Madras High Court
M.Venkatesan vs The Chairman on 16 September, 2008
Author: V.Dhanapalan
Bench: S.J.Mukhopadhaya, V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADARS DATED :: 16-09-2008 CORAM THE HONOURABLE MR.JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR.JUSTICE V.DHANAPALAN WRIT PETITION Nos.16155 & 16289 OF 1997, 12030 OF 1998, 958 OF 1999 AND 46130 OF 2002 M.Venkatesan ... Petitioner in W.P.No.16155 of 1997 S.Krishnamurthy ... Petitioner in W.P.No.16289 of 1997 -vs- 1.The Chairman, Export Inspection Council, (Ministry of Commerce) Government of India, Udyog Bhavan, New Delhi-110 011. 2.The Director, Export Inspection Council, No.26, Pragati Towers, 11th Floor, Rajendra Place, New Delhi 110 008. 3.The Additional Director, Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014. 4.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014. ... Respondents in W.P.No.16155 & 16289/1997 W.P.No.12030/1998 : 1.R.S.Ramasubramony 2.B.Ravishankar 3.N.Parthasarathy 4.R.Seshadri 5.S.Loganathan 6.A.Ravichandran 7.M.Sahidha 8.V.S.Lakshmi 9.A.Pydaiah 10.S.Kalaivani 11.C.R.Ramabadran 12.Jayasri Sridharan 13.N.V.Rajendran ... Petitioners -vs- 1.The Chairman of the Export Inspection Council and the Secretary to Government of India, (Ministry of Commerce) Udyog Bhavan, New Delhi. 2.The Director, (Export Inspection & Export Promotion) Government of India, Ministry of Commerce, Udyog Bhavan, New Delhi. 3.The Director (Inspection & Quality Control), Export Inspection Council, 11th Floor, "Pragati Towers", 26, Rajendra Place, New Delhi-8. 4.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014. ... Respondents W.P.No.958/1999 : 1.N.Kalyanaraman 2.N.Venkataraman 3.K.Muthaiyan 4.H.K.Vaidyanathan 5.M.A.Khaliq Ghias 6.N.Sethuraman 7.P.S.Balasubramanian 8.S.Giridharan ... Petitioners -vs- 1.The Chairman of the Export Inspection Council and the Secretary to Government of India, (Ministry of Commerce) Udyog Bhavan, New Delhi. 2.The Director, (Export Inspection & Export Promotion) Government of India, Ministry of Commerce, Udyog Bhavan, New Delhi. 3.The Director (Inspection & Quality Control), Export Inspection Council, 11th Floor, "Pragati Towers", 26, Rajendra Place, New Delhi-8. 4.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014. 5.Deputy Secretary, Department of Pension & Pensioner's Welfare, Third Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003. 6.The Additional Secretary and Financial Adviser, Department of Commerce, Ministry of Commerce, Udyog Bhavan, New Delhi. 7.The Secretary, Department of Pension & Pensioners' Welfare, Ministry of Personnel, New Delhi. ... Respondents W.P.No.46130 OF 2002 : 1.E.P.Srinivasan 2.V.Natarajan ... Petitioners -vs- 1.The Chairman of the Export Inspection Council and the Secretary to Government of India, (Ministry of Commerce) Udyog Bhavan, New Delhi. 2.The Director, (Export Inspection & Export Promotion) Government of India, Ministry of Commerce, Udyog Bhavan, New Delhi. 3.The Director (Inspection & Quality Control), Export Inspection Council, 11th Floor, "Pragati Towers", 26, Rajendra Place, New Delhi-8. 4.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014. ... Respondents W.P.Nos.16155 of 1997 and 16289 of 1997 are filed praying for issuance of a writ of certiorarified mandamus to call for the records relating to the order of the third respondent in ELA:MS:ADMN:VRS:41:94-95:5349 dated 02.01.1995 and quash the same in so far as they direct modification of the earlier orders dated 24.10.1994 and 27.10.1994 respectively the respondents to take into account the five years' weightage for the purpose of calculating the amounts payable towards gratuity and towards 100% commutation of pension and dearness allowance and other retirement benefits and consequently pay to the petitioners the arrears of Rs.56,556/- and 52,177/- respectively, to which the petitioners are entitled as per the Rules and the Voluntary Retirement Scheme and as per the Original Sanction Order together with interest on the said sums from the date of entitlement to the date of realisation and grant them all other accident benefits. W.P.Nos.12030 of 1998 and 46130 of 2002 are filed for issuance of writ of mandamus, directing the respondents to grant and disburse monthly pension, five years of weightage and D.A. by calculating the eligible monthly pension to the petitioners as per the rules with all monetary benefits with arrears along with interest. W.P.No.948 of 1999 is for issuance of writ of mandamus, directing the respondents to grant and disburse monthly pension and D.A. by calculating the eligible monthly pension to all the petitioners retrospectively with effect from their respective dates of relief as per the rules with all monetary benefits with arrears along with interest. For petitioners in W.P.No.16155 & 16289/1997 : Mr.R.Subramaniam For petitioners in W.P.Nos.:12030/1997,958/1999 & 46130/2002 : Mr.S.M.Subramaniam For respondents in all W.Ps.: Mr.R.Thirugnanam, Spl.Govt.Pleader. COMMON ORDER
V.DHANAPALAN,J.
Since all these Writ Petitions involve an identical issue, they are being disposed of in common.
2. For convenience, let us take W.P.16155 of 1997. Petitioner joined the service in Export Inspection Agency (Bombay), Ministry of Commerce, Government of India, as a Technical Officer with effect from 08.03.1973. In the year 1978, he was promoted to the next higher post of Assistant Director. After completing 21 years and 4 months of service, he opted for voluntary retirement under the Voluntary Retirement Scheme of the Government, dated 21.05.1994, and the same was accepted by the Government with effect from 19.07.1994. However, not content with the retirement benefits, he has filed this Writ Petition, praying for a direction to the the respondents to take into account the five years' weightage for the purpose of calculating the amounts payable towards gratuity, 100% commutation of pension, dearness allowance and other retirement benefits.
3. The respondents have a filed a counter, stating that the petitioner had opted for voluntary retirement on 08.07.1994 pursuant to a Special Voluntary Retirement Scheme (SVRS), which was a one time package and contained more lucrative and attractive financial benefits as compared to those admissible in the case of normal voluntary retirement sought under the rules applicable to the employees of the respondent Council; the five years' weightage, as claimed by the petitioner, was not part of the package of Special Voluntary Retirement Scheme under which the petitioner opted for retirement and relieved from service with effect from 19.07.1994; the payment of revised commutation of pension on account of the subsequent decision of the Government was paid to the petitioner for which he had issued a receipt on 14.10.1997; the petitioner did not seek voluntary retirement under the CCS (Pension) Rules as applicable to the employees of the Council/Agency, but opted for voluntary retirement under a scheme, which was a special one time package offered to the employees of the Council, for a specific period as a golden handshake, which contained more attractive and lucrative terms of payments; the petitioner, having opted for the special package, cannot appropriate and reprobate and is estopped from going back from the scheme under which he had exercised his option and received the retirement benefits as stipulated thereunder.
4. The counter further goes to the effect that the incentives offered in the Special Voluntary Retirement Scheme are not available to the retirees under the normal voluntary retirement scheme contemplated under the CCS (Pension) Rules and in the Export Inspection Agency Rules 1981 and a person, exercising voluntary retirement under the above rules, is not entitled for the added benefits that are available under the new scheme (SVRS) framed in the year 1994 and, as such, a person retiring under SVRS has an added advantage and such a person cannot compare himself with those retiring under the Pension/Gratuity Rules in the usual course and the very comparison is not correct in law; after all, comparison can be made only on similarly placed persons and not on totally different set of persons, namely, the persons retiring under SVRS and the persons retiring in the normal course; the order, dated 24.10.1994, was issued calculating the retirement benefits by giving weightage of five years on the qualifying service, which was done erroneously by treating the retirement under the special scheme along with the normal voluntary retirement scheme contemplated under the Pension Rules and Export Inspection Agency DCRG Rules 1981; after the said mistake came to light, it was rectified by an order dated 01.02.1995 by making a fresh calculation, ignoring the weightage of five years and after the said fresh calculation, a cheque for Rs.4,41,331/- was issued in favour of the petitioner towards full retirement benefits and that the petitioner cannot take advantage of the erroneous calculation, contrary to the rules; therefore, the petitioner does not have any legally enforceable right and, as such, the writ petition is liable to be dismissed.
5. Learned counsel for the petitioner would contend that no notice or opportunity was given to the petitioner by the third respondent before passing the impugned order and also no reasons have been given therein, for modification of the earlier order, dated 24.10.1994; the benefits arising out of the five years' weightage were granted to a section of the employees including those belonging to "C" and "D" categories and the denial of the same to the petitioner is discriminatory, unfair, unjust and violative of the Articles 14 and 16 of the Constitution of India; the provisions contained in Rule 7 (c) of the Export Inspection Agency-Death-cum-Retirement Gratuity Rules 1981 (Ministry of Commerce, New Delhi), dated 30.05.1981, framed by the Central Government, in exercise of the powers conferred by Section 17 of the Export (Quality Control & Inspection) Act 1963 also clearly stipulate that in the case of a person retiring on completion of 20 years of qualifying service, the date of intended retirement shall be increased by a period of five years and the said provision cannot be taken away by the respondents against the petitioner. The quintessence of the learned counsel is that any deductions made from the retirement benefits would amount to recovery and such recovery can be made only by following due process of law and that the impugned order, having been passed by the third respondent without following any such procedure, cannot be sustained.
6. In reply to the above contentions, the learned Special Government Pleader would submit that the order, dated 24.10.1994, was issued erroneously by adding the weightage of five years of service when it was not admissible under the Special Voluntary Retirement Scheme; as it was a mistake, the same was rectified by the impugned order; since the mistake has been corrected, no right accrues to the petitioner and no notice need be given to the petitioner before making the rectification of mistake; the petitioner was very well aware of the terms of SVRS and the respondent had acted in accordance with law and that when there is no provision in the scheme for grant of weightage, it is not open for the petitioner to compel and demand the respondents to grant weightage, which is a total contravention of the clear-cut terms found in the scheme. Accordingly, he prayed for dismissal of the Writ Petitions.
7. We have heard the learned counsel for the parties and also considered the rival submissions.
8. Admittedly, the petitioners have served in the respondent-Council/Agency and opted for voluntary retirement under Voluntary Retirement Scheme of the Government, dated 21.05.1994, and the same was accepted by the Government. However, since they were not satisfied with the retirement benefits, they have approached this Court by way of these Writ Petitions.
9. It is to be stated that there cannot be any comparison between the voluntary retirement under the Special Scheme and the voluntary retirement under the Pension Rules and DCRG Rules,1981. Had the petitioner applied for voluntary retirement under the Rules, his case would have been processed as per the Rules, in which event, he would not be entitled for the other special incentives under the SVRS, dated 21.05.1994, such as 100% commutation of pension, 1 = month ex-gratia pay for each completed year of service etc. However, the Ministry of Commerce reconsidered the earlier view and felt that even persons who apply under the special scheme could also get the benefit of weightage. Accordingly, on 25.09.1997, a decision was taken to grant weightage to all persons, like that of the petitioner. Thereafter, the pension was recalculated and a sum of Rs.56,566/- was paid to the petitioner by a cheque 023210, dated 13.10.1997, towards the revised commutation of pension and gratuity. The petitioner also accepted the same and submitted the stamped receipt on 14.10.1997.
10. Since the relief of weightage of five years has been granted by the respondents during the pendency of the Writ Petitions, the petitioners cannot have any further grievance over the same. However, with regard to the issue of adding dearness allowance for full pension, since the petitioners have opted for SVRS, the terms and conditions contained therein alone would apply and the Central Civil Services (Pension) Rules will not give any advantage to the petitioners.
11.Learned counsel for the petitioner has brought to the notice of this Court a copy of the judgment of the Supreme Court in A.Satyanarayana Reddy and Others v. Presiding Officer, Labour Court, Guntur, and Others, 2008 (5) Supreme Court Cases 280, wherein, the matter was referred to a Larger Bench, in view of the decision in A.K.Bindal v. Union of India, 2003 (5) SCC 163, which we followed in our decision in EID Parry (India) Ltd. v. M.N.Padmanabhan, 2008 (3) CTC 746, holding that once an employee opts to retire under VRS and accepts the benefits thereunder, his rights come to an end and the contra decision in National Buildings Construction Corporation v. Pritam Singh Gill, 1972 (2) SCC 1, with which we are conscious. However, our decision in the earlier case applies to the facts of this case. Accordingly, we hold that the petitioner cannot raise the issue in question and agitate the same, as his right as an employee comes to an end and he cannot be treated on par with the employees, who retire in the normal course. The voluntary retirement for the employees of Export Inspection Council/Export Inspection Agencies, which was a scheme opted by the petitioner in the year 1994, was a one-time special offer, under which an optee was entitled for full commutation of pension (100%), exgratia payment of 1 = months salary for each completed year of service and other benefits. Admittedly, the petitioner did not seek voluntary retirement under the Central Civil Services (Pension) Rules as applicable to the employees of the Council/Agency, but opted for voluntary retirement under a scheme, which was a special one-time package, offered for a specific period as a golden handshake, which contained more attractive and lucrative terms of payments. Once the petitioner has agreed unconditionally to avail the benefits under the special one-time voluntary retirement scheme, he cannot claim other benefits available under the normal scheme, which are not mentioned in the Special Voluntary Retirement Scheme.
12. During the course of arguments, it is admitted by the learned counsel on either side and also revealed from the records that dearness relief has not been taken into consideration while calculating the retirement benefits.
13. In the light of the elaborate discussion made above, we are not inclined to interfere with the orders impugned in these Writ Petitions. But, in view of the admission made by the learned counsel on either side, we direct the respondents to consider the case of the petitioners for adding dearness relief alone while calculating the retirement benefits in accordance with the provisions of the Rules and pass appropriate orders within a period of eight weeks.
14. Writ Petitions are disposed of accordingly. No costs.
dixit To
1.The Chairman, Export Inspection Council, (Ministry of Commerce) Government of India, Udyog Bhavan, New Delhi-110 011.
2.The Director, Export Inspection Council, No.26, Pragati Towers, 11th Floor, Rajendra Place, New Delhi 110 008.
3.The Additional Director, Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014.
4.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014.
5.The Director, (Export Inspection & Export Promotion) Government of India, Ministry of Commerce, Udyog Bhavan, New Delhi.
6.The Director (Inspection & Quality Control), Export Inspection Council, 11th Floor, "Pragati Towers", 26, Rajendra Place, New Delhi-8.
7.The Deputy Director (Incharge), Export Inspection Agency (Madras), (Ministry of Commerce) Government of India, No.213, Royapettah High Road, Chennai- 600 014.
8.Deputy Secretary, Department of Pension & Pensioner's Welfare, Third Floor, Lok Nayak Bhavan, Khan Market, New Delhi-110 003.
9.The Additional Secretary and Financial Adviser, Department of Commerce, Ministry of Commerce, Udyog Bhavan, New Delhi.
10.The Secretary, Department of Pension & Pensioners' Welfare, Ministry of Personnel, New Delhi