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Delhi High Court · body

1998 DIGILAW 364 (DEL)

PREM SAGAR SHARMA v. CENTRAL WAREHOUSING CORPORATION

1998-05-05

M.K.SHARMA

body1998
Dr. M. K. Sharma, J. ( 1 ) THE present writ petition is directed against rejection of the claim of the petitioner for ex gratia payment for the period he spent on foreign assignment. ( 2 ) THE petitioner joined the services of the respondent as Assistant Engineer (Civil) on 19. 11. 1976 on deputation from Military Engineering Service. Subsequently the petitioner was absorbed in the Central Warehousing Corporation in pursuance of an order passed on 18. 11. 1979. While serving as Assistant Engineer (Civil) with the respondent after his absorption the petitioner got his name registered with Foreign Assignment Section of Ministry of Home Affairs for being sent on deputation as Expert in any foreign country. The petitioner was selected as Civil Engineer by the Government of Iraq and consequent upon the said selection the respondent took a decision to relief the petitioner from the services of the Corporation in order to enable him to join his new assignment with the foreign government in public interest. They also decided, as is indicated by their letter dated 11. 9. 1981 which is annexed at page 14 of the paper book, that the petitioner would retain his lien on the post held by him with the respondent. The terms and conditions for grant of the deputation to the foreign government were also set out. The petitioner was relieved on 15. 9. 1981 and after serving the foreign government the petitioner reported back to the respondent on 25. 6. 1983 on expiry of his contract period of foreign assignment. The petitioner was again deputed to Libya on foreign assignment on 10. 4. 1987 and he reported back from Libya after completion of his foreign assignment on 28. 2. 1989. ( 3 ) THE respondent Corporation introduced a special voluntary retirement scheme enumerating various benefits available to its employees who opt to go on voluntary retirement. The said scheme was again renewed after another 3 months on 28. 4. 1984. In pursuance of the aforesaid scheme introduced by the respondent Corporation the petitioner opted to go on voluntary retirement and exercised his option in the standard form prescribed for the same. On 9. 1. 1995 an order was passed by the respondent Corporation relieving the petitioner with effect from 10. 1. 1995 on voluntary retirement. 4. 1984. In pursuance of the aforesaid scheme introduced by the respondent Corporation the petitioner opted to go on voluntary retirement and exercised his option in the standard form prescribed for the same. On 9. 1. 1995 an order was passed by the respondent Corporation relieving the petitioner with effect from 10. 1. 1995 on voluntary retirement. In the said order the respondent however, stated that the petitioner would not be entitled to get counted the two spells of foreign assignment enjoyed by him for ex gratia compensation payable under the aforesaid voluntary retirement scheme. Being aggrieved by the aforesaid stipulation the petitioner made a representation to the respondent on 6. 3. 1995 and prayed for ex gratia payment for the aforesaid period also which he spent on foreign assignment being on foreign service. On 15. 5. 1995 the respondent issued a Memorandum intimating him that his representation was considered and it was not possible to accede to his request for counting the period of his foreign service for retirement benefits and hence the present writ petition. ( 4 ) COUNSEL appearing for the petitioner placed before me various terms and conditions of deputation of the petitioner to the Government of Iraq and Libya. Clause 3 of the said terms and conditions stipulated that the period of foreign service with the Government of Iraq would not count towards earning of any kind of leave under the Central Warehousing Corporation. Earning of leave and availing of the same by payment of leave salary to him while in foreign service was stipulated to be regulated by the terms and conditions of foreign employer and that the respondent Corporation was not concerned with that. CLAUSE 5 of the abovesaid terms and conditions further stipulated that the petitioner would continue to subscribe to the respondent the Contributory Provident Fund at the prescribed rates and the employer s contribution for the period of his foreign service would be paid by the petitioner himself, if it was not paid by the foreign employer. CLAUSE 7 provided that the period of foreign service with the foreign employer would not count for the purpose of calculation of gratuity by the respondent. CLAUSE 7 provided that the period of foreign service with the foreign employer would not count for the purpose of calculation of gratuity by the respondent. However, it provided that in case any terminal gratuity was paid by the foreign employer the gratuity received by the petitioner from the foreign employer would be deposited by him with the respondent and the amount of gratuity so deposited would be credited to his Contributory Provident Fund and the same would become a part of accumulation of his contributory provident fund. ( 5 ) MY attention was also drawn to the scheme introduced by the respondent called as Voluntary Retirement Scheme under which the petitioner was allowed to go on voluntary retirement. The said scheme was applicable to all regular Group `b , `c and `d employees of the Corporation who had completed 10 years of service or attained the age of 40 years on the date of introduction of the scheme. Benefits provided under the scheme were also spelt out when it stated that an employee whose offer for voluntary retirement under the scheme is accepted would be entitled amongst others inter alia to ex gratia payment equivalent to 1-1/2 months emoluments (pay + DA) for each completed year of service in the Corporation or the monthly emoluments (pay + DA) at the time of retirement multiplied by the balance months of service left before normal date of retirement, whichever is less. ( 6 ) COUNSEL for the petitioner, relying upon the aforesaid terms and conditions of deputation as also various conditions of the Special Voluntary Retirement Scheme submitted that the petitioner while on foreign service had lien with the respondent and in that view of the matter he should be deemed to be in service of the respondent even while he was on foreign service and therefore, he was entitled to receive ex gratia payment for that period also during which he was on foreign assignment. Counsel further submitted that none of the terms and conditions of foreign deputation stipulated that the petitioner would dis-entitle himself from counting the service on foreign assignment towards the service rendered to the Corporation. Counsel further submitted that none of the terms and conditions of foreign deputation stipulated that the petitioner would dis-entitle himself from counting the service on foreign assignment towards the service rendered to the Corporation. He further submitted that even during the period when he was on foreign deputation he earned his increments in terms of regulation 30 (4) and therefore, the respondent having given him the benefit of earning increments treated him as its employee during the aforesaid period as well and therefore, could not have denied him the benefit of ex gratia payment for the said period while allowing him to go on voluntary retirement under the voluntary retirement scheme. In support of his contention the learned counsel relied upon the decision of the Supreme Court in State of Mysore Vs. M. H. Bellary; reported in 1964 SCR page 471. ( 7 ) THE learned counsel appearing for the respondent on the other hand submitted that since the petitioner did not serve the respondent during the period of his foreign assignment he could not have claimed the benefit of service for the aforesaid period in the respondent Corporation. Relying on the scheme of voluntary retirement the learned counsel submitted that the benefit of ex gratia payment for the aforesaid period, during which the petitioner was on foreign assignment, could not be claimed by him inasmuch as the clause specifically stipulated for ex gratia payment only for each completed year of service in the Corporation, which would mean each actual completed year of service in the Corporation and therefore, the petitioner is not entitled to the benefit of ex gratia payment for the aforesaid period, during which he did not render service in the Corporation but was on foreign assignment. ( 8 ) IN the light of the aforesaid submissions of the learned counsel appearing for the parties the issue that arises for my consideration is - whether the period spent on foreign assignment by the petitioner would be deemed to be service with the respondent Corporation and if it is so then whether the petitioner is entitled to ex gratia payment for the period during which he was on foreign assignment. ( 9 ) RELEVANT clauses of the terms and conditions of deputation have already been extracted. ( 9 ) RELEVANT clauses of the terms and conditions of deputation have already been extracted. The petitioner admittedly retained lien on the post held by him with the respondent during his entire period of deputation on foreign assignment. Although the terms and conditions of deputation did not stipulate payment of leave salary, gratuity, and employer s share of CPF contribution etc. during the period of his deputation on foreign assignment yet the said condition stipulated that the terminal gratuity, if and when paid by the foreign employer, would be deposited by the petitioner with the respondent, which when so deposited would be credited to the Contributory Provident Fund and would become a part of such accumulation. IN terms of the benefits provided under the Special Voluntary Retirement Scheme the petitioner whose offer for voluntary retirement under the scheme was accepted was entitled to ex gratia payment equivalent to 1-1/2 months emoluments for each completed year of service in the Corporation. The aforesaid expression "each completed year of service in the Corporation" cannot be read as actual completed year of service in the Corporation as sought to be interpreted by the learned counsel appearing for the respondent, for nothing could be added to an expression when the intention is explicit and certain. The respondent intended to allow a person to go on voluntary retirement under the scheme by making ex gratia payment at a particular rate for each completed year of service in the Corporation. Since the petitioner retained his lien in his parent organisation namely - the respondent Corporation, the services rendered by him during the period he was on deputation on foreign assignment would be deemed to be his services rendered to the Corporation. This view is also fortified by the very fact that the respondent has allowed the petitioner to earn increments in his time scale applicable to the post of Assistant Engineer in the respondent Corporation even for the period during which the petitioner was on deputation on foreign assignment in terms of Regulation 30 (iv) of the Central Warehousing Corporation Staff Regulations, 1986, which stipulates that all foreign service shall count for increment in the time scale applicable to the post in the Corporation which the employee was holding before his transfer on foreign service. Since the foreign service rendered by the petitioner was counted for the purpose of his earning increments in the time scale applicable to the post in the Corporation which the petitioner was holding before the transfer on foreign service there is no reasonable basis for denying the same benefit to the petitioner while allowing him to go on voluntary retirement by making ex gratia payment even for the said period. ( 10 ) BY introducing the Voluntary Retirement Scheme the respondent intended to bestow certain benefits to its employees who desired to leave the Corporation and thus it was a beneficial scheme. Clauses of such beneficial scheme should be interpreted so as to advance the intention and which favours the recipient. ( 11 ). The ratio of the decision in the case of M. H. Bellary (supra), in my considered opinion is also applicable to the facts of the present case. In the said case the relevant rules which the Supreme Court was called upon to interpret was Rule 50 (b) of the Bombay Civil Services Rules. The said rule was also worded almost on similar lines with that of regulation 30 (iv) of the regulations in question. On interpretation of the aforesaid rule the Supreme Court held that the services of an officer on deputation in another department are treated by the rule as equivalent to service in the parent department and it is that equation between the services between the two departments that forms the basis of rule 50 (b ). If the said ratio of the Supreme Court is applied to the facts of the present case there cannot be any other conclusion but to hold that the service of the petitioner on deputation/foreign assignment has to be treated as equivalent to service in his parent department. Since the services rendered by the petitioner on deputation on foreign service are treated as his services to his parent organisation namely - respondent Corporation the petitioner cannot be denied ex gratia payment for the periods during which he was on foreign assignment and therefore, the decision of the respondent denying the petitioner the aforesaid claim is held to be arbitrary and void. ( 12 ) IN the result, the writ petition stands allowed and the memorandum dated 15. 5. 1995 stands quashed. The order dated 10. 1. ( 12 ) IN the result, the writ petition stands allowed and the memorandum dated 15. 5. 1995 stands quashed. The order dated 10. 1. 1995 also stands quashed to the limited extent of the decision for non-payment of ex gratia for the two spells of foreign assegnment. The respondent is directed to make ex gratia payment to the petitioner for the two spells during which he was on deputation of foreign assignment, within 8 weeks from the date of receipt of a copy of this order. However, in the facts and circumstances of the case I do not pass any order for payment of costs.