Supreme Court - Daily Orders
Union Of India vs K. Premakumari Etc. Etc. on 28 January, 2021
Bench: Uday Umesh Lalit, Hemant Gupta, S. Ravindra Bhat
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.233-244 OF 2021
(Arising out of SLP (C) Nos.5849-5860 of 2018)
UNION OF INDIA & ORS. …Appellants
VERSUS
K. PREMAKUMARI ETC. ETC. …Respondent(s)
O R D E R
Leave granted.
These appeals challenge the judgment and order dated 28.03.2017 passed by the High Court of Judicature at Madras in Writ Petition Nos.43373 to 43378, 37233 to 37236, 37238 and 37240 of 2016.
The basic facts leading to the filing of the aforesaid writ petitions were culled out by the High Court in paragraphs 4 to 6 of its judgment Signature Not Verified Digitally signed by Dr. presently under appeal, as under:
Mukesh Nasa Date: 2021.01.30 12:54:01 IST“4. The applicants are working as Officers in Reason:
Tata Communication, which is a private sector undertaking. The applicants originally joined in the Department of Telecommunication and 2 later, absorbed in VSNL. The VSNL was taken over by the Tata Communication with effect from 13.02.2002. The service rendered by the applicants in VSNL were pensionable. However, before they could complete the minimum required number of years of service to enable them to get pensionary benefits, their services came to be absorbed in the private sector, thereby denying them the minimum pension payable to them, otherwise.
5. In the above said circumstances, the applicants approached the Tribunal for relief of pensionary benefits by shifting their date of absorption in the VSNL to enable them to complete ten years of service in the Telecommunication Department and enable them to draw pension thereon. Initially, these applicants had approached the Tribunal in separate Original Applications and however, directions were issued to consider the grant of relief prayed by the applicants. However, it appears that the claim of the applicants was rejected for shifting of the date of absorption and for grant of pro-rata pension.
Therefore, the applicants once again constrained to approach the Tribunal for the relief as extracted supra.
6. Before the learned Tribunal, it was contended on behalf of all the applicants that the prayer as far as in the Original Applications has been considered in similar applications and the Writ Petitions decided by this Court and in all the cases, the employees therein were granted the benefit of shifting of the date of absorption to enable them to complete the minimum ten years of service for them to claim pensionary benefits. The learned Tribunal quoted the order passed by this Court in few Writ Petitions and extracted the finding in one of the matters in paragraph # 9 of the impugned order. After appreciating the similar orders passed by this Court, the learned Tribunal allowed the Original 3 Applications and by giving a direction as contained in paragraph-10 of the order, which is extracted below:-
10. It is, therefore, clear that the respondent authorities have implemented the Hon'ble High Court orders in the earlier OAs in similar matters. The learned counsel for the applicants could give the details of each of the similarly situated employees, who had been extended the benefit of the Hon'ble High Court Judgments to the respondent authority and the respondent authority are given liberty to verify those particulars and apply the orders of the Hon'ble Madras High Court to the effect that if the applicants are falling short of completion of 10 years service before absorption, that date could get postponed till completion of 10 years in the VSNL and that service would be deemed to be the requisite service required for pro-rata pension at the hands of the Central Government. On that basis, the pro-rata pension payable to the applicants shall be calculated and paid to the applicants.
However, the applicants are required to refund the gratuity already received with 9 percent simple interest per annum. The Department will adjust the arrears and pay the balance to the applicants. If any amount is payable by the applicants, by calculating such amount with interest at 9 percent per annum, the applicants would refund the same within a period of three months from the date on which the communication would be received. The order shall be complied with within a period of three months from the date of receipt of a copy of the order. No costs.” 4 Similar controversy had arisen in P. Bandopadhya & Others v. Union of India & Others, (2019) 13 SCC 42, a matter which came up from the decision of the Bombay High Court. On cumulative reading of Clauses (a), (b), (c) and (d) of Office Memorandum dated 05.07.1989, the Bombay High Court had found that only permanent Government servants who had served for more than 10 years, would have the option of getting pensionary benefits after their absorption in the public sector undertakings.
The decision rendered by the High Court was affirmed by this Court.
The office memorandum dated 05.07.1989, which had fallen for consideration, was quoted by this Court in para 2.2 of its decision as under:
“On 5-7-1989 the Department of Pension and Pension Welfare of the Government of India issued Office Memorandum No. 4/18/87-P & P.W. (D) [“Office Memorandum”] specifying the terms and conditions governing the pensionary benefits of employees who were transferred en masse on the conversion of a government department into a Central public sector undertaking or autonomous body. The relevant extract of the Office Memorandum is set out hereinbelow for ready reference:
“…The following terms and conditions will be applicable in the case of en 5 masse transfer of employees:
(a) The permanent government servants shall have an option to retain the pensionary benefit available to them under the government rules or be governed by the rules of the public sector undertaking/autonomous body.
This option shall also be available to the quasi permanent and temporary employees after they have been confirmed in the public sector undertaking/autonomous body.
(b) The government servants who opt to be governed by the pensionary benefits available under the Government, shall at the time of their retirement, be entitled to pension, etc., in accordance with the Central Government rules in force at that time.
(c) The permanent government servants with less than 10 years' service, quasi permanent employees and temporary employees who opt for the rules of the public sector undertaking/autonomous body shall be entitled to an amount equal to provident fund contribution for the period of their service under the Government up to the date of permanent absorption in the PSU/autonomous body with simple interest at 6% p.a. as opening balance in their CPF account with the public sector undertaking/autonomous body….”” After considering the rival submissions, this Court concluded in paragraph 8.12 of its decision as under:
6“The appellants were not entitled to receive pensionary benefits either under the CCS (Pension) Rules, 1972 or under Clauses (a) and (b) of the Office Memorandum. The case of the appellants being government servants prior to their absorption in VSNL, with less than 10 years of qualifying service, would be squarely covered by Clause (c) of the Office Memorandum. Under Clause (c), they would be entitled to receive an amount equal to the provident fund contribution for the period of their service under the Government, up to the date of their permanent absorption along with simple interest at 6% p.a. as the opening balance in their CPF account with the public sector undertaking/autonomous body.” It may be stated here that soon after the office memorandum dated 05.07.1989, another office memorandum was issued by the Central Government on 18.07.1989, the relevant portion of which reads as under:
“2(i) The employees who opt to continue to be governed by the Central Government Rules shall be governed by the family pension scheme of the Central Government; and
(ii) Those who opt to be governed by the rules of the PSU/Autonomous body shall have an option to be governed either by the family pension scheme of the Central Government or by that of the PSU/Autonomous body, but not both.
However, the benefit of the family pension scheme of the Central Government will be available only to such of the employees who are permanent and having qualifying service of not less than ten years.” 7 These memoranda made the position absolutely clear that as on the date when the concerned employees were absorbed in VSNL w.e.f. 02.01.1990, it was made absolutely clear that the benefit of family pension scheme of the Central Government would be available only to such of the employees who were permanent Government servants and had qualifying service of not less than 10 years.
The record shows that at the stage of absorption in VSNL, choice was available to the concerned employees either to continue to be under the Central Government but under surplus staff scheme or to opt for being absorbed in VSNL. All such employees who had opted to be so absorbed, had done so with open eyes and after being alive to the situation as stated hereinabove.
In the circumstances, the decision of the Central Administrative Tribunal as affirmed by the High Court of Judicature at Madras in the present matter is not consistent with the law laid down by this Court in P. Bandopadhya & Others (supra).
However, Mr. Siddhartha Dave, learned Senior Advocate appearing on behalf of the respondents and 8 Mr. Deepak Nargolkar, learned Senior Advocate appearing for some of the intervenors have sought to rely on Rule 37-A of the Central Civil Services (Pension) Rules, 1972.
The original provisions, namely, Rules 37 and 37-A as they stood in 1989, were as under1:
“37. Pension on absorption in or under a corporation, company or body.— (1) A government servant who has been permitted to be absorbed in a service or post in or under a corporation or company wholly or substantially owned or controlled by the Central Government or a State Government or in or under a body controlled or financed by the Central Government or a State Government, shall be deemed to have retired from service from the date of such absorption and subject to sub-rule (3) he shall be eligible to receive retirement benefits which he may be elected, or deemed to have elected, and from such date as may be determined, in accordance with the orders of the Central Government applicable to him.
Explanation.— Date of absorption shall be:
(i) in case a government employee joins a corporation or a company or body on immediate absorption basis, the date on which he actually joins that corporation or company or body;
(ii) in case a government employee initially joins a corporation or company or body on foreign service terms by retaining a lien under the Government the date from which his unqualified resignation is accepted by the 1 As quoted in Welfare Association of Absorbed Central Government Employees in Public Enterprises and others vs. Union of India and another (1996) 2 SCC 187 9 Government.
(2) The provisions of sub-rule (1) shall also apply to Central Government servants who are permitted to be absorbed in joint sector undertakings, wholly under the joint control of Central Government and State Government/Union Territory Administration or under the joint control of two or more State Governments/Union Territory Administrations.
(3) Where there is a pension scheme in a body controlled or financed by the Central Government in which a government servant is absorbed, he shall be entitled to exercise option either to count the service rendered under the Central Government in that body for pension or to receive pro rata retirement benefits for the service rendered under the Central Government in accordance with the orders issued by the Central Government. Explanation.— Body means autonomous body or statutory body.
Rule 37-A. Payment of lump sum amount to persons on absorption in or under a corporation, company or body.— (1) Where a government servant referred to in Rule 37 elects the alternative of receiving the (retirement gratuity) and a lump sum amount in lieu of pension, he shall, in addition to the (retirement gratuity) be granted:
(a) on an application made in this behalf, a lump sum amount not exceeding the commuted value of one-third of his pension as may be admissible to him in accordance with the provisions of the Civil Pensions (Commutation) Rules; and
(b) terminal benefits equal to the commuted value of the balance amount of pension left after commuting one-third of pension to be 10 worked out with reference to the commutation tables obtaining on the date from which the commuted value becomes payable subject to the condition that the government servant surrenders his right of drawing two-thirds of his pension.” The Rules that existed thus did not contemplate clubbing of service rendered by a person under a department of Central Government with that under a public sector undertaking.
Rule 37-A which was substituted in the year 2000 would not thereafter be the governing principle to consider the relationship between the parties as on the date when the services were absorbed in VSNL.
In our view, Rule 37-A as projected by the learned Advocates for the respondents and the intervenors would be of no avail to the respondents and, the matter would be required to be considered from the standpoint of the aforementioned Memoranda dated 05.07.1989 and 18.07.1989. The situation in that behalf has already been dealt with by this Court in P. Bandopadhya & Others (supra).
The present decision of the High Court and the 11 Central Administrative Tribunal being completely inconsistent, we allow this appeal, set-aside the decisions of the Tribunal and the High Court and dismiss the concerned original applications preferred by the respondents.
The appeals are allowed, in the aforesaid terms, with no order as to costs.
.......................J. [UDAY UMESH LALIT] .......................J. [HEMANT GUPTA] .......................J. [S. RAVINDRA BHAT] NEW DELHI;
JANUARY 28, 2021.
12ITEM NO.17 COURT NO.4 SECTION XII (HEARING THROUGH VIDEO CONFERENCING) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition for Special Leave to Appeal (C) Nos.5849-5860/2018 (Arising out of impugned final judgment and order dated 28-03-2017 in WP No.37240/2016, 28-03-2017 in WP No.37238/2016, 28-03-2017 in WP No.37236/2016, 28-03-2017 in WP No.37235/2016, 28-03-2017 in WP No.37234/2016, 28-03-2017 in WP No.37233/2016, 28-03-2017 in WP No.43378/2016, 28-03-2017 in WP No.43377/2016, 28-03-2017 in WP No.43376/2016, 28-03-2017 in WP No.43375/2016, 28-03-2017 in WP No.43374/2016, 28-03-2017 in WP No.43373/2016 passed by the High Court Of Judicature At Madras) UNION OF INDIA & ORS. Petitioner(s) VERSUS K. PREMAKUMARI ETC. ETC. Respondent(s) (IA No.5073/2020 – FOR APPROPRIATE ORDERS/DIRECTIONS; and, IA No.76114/2018 – FOR INTERVENTION/IMPLEADMENT) Date : 28-01-2021 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE UDAY UMESH LALIT HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE S. RAVINDRA BHAT For Petitioner(s) Mr. K.M. Nataraj, ASG Mr. Gurmeet Singh Makker, AOR Mr. Devashish Bharukha, Adv.
Ms. Diksha Rai, Adv.
Mr. Shailesh Madiyal, Adv.
For Respondent(s)/ Mr. Siddhartha Dave, Sr. Adv. Intevenors Mr. Mushtaq Salim, Adv.
Mr. Rohil Bansal, Adv.
Ms. Pallavi Pratap, AOR Mr. Deepak N. Nargolkar, Sr. Adv. Ms. Prerna Singh, Adv.
Ms. Divya Mishra, Adv.
Mr. Shantanu Sagar, AOR 13 UPON hearing the counsel the Court made the following O R D E R Application for intervention is allowed.
Leave granted.
The appeals are allowed, in terms of the Signed Order.
Pending applications, if any, also stand disposed of.
(MUKESH NASA) (PRADEEP KUMAR) COURT MASTER BRANCH OFFICER
(Signed Order is placed on the File)