Central Administrative Tribunal - Delhi
India Trade Promotion Organisation ... vs M/O Commerce on 14 October, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH:
NEW DELHI
O.A. NO.3128 of 2018
Orders reserved on : 10.10.2019
Orders reserved on : 14.10.2019
Hon'ble Ms. Nita Chowdhury, Member (A)
1. India Trade Promotion Organisation Retired Employees
Welfare Association ITPO REWA through its' General
Secretary, Y.K. Sharma, aged 64 years,
S/o Late Sh. Govind Ram Sharma,
Retired from the post of DGM
Working in India Trade Promotion Organisation,
R/o 54-D, Pocket-F, G.T.B. Enclave, Delhi-03.
2. Piare Lal Sharma, aged 64 years,
s/o late Sh. R.D. Sharma,
Retired from the post of Senior Manager,
Working in India Trade Promotion Organisation,
R/o 225-A, UNA Apts, 3 I.P. Extn., Delhi-92.
....Applicants
(By Advocate : Shri Yogesh Sharma)
VERSUS
1. Union of India through the Secretary,
Ministry of commerce & Industry, India
Udyog Bhawan, New Delhi-110011
2. The Chairman & Managing Director,
India Trade Promotion Organisation,
Pragati Bhawan, Pragati Maidan, New Delhi-110001.
3. The Board of Directors,
Through the Chairperson & Managing Director,
India Trade Promotion Organisation,
Pragati Bhawan, Pragati Maidan, New Delhi-110001.
.....Respondents
(By Advocate : Shri Piyush Sharma for R-2 and R-3
None for R-1)
ORDER
By filing this OA, the applicants are seeking the following reliefs:-
2
"(i) That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dt. 20.09.2017 only to the extend by which pension has been granted only w.e.f.
Nov., 2017 declaring to the effect, the whole action of the respondents not granting the pension to the retired ITPO employees from the date of their retirement and granting the same w.e.f. November, 2017 is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to grant the pension to all the retired employees of ITPO from the date of their retirement with all consequential benefits including the arrears of pension with interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicants."
2. The instant case has been filed by an Association, namely, India Trade Promotion Organisation Retired Employees Welfare Association ITPO REWA through its' General Secretary, Y.K. Sharma and another. They are aggrieved by the order dated 20.9.2017 to the only extent by which pension has been granted only w.e.f. Nov., 2017 and not from their date of retirement. The said impugned order reads as under:-
"We are pleased to inform that Pension Scheme has been approved by Department of Commerce and being implemented in ITPO.
All superannuated employees, who were on ITPO rolls on 01/01/2007 and completed not less than 15 years of service in ITPO shall be covered by LIC Pension Plan.
Initial Contribution The amount payable by ITPO for the period in respect of each employee shall @ of 7% of Basic Pay + 3 DA from 01.01.2007 onwards. The entire sum i.e. 7% of BP + IDA from 01.01.2007 till date of superannuation/VRS/Death shall be invested under LIC Pension Plan.
Further already superannuated employees shall contribute Rs.5000/- by way of DD/Cheque drawn in favour of ITPO Employees Defined Contribution Superannuation Trust as one time payment to become eligible for pension scheme. Further it is optional for retired/VRS employees to contribute up to maximum employer contribution.
It is clarified that the Spouse/Dependent of employee superannuated on or after 01.01.2007 and demised thereafter are also eligible to claim Pension after contribution of Rs.5000/- as started above. Such cases would be dealt as per LIC Pension Scheme.
In order to implement LIC Pension Plan, it is expected to fill in enclosed LIC Pension form and submit alongwith DD/Cheque of said amount and requisite documents to Shri Gajraj Singh, Secretary, ITPO Employees Defined Contribution Pension Trust, Pragati Bhawan, Pragati Maidan, New Delhi 110001 on priority basis latest before 15.10.2017."
3. Pursuant to notice issued to the respondents, respondent nos.2 and 3 have filed their reply in which before giving reply to the OA they raised the preliminary objection that the present OA is not maintainable inasmuch as it has been filed through an Association which was formed by the persons much after their retirement from the department and the said Association has not been recognized by respondent no.2. Reference is made to CAT (Procedure) Rules, 1987, particularly Rule (5) (b) wherein it has been provided that permission of filing of OA may be granted to an Association representing the persons desirous of joining together in a single application provided however, that application shall 4 disclose the Class/Grade/Categories or Persons on whose behalf it has been filed but in the OA as well as in the MA for joining together, no such disclosure has been made and as such the present OA is liable to be rejected on this ground alone.
3.1 They further raised preliminary objection that instant OA has been filed in violation of provision of Section 20 of the Administrative Tribunals Act, 1985 which provides that no OA shall ordinarily be admitted unless the applicant has availed of all the remedies available to him under the Services Rules as no representation has been filed by the applicant/applicants before filing this OA against the order dated 27.9.2017 although a representation was made directly to the Minister and that too by a person who is not an applicant in the present OA. As such the present OA is premature and liable to be rejected as such. 3.2 They also objected that instant OA is also not maintainable as the applicants are claiming the relief which is in the nature of policy decision as the Hon'ble Supreme Court held in the case of P.U. Joshi vs. Accountant General (2003) 2 SCC 532 held that conditions of service, nomenclature of posts, categories are pertaining to the fields of a policy which is within the exclusive discretion and jurisdiction of the State. The said judgment was subsequently 5 followed in the case of Indian Drugs & Pharmaceuticals Limited vs. Workmen (2007) 1 SCC 408.
4. First of all, after hearing the preliminary submissions of learned counsel for the respondents, we note that besides ITPO Retired Employees Welfare Association ITPO REWA, the matter has also been preferred by applicant no.2, i.e., Piare Lal Sharma and hence, without going into the matter whether the said retired employees Association deserves to be heard or not, we note that the instant OA has also been filed by individual employee of ITPO and issues raised by them are similar and we also find that pension to an employee is a continuous cause of action, as pension has been sanctioned to retired employees of ITPO in September 2017, hence the issue in this OA are taken up for consideration. 5.1 Thereupon the respondents further stated that the Pay Revision Committee are appointed by the Govt. from time to time for revision of pay and other allowances every 10 years for the employees of Central Public Sector Enterprises (CPSEs). These recommendations are then considered by the Central Govt. and specific guidelines are issued by the Department of Public Enterprises (DPE) in the light of such recommendations with the approval of the competent authority.
65.2 The 2nd such Pay Revision Committee (PRC) made such recommendations and the guidelines were issued by DPE for revision of pay and allowances effective from 1.1.2007. The same are only guidelines and not binding on any CPSE. The revision of pay and other allowances is decided by the concerned, CPSE with the approval of their Board subject to affordability and other factors relevant in that particular CPSE. In other words, the DPE guidelines on the revision of pay and other allowances cannot be claimed as a matter of right by the employees of any CPSE.
5.3 Department of Public Enterprises (DPE) had issued Office Memorandum No.2(7)/08-DPE(WC)-CL-VIII/09 dated 2.4.2009 in which they have conveyed the decision after due consideration of the recommendations of the Committee of Ministers on superannuation benefits besides other issues. Superannuation Benefits : the ceiling of 30% towards superannuation benefits would be calculated on Basic Pay plus DA instead of Basic Pay alone. Any superannuation benefit will be under a "defined contribution scheme" and not under a "defined benefit scheme". CPSEs that do not have superannuation scheme, may develop such scheme and obtain the approval of their Administrative Ministry. However, no other superannuation benefits can be granted outside the 30% ceiling (Para 12 of O.M. dated 25.11.2008). 7 5.4 Thereafter DPE had issued an Office Memorandum dated 21.5.2014 clarifying the introduction of pension scheme and post superannuation medical benefits in CPSEs and has clearly stated that these schemes would be subject to the factors like affordability, capacity to pay and sustainability of the CPSE. They have also clarified that since the effective date of 2007 Pay Revision in CPSE is 1.1.2007, the proposed scheme(s) may be introduced w.e.f. 1.1.2007 or a subsequent date for the regular employees who were on the rolls of CPSE as on that date and for the employees recruited thereafter. If a regular employee does not want to contribute to the proposed scheme, he/she should have an option. This ma be reviewed every year basis on the profitability/affordability of the CPSE. Contribution every year by CPSE should not be guaranteed for these two schemes.
5.5 They also stated that the proposal for creation of corpus for superannuation pension to employees of ITPO was placed before the 190th Meeting of Board of Directors (Board of Directors) on 12.12.2014. the Board sought some clarifications on the proposed scheme. The clarifications were placed before the Board of Directors in its 196th meeting held on 28.3.2016. The Board of Directors gave approval to implement Pension Scheme in ITPO. Accordingly, ITPO Employees' Defined Contribution Superannuation Pension Scheme was sent to Department of Commerce for their 8 concurrence. The Pension Scheme was concurred by Department of Commerce, Ministry of Commerce and Industry vide letter No.1(4) 2011-TP dated 2.1.2017. The information in respect of approval of Pension Scheme by Department of Commerce was circulated among employees of ITPO vide Circular dated 1.3.2017.
5.6 As per the approved Scheme, a trust was to be constituted for implementation and management of Pension Scheme. Trust deed of ITPO employees defined contribution superannuation trust was finalized in June 2017. Pre- implementation modalities like opening of Bank account, PAN etc. in respect of Pension Trust were completed, thereafter the scheme was implemented in a phase manner following the registration of serving employees under NPS and retired employees under LIC.
5.7 For employees retired on or after 1.1.2007, ITPO had contributed 7% of Basic Pay and Dearness Allowance from 1.1.2007 till date of superannuation in LIC based Pension plan. The pension amount is based on the returns generated on invested amount/corpus by LIC. As this Pension Scheme is a defined contribution scheme, the benefit/pension becomes payable on the date when the contribution amount was transferred to Life Insurance Corporation of India (LIC) who has been nominated as fund manager of this Scheme. The retired employees' demand for arrears of pension is not 9 maintainable as benefits of any scheme are accrued only when the scheme is implemented. Accordingly, the demand seeking arrears of pension prior to implementation of scheme is untenable, further there is no such pension/direction stipulated in 2nd Pay Revision Guidelines.
6. During the course of hearing learned counsel for the applicant mainly contended that when the pension scheme in ITPO has been implemented w.e.f. 1.1.2007, there is no reason and justification for not granting the pension to the retired employees from the date of their retirement. He further contended that no such decision has been taken by the higher competent authority regarding not granting the pension from the date of retirement and hence, the decision of the respondents not granting pension from the date of retirement is totally an arbitrary decision of the respondent no.2 without any reason and justification. 6.1 Counsel also contended that ITPO earned a net surplus of Rs.1238.77 crores during the period of financial years 2006-07 to 2015-16 from its trade and other activities and transferred 100% surplus to the General Reserves. He also submitted that surplus earned during 2016-17 was Rs.168.94 crores and 100% transferred to accumulated reserves. Total accumulated General Reserves as on 31.3.2017 were Rs.1766.30 crores and on this General Reserves ITPO earned huge interest amount. 10 6.2 Counsel further contended that identical pension scheme has been implemented w.e.f. 1.1.2007 in other CPSEs like MMTC and STC etc under the Ministry of Commerce and Industry.
7. On the other hand, counsel for respondent nos.2 and 3 reiterated the stand taken in the counter affidavit during the course of hearing. He also placed reliance on the decision of Hon'ble Delhi High Court in the case of Central Bank Retirees' Association and others vs. Union of India and others, 174 (2010) Delhi Law Times 49 (DB).
8. Having heard learned counsel for the parties and perusing the pleadings available on record, it is observed that the approval granted by the competent authority with regard to pension scheme in respect of the employees of ITPO is to a Defined Contribution Scheme and that shall cover all regular employees on ITPO rolls. Further ITPO shall contribute 7% of Basic Pay plus DA and mandatory employee contribution is 1% of Basic Pay plus DA. However, employees have an option to contribute up to 7% of Basic Pay plus DA and it is further approved that the serving employees of ITPO shall be covered by National Pension Scheme (NPS) and that retired/VRS/Deceased employees shall be covered by LIC formulated pension Scheme. The said approval of the competent authority was brought to the notice of all the employees of the ITPO vide circular dated 1.3.2017. 11 Thereafter ITPO employees Defined Contribution Superannuation Trust for constituted and registered the same on 4.7.2017 in furtherance of implementation of the said Defined Contribution Scheme for granting the pension of ITPO employees and then they have issued order dated 20.9.2017 in which they specifically mentioned that all superannuated employees, who were on ITPO rolls on 01/01/2007 and completed not less than 15 years of service in ITPO shall be covered by LIC Pension Plan and modality for initial contribution and option is provided to such employees who covered under the said Scheme. From the aforesaid minimum facts it is evidently clear that the said decision is based on a policy decision and the Hon'ble Supreme Court in the case of P.U. Joshi & Others Vs. Accountant General 2003 (2) SCC 632, held as under:-
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility 12 criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service".
(emphasis supplied) The aforesaid judgment was subsequently followed by the Apex Court in the case of Indian Drugs & Pharmaceuticals Limited vs. Workmen (2007) 1 SCC 408 in which it has been held as follows:-
"When the State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize quo any matter which under the constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers".13
The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant case law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam vs. Dy. S.P. AIR 2005 Mad 1, and we fully agree with the views expressed therein." Further the Hon'ble Delhi High Court in the case of Central Bank Retirees' Association (supra) held that :
"14. Lastly, according to us, the appellants cannot question the fixation of cut off date for applicability/eligibility of the Pension Regulations as the Supreme Court in the case of Government of Andhra Pradesh and Ors. Vs. N. Subbarayudu and Ors., 2008 (4) SCALE 117 has held that Courts should, normally, not interfere with cut off dates as they are policy decision which fall within the domain of the executive authority. The relevant observations of the Supreme Court in the aforesaid judgment are reproduced hereinbelow:-
"4. In a catena of decisions of this Court it has been held that the cut off date is fixed by the executive authority keeping in view the economic conditions, financial constraints and many other administrative and other attending circumstances. This Court is also of the view that fixing cut off dates is within the domain of the executive authority and the Court should not normally interfere with the fixation of cut off date by the executive authority unless such order appears to be on the face of it blatantly discriminatory and arbitrary. (See State of Punjab and Ors. v. Amar Nath Goyal and Ors.: (2005) III LLJ 759 SC ).
5. No doubt in D.S. Nakara and Ors. v. Union of India: (1983)ILLJ104SC this Court had struck down the cut off date in connection with the demand of pension. However, in subsequent 14 decisions this Court has considerably watered down the rigid view taken in Nakara's Case (supra), as observed in para 29 of the decision of this Court in State of Punjab and Ors. v. Amar Nath Goyal and Ors. (supra).
6. There may be various considerations in the mind of the executive authorities due to which a particular cut off date has been fixed. These considerations can be financial, administrative or other considerations. The Court must exercise judicial restraint and must ordinarily leave it to the executive authorities to fix the cut off date.
The Government must be left with some leeway and free play at the joints in this connection.
7. In fact several decisions of this Court have gone to the extent of saying that the choice of a cut off date cannot be dubbed as arbitrary even if no particular reason is given for the same in the counter affidavit filed by the Government, (unless it is shown to be totally capricious or whimsical) vide State of Bihar v. Ramjee Prasad :
[1990]2SCR468; Union of Indian and Anr. v. Sudhir Kumar Jaiswal: (1995) ILLJ 1773 SC; Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors.: (2004) ILLJ 1061 SC; University Grants Commission v. Sadhana Chaudhary and Ors.: (1997)IILLJ272SC , etc. It follows, therefore, that even if no reason has been given in the counter affidavit of the Government or the executive authority as to why a particular cut off date has been chosen, the Court must still not declare that date to be arbitrary and violative of Article 14 unless the said cut off date leads to some blatantly capricious or outrageous result.
8. As has been held by this Court in Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr.: 2007(14)SCALE1 and in Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi: AIR2008SC1640 the Court must maintain judicial restraint in matters relating to the legislative or executive domain." 15 The ITPO vide its circular dated 1.3.2017 informed its employees about their decision to give pension to those employees of ITPO, who were on their rolls on 01.01.2007 and completed not less than 15 years of service in ITPO and vide their subsequent order dated 20.9.2017 gave the details of LIC Pension Scheme and modalities for pension contribution and options were also provided to such eligible employees of the ITPO. Thereafter all the formalities in relation of implementation of the said Scheme were finalized in September 2017 and options were required to be exercised by such employees on priority basis latest before 15.10.2017. As such we do not find any illegality in the action of the respondents giving pension to such employees from the month of November 2017 as the said pension Scheme is only a Defined Contributory Scheme based on a policy decision.
9. In the result, for the foregoing reasons and the law laid down by the Apex Court in the cases of P.U. Joshi and Indian Drugs & Pharmaceuticals Limited vs. Workmen (supra) as well as decision of the Hon'ble Delhi High Court in Central Bank Retirees' Association (supra), we are not inclined to interfere in this matter and as such the present OA is dismissed. There shall be no order as to costs.
(Nita Chowdhury) Member (A) /ravi/