Delhi High Court
S.S. Nayar vs The Chairman, Ongc & Ors. on 7 July, 2000
Equivalent citations: 2000(56)DRJ427
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. Petitioner in this writ petition retired from service of ONGC/respondent No.1 on 31.12.1987 on reaching the age of superannuation. Petitioner joined as Assistant Locust Technical Officer in the Directorate of Plant Protection, Quarantine and Storage on 12.4.1951. This was a department under Central Government. Petitioner changed his cadre of service from technical to non-technical on 24.5.1952 and was absorbed in the same department as temporary Upper Division Clerk in the same pay scale. On 18.7.1956, he joined Directorate of Oil and Natural Gas, a Government service under Ministry of Natural Resources and Scientific Research, as Senior Assistant. Petitioner claims that his joining this department was treated as transfer from the previous department, and therefore, petitioner was considered to have been transferred from one Government department to another and as he had more than 3 years service in the previous department, he acquired quasi-permanent status in the previous department which also he carried in accordance with the prevalent rules. Be as it may, in the Directorate of Oil and Natural Gas, petitioner was promoted as Head Assistant w.e.f. 1.3.1957 and as Superintendent w.e.f. 5.11.1959. On 15.10.1959, Directorate of Oil and Natural Gas was converted into a statutory body when ONGC Act 1959 was passed. As per Section 13(i) of the said Act, persons employed in ONGC before this conversion were to be governed by the same tenure and the same remuneration and upon the same terms and conditions as if the commission had not been established. Petitioner gave declaration on 1.3.1960 to serve the ONGC for foreign service terms. In May 1960, Contributory Provident was introduced in ONGC. Petitioner elected to be covered by the said CPF scheme and w.e.f. 1.12.1963 he started contributing to the CPF scheme which date was subsequently changed to 1.12.1960 on his representations. He was the member of CPF till his retirement. However after his retirement, petitioner made representations to the respondents for consideration of his past service from 12.4.1951 when he had joined as Technical Officer in the Directorate of Plant Protection and requested for releasing of pensionary benefits by calculating the service right from 12.4.1951 to 31.12.1987 or else release employers' contribution towards the CPF along-
with accumulated interest thereon subject to adjustment of the payment already made to the petitioner. However his request was rejected by letters dated 4.6.1990 and 7.1.1993. He accordingly filed the present writ petition seeking quashing of the decisions contained in communications dated 4.6.1990 and 7.1.1993 denying the grant of pensionary benefits for the past service rendered by him.
2. From the aforesaid, it is clear that the petitioner as on the date of his retirement was a member of CPF Scheme that too w.e.f. 1.12.1960. However he wants to avail pensionary benefits for which purpose he wants that his entire service including in the earlier department from 12.4.1951 be included. In the alternative, his submission is that he should be granted employers contribution towards CPF w.e.f. 12.4.1951 to 30.11.1960 as well alongwith accumulated interest thereon. Thus in nutshell, the twin reliefs claimed by the petitioner are as under :
a) Counting of period from 12.4.1951 to 30.11.1960;
b) Grant of pensionary benefits as applicable to Central Government employees to the petitioner for the service from 12.4.1951 o 31.12.1987 or in the alternative grant of payment of employer's contribution towards CPF from 12.4.1951 to 31.12.1987 alongwith accumulated interest thereon.
3. It is stated by the petitioner in his writ petition that notwithstandng the provisions as contemplated in clause 13(1) of the Act as explained in para 2 above, and prior to introduction of the CPF Scheme for the Commission's employees, during the meeting held in May 1960 under the Chairmanship of Sh. K.D. Malviya, Ex. Officio Chairman ONGC, it was unanimously decided that "while introducing the CPF scheme in the Commission having been converted into autonomous body, a reference will be made to the Govt. of India, recommending that the employees who had joined the Commission prior to 15.10.1959, be permitted to elect either CPF Scheme or pensionary benefits as applicable to Central Government employees. However, no such reference appears to have been made to the Govt. of India, and the CPF scheme for the Commission's employees was made applicable somewhere in June 1961, but the petitioner was not admitted to the said CPF scheme since its ommencement and he continued contributing towards GPF scheme through the ONGC since he was considered as Govt. servant on foreign service. It was submitted that meanwhile, the Govt. of India with a view to set at rest the question regarding settlement of pensionary terms in respect of the Govt. employees who are transferred to an autonomous organisation consequent on the conversion of a Govt. Dept. into such a body, issued OM dated 5.11.1964 to the effect that "permanent Govt. servant so transferred will be given the option to either retain the pensionary benefits available to them under the Govt. rules or be governed by the rules of the autonomous body. In case of exercising the former option, they will be entitled to the benefits of the liberalisation in pension rules introduced on Govt. side subsequent to their transfer. The aforesaid right of option will also be available to the quasi-permanent and temporary employees after they have been confirmed in the autonomous body". It was also submitted that the import of the afore-said Govt. OM dated 5.11.1964 was primarily to ensure that Govt. servants on transfer to the autonomous bodies are not put to any disadvantage but could avail the better options out of the two available to them in their overall interests. It was further submitted that since the petitioner could not be asked for the option to either retain the pensionary benefit under Govt. rules or be governed by the CPF scheme as he was not confirmed despite being on service of the organisation from 18.7.1956 (though his services were considered w.e.f. 12.4.1951) whereas 20 employees of the Geological Survey of India were given the liberty to give option in terms of the section 13(1) of the Act were, therefore, granted pensionary bene-fits in terms of the CCS Rules as admitted in the counter affidavit. It was also submitted that since the petitioner was finding it difficult to con-tribute towards the General Provident Scheme as admissible to Central Government employees through the respondent commission and after receipt of the communication pertaining to the issue of Government of India OM dated 5.11.1964 whereby the petitioner was required to be given the liberty to give such aforesaid option for retention of the pensionary benefits in terms of the CCS rules or otherwise of the scheme introduced by respondent commission only after his confirmation, the petitioner in view of the aforesaid OM and in the hope that he would be asked about his option after his confirmation, was constrained to approach the authorities for admitting him to the CPF scheme vide application dated 31.8.1965 pending his confirmation. However, in response to his said application, petitioner was directed to severe his relation with his parent department. The correspondence exchanged with the parent department through proper channel is annexed with the petition. Thereafter the petitioner was admitted to the CPF scheme initially w.e.f. 1.12.1963 vide respondent letter dated 3.3.1966 which was subsequently changed to be made effective w.e.f. 1.12.1960 vide their letter dated 17.3.1967. It was submitted that the petitioner, on coming to know that Shri A.P. Nagar, Superintendent, junior to him was confirmed, approached the concerned authority to also confirm him vide his representation dated 2.12.1967, so that he could be asked to give his option to either retain pensionary benefit under the CCS Rules or be governed by the rules of the commission in terms of the spirit of Government letter dated 5.11.1964. In response to the said representation, the petitioner was informed that he would only be considered for permanency in the cadre of Stores & Purchase Officer as and when the permanent post in the said cadre is available vide their UO note dated 26.12.1967. Thereafter, it is submitted, that it was the bounden responsibility of the respondents to have confirmed the petitioner and then sought for his option in accordance with the provision contemplated in section 13(1)(c) read with 13(1)(a) of the ONGC Act and Government of India letter dated 5.11.1964. However the petitioner was neither confirmed in the said post of Stores and Purchase Officer nor any option was sought from him as stated above despite the fact that the petitioner served in the said cadre of Store & Purchase from 11.11.1963 to 31.12.1987 and the strength of the Commission had increased manifolds and that all the records of his service alongwith appointments held were/are held in the power and possession of the respondent Commis-
sion. After highlighting the aforesaid factual background, the learned counsel for the petitioner submitted that in view of the provisions of Section 13(1) of the Act as well as decision of the respondents in the meeting held in May 1960 commencement of CPF scheme, the petitioner is entitled to pension as he joined ONGC, as quasi-permanent overnment employee and therefore he continued to be governed by the same conditions by which he was governed in Directorate of Plant Protection, Quarantine & Storage and in that department he was entitled to pension. It was submitted that the petitioner was considered to be on transfer from one Central Government department i.e. Directorate of Plant Protection Quarantine & Storage, Ministry of Food & Agriculture, where he had served from 12.4.1951 to 17.7.1956 to another Central Government department i.e. O.N.G. Directorate. Ministry of Natural Resources and Scientific Research where he joined on 18.7.1956 without any break in service whatsoever and that too in the same scale as was being drawn by him as U.D.C. and not on the higher post as alleged by the respondents though, of course, the designation was that of Senior Assistant and as such carried his quasi-permanent status w.e.f. 1.7.1955, which in fact was communicated to him while he was serving in ONGC at the relevant point of time in April 1958. It was also submitted that ONGC (Terms & Conditions of Appointment & Service) Regulations 1975, could not overwrite the statutory provision contemplated in Section 13(1) of the ONGC Act 1959. Even otherwise, it was further submitted, proviso to Regulations 3(ii), (a), (b) & (c) protect the interest of the petitioner and similarly situated persons who have been protected by Section 13(1)(c) of the ONGC Act. It was further submitted that the respondents were duty ound to give the petitioner benefit of pension even when there being a request from the petitioner as petitioner was entitled to the same nder the law/relevant rules. In support of his submission, petitioner relied upon the judgment of Madras High Court in the case of M. Viswanathan Vs. Government of Tamilnadu & Ors. reported in 1989 LAB.I.C. 1567 as well as the judgment of this Court in the case of Rajinder Pal Singh Lamba & Ors. Vs. The Administrator of Delhi & Ors. . The counsel also submitted that when the petitioner had right to receive the pension, his petition could not be denied the same on the ground of delay and in support of this submission, he referred to the following judgments:
1. A. Sagayanathan and Ors. Vs. Divisional Personal Officer, S.B.C. Division, Southern Railway, Bangalore .
2. Arun Kumar Chatterjee Vs. South Eastern Railway and Others reported in 1985 (1) SLR 500.
3. S.R. Bhanrale Vs. Union of India & Ors., .
4. On the other hand, learned counsel for the respondents vehemently argued that petitioner was not entitled to any relief. Preliminary submission was that petitioner had not come to the Court with clean hands. It was submitted that the petitioner had opted for CPF wherein he was covered w.e.f. 1.12.1960. He continued to deposit his contribution in the said CPF scheme right till the date of his retirement and he had concealed these facts in his writ petition. Secondly, it was argued, in any case petitioner was estopped from claiming pensionary benefits after having contributing to CPF scheme and was governed by the said scheme right till his retirement. Not only that, even after retirement, he took all his dues including amount of CPF and the present writ petition was filed in 1993 i.e. 6 years after his retirement and receiving of retiral benefits which showed that he was more than satisfied and had no grievance. Thirdly, the petition was barred by latches and delays as all through his service period of 28 years from 1959 to 1987 with the respondent, the petitioner did not agitate the matter and came to the Court 6 years after his retirement. On merits, it was submitted that petitioner was not entitled to any pensionary benefits for his service as only those employees who came on deputation from other organisation to ONGC with specific terms and conditions pertaining to pension, which was accepted by the Commission with the approval of the Central Government, got the pensionary benefits. In the instant case the petitioner was not covered by this; as such was not entitled to receive any pensionary benefits as he further joined the membership of the Contributory Provident Fund on his own request and had been accepting the contributions of the employer and hence is not eligible to claim grant of pension at this stage. Reference was also made to the judgment of Apex Court in the case of Committee for Protection of Rights of ONGC Employees & Ors. Vs. ONGC holding that Temporary Government servants absorbed in a statutory body viz. ONGC after its creation under the ONGC Act and opting for Contributory Provident Fund Scheme under the PF Scheme by availing the benefit for long, not entitled to benefit in addition to PF.
5. It was also pointed out that Supreme Court in the aforesaid judgment further held as under :
"The Scheme of Contributory Provident Fund by way of retral benefits envisaged by the Provident Fund Act is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions of India, the institution of a pension scheme could not be visualised in the near future. It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits."
6. It was also submitted that question between the petitioner and the spondents is a matter of policy and it was examined by the respondent Commission and it was found that since ONGC (Terms and Conditions of Appointment and Service) Regulations, 1975 were framed with a previous approval of the Central Government and the Commission, they are applicable to all the employees of ONGC except those mentioned in sub-clauses (a) and (b) of clause (i) of Regulation 3 of the aforesaid regulations. Further the pensionary terms are not contained in these regulations and as such the employees employed in the Commission prior or after its conversion as statutory body, are not entitled to pensionary benefits. Only those employees who came on deputation from other Organisation to ONGC with specific terms and conditions pertaining to pensionary benefits, which was accepted by the Commission with the approval of the Government of India got the benefits. In the instant case, the petitioner had not come on deputation and as such was not entitled to any pensionary benefit as claimed. It was further stated that once an employee joined the membership of the Contribu-tory Provident Fund Scheme without any objection and accepted the employer's contribution in the said Contributory Provident Fund and received the annual statement of the Contributory Provident Fund accumulation during his entire period of service, it was not felt necessary to refer the cases to the Government for approval of pensionary benefits as two identical benefits namely the Contributory Provident Fund and the pension cannot be granted to an employee simultaneously. Moreover the petitioner had himself requested the respondent Commission by letter dated 15.10.1959 to make him member of the Contributory Provident Fnd and it was not right for him to say that he should have been considered for pensionary benefits also. Mr. V. Seshagiri, learned counsel for the respondent also explained that the petitioner's claim for contributory provident fund w.e.f. 1951 is also not maintainable inasmuch as the Contributory Provident Fund cheme was introduced in respondent Commission only in May, 1960 and the petitioner could therefore not be granted retrospective benefit under a scheme which is prospective in nature.
7. After giving my considered though to the entire matter, I am inclined to accept the arguments and submissions made by the respondents. In so far as relief claimed by the petitioner seeking pensionary benefits is concerned, it is too late in the day for the petitioner to claim this benefit. Petitioner himself made request dated 15.10.1959 agreeing to be covered by CPF scheme. On his request, he was allowed to become the member of CPF scheme. In fact, initially he was made the member of this scheme w.e.f. 1.12.1963. However he wrote another letter dated 4.10.1966 in which he requested that he should be treated as an employee of the Commission w.e.f. 18.7.1956 and may also be allowed the benefits of CPF w.e.f. 15.10.1959 in place of 1.12.1963 by which time had already completed one year service in the Commission. Thus even by this letter, he wanted the benefit of CPF scheme but wanted it to be from an earlier date. Considering this request, he was allowed the benefit w.e.f. 1.12.1960. Apparently, the petitioner accepted this position and thereafter continued to contribute towards CPF right till the date of his retirement and even withdrew his money under CPF scheme. There is no force in the contention of the petitioner that petitioner was, in his earlier department, contributing his GPF, and therefore, his service conditions were protected by virtue of section 13(1)(c) of the ONGC Act 1959. It is a matter of record that after having been converted into a statutory body by an act of Parliament in 1959, it adopted the "contributory provident Fund Scheme" and not the pension for its employees. The petitioner who was earlier contributing to his general provident fund in his parent department opted for contributory provident fund scheme. It is evident from the letter dated 4.11.1966 annexed to the counter affidavit as Annexure-B, whereby the petitioner requested that he be allowed to contribute towards contributory provident fund with retrospective effect and to stop his contribution towards GPF. Accordingly, the petitioner was initially admitted to the contributory provident fund w.e.f. 1.12.1963 and subsequently the petitioner was allowed to contribute towards CPF w.e.f. 1.12.1960. It is pertinent to state that CPF Scheme is in the nature of a substitute and is not meant to be in addition to Pension Scheme. The peti-tioner having voluntarily accepted the CPF Scheme and made contribution towards the said scheme had "deemed to have opted" for the said CPF Scheme in place of pension.
8. Thus the petitioner is not entitled to the relief of pension after he, by his own violition, became member of CPF Scheme. Even the judgment of Supreme Court in the case of Committee for Protection of Rights of ONGC Employees & Ors. Vs. ONGC (supra) comes in the way of petitioner and makes him disentitle to receive this benefit. Moreover, this very question is decided by Calcutta High Court while dealing with certain other similarly situated persons who were absorbed in ONGC and by judgment dated 27.7.1998 in CO No. 8665(w) of 1992. Similar prayer raising similar contentions by those petitioners, was rejected by Calcutta High Court relying upon the aforesaid judgment of Supreme Court. The relevant portion of the judgment reads as under:
"The question which has been raised by Mr. Bose, learned counsel, keeping in view the provision of the said Act is that as the petitioners did not submit their option, they were entitled to the statutory provision contained in Section 13(1) of 1959 Act, cannot be accepted for the simple reason that the petitioners would be deemed to have knowledge about the said Scheme and having Voluntarily opted therefore they would be deemed to have waived their legal right, if any. It is too late in the day for the petitioners to contend that they were all along not aware of the said Scheme. It is a well known principle of law, that an employee cannot claim pension unless there existed a special rule, the benefits of both Pension and contributory provident fund, with a view to convert the benefit, the authority of the respondent corporation frad the said Scheme as far back as in the year 1960. As noticed hereinbefore, some of the petitioners have retired as far back as in the year 1974. It is unfortunate that the petitioners being officers of the said ONGC now contended that they did not know the actual purport of the said scheme.
The petitioners cannot be permitted by reason of their conduct to opt for the pension Scheme again and that too after such a long time. It is well settled principle of law that a person by his conduct would debar himself from raising the contention that he was entitled to a particular benefit, if he without any dem our whatsoever gave up the said benefit. Reference in this connection may be made to 1991 (1) CLJ 188.
In view of the conduct of the petitioners, even the doctrine of 'Acceptance Sub-silentio' would be attracted in the present case.
For the reasons aforementioned, there is no merit in this writ application which is accordingly dismissed."
9. Thus there is no force in any of the submissions made by the petitioner when examined in the context of aforesaid factual and legal premise.
10. In so far as alternate relief of the petitioner to claim for CPF from 1951 is concerned, petitioner is not entitled to this relief simply for the reason that CPF Scheme was introduced by the respondents only in May 1960, and therefore, the petitioner cannot be granted the benefit w.e.f. 1951. Not only this, as noticed above, by letter dated 4.10.1966 even the peti-tioner claimed benefit of CPF Scheme w.e.f. 15.10.1959 in place of 1.12.1963 (and not w.e.f. 1953) as be fully knew that he cannot be granted benefit prior to this date. Moreover pursuant to this request, petitioner was given the benefit w.e.f. 1.12.1960 which position he accepted and it remained till the date of retirement i.e. upto 1987. Therefore, this prayer of the petitioner is also declined.
11. The Writ petition accordingly fails and is hereby dismissed with cost quantified at Rs. 2,000. Rule stands discharged.