to salary, pension and other service benefits arises only from the valid and legal appointment to the post. Thus, the learned counsel for the respondent sought for dismissal of the writ petition.
7.Heard the submissions made on either side and perused the materials available on record.
8.The learned counsel for the petitioner is seeking a direction to the respondent to disburse the petitioner's retirement benefits, by placing reliance on the decision of a Division Bench of this Court in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), dated 07.07.2015. But, per contra, the learned counsel for the respondent replied upon the decision of the Hon'ble Supreme Court in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others).
10.From a perusal of the decision of the Hon'ble Supreme Court in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) relied upon by the learned counsel for the respondent, it seen that in that case, the issue with regard to the community status of the petitioner therein was settled as the petitioner therein did not belong to ST Community. But, so far as the present case is concerned, as the issue with regard to the community status of the petitioner herein is still continuing to be pending before the Scrutiny Committee. As on date, the community certificate of the petitioner herein has not been cancelled. Hence, the above said decision in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) relied upon by the learned counsel for the respondent cannot be made applicable to the present facts of the case.
11.As contended by the learned counsel for the petitioner, in an identical situation, in W.P.No.19234 of 2014 (Union of India and others Vs. Central Administrative Tribunal and others), a Division Bench of this Court, by order dated 07.07.2015, has held as follows_ "36. That leaves us with one last question as to what would happen if the State Level Scrutiny Committee eventually holds that the 2nd respondent does not belong to the Scheduled Tribe. We cannot shirk this question, but the answer is too obvious. The right of a person to receive pension continues until his final departure. Even after his departure, his family become entitled to Family Pension. Therefore, if the State Level Scrutiny Committee eventually cancels the Community Certificate of the 2 nd respondent, the petitioner can always pass orders forfeiting the pension as well as the Family Pension.
37. The Railway Administration cannot raise a question as to how they will recover the terminal benefits that they will be now compelled to pay, as that is a very moot question. Logically, another question would also arise as to how they would recover the salary paid for the past 30 years. For both questions, there cannot be an answer in law. So long as the Rules contemplate a particular position, it is not only the 2nd respondent, but also the Railway Administration which is bound by the Rules. The interpretation given to the Rules by various Benches of this Court and of the Supreme Court, in State of Jharkhand v. Jitendra Kumar Srivastava are very clear. Therefore, the Tribunal did not commit any error in law warranting interference by this Court. Hence, the Writ Petition is dismissed. The petitioner-Railway Administration shall settle the terminal benefits within a period of eight weeks from the date of receipt of a copy of this order. The 3rd respondent-State Level Scrutiny Committee is directed to complete the proceedings, in accordance with law, within a period of three months from the date of receipt of a copy of this order. No costs"
12.Similarly, in another decision in W.P.No.25554 of 2015 (Union of India and others Vs. Sowbagiammal and another), dated 14.09.2015, a Division Bench of this Court has held as follows_ "19. It is worth while to extract the decisions of the Hon'ble Apex Court in Dr.Uma Agarwal v. State of U.P., reported in (1999) 3 SCC 438, wherein it is held as follows :
"....grant of pension is not a bounty but a right of the government servant. The Government is obliged to follow the Rules mentioned in the earlier part of this order in letter and in spirit. Delay in settlement of retiral benefits is frustrating and must be avoided at all costs. Such delays are occurring even in regard to family pensions for which too there is a prescribed procedure. This is indeed unfortunate. In cases where a retired government servant claims interest for delayed payment, the Court can certainly keep in mind the time-schedule prescribed in the Rules/Instructions apart from other relevant factors applicable to each case."
In the reported case, of the Hon'ble Supreme Court in S.K.Due v. 15 State of Haryana reported in 2008 (3) SCC 44, the appellant therein was served with three charge sheets/show cause notices in June 1998, few days before his retirement. However, he retired on 30.06.1998 on reaching the age of superannuation. He was paid provisional pension, but other retiral benefits were not given to him, which included commuted value of pension, leave encashment, gratuity, etc. They were withheld till the finalisation of disciplinary proceedings. While answering the issue as to whether the appellant therein was entitled to interest on delayed payment of retiral benefits, in the absence of any statutory rules/administrative instructions or guidelines, the Supreme Court, at Paragraph 14 of the judgment, held as follows:
"14. In the circumstances, prima facie, we are of the view that the grievance voiced by the appellant appears to be well founded that he would be entitled to interest on such benefits. If there are statutory rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are administrative instructions, guidelines or norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in the absence of statutory rules, administrative instructions or 16 guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution. The submission of the learned counsel for the appellant, that retiral benefits are not in the nature of "bounty" is, in our opinion, well founded and needs no authority in support thereof. In that view of the matter, in our considered opinion, the High Court was not right in dismissing the petition in limine even without issuing notice to the respondents."
A Hon'ble Division Bench of this Court following the above cases in Government of India vs. M. Deivasigamani, reported in 2009 (3) MLJ, held as follows :
7. In view of the judgment of the Hon'ble Supreme Court, it is now well settled that an employee is entitled to interest on belated payment of pension and other retiral benefits, even in the absence of statutory rules/administrative instructions or guidelines and he claim for interest, under Part III of the Constitution, relying on Articles 14, 19 and 21 of the Constitution.
20. In the light of the above decisions and discussion, the Writ Petitioners have not made out a case and hence the Writ Petition is dismissed and the order made in O.A. No. 738 of 2013 dated 30.10.2014 is sustained. Consequently, the writ petitioners are directed to make payment of the monthly pension including the arrears due, with interest, within three months from the date of receipt of a copy of this order."
The above decisions of the Division Benches of this Court are squarely applicable to the present facts of the case.
13.As stated earlier, so far as the case on hand is concerned, as on date, the issue with regard to the community status of the petitioner is still pending before Scrutiny Committee. Therefore, the judgment relied upon by the learned counsel for the respondent reported in AIR 2004 SC 1469(1) (R.Viswanatha Pillai Vs. State of Kerala and others) relied upon by the learned counsel for the respondent, wherein the issue with regard to the community certificate of the employee therein was settled, cannot be made applicable to the present facts of the case. Therefore, I am of the opinion that the petitioner is entitled to the relief as prayed for in the present writ petition.
14.Accordingly, the writ petition is allowed as prayed for. The respondent is directed to revise the scale of pay of the petitioner by extending all the allowances and increments from the date of his reinstatement and to disburse all terminal benefits, with reasonable interest from the date of the dues. However, the respondent is at liberty to move before the Scrutiny Committee for early completion of the proceedings pending before it with regard to the community status of the petitioner. No costs.
18.11.2016
Index : Yes/No
Internet : Yes/No
ssv
NOTE:- Issue on or before 29.11.2016
To
The Senior Divisional Manager,
Life Insurance Corporation of India Ltd.,
Divisional Office-II,
OS Department,C-47, Second Avenue, Anna Nagar,
Chennai-600 040.
R.SUBBIAH, J.
ssv
Pre-delivery order
in
W.P.No.32595 of 2016
18.11.2016
http://www.judis.nic.in