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2005 DIGILAW 746 (CAL)

A. C. BANIK v. NATIONAL INSURANCE COMPANY LTD.

2005-12-13

ARUN KUMAR MITRA, V.S.SIRPURKAR

body2005
V. S. SIRPURKAR, C. J. ( 1 ) THIS appeal arises out of the judgment passed by the learned Single Judge whereby the learned Single Judge dismissed the writ petition filed by the appellant-petitioner. ( 2 ) THE appellant-petitioner was admittedly born on 1. 1. 1926. He joined the national Insurance Company as Senior Divisional Manager on 1. 1. 1973. His service was eventually transferred to L. I. C. following the Nationalisation. He retired from the service on 31. 12. 1983. In 1995, more precisely on 28. 6. 1995, a scheme was introduced called the General Insurance (Employees') Pension scheme, 1995 whereby the pension scheme was made applicable to the employees who were in service of the Company on or after 1. 1. 1986 but had retired before the 1" day of November, 1993. The writ petitioner did nothing till the year 1999 and claims that he came to know about the Scheme only in the year 1999. He claims to have sent various representations, more particularly which were answered on 8. 3. 2002, 25. 2. 2003 as also on 31. 12. 1999 that the scheme was not applicable to him. This was on account of the representations made by the petitioner to avail of the said Pension Scheme. In short, the case of the appellant-petitioner was that though he was born on 1. 1. 1926, he could not be said to have been retired on 31. 12. 1985 because he would have ordinarily attained the age of 60 not on 31. 12. 1985 but on 1. 1. 1986 and as such he could have been retired from the service only at the end of that month and, thus, he would have been in service of the National Insurance Company on 1. 1. 1986 and would have been entitled to avail of the Scheme. ( 3 ) THE learned Single Judge firstly referred to a Circular dated 17. 7. 1982 which was prevailing in the Company being Circular No. PERS-MPL/ho/27/82. This Circular was issued in supersession of the Circular No. PERS-MPL/ho/16/82 dated 5th May, 1982 under which it was specifically informed that if the employee was born on 1st day of a month he would attain the age of 60 years (or 58 years, as the case may be) on the last day of the preceding month. This Circular was issued in supersession of the Circular No. PERS-MPL/ho/16/82 dated 5th May, 1982 under which it was specifically informed that if the employee was born on 1st day of a month he would attain the age of 60 years (or 58 years, as the case may be) on the last day of the preceding month. For example, if he was born on 1st July, 1922 he would attain the age of 60 years on 30th June, 1982 and would stand retired from that date. The learned Judge heavily relied on this Circular as also Rule 56 of the Fundamental Rules which are in principle followed by the National Insurance Company for the purposes of retirement. The learned Judge, therefore, came to the conclusion that the claim of the petitioner was not right on merits. According to the learned Judge, even otherwise the writ petition could not be entertained for the simple reason that the writ petition was filed sometime in the year 2004, that is, with towering laches of about 9 years or, as the case may be, 5 years. According to the learned judge, the laches were nowhere explained by the petitioner. On that count, the writ petition came to be dismissed. It is that judgment which has been challenged before us. ( 4 ) SRI Talukdar, learned Counsel appearing on behalf of the appellant petitioner urged that the retirement comes only after attaining the age of 60 years. According to Sri Talukdar, the word 'attain' literally means to reach or to come to by progression or motion, to arrive at so as to attain a ripe old age (Black's Dictionary ). Relying heavily on this dictionary meaning, the learned counsel urges that if the word 'attain' is to be interpreted, then the appellant petitioner would attain the age of 60 years only on 1. 1. 1986 and not on 31. 12. 1985. The argument is further sought to be buttressed by relying on section 3 of the Indian Majority Act and more particularly in the positive language therein. Section 3 (1) and (2) of the said Act read as follows :"3 (1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. Section 3 (1) and (2) of the said Act read as follows :"3 (1) Every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. (2) In computing the age of any person, the day on which he was born is to be included as a whole day and he shall be deemed to have attained majority at the beginning of the eighteenth anniversary of that day". The learned counsel also invites our attention to the three illustrations given in the section which are as follows :" (a) Z is born in India on the first day of January, 1850, and has an Indian domicile. A guardian of his person is appointed by a Court of Justice. Z attains majority at the first moment of the first day of January, 1871. (b) Z is born in India on the twenty-ninth day of February, 1852, and has an Indian domicile. A guardian of his property is appointed by a Court of Justice. Z attains majority at the first moment of the twenty-eighth day of February, 1873. (c) Z is born on the first day of January, 1850. He acquires a domicile in india. No guardian is appointed of his person or property of any Court of Justice, nor is he under the jurisdiction of any Court of Wards. Z attains majority at the first moment of the first day of January, 1868. " ( 5 ) RELYING particularly on the Illustrations (a) and (c) the learned counsel says that the majority can be attained only on the first moment of the eighteenth anniversary, that is, on the day when he completes the age of 18 at midnight. So the person concerned could claim the majority at the first moment after 18 years are over. From this the learned Counsel draws an analogy that the appellant petitioner therefore could be said to have attained the age of 60 years on the first moment in between after the midnight of 31. 12. 1985 and, therefore, he could be deemed to be in service on the 1st day of January, 1986. ( 6 ) THIS argument is obviously incorrect. In relying on section 3 (1), the appellant-petitioner is clearly ignoring the last two words. They are 'not before'. 12. 1985 and, therefore, he could be deemed to be in service on the 1st day of January, 1986. ( 6 ) THIS argument is obviously incorrect. In relying on section 3 (1), the appellant-petitioner is clearly ignoring the last two words. They are 'not before'. One glance of the provision would show that the concept of attaining the majority would give a certain status to a person at a particular point of time. The said section is very clear when it says that a person shall attain the age of majority on his completing the age of 18 years and not before. It signifies that till the midnight when he completes the age of 18, he still remains to be a minor. It is only at that point of time he starts claiming the majority after having attained the age of 18 years. Therefore, the wording has to be considered not ignoring the last two words 'not before'. Similarly, section 3 (2) from its very language clearly suggests that the person concerned would be deemed to have attained the majority at the beginning of the eighteenth anniversary of that day. The two concepts of attaining the majority and retiring cannot be compared to each others. They are separate concepts. In one, there is an element of attaining a status whereas in the other, there is an element of losing a status. Considered in any way, the result is inevitable; that the appellant-petitioner would cease to be an employee at midnight between 31st of December, 1985 and 1st of January 1986, precisely at 12 O'clock. But the matter does not stop here because of the circular. The Circular, in our opinion, is more clear than necessary. The Circular is as follows :"personnel and MPL DEPARTMENT National Insurance Company Ltd. 3, Middleton Street, calcutta-700071 circular No. PERS-MPIL. /hq/27/82 17th July, 1982 to ALL OFFICES for DISPLAY ON NOTICE BOARD AND circulation TO ALL DEPARTMENTS re: RETIREMENT DATE in supersession of Circular No. PERS-MPL /hq/16/82 of 5th May, 1982, an employee shall be deemed to have attained the age of 60 years (or 58 years as the case may be) on the day preceding his date of birth in relevant year. For example, an employee whose date of birth is 5th July. For example, an employee whose date of birth is 5th July. 1922 would be deemed to have attained the age of 60 years on 14th July, 1982 and the retirement date would therefore be 31st July, 1982. Similarly, if an employee's birth date is 1st july, 1982 he would have attained the age of 60 years as on 30th June,1982 and would retire from service at the close of office hours on 30th June, 1982. Henceforth the date of retirement of an Officer or Development Staff or supervisory or Clerical Staff eor Subordinate Staff should be determined accordingly. (A. S. Mitra)MANAGER"the clear language of the Circular removes all the doubts and it is clear that the person who is born on the 1st day of the month retires on the last day of the previous month. Thus, if the petitioner was admittedly born on 1. 1. 1926 by the force of the Circular he would retire on 31. 12. 1985 and there would be no question of his being in service on 1. 1. 1986. As a matter of fact, every moment after the midnight of 31. 12. 1985 he will be 60 years plus some period and, therefore, there will be no question of holding him to be in service on 1. 1. 1926. ( 7 ) A Ruling was relied upon by Sri Talukdar reported in 2004 (11) SCC page 1. That is a Ruling on the interpretation of Interests Act and, therefore, essentially what falls from the Apex Court in that Ruling is in the light of interpreting a taxing Statute. That apart, we do not find anything in the Ruling which could help the petitioner in any manner. It was tried to be suggested that the action on the part of the Bank in rounding of the interest and thus claiming more interest from the borrower was not acceptable to the Apex Court and the Apex Court accordingly discouraged these irregularities of the Bank. In fact, in our opinion, if at all the Ruling is to be considered, it has to be considered against the petitioner and not in his favour inasmuch as the petitioner is trying to squeeze something which he is not entitled in law, meaning he is trying to be treated himself as an employee of the National Insurance Company beyond the period of 60 years which could not be possible. We are of the opinion that the Ruling does not help the appellant-petitioner at all. As if, this was not sufficient. We must take note of the further argument though it will not be necessary for us since we have held against the appellant-petitioner on merit itself. ( 8 ) THAT would be the question of laches. Here the petitioner has approached the High Court only in the year 2004. The petitioner knew about the Circular. That knowledge of the Circular must be presumed because the Circular amounted to a Rule regarding his service. The petitioner accepted his retirement on 31. 12. 1985 and, thereafter, after the Pension Scheme was introduced in the year 1995 woke up for the first time in 1999 and claims that he was informed about the Scheme only in the year 1999. That, in our opinion, cannot be a justification, if a knowledge of law has to be presumed. The petitioner must be presumed to have the knowledge of the Circular. He was, after all, serving in the responsible post of Assistant General Manager at the time when he retired. Be that as it may, thereafter although the appellant-petitioner did so by way of shooting some representations one after another which were steadfastly rejected by the Company. At least then the petitioner should have woken up, at least on 31. 12. 1999 when the petitioner was informed in response to his letter dated 17. 12. 1999 that he could not have been given the benefit of the Pension Scheme, since he was not an employee of the Insurance Company on 1. 1. 1986. The appellant-petitioner, however, waited for almost four and half years and thereafter filed the writ petition. We do not find any explanation, at least satisfactory explanation in the writ petition for such laches. In our view, the learned Judge has taken a correct view of the matter by holding that by subsequent representations sent by him the petitioner could not be able to gain any further mileage. ( 9 ) TWO Rulings were cited before us reported in AIR 1974 SC 259 and 1806 wherein in paragraph 9 of the first Ruling and paragraphs 5 and 6 of the second ruling, the Supreme Court has spoken regarding the laches and the proper attitude taken by the High Court towards the laches. ( 9 ) TWO Rulings were cited before us reported in AIR 1974 SC 259 and 1806 wherein in paragraph 9 of the first Ruling and paragraphs 5 and 6 of the second ruling, the Supreme Court has spoken regarding the laches and the proper attitude taken by the High Court towards the laches. True it is that the laches cannot be said to be a blind rule against the entertainment of the writ petitions. There is always an element of discretion but the Supreme Court is very clear in expressing that the consideration of the laches would depend upon the facts of each case. There are subsequent cases on the question of laches wherein the apex Court has specifically stated that the persons who just wait and are fence sitters cannot be allowed to take advantage of the delay. We have given our conscious consideration to the facts of this case and we do not find any justification in appreciating the petitioner's waiting for more than 5 years. Petitioner was serving as responsible officer in the post of Assistant General manager and he is expected to be aware of the Rules and could not be said to be a person living below the poverty line. Though the petitioner has claimed that he is a poor person, however we do not see such poverty in the petitioner who has retired as an Assistant General Manager from an Insurance Company. So there can be no question of his suffering any financial hardship also. After overall consideration of the situation, we do not think that the petitioner was justified in waiting for 9 years or, as the case may be, for more than 5 years. ( 10 ) LASTLY, Mr. Talukdar invited our attention to a letter where one B. T. Mukherjee has been given the advantage and it is shown that though he was shown to have born on 1. 2. 1923, his retirement date was held to be 28. 2. 1983. According to Mr. Talukdar, this was a discriminatory attitude shown between the two employees. In fact, learned Counsel appearing for the respondent pointed out that even if one employee has been given an advantage by error in a mistaken way, that would not create a right in favour of the other in whose case there is no infraction of any Rule. Even if Mr. In fact, learned Counsel appearing for the respondent pointed out that even if one employee has been given an advantage by error in a mistaken way, that would not create a right in favour of the other in whose case there is no infraction of any Rule. Even if Mr. B. T. Mukherjee was allowed to serve till 28. 2. 1983, that by itself would not create any right in the petitioner. This is apart from the fact that excepting referring to that letter, no other material was brought before us which could have justified the petitioner for being treated exactly in the same manner as B. T. Mukherjee was treated. ( 11 ) IN that way, we do not see any merit in the objection raised by the learned Counsel. In short, the appeal has no merit and must be dismissed but, however, without any order as to costs. ( 12 ) XEROX certified copy of the judgment and order be made available to the parties, if applied for and upon compliance of the usual undertakings. Appeal dismissed.