Central Administrative Tribunal - Delhi
Association Of The Employees Of Indian ... vs Indian Institute Of Mass Communication on 2 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH T.A. No. 1101/2009 Reserved On:17.12.2013 Pronounced on:02.1.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (J) 1. Association of the Employees of Indian Institute of Mass Communication (Registered), Aruna Asaf Ali Marg, JNU New Campus, New Delhi-110 067 Through its President Sh. Mahender Singh. 2. Shri Birbal s/o Sh. Shankar, Working as Safai Karamchari, Indian Institute of Mass Communication, Aruna Asaf Ali Marg, JNU New Campus, New Delhi-110 067. ..Applicants (By Advocate: Shri Jayant Kumar Mehta with Anuj Kapoor) Versus 1. Indian Institute of Mass Communication, A Society registered under Indian Societies Act (XXI) of 1860, Aruna Asaf Ali Marg, JNU New Campus, New Delhi-67. 2. Union of India through Secretary, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi-110 001. 3. Union of India Through the Secretary, Ministry of Finance, Room No.32, Jeevan Deep Building, Parliament Street, New Delhi-110001. Respondents (By Advocate: Shri Rajeev Sharma for Respondents 1 and 2. Shri Ashok Kumar for Respondent No.3) ORDER
Honble Mr. G. George Paracken, Member (J) The grievance of the Applicants in this OA is nearly twenty seven years old. It has been pending adjudication first before the Honble High Court of Delhi and then before this Tribunal for the last nearly eight years. Before this Tribunal itself, this is a second round of litigation. The first Applicant in this case is the Association of the Employees of Indian Institute of Mass Communication (Registered) under Indian Societies Act, 1860. Clause 10(a) of its Articles of memorandum of Association of Respondent No.1 adopted in the year 1965 itself, provided for a Pension Scheme which reads as under:-
(10) (a) to give pensions, gratuities or charitable aid to the teachers, staff and other employees or ex-employees of the Society or their wives, widows, children or other dependents.
However, it was not introduced only for the reason that Ministry of Finance did not agree to make available the necessary funds. The second Applicant Shri Birbal is an employee of the first respondent, namely, The Indian Institute of Mass Communication (IIMC for short), a registered Society fully funded by the Government of India through the second respondent, namely, Ministry of Information and Broadcasting. The third Respondent, namely, Ministry of Finance being a necessary party has been impleaded in this case during its pendency.
2. The background of the case is that in terms of the aforesaid provision in the Articles of Association of Respondent No.1 in the year 1985, the Applicant No.1 put forward the demand for introduction of the Pension Scheme under CCS (Pension) Rules, 1972 as extended to many other similar Autonomous Bodies receiving 100% grant-in-aid from the Central Government. Respondent No.1 took up the matter with the Respondent No.2 vide its letter dated 07.02.1985 seeking its approval. It followed it up with its letter dated 25.09.1986. Pension Scheme was introduced by the Central Government and many other similarly placed Autonomous Bodies for their employees. The Respondent No.2 had, in fact, agreed to introduce the same after consultation with the Respondent No.3 as revealed from the Annexure-B letter No.1/6/86-IP dated 2.4.1987. The said letter reads as under:-
No.1/6/86 IP GOVERNMENT OF INDIA MINISTRY OF INFORMATION AND BROADCASTING Dated New Delhi -1 the 2nd April, 1987 To The Registrar, I.I.M.C, D-18, South Exten., Pt.II, New Delhi.
Sub: Introduction of Pension Scheme for the employees of Indian Institute of Mass Communication.
Sir, I am directed to refer to IIMCs d.o. letter No.1/MCI dated 25th September, 1986 on the subject noted there and to say that the question of introduction of Pension Scheme to the employees of the IIMC has been considered in consultation with the Finance Ministry which have since agreed to the introduction of Pension Scheme in the IIMC. They have observed that those who are in the cut-off date, i.e., the date on which the Pension Scheme is introduced should be given an option either to opt for the Pension Scheme or to continue with the CPF Scheme. It should also be ensured that those who opt for Pension Scheme:
i) have completed their medical examination,
ii) have their character and antecedents verified, and
iii) have taken oath of allegance to the Constitution.
2. Subject to the remarks as reproduced above there is no objection to the introduction of the Pension Scheme to the employees of the Indian Institute of Mass Communication. This Ministry may, however, be kept informed in this regard.
Yours faithfully, (S. DEKAR).
However, even after five years of waiting also, when the Respondent No.2 did not actually introduced the Scheme, the Applicants, vide their letter dated 22.05.1992, have again taken up the matter with them. However, the response of the Respondent No.2 was that the Respondent No.3 did not agree to make available the necessary funds. Meanwhile, the Government of India, Department of Pension and Pensioners Welfare had issued OM No.4/1/87-P.I.C.-I, dated the Ist May, 1987 conveying the acceptance of the recommendations of the 4th Central Pay Commission that all Central Government employees who are beneficiaries of Contributory Provident Fund (CPF) Scheme who are in service as on 01.01.1986 should be deemed to have come over to the Pension Scheme on that date unless they specifically opt out to continue under the CPF Scheme. Later, the Applicants-Association had also sent a list of 163 employees with their names and designation who had opted for Pension Scheme vide its letter dated 13.06.1995. Still the Respondent No.1 has not introduced any Pension Scheme for the Applicants. They have, therefore, filed this case before the Honble High Court of Delhi vide Writ Petition ( C) No. 3306/1995 on 08.09.1995. During the pendency of the said Writ Petition, Respondent No.1 was brought under the jurisdiction of this Tribunal and High Court, vide its order dated 02.03.2009, transferred the said case to this Tribunal and it was renumbered as TA 1101/2009. Thereafter, this case was heard and decided on 04.06.2010 directing the respondents to implement the Pension Scheme in favour of all the Applicants within a period of 3 months. However, the Respondent No.2 filed RA No.85/2011 in this TA on the ground that without the consent of the Ministry of Finance the Scheme could not be introduced and, therefore, were a necessary party in the case. The said Review Application was allowed vide order dated 22.08.2012 holding that the conclusion arrived at by this Tribunal vide its earlier order dated 02.03.2009 was without considering the facts of non-approval by the Ministry of Finance, the relevance of the existing CPF Scheme, introduction of New Pension Scheme by the Government w.e.f. 01.01.2004 and without reference to the relevant para of the Memorandum of Association, Bye Laws and Regulations. Accordingly, the said order was recalled. But the Applicants in this TA challenged the aforesaid order in the RA before the Honble High Court of Delhi in W.P. ( C ) No.955/2013 but the same was dismissed on 18.02.2013. Thereafter, the Applicants have amended the OA and impleaded the Ministry of Finance as the third respondent in this TA. It is in the above background that this TA has come up for hearing again.
3. The Ministry of Finance has now filed reply to this amended Application. Their contention is that the view of the Government was not to support introduction of Pension Scheme in Autonomous Bodies and the same has been articulated in their letter dated 16.03.2000 issued by the Department of Expenditure addressed to all the Ministries/Departments. According to the said letter, the reasons for not approving the proposal for introduction of Pension Scheme in the Autonomous Bodies are as under:-
(i) The cost of introduction of Pension Scheme is much higher than the CPF Scheme. The cost of pension keeps on increasing with every increase/revision in the scales of pay/pensionary benefits recommended by the successive Pay Commissions set up by the Government. Most of the Autonomous Bodies are fully funded by grants-in-aid received from Government. In case Pension Scheme is introduced, Governments liability will also increase to that extent.
(ii) While CPF is a one-time payment, pension is a life long commitment on the part of the Government.
(iii) For servicing a Pension Scheme, a Pension Fund has to be set up to be managed by a Trust. Difficulties may be experienced in judicious administration of the Fund.
(iv) In case of winding up of the organization, the Government may have to take over the entire liability of the Pension Fund.
4. The learned counsel for the Applicants has strongly refuted the aforesaid contention of the Ministry of Finance. He has submitted that the Ministry of Finance was quite arbitrary in their decisions in granting approval for the proposal for introduction of Pension Scheme in various Autonomous Bodies. In this regard, he has submitted that they had agreed to the introduction of Pension Scheme in various similarly situated Autonomous Bodies like the National Council of Educational Research & Training, Kendriya Vidyalaya Sangathan, Indian Council of Social Science Research, The National Institute of Health and Family Welfare etc. He has specifically cited the case of GPF-cum-Pension Scheme introduced for the benefit of the employees of 5 IUCs established under the UGC. According to the letter dated 10.07.2009 of the Ministry of Human Resource Development, Department of Higher Education, the proposal submitted by the UGC has been accepted after consultation with the Ministry of Finance, Department of Expenditure. Accordingly, all the employees of those IUCs who had joined prior to 01.01.2004 were granted the benefit of GPF-cum-Pension Scheme. The expenditure in that regard was also to be borne by UGC from their own funds.
5. As regards the New Pension Scheme is concerned, the learned counsel for the Applicants has submitted that it is applicable to only those who had joined service on or after 01.01.2004 and the Respondent No.1 in all such cases have already introduced it. However, those who have entered service prior to 01.01.2004 are entitled for GPF-cum-Pension Scheme as afore-stated.
6. The learned counsel for the Applicants has also brought to our notice that a similar issue was considered by this Tribunal in OA No.1437/2009 Amit Mukherji and Others Vs. U.O.I. & Others. The Tribunal allowed the OA giving relief to the Applicants. The grievance of the 26 employees of Delhi Urban Arts Commission (DUAC) in the said OA was that whereas the Central Government accorded approval to the decision taken by the managements of as many as 12 Autonomous Bodies/Subordinate Offices under them to switch over from the CPF Scheme to the pension Scheme. Similar request from the management of DUAC was declined for no valid reasons. This Tribunal allowing the said OA held as under:-
5. The second Respondent-DUAC has supported the Applicants plea for pension. The DUAC has been taking up the matter with the MOUD and the Department of Expenditure. The learned counsel for the first Respondent, MOUD, has merely pointed to the advice of the Department of Pension and Pensioners Welfare, which has pointed out that the guidelines of 01.05.1987 do not automatically apply to the autonomous bodies; that the employees of the DUAC are governed by the statutory provisions of the DUAC Act/Rules, which provide for CPF Scheme and hence pension Scheme cannot be extended to them; the proposal has been submitted after 21 years; and it is now established policy in view of dire financial straits not to extend the pension scheme to any organization. By exercising utmost restraint, we are constraining ourselves from using the most appropriate word for this piece of advice. It is so overwhelming contrary to the facts and correspondence considered in the preceding paragraphs that it has to be ignored.
6. It is thus clear that there was a clear deeming provision in the policy guidelines of 01.05.1987 for switch-over from CPF Scheme to Pension Scheme, the Fourth Central Pay Commission had recommended such switch-over and also introduction of DCRG and while the latter was adopted by the DUAC, the former was denied; several autonomous bodies, including those (i) which came into existence after the DUAC and (ii) some of which are under the MOUD, the first Respondent, itself were given the benefit of the Pension GPF Scheme; the Department of Expenditure itself has accepted that it would apply to autonomous bodies; and the expenditure actually involved is a measly sum of Rs.1.5823 crore. It would be most unfair and unjust to deny the benefit of the Pension-cum-GPF Scheme to the Applicants.
7. In the Result, the OA is allowed. We direct the Respondents to formulate a pension scheme positively within six months from receipt of a certified copy of this order and apply it to the Applicants. No costs.
7. Challenging the aforesaid order, the Respondents have filed a Writ Petition No.3122/2011 - U.O.I. & Others Vs. Amit Mukherji and Others before the Honble High Court of Delhi. While dismissing the aforesaid Writ Petition, vide order dated 20.05.2013, the High Court has observed that the Union of India has been extending the benefit of GPF-cum-Pension Scheme in the 12 Autonomous Institutions where the Central Government has permitted the management to shift over to the pension scheme ranges between a minimum of 117 to a maximum of 463, except DTC where the number is in thousands and yet to a small body employing only 26 personnel (where the financial impact would be minimal) the benefit is denied because Central Government is following the principle of Might is Right?. The relevant part of the said order reads as under:-
3. With a view to have uniformity in the pension schemes in various divisions and departments under various ministries, the 4th Central Pay Commission recommended a switch over to the pension scheme.
4. It is not in dispute that on May 01, 1987, the Department of Pension and Pensioners Welfare issued a directive to all ministries, inter alia, directing: Administrative Ministries administering any of the Contributory Provident Fund Rules, other than Contributory Provident Fund Rules (India) 1962 are also advised to issue similar orders in respect of CPF beneficiaries covered by those Rules in consultation with the Department of Pension and Pensioners Welfare.
5. The OM dated May 01, 1987 has been interpreted by the Supreme Court in the judgment reported as (2006) 12 SCC 53 UOI & Anr. Vs. S.L.Verma & Ors. as under:
7. The Central Government in our opinion proceeded on a basic misconception. By reason of the said office memorandum dated 1-5-1987 a legal fiction was created.
Only when an employee consciously opted for to continue with the CPF Scheme, he would not become a member of the Pension Scheme...........Two legal fictions, as noticed hereinbefore, were created, one by reason of the memorandum, and another by reason of the acceptance of the recommendations of the Fourth Central Pay Commission with effect from 1-1-1986. In terms of such legal fictions, it will bear repetition to state, Respondents 1 to 13 would be deemed to have switched over to the Pension Scheme, which a fortiori would mean that they are no longer remained in the CPF scheme.
6. We concur with the view taken by the Tribunal as per the impugned decision dated April 12, 2010, for firstly, since the writ petitioners could furnish no valid reason as to why permission was accorded to the 12 Autonomous Bodies, names whereof have been tabulated in paragraph 3 of the decision by the Tribunal, to switch over to the pension scheme; approval was not granted to DUAC which had also passed a similar resolution. Secondly, for the reason the OM dated May 01, 1987 has already been construed by the Supreme Court as creating a legal fiction i.e. an automatic switch over to the pension scheme unless the employee opted out.
7. Before concluding we may note that the NCR Planning Board is under the same nodal ministry i.e. Ministry of Urban Development which is the nodal ministry of DUAC and we find that the decision taken by the management of the NCR Planning Board to switch over to the pension scheme has been accorded approval by the cadre controlling nodal ministry and its employees are receiving pension. We would be failing not to further highlight that in the tabular form chart prepared by the Tribunal in paragraph 3 of the opinion, the number of employees working in the 12 Autonomous Institutions where the Central Government has permitted the management to shift over to the pension scheme ranges between a minimum of 117 to a maximum of 463, except DTC where the number is in thousands; and yet to a small body employing only 26 personnel (where the financial impact would be minimal) the benefit is denied. Is it that the Central Government follows the principle: Might is Right?
8. The writ petition is dismissed.
9. No costs.
8. We have heard the learned counsel for the Applicants Shri Shri Jayant Kumar Mehta with Anuj Kapoor and the learned counsel for Respondents 1 and 2 Shri Rajeev Sharma and the learned counsel for Respondent No.3 Shri Ashok Kumar. Admittedly, the Respondent No.1 is an autonomous organization under the Respondent No.2 registered in the year 1966 under the Societies Registration Act, 1860. It is fully funded by the Government of India with the approval of the Respondent No.3. Clause 10(a) of its Article of Association contains a provision to give pension to its employees. In terms of the aforesaid clause, from the year 1985 itself, Applicant No.1 has been demanding for introduction of a suitable Pension Scheme. In fact it is seen from the letter of the Respondent No.2 dated 02.04.1987, it has agreed to introduce the Pension Scheme and the Ministry of Finance had also agreed to it. Therefore, there was no question of not providing the necessary funds for the same. Thereafter, the Department of Personnel and Pensioners Welfare, Government of India had introduced the GPF-cum-Pension Scheme vide its OM No. 4/1/1987-PIC-I dated 01.05.1997 w.e.f 11.01.1986. According to the said Scheme, all Central Government employees who are beneficiaries of Contributory Provident Fund (CPF) Scheme who are in service as on 01.01.1986 should be deemed to have come over to the Pension Scheme on that date unless they specifically opt out to continue under the CPF Scheme. It is seen that with the introduction of the aforesaid Scheme to Central Government employees, the employees of the Respondent No.1, have also requested for extending the same benefit to them also with effect from 01.01.1986 as the said respondent is fully funded by the Government of India. The Respondent No.1 has also fully supported their demands and forwarded their case to respondent No.2, which in turn, after consultation with the Ministry of Finance, agreed with the said proposal and allowed to implement the GPF-cum-Pension Scheme to their employees also. However, the impediment was availability of funds as the Ministry of Finance, Department of Expenditure has not accorded the necessary financial sanction. Now the Ministry of Finance has come with the new objection that it is their policy that due to financial crunch, the aforesaid Pension Scheme cannot be extended to the Autonomous Bodies. However, from the material made available by the Applicants, it is seen that the Ministry of Finance has been following a pick and choose policy in the matter. It is seen that they have already concurred the proposals for extending the GPF-cum-Pension Scheme to various Autonomous Bodies like National Council of Educational Research & Training, Kendriya Vidyalaya Sangathan, Indian Council of Social Science Research, The National Institute of Health and Family Welfare etc. In Delhi Transport Corporation where thousands of employees are working, the Finance Ministry had no reservation for extension of the aforesaid benefits. Even in the year 2009, the Ministry of Finance has agreed to introduction of GPF-cum-Pension Scheme in 5 of the IUCs established under the UGC. Therefore, such arbitrary action on the part of the Ministry of Finance cannot be allowed.
9. As observed earlier, this Tribunal has considered the issue with regard to employees of Urban Art Commission and allowed their request for the introduction of GPF-cum-Pension Scheme the High Court of Delhi has also upheld the said order. Thus we do not find any reason as to why the benefit of GPF-cum-Pension Scheme could not have been granted to the employees of the Respondent No.1 who joined them prior to 01.01.2004.
10. We, in the above facts and circumstances of the case, allow this OA and direct the Respondent No.3 Ministry of Finance to accord necessary financial sanction for the introduction of the GPF-cum-Pension Scheme to all the employees of the Respondent No.1 who have been appointed prior to 01.01.2004 as in the case of employees of Autonomous Bodies like National Council of Educational Research & Training, Kendriya Vidyalaya Sangathan, Indian Council of Social Science Research, The National Institute of Health and Family Welfare, ICUs under the UGC etc., within a period of 2 months from the date of receipt of a copy of this order. Thereafter, within one month, the Respondent No.1 in consultation with Respondent No.2 shall ensure that the benefit of the aforesaid Scheme is made available to all its eligible employees.
11. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh