Rajasthan High Court - Jodhpur
Dinesh Kumar Srivastava vs . Jd. V.V.N. Ltd. & Ors. on 23 September, 2014
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL WRIT PETITION NO. 1285/2002.
Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014
1/14
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
:: O R D E R ::
S.B. CIVIL WRIT PETITION NO. 1285/2002.
Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Date of Order :::: 23rd September, 2014.
PRESENT
HON'BLE Dr. JUSTICE VINEET KOTHARI
Appearance:
Mr. Shreyansh Mardia on behalf of
Mr. Sandeep Shah, for the petitioner.
None present for the respondents.
--
BY THE COURT:
1. Heard learned counsel for the petitioner. None is present on behalf of respondent, Jodhpur Vidhyut Vitran Nigam Ltd., despite service.
3. The present writ petition has been filed in this Court on 21.02.2002 seeking following reliefs, by the petitioner Dinesh Kumar Srivastava S/o Sh. B.B.L. Srivastava, who was 53 years of age at the time of filing of this writ petition and unfortunately S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 2/14 expired during the pendency of the present writ petition on 20.02.2013.
"(A) That by an appropriate writ, order or directions in the nature of certiorari, or mandamus, the respondents may kindly be directed to grant all due annual grade increments to the petitioner which accrued to him after 19.12.1987 till the date of his voluntary retirement and further to grant him due selection grades as his service has been held to be continuous service by this Hon'ble Court in S.B. Civil Writ Petition No.644 of 1993 from 19.12.1987 till the date of his voluntary retirement.
(b) That by an appropriate writ, order or direction, the respondents may also be directed to grant due amount of Bonus to the petitioner which accrued to him from 31.12.1987 till the date of his voluntary retirement.
(c) That by an appropriate writ, order or directions, the respondents may also be directed to make payment of due amount of Gratuity and earned leave which accrued to the petitioner at the time of his voluntary retirement, after his pay fixations on account of revision of pay scales and grant of annual grade increments, which accrued to him from 19.12.1987 till the date of his voluntary retirement.
S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 3/14
(d) That by an appropriate writ, order or direction, the respondents may further be directed to grant due amount of GPF and CPF to the petitioner and further to grant him pension and payment of earned leave which accrued to him at the time of his retirement in accordance with the relevant Rules as he had opted for pension vide Annexure/6 keeping in view the fact that as per the decision of this Hon'ble Court, his services have been treated as continuous service from 19.12.1987 till the date of his reinstatement.
(e). That pending petition, if any action is taken against the petitioner, the same may kindly be ordered to be on record and may be set aside and quashed.
(f). That any other relief which is deemed fit in the facts and circumstances of this case may kindly be granted to this petitioner.
(g). That costs of this writ petition may kindly be awarded in favour of the petitioner."
4. The petitioner, Dinesh Kumar Srivastava, who had served the respondent earlier RSEB and now bifurcated in five companies, Jodhpur Vidhyut Vitran Nigam Ltd. (for short, hereinafter referred to as 'Nigam') as Lower Division Clerk, unfortunately expired on 20.02.2013 but since he was unmarried, his parents father and mother, were taken on record as legal representatives in place of the petitioner vide the order dated S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 4/14 26.09.2013 passed by a coordinate bench of this Court. They were 83 years and 78 years respective of age in the year 2013 when they were taken on record.
5. The issue raised in the present writ petition is limited and the learned counsel for the petitioner submitted that the controversy is covered by the judgment of this Court in the case of Hari Kishore Sharma Vs. State & Ors. reported in 2012 (2) RLW 1292 (Raj.). The principal issue raised in the writ petition by the petitioner is that he gave his option for switching over from PF scheme to pension scheme as the retiral benefits upon the due retirement dated 22.02.2000 and the option in this regard was submitted to the respondent Employer though Assistant Enginer (O&M), R.S.E.B., Loonkaransar vide Annex.6.
5. The respondents, however, have denied the benefit of pension to him and his legal representatives, nor they have paid the PF dues to the petitioner upon his retirement and, therefore, the aforesaid writ petition was filed in this Court.
6. Upon issuance of the notices, the respondents have filed reply to the writ petition and the stand taken by the respondents in this regard as given in para 12 thereof is quoted herein below for ready reference: -
"12. That the averments made by the petitioner in para 12 of the writ petition regarding S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 5/14 asking the petitioner at the time of seeking voluntary retirement that he may either opt for pension or for CPF are denied by the answering respondents in as much as the petitioner was required to submit option for pension according to the provisions of the R.S.E.B. Employees Pension Regulations, 1988, R.S.E.B. General Provident Fund Regulations, 1988 and the notices/orders issued by the R.S.E.B. on 6-1-89, 19-5-90, 17-9-91 and 27-1-93. As the petitioner failed to submit option for pension within the time prescribed in the aforementioned notices/orders issued under the 1988 Regulations referred to above. The petition could not raise a claim for pension in place of C.P.F. It may not be out of place to mention here that the R.S.E.B. vide its Notice Dt. 8-5-95 gave one more opportunity for making option for pension up to 31-3-96 to those employees only who were still in the service of the Board but had failed to submit option for pension in terms of the Notices/Orders issued earlier in terms of the 1988 Regulations. The petitioner, however, did not submit option for pension even in terms of the Notice Dt. 8-5-95 ratified by the Board vide Order No.67 Dt. 12-9- 95 as a result of which the petitioner continued to remain a C.P.F. Holder only who had no right to claim pension. Copy of Notice Dt. 8-5-95 is S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 6/14 submitted herewith as Annexure-R/2/1. The so called option form said to have been submitted by the petitioner can by no stretch of imagination be said to be an option for pension as the same was never submitted to the concerned authority within the period prescribed for the submission of such option."
7. Learned counsel for the petitioner has urged that no reason has been given in the reply filed by the petitioner to reject or not to accept the option of switching over to pension scheme by the petitioner, which was duly given and the delay, if any, in giving such option could not come in the way of the petitioner and the respondent employer was bound to accept such option and given the pension due to the petitioner and to his two legal representatives now, which has so far not been paid and unfortunately he expired on 20.02.2013 and his aged parents are still waiting for such payment from the respondent. In the case of Hari Kishore Sharma (supra) cited by the learned counsel for the petitioner, the learned Single Judge of this Court has held as under: -
"11. It is relevant to record that though the opportunity to exercise options to come over pensionary benefits was granted to RSEB employees time & again, but it appears that looking to geographical structure of the State of S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 7/14 Rajasthan where RSEB employees are being posted in remotest areas where there are no means of communications, such employees remain completely unaware of any of such notices issued asking for options to come over pensionary benefits pursuant to Pension Regulations, 1988 and GPF Regulations, 1988.
12. It appears that to resolve the dispute for giving option for Pension Scheme by RSEB employees, Whole Time members & Head of Departments resolved in its meeting held on 04/01/1995 - copy of the minutes was circulated vide communication dt.02/02/1995, observed ad infra:-
1. Extension in the date of giving option for pension Scheme.
It was brought to notice that the last date for giving option for Pension Scheme by the employees under CPF Scheme had expired in1991 and many representations were being received to extend this date. Looking to the difficulty of the employees, it was decided that the facility of opting for Pension Scheme will also be available upto 6 months before retirement to the serving employees only i.e. the employee can opt for GPF pension Scheme while in service. The employee will himself be allowed to give option and not his nominee after death."
Minutes of the meeting of the Whole Time Members & HODs (supra) was never placed S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 8/14 before the Board if at all required for its ratification and in absence of its ratification it was not carried out. It is relevant to record that the respondents in their reply to writ petition has specifically averred that the agenda (supra) was never placed before the Board for ratification.
13. Main thrust of the contentions advanced by Shri RN Mathur, learned Senior Counsel appearing for petitioners is that options were invited by erstwhile RSEB indisputably on eight different occasions but in fact there was no proper circulation of such consistent notices inviting options - in absence whereof, petitioners were completely unaware of any fair opportunity being available to opt for becoming members of Pension & GPF Schemes 1988 and there being complete absence of wide publicity and circulation undertaken by the authority upon and failed to serve notices upon individual employee and on account of the fault being committed by respondents, valuable rights of petitioners to opt for and exercise option to come over pensionary benefits despite they being eligible & having fulfilled conditions provided under Pension & GPF Schemes, 1988, on account of mere technicality, their right to claim pension have seriously been jeoparadised. In support, reliance has been placed on the judgment in Dakshin S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 9/14 Haryana Bijli Vitran Nigam Vs. Bachan Singh (2009(14) SCC 793).
31. This Court has considered rival contentions of the parties and with their assistance, examined material on record. It is an admitted position amongst the parties that all the petitioners are employees of erstwhile RSEB and members of the CPF Scheme at relevant point of time when RSEB Pension Regulations, 1988 & RSEB GPF Regulations, 1988 came into force w.e.f. 28/11/1988 and other than impediments of the option which they had not submitted after the Pension & GPF Scheme, 1988 came into force, all the petitioners fulfill other conditions of eligibility to become members of Pension/GPF Scheme, 1988.
32. Only question having remains for consideration in bunch of instant writ petitions is as to whether the decision of the Board denying to the petitioners in exercising options to come over pensionary benefits and to become members of the Pension Scheme, 1988, how far action of respondents can be said to be justified and is in conformity with Pension/GPF Regulations, 1988 or is in violation of Art.14 of the Constitution of India.
40. This Court records appreciation that as & when representations were received from S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 10/14 employees, generosity has been shown by erstwhile Board and the notices were issued from time to time inviting from the employees to exercise their options to come over pensionary benefits under Pension & GPF Scheme, 1988; but at the same time, this fact cannot be forgotten by the Court that indeed notices (supra) are issued from the office of the Board but no one has taken care to monitor that such notices are at all received in the remote areas where the employees are posted and it was the duty of the employer to see that such notices which confer right upon the employees must reach and be served upon individual employee since his consent in the positive terms was to be obtained and he has to positively fill the option form. Apart from restrictions being imposed, pension is other-wise a right of employee and is not a bounty being paid but contrary, it is a reward for the services rendered by employee and this fact cannot be ruled out that when there were two parallel schemes available after Pension & GPF Scheme, 1988 came into force, option was to be mandatorily furnished by each employee after due application of mind as to whether he wants to continue as a member of RSEB CPF/EPF Scheme with benefits of RSEB Gratuity Rules, 1972 or Jodhpur CPF Scheme with benefit of gratuity S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 11/14 under the Gratuity Act, 1972; or did not want to opt for Pension/Gratuity benefits introduced vide Pension & GPF Scheme, 1988.
41. From Option Form appended to first notice dt.06/01/1989 inviting options from individual employee, having been quoted co- extensively (supra), clearly indicates that intention to issue notice inviting option from employees was not a mere formality; and the intention behind it was that notices inviting options must reach to individual employee posted at far flung remote places so that he should apply his mind and take its own decision that he did not want to exercise option to come over pensionary benefits under Pension & GPF Scheme, 1988 and want to continue as member of CPF/EPF Scheme which he was continuing since his initial appointment with RSEB. To strengthen what has been inferred by the Court is supported by Option Form (Ann.A) appended to the initial notice dt.06/01/1989, which this Court would like to quote since it has a bearing on the issue to be decided, ad infra:
xxx
67. In the net result, all the writ petitions succeed and are hereby allowed. Communication of rejection dt.26/06/2008 and Circular dt.12/03/1999 are quashed & set aside. All the S.B. CIVIL WRIT PETITION NO. 1285/2002.
Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 12/14 RSEB existing employees covered under Reg.3(k) & 3(n) of Pension & GPF Regulations, 1988 including writ petitioners or their legal representatives who are interested to submit their options, are at liberty to exercise option as required to be furnished in the Form appended to (1) RSEB Employees Pension & (2) General Provident Fund Regulations, 1988 within reasonable time as considered by respondents to be appropriate and if such options are furnished, the respondents may take appropriate decision in accordance with law.
68. However, it is made clear that there is no need to file any other writ petition by any of existing employees covered under aforesaid Scheme, 1988 (supra), and the respondents are directed to afford opportunity to all similarly situated employees even if they have not approached this Court and if otherwise eligible may be granted permission to submit their respective options if inclined to become members of Pension/GPF Scheme, 1988. The procedure may be adopted in the light of observations made (supra). No costs."
8. After hearing the learned counsel for the petitioner and since nobody appeared on behalf of respondents when the matter has been taken of hearing though on the last few S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 13/14 occasions, Mr. R.K. Singhal, had appeared on behalf of respondent Nigam, this Court is satisfied that the present writ petition deserves to be allowed in view of aforesaid judgment of learned Single Judge of this Court as it is squarely covered by the same. The respondents have not categorically denied the receipt of option given by the petitioner vide Annex.6 and the only contention raised in the reply by the respondents is that same was submitted belatedly. As has already been held by this Court in the case of Hari Kishore Sharma (supra) that even delay in filing such option would not be fatal and the option given by the person ought to be entertained on merits and switching over to the pension scheme was allowed by the respondents in many cases, there is no good reason as to why option given by the present petitioner should not also be entertained and the due benefit of pension should be paid to him and after his death to his legal representatives, taken on record by this Court.
9. The writ petition is, accordingly, allowed and the respondents are directed to release the pensionary benefits including the arrears thereof to the legal representatives of petitioner forthwith with interest @ 9% p.a. from the date the said pension was payable till the date of actual payment. The respondents will also consider the case of petitioner for grant of selection scale, bonus etc. as prayed, when it became due in S.B. CIVIL WRIT PETITION NO. 1285/2002. Dinesh Kumar Srivastava Vs. Jd. V.V.N. Ltd. & Ors.
Order dated 23/09/2014 14/14 accordance with law and include such benefit while computing the retiral benefits due to the petitioner. No costs. A copy of this order be sent to the concerned parties forthwith.
(Dr. VINEET KOTHARI), J.
DJ/-
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