Central Administrative Tribunal - Mumbai
National Federation Of Atomic vs Union Of India on 12 June, 2013
1 O.A. No. 163/2010 & 174/2010 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI O.A. No. 163/2010 & 174/2010 Dated this Wednesday the 12th day of June, 2013 CORAM : HON'BLE SHRI JUSTICE A.K. BASHEER, MEMBER (J) HON'BLE SMT. LEENA MEHENDALE, MEMBER (A) O.A. No. 163/2010 1. National Federation of Atomic Energy Employees (NFAEE) Thro. Its Secretary General Shri K.V. Jayaraj, Opp. Niyamak Bhavan, Anushaktinagar Mumbai 400 094, R/at F-133/02, Cosmos Co-op. Housing Society, Sector-7, New Panvel (E) 410 206. 2. Smt Nandini Jairam, Asst. Accountant, Directorate of Purchase and Stores Vikram Bhavan, Anushakti Nagar, Mumbai 400 094, R/at 1/28, Vidya, Pestom Sagar, Road No. 4, Chembur, Mumbai 84. .... Applicants in OA 163/2010 (By Advocate Shri. R.R. Shetty) Versus 1. Union of India through the Secretary, Department of Atomic Energy, Anushakti Bhavan, CSM Marg, Mumbai 400 001 2. The Secretary, Ministry of Personnel Public Grievances and Pensions, Dept. Of Pension and Pensioners Welfare, Lok Nayak Bhavan Khan Market, New Delhi 110 003 2 O.A. No. 163/2010 & 174/2010 3. The Director, Directorate of Purchase and Stores Vikram Bhavan, Anushakti Nagar, Mumbai 400 094 .... Respondents in OA 163/2010 (By Advocate Shri. V.S. Masurkar) O.A. No. 174/2010 1. Atomic Centralised Administrative Cadre Officers Association Thro. Its Secretary General Smt S. Mohan, Bhagirathi, Anushaktinagar Mumbai 400 094, R/at C-20, Sanchi, Anushakti Nagar, Mumbai 94. 2. Shri K.V. Subramanian, Treasurer ACACOA & Asst. Personnel Officer, Department of Atomic Energy, Bhabha Atomic Research Centre, Trombay, Mumbai 400 085 R/at D/7, Vindhya, Anushakti Nagar, Mumbai 94. .... Applicants in OA 174/2010 (By Advocate Shri. R.R. Shetty) Versus 1. Union of India through the Secretary, Department of Atomic Energy, Anushakti Bhavan, CSM Marg, Mumbai 400 001 2. The Secretary, Ministry of Personnel Public Grievances and Pensions, Dept. Of Pension and Pensioners Welfare, Lok Nayak Bhavan Khan Market, New Delhi110 003 .... Respondents in OA 163/2010 (By Advocate Shri. V.S. Masurkar) 3 O.A. No. 163/2010 & 174/2010 ORDER PER : JUSTICE A.K. BASHEER, MEMBER (J)
These two Original Applications are being disposed of by this Common Order since the issue involved in them is one and the same and the applicants are also identically situated.
2. Applicants in these cases are two Organisations representing some of the employees and officers working in Bhabha Atomic Research Centre in Bombay under the Department of Atomic Energy. Admittedly, they are beneficiaries under the Contributory Provident Fund Scheme (CPF Scheme for short) ever since 1987. Their grievance is that the respondents have turned down the request made by them in 2008 to exercise a further option to change over from the CPF Scheme to the Pension Scheme, without any legal or valid reasons.
3. On May 1, 1987, Department of Pension and Pensioners' Welfare under the Ministry of Personnel, Public Grievances and Pensions in the Government of India issued Annexure A-5 Office Memorandum with a view to facilitate the Central Government employees to change over from the Contributory Provident Fund Scheme to Pension Scheme in tune with the recommendation made by the IVth Central Pay Commission that all CPF beneficiaries in service on January 1, 1986 be deemed to have come over to the 4 O.A. No. 163/2010 & 174/2010 Pension Scheme on that date unless they specifically opt out to continue under the CPF Scheme. Some of the clauses in the above Office Memorandum which are relevant for the purpose of this case are extracted hereunder:
3. All CPF beneficiaries, who were in service on 1.1.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme.
3.2. The employees of the categories mentioned above will, however, have an option to continue under the CPF Scheme, if they so desire. The option will have to be exercised and conveyed to the concerned Head of Office by 30.09.1987 in the form enclosed if the employees wish to continue under the CPF Scheme. If no option is received by the Head of Office by the above date the employees will be deemed to have come over to the Pension Scheme.
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3.6. The option once exercised shall be final. (emphasis supplied by us)
4. The case of the applicants in these two cases is that they had not exercised option before the original cut off date viz., September 30, 1987. However, on September 23, 1987, Department of Atomic Energy issued Annexure A-1 Office Memorandum extending the above cut off date, upto December 30, 1987, since according to the department adequate time had not been provided to the employees for this purpose. It is contended by the applicants that they 5 O.A. No. 163/2010 & 174/2010 exercised option to continue under the CPF Scheme during this extended period. The case of applicant No. 1 in OA No. 163/2010 (the National Federation of Atomic Energy Employees) is that it represents 110 such employees while the case of the other organisation in O.A. No. 174/2010, namely Atomic Centralised Administrative Cadre Officers Association, is that it represents 47 similarly placed officers.
5. Admittedly, applicants in these two cases (110 + 47) have continued to enjoy the benefits under the CPF Scheme ever since 1987. But it is contended by them that in 2007, one of their colleagues had sought certain information under the Right To Information Act as to whether the Department of Pension and Pensioners' Welfare had enlarged the period for exercise of option till December 30, 1987. It appears that the Department informed that it had never delegated its power to extend the period for exercising the option. The case of the applicants is that thereafter they took up the matter with the Department and made a request to afford them a further opportunity to exercise a further option to change over to the Pension Scheme. However, by Annexure A-1 communication dated September 3, 2009, Department of Atomic Energy informed applicant No. 1 that the request for a further option to switch over from CPF Scheme to Pension Scheme could not be 6 O.A. No. 163/2010 & 174/2010 acceded to. Similarly, in Annexure A-2 Office Memorandum dated July 6,2009, Department of Pension and Pensioners Welfare also took the same view and rejected the prayer made by the applicants. Hence these two Original Applications.
6. The two identical prayers in these cases are extracted hereunder for the sake of convenience a. The Applicant therefore prays that this Honourable Tribunal may be graciously pleased to call for the records of th case from the respondents and after examining the same quash and set aside the impugned orders dated 3.9.2009 and 6.7.2009 and hold that all members of the applicants Association/Unions who had not exercised their option to continue under the CPF Scheme between 1.5.1987 and 30.9.1987 are deemed to have come over to the Pension Scheme.
b. That this Honourable Tribunal be pleased to direct the Respondent No. 1 to complete all formalities relating to grant of pensionary benefits to those member employees of the Applicant's Associations/Unions who have since superannuated on or after 30.9.1987.
7. It may at once be noticed that the applicants are trying to rake up this issue after a lapse of 23 years even without filing a petition to condone the inordinate delay.
Applicants have tried to get over the bar of limitation taking shelter under Annexure A-1 and A-2 orders passed by the respondents in September and July 2009 respectively. But admittedly, these orders were issued in response to the representations submitted by the 7 O.A. No. 163/2010 & 174/2010 applicants in 2008-2009.
8. The primary contention raised by the applicants is that since they had not exercised option to continue under the CPF Scheme before September 30, 1987, which was the cut-off date originally stipulated in Office Memorandum dated May 1, 1987, they were deemed to have come over to the Pension Scheme. In this context, they bank very heavily on clause 3.2, which stipulated that if no option was received by the Head of Office by the above date, the employees will be deemed to have come over to the Pension Scheme. Similarly, clause 3 of the above Office Memorandum stipulated that all CPF beneficiaries who were in service on 1.1.1986 and who are still in service on the date of issue of these orders will be deemed to have come over to the Pension Scheme.
9. But, even assuming the applicants had not exercised any option before September 30, 1987, the fact remains that they had at some point of time before the expiry of the extended deadline, opted to continue under the CPF Scheme. Therefore, going by clause 3.6 of the Office Memorandum of May 1, 1987, the option exercised by them had become final.
10. It has to be noticed in this context that the time for exercise of option was extended under Annexure A-7 Office Memorandum even before the expiry of the original cut off date. It is beyond 8 O.A. No. 163/2010 & 174/2010 controversy that the applicants had not raised any demur or protest before any authority about the so called illegality or injustice till April 2008, when for the first time, a representation is seen to have been submitted by their Organisation seeking a further opportunity to exercise fresh option to switch over to the Pension Scheme.
11. In our view, there is considerable force in the contention raised by the respondents that the present attempt of the applicants is to rake up a stale issue which is clearly hit by Section 21 of the Administrative Tribunals Act. As rightly pointed out by the respondents, all these employees were very well aware that the option once exercised was final. The fact that they had kept quiet for 23 years clearly indicates that this is nothing but an experimental litigation, if not sheer abuse of process. It cannot be assumed that applicants had exercised the option to continue under the CPF Scheme without realising the implications thereof. They have enjoyed the benefits of CPF Scheme all these years after exercising the option with their eyes wide open. Therefore, in our view the applicants cannot be heard to say that grave injustice had been done to them by denying a further opportunity to exercise a fresh option to switch over to the Pension Scheme and that too at this distance of time.
12. In Annexure A-1 order, respondent No. 1 has 9 O.A. No. 163/2010 & 174/2010 referred to and highlighted the following reasons as stated by the Department of Pension and Pensioners Welfare (respondent No. 2) while rejecting the prayer for grant of one more option to switch over to the Pension Scheme:
i. The V Central Pay Commission did not support the proposal for extending one more option in spite of representations on the matter.
ii. Department of Expenditure also concurred with Department of Pension & Pensioners Welfare in not permitting another option.
iii. Committee on Petitions (of Parliament) has also not accepted the demand for granting another option. iv. It is now an established policy of the Government not to grant another option.
v. Accepting the proposal will cause spin off effect in other departments also and will open floodgates for representations from similarly placed personnel including retired and from family members of those who died. vi. It will lead to mounting financial burden of pension liability as the financial liability on existing pension scheme has almost reached unsustainable level.
Vii. Government has announced New Pension Scheme. The proposal, if accepted, will contradict the objectives of the New Pension scheme. 13. The above view taken by respondent No. 1 appears to be eminently just and reasonable.
Therefore, we have no hesitation to hold that the prayer to quash and set aside Annexure A-1 and A-2 cannot be sustained at all.10 O.A. No. 163/2010 & 174/2010
14. Applicants have raised a further contention that the option exercised by them after the original cut off date of September 30, 1987 indicated in the Office Memorandum dated May 1, 1987, has to be treated as invalid and non est, since according to them, the Department of Atomic Energy, respondent No. 1 had no power or authority to extend the period for exercise of option beyond September 30, 1987. They contend that Department of Pension and Pensioners Welfare under the Ministry of Personnel, Public Grievances and Pensions had never delegated such a power to the Department of Atomic Energy. In this context, applicants have placed reliance on Annexure A-12 communication issued by the above Ministry under the Right To Information Act: In continuation to this Department' OM No.4/1/87-PIC(i) dt 1.5.87, another OMs No.4/1/87-PIC (ii) dt 12.10.92 and 23.7.96 were issued wherein the period of six months was given to the employees were (Sic) completed 20 years qualifying service as on 1.8.92 to exercise the option. Copy of th Oms No.4/1/87-PIC (i) dt 1.5.87, No.4/1/87-PIC (ii) dt 12.10.92 and 23.7.96 are enclosed herewith for your reference.
2. The powers to extend the said date have not been delegated by this Department to any other authority.
15. While banking heavily on the above piece of information, it is contended by the applicants that the Ministry of Personnel had never authorised Department of Atomic Energy to extend the cut off 11 O.A. No. 163/2010 & 174/2010 date from September 30, 1987 up to December 30, 1987.
We are afraid, the above quoted information does not convey any such meaning. The obvious reference in the above communication is to two other subsequent Memoranda issued in 1992 and 1996. To be a little more explicit, it has no reference to Office Memorandum dated May 1, 1987 at all. Still further, a perusal of Annexure A-2 which is impugned in this Original Application will itself show that the Ministry of Personnel was very well aware about the extension of the cut off date as it is seen mentioned therein that the employees of Department of Atomic Energy who opted for CPF Scheme before 30.12.1987 are to be treated as CPF beneficiaries only and they cannot be deemed to have switched over to Pension Scheme. Therefore, it cannot be assumed that the Department of Atomic Energy had extended the time for exercise of option without the concurrence or knowledge of the Ministry of Personnel, Public Grievance and Pensions.
16. Finally the respondents have raised a contention that Annexure A-8 Office Memorandum dated December 18, 1967 had envisaged a scheme whereby all employees upon entry into service would compulsorily be a part of the CPF scheme. However, in the said Office Memorandum it was further provided that the employees, on their confirmation in service would be entitled to exercise an option to switch over to the 12 O.A. No. 163/2010 & 174/2010 Pension Scheme. According to the applicants, by introduction of Office Memorandum dated May 1, 1987, the right of option, which was available to them under OM of 1967 had been taken away.
17. In response to the above contention it is pointed out by the respondents that this issue was considered and settled immediately after issuance of OM of 1987 since a doubt had arisen as to whether the administrative and auxiliary employees of Department of Atomic Energy would still be eligible to get one more option to switch over to Pension Scheme on their confirmation. It was clarified by the Atomic Energy Commission by its note dated September 18, 1987 that OM dated May 1, 1987 regarding change over of the Central Government employees from CPF to Pension scheme would be applicable to the employees of Department of Atomic Energy excluding Scientific and Technical personnel irrespective of their being permanent or temporary.
18. In our view, the applicants cannot be heard to say at this distance of time that the option exercisable by them under OM of 1967 on their confirmation in service would still be available to them in addition to the option under OM of 1987. As has been clarified by the respondents, the said question was infact considered by the Atomic Energy Commission and the Department of Atomic Energy in September 1987 itself, and the issue was settled then 13 O.A. No. 163/2010 & 174/2010 and there. In any view of the matter, the applicants cannot rake up the said issue after a lapse of 23 years even assuming such an option was available to them on their confirmation in service as provided under OM of 1967.
19. Learned counsel for the applicants has contended that the plea of added financial burden on the exchequer is not available to the respondents since the number of employees (only 94, according to the applicants) who had been affected by this anomalous situation is much less in this Department. In our view, financial burden may not, as such, be the only reason why the present claim made by the applicants cannot be entertained. As has been noticed already, the applicants willingly switched over to the CPF Scheme about quarter of a century ago. The fact that they had kept quiet for all these years will disentitle them from trying to reopen the issue which had attained finality long time ago.
20. Still further, the contention raised by the applicants that the option exercised by them during the extended period has to be treated as invalid or non est cannot also be countenanced at all for the reasons stated by us in the preceding paragraphs. It has already been noticed that time for exercising option was enlarged not after its expiry, but even before that. In that view of the matter also the contention raised by the applicants in this regard is 14 O.A. No. 163/2010 & 174/2010 wholly misconceived and untenable.
21. There is no merit in any of the contentions raised by the applicants and the Original Applications are, therefore, liable to be dismissed. We do so. The parties are directed to bear their costs.
(Smt. Leena Mehendale) (Justice A.K Basheer) Member (A) Member (J) sc.