Bombay High Court
P. Bandyopadhyay And 2 Ors vs Union Of India And 3 Ors on 13 January, 2016
Author: G.S.Kulkarni
Bench: Anoop V.Mohta, G.S.Kulkarni
Rng 1
wp2704.05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2704 of 2005
1. P.Bandopadhya }
residing at KE-14,
VSNL Wireless Colony,
Greater Kailash I, }
New Delhi-110 048.
2. I.P.Singh }
residing at B-403 Dheeraj Gawray Heights II,
Off Link Road Andheri (West)
Mumbai-400 053 ig }
3. G.Palaniappan
residing at 9, Piroja Court,
83-C/9, Meera Baug, }
Santacruz (West)
Mumbai-400 054.
vs
1.Union of India }
having their office at Ayakar Bhavan
New Marine Lines,
Mumbai }
2. Department of Pension and
Pension Welfare, Government of India }
Ayakar Bhavan, New Marine Lines
Mumbai
3. Ministry of Communications and }
Information Technology,
Department of Tele Communications,
Sanchar Bhavan, }
New Delhi-110 001.
4. Videsh Sanchar Nigam Limited }
now known as TATA COMMUNICATIONS LTD
having their office at Lokmanya Videsh
::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 :::
Rng 2
wp2704.05.doc
Sanchar Bhavan, Kashinath Dhuru Marg, }
Opposite Kirti College, Prabhadevi,
Mumbai-400 028.
.. Respondents
Mr.Rajesh Gehani for Petitioners
Mr.H.V.Mehta for Respondent nos.1 to 3
Mr.K.J.Presswala a/w Mr.Sandeep Gopal i/b M/s Mulla & Mulla
Craigie Blunt & Caroe for Respondent no.4
.
CORAM: ANOOP V.MOHTA AND
G.S.KULKARNI, JJ
JUDGMENT RESERVED ON: 6 JANUARY 2016
JUDGMENT PRONOUNCED ON: 13 JANUARY 2016
JUDGMENT (Per G.S.Kulkarni, J)
1. By this petition under Article 226 of the Constitution of India the petitioners who were the employees of the erstwhile Department of Overseas Communication Services (OCS) of the Government of India absorbed in the services of the Videsh Sanchar Nigam Limited (for short 'VSNL') now known as 'Tata Telecommunications Ltd-Respondent no.4, are seeking pensionary benefits under the Office Memorandum dated 5 July 1989 issued by the Government of India, Department of Pension and Pension Welfare.
2. This writ petition was initially dismissed by an order dated 26 ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 3 wp2704.05.doc April 2006. The Petitioners had approached the Supreme Court in a Civil Appeal No.3059 of 2007. The Supreme Court by an order dated 14 July 2011 allowed the appeal setting aside the orders passed by this Court thereby remanding the writ petition to be decided afresh, on merits and in accordance with law, leaving open all questions of fact and law on the ground that the writ petition was not examined by this Court on merits.
This is how the writ petition is placed before us for final hearing.
3. The case of the petitioners is that in the year 1986 a policy decision was taken by the Government of India to convert the Department of Overseas Communication Services into an autonomous corporation namely the VSNL. After the said conversion the Department of Pensions and Pension Welfare of the Government of India issued a Office Memorandum dated 5 July 1989 providing that on conversion of a Government department into an autonomous body the question of settlement of pensionary terms were reviewed in the light of the recommendations of the committee of the National Council. It was provided that the terms and conditions which may be applicable for the settlement of pensionary benefits on such conversion of a Government ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 4 wp2704.05.doc department into a public sector undertaking/autonomous body would be as set out in this Office Memorandum. The relevant extract of the Office Memorandum reads thus:
(a) "The permanent Government servants shall have an option to retain the pensionary benefits 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 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% per annum as opening balance in their CPF account with the Public Sector Undertaking/Autonomous Body.
(d) The permanent Central Government servants who have completed 10 years or more of service and who opt for the retirement benefits of a PSU/Autonomous Body will receive pro rata retirement benefits for the service rendered under the government. These will be regulated as follows:
(i) Employees will have an option either to draw pro rate pension monthly or to draw a lump sum amount in lieu of 100% pro rata pension.
(ii) Where the employees opt in favour of monthly payment of pro rata pension, the same shall be allowed to be drawn with effect from the date of permanent absorption in a PSU/Autonomous Body. No part of pro rata pension will be allowed to be commuted either at the time of permanent absorption or any time thereafter.
(iii) In the case of employees who opt in favour of a lumpsum amount in lieu of 100% pro rata pension, the lumpsum value shall be worked out on the basis of table prescribed under the CCS ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 5 wp2704.05.doc (Commutation of Pension) Rules 1981.
(iv) In the case of employees covered by clause (ii) the retirement gratuity and for those covered by Clause (iii) above, both retirement gratuity as well as lumpsum commuted value shall be paid on the expiry of a period of 7 years from the date of permanent absoption. The amounts however, can be paid earlier in the event of death/retirement/resignation/discharge from service.
(v) The amounts of retirement gratuity and lumpsum value in lieu of pension mentioned in Clause (iv) above shall remain with the Government and earn interest at the rate prescribed for General Provident Fund deposits from time to time for the period they remain with the Government."
4. Learned counsel for the petitioners would urge that clauses of the above Office Memorandum are mutually exclusive. It is submitted that the petitioners at the relevant time were admittedly in the category of employees who had less than 10 years of service and thus the petitioners would become eligible for pensionary benefits as per clause (b) of the above Office Memorandum, as the petitioners were Government servants and opted to be avail the pensionary benefits. It is the petitioner's case that however vide the impugned communications dated 24 March 2005 and 30 May 2005 issued by the 1st respondent in its Department of Telecommunications it is informed that the issues pertaining to the petitioner's claim for pensionary benefits be dealt with according to the Office Memorandum dated 5 July 1989 and benefits are not being accorded ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 6 wp2704.05.doc to them as per the said Office Memorandum. Learned counsel for the petitioners, therefore submits that the issues involved in the present petition therefore pertain to the interpretation of Office Memorandum dated 5 July1989.
5. On the other hand, learned counsel for the respondents submits that the petitioners are not entitled for the relief of pension any benefit in as much as petitioners belong to the category who had put in less than 10 years of qualifying service with the Government on the date of absorption into VSNL which took place w.e.f. 1 April 1986 till 1 January 1990. It is submitted on behalf of the respondents that although the petitioners were not qualified for pensionary benefits at the time when their services with the Government ended. The petitioners had wrongly exercised an option contrary to the Office Memorandum dated 5 July 1989.
It is submitted that the Office Memorandum dated 5 July 1989 much less clause (b) thereof, is of any avail to the petitioners, to claim pensionary benefits, as the Office Memorandum is applicable only to those permanent Government servants who had completed more than 10 years of service. It is then submitted that the issue is squarely covered in view of the decision ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 7 wp2704.05.doc of the Division Bench of this Court in the case of S.V.Vasaikar & others vs Union of India & ors reported in (2003) 2 MhL.J. Page 691, wherein the Division Bench in writ petition being writ petition No.5374 of 2002 dealt with a case of similarly situated employees, who had not completed 10 years service with the Government of India and had exercised an option to avail pensionary benefits on their absorption with VSNL. It is submitted that the petitioners in the said case had claimed entitlement on the basis of Office Memorandum dated 5 July 1989. The challenge was repelled by the Division Bench of this Court in holding that the pensionary benefits could not have been sought by the petitioners who had not completed 10 years of employment. In addition to these submissions learned counsel for the respondents has also raised an objection to the maintainability of the writ petition on the ground that the respondent no.4 is not a 'State' within the meaning and purview of Article 12 of the Constitution of India. In support of this submission, reliance is placed on the decision of the Division bench of this Court in writ petition No.2139 of 2007 (Mahant Pal Singh vs vs Union of India and upheld by the Supreme Court in the case of Jatya Pal Singh vs Union of India & ors (2013) 6 Supreme Court Cases 452.
::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 8wp2704.05.doc
6. We have heard learned counsel for the parties as also with their assistance we have perused the relevant documents as referred and relied during the course of their submissions.
7. It is an admitted position that the petitioners were originally employees of the Overseas Telecommunication Services (OCS) a Department of the Government of India which was converted in an autonomous body/PSU namely VSNL as on 1 April 1986. All employees of the erstwhile OCS were initially transferred en mass on deputation to VSNL between the period 1 April 1986 to 1 January 1990. Subsequently absorption of the employees of OCS took place on 2 January 1990, from which date the employees were deemed to have retired from service of Government of India. By the Office Memorandum dated 5 July 1989 the Government of India set out and modified the terms and conditions, for settlement of pensionary beneifts on such conversion by a Government Department into a public sector undertaking/autonomous body. In pursuance of this Office Memorandum a staff notice dated 21 February 1990 was issued calling upon the employees who had opted to be absorbed by VSNL to exercise their option in terms of para (a) of the said Office ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 9 wp2704.05.doc Memorandum. The staff notice was to entail to the benefit of only the permanent employees in the Government service, whose services were transferred to VSNL. It was also stated that pensionary benefits would be available under the Government Rules contained in Central Service Rules (Pension) Rules 1972. The staff notice was appended with a clarificatory information and with the 'Format' to facilitate exercise of option, which categorically stated that the eligibility to avail benefits under the pension rules, would be conditional to the government servant putting in minimum of 10 years of qualifying service.
8. The petitioners admittedly did not possess 10 years of service as Government servants on the date of absorption into the VSNL and thus were not eligible for exercise of option for availing pensionary benefits.
The names of the petitioners were therefore not forwarded to the Government by VSNL for grant of pensionary benefits.
9. The contention of the petitioners is only on the basis of clause (b) of the Office Memorandum which states that Government servants who opted to be governed by pensionary benefits available under ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 10 wp2704.05.doc the Government shall at the time of retirement be entitled to pension. The petitioners contend that their case falls under clause (b) as the petitioners have exercised an option to avail pensionary benefits. We are afraid that we cannot accept this submissions as urged on behalf of the petitioners.
The petitioners cannot read clause (b) in isolation. The Office Memorandum dated 5 July 1989 is required to be appreciated in its entirety.
The Office Memorandum pertains to the settlement of pensions in case of conversion of a Government Department into a Central public sector undertaking/autonomous body. Clause (a) of the Office Memorandum categorically states that permanent Government servants shall have an option to retain pensionary benefits available to them under government rules or be governed by rules of public sector undertakings and further such an option shall also be available to quasi permanent employees and after they have been confirmed in public sector autonomous body. Clause (b) is required to be read in conjunction with clause (a). Clause (b) states that a Government servant who would opt to be governed for pensionary benefits available under the Government shall at the time of retirement be entitled to pensionary benefits. Clause (c) states that permanent Government servants having less than 10 years of service and quasi permanent ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 11 wp2704.05.doc employees and temporary employees who opt for rules of public sector undertakings shall be entitled to an amount equal to provident fund for the period of their service under Government after the date of permanent absorption in public sector undertakings/autonomous body with simple interest at 6 % per annum, as opening balance in their CPF A/c with public sector undertaking. A cumulative reading of clauses (a) (b) and (c) makes it clear that only permanent Government servants with more than 10 years of service would be entitled to seek pensionary benefits on their absorption in public sector undertakings at their option. If the submission as urged on behalf of the petitioners is accepted clause (c) which specifically provides that Government servants with less than 10 years of service shall be entitled to an amount equal to the provident fund contribution for a period of their service under Government up to the date of permanent absorption would be rendered meaningless. The Central Government would not have provided for clause (c) if the intention of the Government was to include those Government servants who had less than 10 years of service. The petitioners who fall in the category of Government servants with less than 10 years would therefore be squarely covered by clause (c) of the Office Memorandum dated 5 July 1989 and thus the petitioners have been rightly ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 12 wp2704.05.doc denied the pensionary benefits under Office Memorandum dated 5 July 1989.
10. There is much substance in the contention as urged on behalf of the respondents that the issue as raised by the petitioners is also squarely covered by the decision of the Division Bench of this Court in the case of S.V.Vasaikar & ors vs Union of India (supra.) In this decision the Court was considering a similar challenge as raised by the employees who had not completed 10 years of service with Government of India who were not permitted to exercise an option for retaining pensionary beneifts on their absorption to VSNL. The petitioners therein staked their claim on the basis of the very same Office Memorandum dated 5 July 1989. In repelling the contentions the Division Bench observed as under :
26. "Regarding the contention that employees who had not completed ten years were not allowed to exercise the option with regard to pensionary benefits, it may be stated that even when they were in the Government service when VSNL was a Government company they were not entitled to such benefits. Reading the memorandum also it becomes abundantly clear that the persons who had not completed ten years of service with the Government were not entitled to pensionary benefits.
The option which was allowed by the Government and to be exercised by the employees was in respect of those employees who had completed ten years or more of service and quasi-permanent employees and temporary employees who would be entitled to such benefits after they would be confirmed in the Public sector or Autonomous Bodies. Since the petitioners and similarly situated persons who had not completed ten ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 13 wp2704.05.doc years of service were not entitled to such benefits even under the government they cannot make grievance for pensionary benefits. Moreover as observed herein above the third respondent has specifically stated in the affidavit in reply that retirement benefits in VSNL would remain the same after privatization as they were before privatisation. Hence, even on that ground the grievance of the petitioners is ill founded and cannot be upheld. "
11. We are in complete agreement with the findings as recorded by the Division Bench in the case of S.V.Vasaikar (supra.) These observations completely support the case of the respondents and in our opinion the contentions as urged on behalf of the petitioners also deserve to be rejected.
12. On the above observations of the Division Bench there is yet another reason why the petitioners cannot be placed in a position which is not contemplated by the Office Memorandum dated 5 July 1989. The Office Memorandum has clearly carved out a category of those who have not completed 10 years of service in clause (c). By a judicial interpretation, we cannot create a category either contrary to clause (c) or render nugatory the effect of clauses (a) and (b). On examining merits of the petitioner's case we are of the clear in our opinion that the petitioners are not entitled to the reliefs as prayed for. As we are of the view that the petitioners cannot succeed on the merits of the case, we have refrained from considering the ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 14 wp2704.05.doc issue of maintainability of the writ petition as urged on behalf of the respondents and noted by us above.
13. In the light of the above discussion, the writ petition fails and is accordingly dismissed. No order as to costs.
G.S.KULKARNI, J ANOOP V. MOHTA, J
::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 :::
Rng 15
wp2704.05.doc
::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 :::
Rng 16
wp2704.05.doc
CERTIFICATE
Certified to be true and correct copy of the original signed Judgment/order.
::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 17wp2704.05.doc ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 ::: Rng 18 wp2704.05.doc ::: Uploaded on - 13/01/2016 ::: Downloaded on - 14/01/2016 00:01:50 :::