Central Administrative Tribunal - Kolkata
Anil Kr Basu vs Steel Authority Of India on 3 May, 2019
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O.A. NO. 350.01006.2015 r :• nL vNo. M.A. 350/393/2018 Date of order: J ,3^1 rfjd M.A. 350/394/2018 i M.A. 350/450/2018 M.A. 350/451/2018 i h M.A. 350/983/2017 ;
M.A. 350/446/2017 I> : O.A. 350/1006/2015 Present Hoh'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member ;
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For the Applicant Mr. D.P. Majumdar:Oouhsel
For the Respondents Mr; N.C. Bhaftacharya, Gounsel
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Per Dr. Nandita Chatterjee. Administrative"i/lember 1;.1 ■ A ~7 i.
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; The Tnstant Original Application has been filed -under Sectional9 df the
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Administrative Tribunals^&ct, 1985 seekmgThe fdllpwing^relief:-
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-"(a) Rescind, revoke the;,impugned system oTpaying the applicants CPF system of
^Pension and in lieu'thereof introduce and gay.them the,.GPF"sy£tem of pension which is If? Jfi fully DA linked/etc.; - -
t (b) An.order be passed directing the applicants to refundithe amount which they received at the.-fime of-retirement along with interest accrued thereon within specific time;.
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t (c) .An order be-passed directing .the concerned Authority to. cancel CP pension and
1 introduce GPF'Pension in respect of the retired employees of the-Petitioners.
f (d) Leave may-be granted under Rule 4(5)(a)'of the Central Administrative Tribunal
4 Procedure Rules, 198740 the applicants to join together.to'file a single application as all
M of them are having the same cause and the nature.of-r0lief prayed for and that they have
Sh a common interest in the matter; i
(e) To pass such other order or orders, direction arid directions as .to ..Your Lordship _
may seem fit and proper."
2. M.A. No. 393 of 2018 and M.A. No. 394 of 2018 have been filed on behalf v i of applicant No. 126 praying for substitution and condonation of delay respectively. Similarly, M.A. No. 450 of 2018 and M.A. No. 451 of 2018 have •/ been filed praying for substitution and condonation of eielay respectively on behalf of applicant No. 129. MA No. 393 of 2018, however, reveals that the applicant No. 126 had expired on 20.7.2016 whereas the substitution application 1 S' 1 :
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/ MA. 393.2018, M.A. 394.2018, M.A. 450.2018, M.A. 451.2018, MA 983.2017, M.A. 446.2017 WITH
r O.A. NO, 3S0.01006.2015
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tt** ^ With a prayer for condonation of delay). As the
prayer has been" made beyond 90 days of expiry of the applicant No. 126, the <
O.A. abates also with respect to applicant No. 126 as per Rule 18 of the Central Administrative Tribunal (Procedure) Rules, 1987. Similarly, in M.A. 450 of 2018 f the date of expiry of applicant No. 129 is recorded as 12.3.2017, whereas the substitution application has been filed on 21.6.2018 (although with a prayer for condonation of delay), which is beyond 90 days of expiry of the applicant and, hence, the O.A. abates with respect to applicant No. 129 under Rule 18 of the rf r. Central Administrative Tribunal (Procedure) Rules, 1987.
l " M.A. No. 446 -of 2017 for joint prosecution is allowed on grounds of commonality of cause of action and common interest.
M.A. No.. 938 of 2017 which has been preferred for deletion of names of l applicants-Nos. 2, 6, 42, 11^ 126, 129, 166 and.206 on grounds of their expiry is allowed and the cause title will stand amended accordingly.
3. The instant Original Application is hereafter taken up for adjudication; The submissions of the applicants, as made through :their Ld. Counsel,-is that the 7!i i applicants are all retired employees'of the Steel authority/of India Limited which SI * controls Durgapur Steel Plant as well as Alloy SteehPlants. The said respondent i ] No. 1, however, did not allow the retired employees to switch over to GPF Cum 1;
DA Linked Pension, compelling the applicants to undergo financial stress and, that, although the applicants made several representations praying for switching over from CPF to GPF, their prayers were rejected by the respondent authorities r ■i and, hence, the ipstant Original Application. y i The applicants have furnished, inter alia, the following grounds in support ?
of their claim:-
(a)The CPF Scheme which prevailed during the' service tenure of the . a > applicants is not a DA Jinked Scheme and hence switching over to the DA linked GPF Scheme would ameliorate the economic distress of the i. • j retirees. s <
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(b)The decision of the respondents that such switching over from CPF to tabmitfcmaiyi! mu biMi iii UMMU ^ ^ ft* tyn* GPF/Pension Scheme had never been in vogue in SAIL, is baseless and pro; r i unreasonable. 1 RE,;
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(c)That, as Pension Schemes have been introduced for.. employees of Government of India as well as for certain Public Section ;Units and CPF I Schemes have been adopted by other entities, the maintenance of such MM i i dual system of Schemes is discriminatory against the applicants being violative of Article 14 and 16 of the Constitution of India. ;
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*4. Per contra, the respondents have argued extensively. Prima facie, the ■W*--- -
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respondents have assailed the Original Application on grounds bf. delay alleging
- »■■ that the First representation dated 26.2.2012 praying, for switching oyer was t t ..
M5T • rejected and communicated .by the-respondent authorities on ,30.5.2012 i 1 ■ (Annexure A-2 to the O.Ap) and4hat-.the saidklecision-wa'smot challenged by the *■»* v applicants'till the filing of their OX on. 30.6.2015. The respondents have further K crs attacked the Original Application on grounds of limitation on the ground that the r.;» ; * '' ^ applicants have obtained their retiral benefits as early.as.in the year 1992 but have decided to approach the judicial forum after a lapse of almost 24 years. In ;
support, the respondents have cited the decision of the Hon'ble Apex Court in r Chairman, U.P. Jal Nigam & Ann V. Jaswant Singh & anr. AIR 2007 SC 924 < - *■ J .
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■ wherein it was held that when the respondent-employees acquiesced in 4 r accepting retirement and did not challenge.same in time, grant of relief at belated 4 stage was liable to be denied.
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! The respondents have also alleged non-joinder of necessary parties such >• j as the "SAIL, DSP PF Trust", "SAIL, ASP PF Trust" and the "Regional Provident 1 Fund Commissioner (RPFC)'' in the original application.
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The respondents have further agitated that the Central Provident Fund a Commissioner, to whom a representation dated 29.8.2011 was addressed by the' applicants, has not been impleaded as a party respondent by the applicants.
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MA. 393.2018, M.A. 394.2018, M.A. 450.2018, M.A. 451.2018, M.A. 983.2017,' M.A. 446.2017 WITH O.A. NO. 350.01006.2015 f \] r }•fc ^,'re3^r»dents Have contended as follows:- j { That, the Steel Authority of India Limited, i.e. the respondent No, 1, Is a b< Government company within the meaning of Section 617 of the Companies Act 1 i i 1956 and, that the employees of Steel Authority of India Limited cannot be termed as Government employees.
That, the employees of public sector companies are not entitled to DA t n Linked GPF benefits unlike their counterparts who are essentially Government r j employees.
i i It That, the employees of SAIL are not guided by the CCS (Pension) Rules, f i 1972 but by various policy decisions taken from time to,time by the Board of the t it } ■ l Steel Authority. of !lndia Limited and that the respondent No. .1 had never i ■-
introduced a Pension Scheme / DA Linked GPF Scheme for its employees. ^;
iii That, the applicants were guided by the CPF System in term of,Provisions I .
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i of Employees Provident Fund and Miscellaneous Provisions;Act, 1952 and.none
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switching over to the DA Linked GPF Scheme } j The respondents have further, argued that, under EPS 1995, an option was .. i offered to those who were'separated between 1993'and '1995 as to whether the ■ said employees would opt to continue under EPS 1995 or to continue with the
- Family Pension Scheme, 1971 and that there was no further option in the l! a statutory scheme of EPS 1995. The applicants .in-the instaht O.A., however, had not raised any issue regarding the options under EPS 1995 whereby options to switch over to DA Linked GPF from CPF were never offered and as the basic * < EPS remain unchallenged, the demand of the applicants is not founded on any i hi statutory premise.
r The respondents have also controverted the averments of the applicants i that there was discrimination amongst the employees as because in Steel
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Authority of India Limited, there is no provision of GPF 6r pension, and hence, the scope of discriminating amongst the employees of respondent No. 1 does not * 'i 4 i * i ! . il -
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MA. 393.2018, M.A. 394.2018, M.A. 450.2018; M.A. 451:2018, M.A. 983.2017, M.A. 446.2017 WITH f•I ii ?m O.A. NO. 350.01006.2015 s ■5 ) : .;,|&p j /' arise, Trie respondents have further called Upon trie applicants to strict proof by documentary evidence that any discrimination has beeni; meted out to the J . f Me. ■ r .• 5 ii applicant vis-^-vis other employees of the respondent No. 1. j I m
5. The primary issue to be adjudicated upon in the instanj O.A. is whether the * applicants, who are the retired employees of respondent No. 1, are entitled to ;■ i m is gfip§! switch over from CPF to GPF/ Pension Scheme after separation from the m m SI fK1 o respondent authorities.
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p S '6.1. At the outset, we note^he^BacftgroUnd^p^the formation of the Steel s s £ -*v, %,v,! m ft I Authority of India Qt.jisf pliib|ic sector company. S;
i Ife Section 617 ofrtfie C%i^fties Act, 1956 states as foll^A^ l , 'ilSSl b I "617,/ De^tfibn of % For th'^urposeslof % [this Act] i $ Gpyernmen^company m^?S&ny%mj|lanJin wlic^pt L less thanjfppnelper cent of the [pftdyjp share caffilUs feld&ylh^Cep-al j§®Wnrnent, or b^anyfStatement im ll Gbverai^t or Gove® en«y)r%ai|y iyihef6ej#l (^femnfent aira%fitly% one or jmoreSstete Gove*«ta^%\4j|»>^Rjgp^cl| is a>^|idiaw of a ?
i He if Th%|pllowing i^nferred*fr^^p|ana1pis«of«Sectio®I17 of thcComp^mes m J ! •' Act,|t956ts% ! ^ f is m j* 1 t ■A i :
l usg & Sectibn 617 of^he^mpanifsicl (f 'JEW-' ^S^refdKjp^GoyernmerfftOm^ny".
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!• (b|The share holdiRg^of ^S^Jflshire lapigpiy .Qentcal Government? or by
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■ (c) Includes^a coiripany !whipiji/i^ksubsid{aiflW-a Goyfernment company as
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' 6r the pu'rpbse"of'^^]i^^tBco;rporat^^ijlvould be'liftedTo ascertain l the face of instrumentality or agency of State.[as held in Central Inland m mi Si' we !j | m •i,;
$ m\i 7 Wafer.... Vs. Brojo Nath Ganguly & anr., AIR 198QSC 1571]
(e)The fact that^ all its shares are held by the President and certain ■m •1 officers of the Central Government does not make the company an ii • ■< if*:
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Heavy Engineering Mazdoor Union v. State of Bihar, AIR 1970 SC 82.
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MA. 393.2018, M.A. 394.2018, M.A. 450.2018, M.A. 451.2018, M.A. 983.2!017, M.A. 446.2017 WITH O.A. NO. 350.01006.2015 ra 'N- - r-jf / i » & If I ■ t \A Being a public sector company, the policy decisions o^f such company are i 4 decided by the Board of Directors of the Company. Accordingly, any decision on i the retirement benefits of the employees of respondent No. J will be taken by the i Board of Directors of the Company. 5 rH «*■<* v While the respondents have denied that any such retirement policy of GPF •- .« & cum DA linked Pension is in vogue as per their communication dated 27.10.2014 ✓ (Annexure A-7 to the O.A.) and also as per their response on the applicant's & letter addressed to Central Provident'Fund Commissioner (Annexure A-2 to the v\ r4 O.A.), the applicants have fail^ftolfiMsa anyfooliGy ^decision of the Board of r ^ if* 'X Directors of responcfent^No. 1 whereby it could be estabjjsfied thatGPF cum DA i i f A Linked PensiorS^heme at arjy point^o^ ime when > the appjicanfe'were in se^^^r afte^itWeirfeuder^m^ion. «*** ^ ^ § i * ! v1 i I .4 I
-'i n,BinartMpQ7) 15 >S€C 402 the aST 1 '1 • i Hon|)le ^pgx Court h^d^at»^g^^%ire^Qrn.^eR/ic t:
(On 31.1.1^92 wh%reas il l I t the fesp^ndent munic^fftyjdp^^^t sjS^^s.^Am.Ost, 2001, t^em|loyer ra i ;4:
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pension scheme unless^S^^^^pjl^sjg^sio^siher&n. 1
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Patiala and Anbthe'fj^^S^^Sharma & others^o^ubst^rate?the HdrVble Apex *
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) t■f Court's decision that^entitlemenfttOipension:rare"QUided by^regulations governing t:
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the service conditiohsi,and,1?f4htJnstant cas^as-tHfetempdfary employees of a ■ .vr V- S Government department on 'tH'eir*transfeyo^pQ6i^road ^transport corporation i:"i ■ t did not continue to be government servants they were, therefore, not entitled to •« » • V' J
-} government pension instead of CPF.
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entitled to receive only the benefits of CPF and gratuity, as admissible to them, sea ; t under the then prevailing regulations of the Corporation. After acceptance A •V .
.1 .'•5t thereof, no further relationship subsisted between the ^Corporation and the [ : *■. I. .r, 6 \ f ' J-
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: t. respondents and their further clairii that the Gorporation should treat respondents
fas Government servants entitled to pension was wholly untenabje.
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In Heavy Engineering Mazdoor Union (supra), it was dlearly held that a 'V $ l p government company Under Section 617 of Companies Act,H956, is not an a:
;'v ]■ agent either of the President or Central Government and hence its employees i S cannot claim same policies s Central Government employees. ■t I ,yA. i ;§ 6.(2). The applicants have robustly averred that, while organizations such as banks, DVC, HSCL etc. have?--:intr6duced ^the-.GPF cum Pension Scheme, v.1* ' I ™ S, - . ' 'i 1 organizations sucM^A1L,iHja |n^tljfe|^toe!A«ith!.mp CPF Scheme at & - ^ "■ " ^ m s I variance withih% fu®|e?iofganizatlons. _i % ft Hence, almittedly, it wa t vision dp behalf of hi Acodtding|.to the ti .v;
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sjaeme^ r 1 for s\yitch!gg over to C|EP#Gum«Pen|g .fS W l <t I ill. 3! SrH^ar }!MunicJ0iity^ AIR r> & $ 1 ln|f,,kar Na TNehzu&fa W;
! I '"fO"' i befor| the statutoryferisig^rv^heraffits came mtjforce, exj&o ......... . Services\ wefftfermihated ^ I | the terminated dmp|py^^@iot entitled to claimJdfisijph. ^ ^ # K *?;k i! tf ^ /' # sip n ^ In this caleftfie^pplIclHnts and respondeaHsio. 1Jlave ,^feparafed prior to • \ X introduction dfe^any t^PF ciWf^jidn^che^lliehlbe, to £ / of according pi i IMS S 'X X,. ^ Jr benefits of GPF cCfm^Pehsronfcgcheme or b.ej0g^nowegj4o> switch over is not m V*. % J sustainable iTnototherwise ^^ntitlefil^iEdefethe^S^me.__ \ ms$ $ <;■:■ a SM3S.;
i.* The applicants have vociferously averred that discrimination was meted i L' out to them in that while Government employees, employees of banks and i i: certain public sector undertakings were entitled to GPF cum Pension Scheme, r! I 8 the respondent No. 1 had subjected them to acute discrimination by depriving i- nfiii ?
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In Co/. B.J. Akkara (Retd.) v. Govt, of India, (2006) 11 SCO 709, the & M «: pi.
| * Hon'ble Apex Court, after considering D.S.Nakara & ors.i v. Union of India •i l MA-
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(1983) 1 SCC 305, had held that when two sets of employees of the same rank rn'tom* ^^ if When one set retired there was no pension scheme and when the other set/etired, a pension scheme was in force.
i Hence, even if DVC or HSCL had introduced a Pension Scheme where the i respondent No. 1, Steel Authority of India Limited, did not, the'employees retiring in SAIL cannot allege discrimination vis-ct-vis employees ofiDVC or HSCL as t because the Board of Directors of different Public Sector Units, after assessing their financial position jwould(adopt a conscious :
% decision on terminal'ben.efits of their employees. ■J. £} ' XV In Ri Prabtfakar v. CagdnrEShtil 20jl?{*10 aeldthat those % \ J who have ^ted to ^j^exiltm^^ghJ^^Wir favouP*teith^r in the f Statutory Settlement -e!vef^^^ie statutory^settlement, ( will not bexpvered by therScheme<if Pensibrwntroducedi the banks withfeffect i 5 f*** from11.11^1993.
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k inftheiinstant matteKthe"applicants ha^e hbkbefeh able to proVe^that^there W XV / / | \ 1 I was ever any settlemenL pSlicy^re'tirerpenL.policy xr^decision of the Board of Directors of the/fesp^T^n^Np. 1 that had agreed^fiSQSuce GPF cumpension \ \ f vX V /■ Scheme ih'SteelvAuthOpty orlndia Limited. Thejr^legati^6n-of discrimination vis &-vis Government employees' or^empjoyeeS'of other public^secjor undertakings which had introducedJ3PF^burnPension Schemef^lso dods not hold water as ^ ;
because in a governmentcbmpany^seryice^onditions ^are decided by the u decisions of the Board of Directors and are translated intd service bye-laws or i' / service regulations in accordance with the Memorandum of Association and Articles of Association of the Company. The applicants have agitated in their ) •* rejoinder that they had indeed moved the Office of the Central Provident Fund i-
f Commissioner requesting for switching over but the said appeal was i unreasonably rejected by an officer of respondent No. 1. It Is an established procedure that the Central Provident Fund Commissioner could have referred 8 (u ' J :
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--t V (iL MA. 393.2018, M.A. 394.2018, M.A. 450.2018, M.A. 451.2018, M.A. 983.2017, M.A. 446.2017 WITH ; O.A. NO. 350.01006.2015 their request to their employer, namely, respondent No. 1, who would thereafter I i respond as per Annexure A-2 to the O.A. Although the applicants have referred to the respondent No. 1's violent disregard of the provisions of Company's Act i « i 4 1956, they have not been able to establish as to which is the exact provision ».,/./?• i which was violated by the respondent No. 1 in not allowing the applicants in r switching over from'CPF to GPF.
* « r Hence, the prayer of the applicants, not being substantiated by any policy s decision, bye-laws*or regulations of the respondent authorities and also not »"
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m: having substantive Siscriimination ^amongst the employees of
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% respondents No. he O.A., being devoid ^of^merit, elges not merit
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consideration givemthe past and-present po!icy:decisions of Resppndent No. 1.
'i ; jf/\ \ I j /s^. ^ \ ft If, hc^ever,'the re^p&ndept No.l 1 JFnamelynbe, Steel Authoritylof India 4 a f ^ \ 11 Ij/ ^\ \ n Limited, decides tojntroduce G5^u'mLRpn|i^SchemeAfbr its emplojeesfat any 1 i^" • point of time, the competentrauthority; in. respondenWNo.|l, shall, fconsider the m i .? ■t C ; f claim of thei.applicantP;ih thisjQ?AJmthe]ligfit^)Nhe Scheme for enabjjo'g th$m to :r l y-* ; f5 ' switch oveRo the :GPF-GUmTPensionfSehem6vtheafact-that the applieants|have * | w "%j / I \ \ ^ i' I: separated from respondent No.vl should noLcome in^the way for considering / t|:
their claims on.which fhe^applicants have been agitilindpsincef2011, iRhey are . . i \ ■( //j, '%/" \SS} / r '• otherwiseveligible in terms of fhe.^heme. / jF ; Ha * .■ ln ~^ajir»». -Mr****"' ^ jf J? 5 ,-n •• i
7. The O.A. isjtherefore^isposed.oLwith'theVbove » direction^There will be I v.v_ • -1-iu / / * no orders on costs'. ';, > i U ■U ti J it c rpr. (yane^ro Administrative Member j i ;i! i% rr $P t :• $ V. *7 31 l i,