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2007 DIGILAW 1344 (DEL)

USHA SAXENA v. UOI

2007-07-10

HIMA KOHLI

body2007
HIMA KOHLI, J. ( 1 ) THE petitioner has filed the present writ petition praying inter alia for directions to the respondents to pay her retirement benefits, including gratuity, 100% commutation of pensionary benefits etc. as per the Voluntary retirement Scheme (VRS) floated by the respondents vide Circular dated 21st May, 1994, by computing such benefits on the basis of 27 years of service rendered by the petitioner, along with interest @ 24% p. a. on the amount of the illegally withheld retirement benefits. ( 2 ) THE brief facts relevant for deciding the present writ petition are that the petitioner initially joined as Junior Field Assistant in the Trade fair Authority of India (for short `the TFAI') under the Ministry of Commerce, on 22nd January, 1972 and continued to serve in the said organization upto 30th september, 1975. On 1st October, 1975, the petitioner joined respondent No. 3 and in the very same year, respondent No. 3 took a decision that any person who joined the said organization after the cut off date of 24th April, 1972, shall not be entitled to the benefit of past services. Vide letter dated 9th september, 1991, the petitioner requested the respondent No. 3 to count the previous period of service rendered by her in the TFAI for retirement benefits. In its reply dated 25th September, 1991, respondent No. 2 agreed to count the past service rendered by the petitioner in respondent No. 3 towards her retirement benefits. However, in the said letter, a clause was inserted to the effect that the petitioner was required to exercise her option for voluntary retirement from the service of respondent No. 3 simultaneously along with the deposit of the gratuity and other terminal benefits received by her from the tfai, within 15 days from the date of demand to be raised by respondent No. 3, to enable her to avail the benefit of counting her past services rendered in the. ( 3 ) VIDE Memorandum dated 8th April, 1993 issued by respondent No. 3, the petitioner was informed that she should exercise her option for voluntary retirement from the services of respondent No. 3 within 15 days of the receipt of the said Memorandum, failing which, it shall be presumed that she was not interested in counting of the past service rendered by her in the TFAI for the purpose of voluntary retirement benefits in respondent No. 3. In reply to the aforesaid Memorandum, the petitioner wrote a letter of protest dated 10th May, 1993 stating inter alia that the time limit imposed by respondent No. 3 for voluntary retirement was contrary to the spirit of the voluntary retirement. She further repeated her request that her past services rendered with TFAI should not be linked with her seeking voluntary retirement within the stipulated time and whenever she would seek voluntary retirement, she would give requisite notice and also remit the amount as and when called upon to do so. ( 4 ) ON 7th January, 1994, the petitioner wrote a letter to the respondent No. 3 giving three months' notice to seek voluntary retirement with effect from 31st March, 1994, subject to the past services rendered by her in the TFAI being counted for the purposes of receiving the voluntary retirement benefits. Pursuant thereto, respondent No. 3 issued an Office Order dated 1st february, 1994 stating inter alia as under: "office ORDER in terms of Export Inspection Council letter No. EIC/d (Q/c)/57/91-92/6071 dated 25. 9. 91 and on the deposit of Rs. 2,663/- (Rupees two thousand six hundred sixty three only) an amount of Gratuity contribution alongwith interest towards service rendered by Smt. Usha Saxena, Office Asstt. in her erstwhile Department for the period from 22. 1. 72 to 30. 9. 75, Smt. Usha Saxena, Office Asstt. ,export inspection Agency-Delhi is allowed to count the period of service rendered by her in the office of Trade Fair Authority of India from 22. 1. 72 to 30. 9. 75 for the purpose of retirement benefits in the Export Inspection Agency-Delh. Sd/- (G. K. SRIVASTAVA) JOINT DIRECTOR" Despite the aforesaid request made by the petitioner seeking voluntary retirement, she was not relieved by the respondents, who, as per the records, neither accepted, nor rejected her said request, but instead, remained silent. In these circumstances, the petitioner continued working with the respondent no. Sd/- (G. K. SRIVASTAVA) JOINT DIRECTOR" Despite the aforesaid request made by the petitioner seeking voluntary retirement, she was not relieved by the respondents, who, as per the records, neither accepted, nor rejected her said request, but instead, remained silent. In these circumstances, the petitioner continued working with the respondent no. 3. ( 5 ) VIDE Circular dated 21st May, 1994, respondent No. 3 floated a special vrs which was to remain valid for a period of 60 days from the date of issue of the said Circular. Vide application dated 15th July, 1994 the petitioner applied for the voluntary retirement as per the aforesaid Circular and within four days thereafter on 19th July, 1994, the petitioner was relieved from service but at the relevant time, she was not given any amount towards her retirement benefits. Later, during the period between July to October, 1994, the petitioner was released retirement benefits by calculating the same on the basis of her rendering 18 years of service. ( 6 ) AGGRIEVED by the aforesaid action of the respondents in failing to include the period spent by her in the services of TFAI (a period of 3 years and 8 months), the petitioner lodged her protest vide various letters and reminders but as the respondents did not concede to the request of the petitioner for paying the retirement benefits to her by calculating the amount on the basis of 27 years of service rendered by her,. e. 22 years of actual service (18-1/2 years in respondent No. 3, 3-1/2 years in the TFAI and 5 years of service as additional benefits) for the purposes of retirement as per the rules, the petitioner has filed the present writ petition. ( 7 ) IN opposition to the writ petition, counsel for the respondents submitted that in the year 1991, as a result of liberalization in the economy, a considerable number of staff of the respondent no. 3 organization was rendered surplus and with a view to deal with this problem, a VRS was introduced by the respondents under Rule 48-A of the Central Civil Services (Pension) Rules which could be availed of by an employee only on completion of 20 years of service. 3 organization was rendered surplus and with a view to deal with this problem, a VRS was introduced by the respondents under Rule 48-A of the Central Civil Services (Pension) Rules which could be availed of by an employee only on completion of 20 years of service. It was stated that the petitioner made a request for inclusion of three years and 8 months of service rendered by her in the TFAI for the purpose of commutation of service period and that too for fixation of pay alone, and that it was in this context that the respondents issued the letter dated 25th september, 1991 as also the Memorandum dated 8th April, 1993. It was contended that the Office Order dated 1st February, 1994 cannot be read in isolation but has to be read with reference to the earlier letter dated 25th September, 1991 which was issued pursuant to the scheme floated in the year 1991 under Rule 48-A of the CCS (Pension) Rules. Counsel for the respondent argued that the petitioner having withdrawn her application for voluntary retirement in May 1993, she could not seek the benefit of the said Office Order while exercising her option for seeking voluntary retirement under the subsequent Circular dated 21st May, 1994. It was submitted that the petitioner opted for the subsequent vrs because the same was more attractive inasmuch as the employees were entitled to 100% commutation of pension as well as ex gratia payment @ 1-1/2 months' pay for each completed year of service as against the benefits of the VRS introduced under Rule 48-A of the CCS (Pension) Rules which permitted payment of monthly pension with maximum commutation of 1/3rd pension and gratuity payable @ 15 days pay for each completed year of service. The stand of the respondent was that the petitioner having voluntarily opted for the scheme floated under circular dated 21st May, 1994, she is estopped from claiming benefits under the scheme floated under Rule 48-A of the CCS (Pension) Rules as well for the purposes of counting her past service. The stand of the respondent was that the petitioner having voluntarily opted for the scheme floated under circular dated 21st May, 1994, she is estopped from claiming benefits under the scheme floated under Rule 48-A of the CCS (Pension) Rules as well for the purposes of counting her past service. ( 8 ) COUNSEL for the petitioner while repelling the aforesaid arguments of the respondents, submitted that the attempt on the part of the respondents to draw a distinction between the VRS floated under Rule 48-A of the ccs (Pension) Rules and the one floated vide Circular dated 21st May, 1994 is fallacious inasmuch as there was no rider attached to the Office Order dated 1st february, 1994 issued by respondent No. 3 in respect of the permission granted to the petitioner to count the period of service rendered by her with the TFAI with effect from 22nd January, 1972 to 30th September, 1975, and that the said Office order only stated that she was allowed to count the period of service rendered by her with the TFAI "for the purpose of retirement benefits in the Export inspection Agency, Delh. " Thus the respondents cannot be permitted to read into the Office Order, terms that were never imposed therein and if the respondents were of the opinion that the period of services rendered by the petitioner with the TFAI which had already been counted by them, would not be considered for the purposes of availing of the subsequent VRS floated by them vide Circular dated 21st May, 1994, she ought to have been so informed. It was further contended that there was no rider attached in the subsequent scheme that benefit of past service shall not be given to any employee and in fact the respondents have given due weightage to all the employees who had put in 20 years of service at the time of their opting for the special scheme. It was further contended that there was no rider attached in the subsequent scheme that benefit of past service shall not be given to any employee and in fact the respondents have given due weightage to all the employees who had put in 20 years of service at the time of their opting for the special scheme. It was further submitted that the plea of the respondents that it was implied in the office Order dated 1st February, 1994 that the same was applicable only in the event the petitioner opted for the VRS in terms of the letter dated 25th september, 1991, is misconceived and since the respondents had not withdrawn the office Order dated 1st February, 1994 the petitioner was entitled to be given weightage for the period of service rendered by her with the TFAI for the purposes of computation of retirement benefits offered under the VRS offered vide circular dated 21st May, 1994. Counsel for the petitioner submitted that had the respondents notified the petitioner that it was not possible to count her past service, she would not have opted for the said scheme and instead would have continued in service and would have sought the benefit of the VRS floated only under Rule 48-A of the CCS (Pension) Rules. ( 9 ) HAVING heard the counsels for the parties and having perused the relevant documents relied on by both the parties, it is apparent that the entire matter hinges on the effect of the Office Order dated 1st February, 1994 issued by respondent No. 3 in respect of the petitioner, as already reproduced hereinabove. ( 10 ) THE records reflect that pursuant to the letters dated 21st september, 1991 and the Memorandum dated 8th April, 1993, issued by the respondent no. 3, the petitioner not only deposited a sum of Rs. 2,663/-, with the respondent no. 3 on 5th January, 1994 payable towards gratuity etc. , but also made an application for voluntary retirement within 15 days of depositing the said amount, vide letter dated 7th January, 1994. However, for reasons best known to the respondent No. 3, it neither refused the said request made by the petitioner exercising her option for voluntary retirement, nor acceded to the same. Thus the petitioner continued to work with respondent No. 3. However, for reasons best known to the respondent No. 3, it neither refused the said request made by the petitioner exercising her option for voluntary retirement, nor acceded to the same. Thus the petitioner continued to work with respondent No. 3. In the meantime, vide Office Order dated 1st February, 1994 referred to hereinabove, the department reiterated its stand that she would be allowed to count the period of service rendered by her with the TFAI for the purposes of retirement benefits in respondent No. 3. ( 11 ) IT is not denied by the respondents that the aforesaid Office order dated 1st February, 1994 was never withdrawn. Thus there is force in the contention of the counsel for the petitioner that the petitioner having duly acted on the directions of the respondents as contained in the letter dated 25th september, 1991 followed by the Memorandum dated 8th April, 1993, she could not be deprived of her right to count the period of service of three years and eight months rendered by her in the previous organization, namely,. Merely because the respondents did not take any action pursuant to receipt of the letter dated 7th January, 1994 issued by the petitioner seeking voluntary retirement, as also the gratuity amount deposited by her, cannot be held against the petitioner. The respondents having slept over the request of the petitioner for almost seven months, its plea that the Office Order dated 1st February, 1994 cannot be read into the Circular dated 21st May, 1994 is untenable. ( 12 ) A perusal of the VRS floated under the Circular dated 21st may, 1994 shows that it contained no stipulation about the number of years of service rendered by an employee to make him/her eligible to benefits being given under the said scheme, as against the earlier scheme of voluntary retirement offered by the respondents under Rule 48-A of the CCS (Pension) Rules which stipulated that an employee could avail of the benefits of the said scheme only after he/she completed 20 years of service. The petitioner having acted on the offer of the respondents that the period of service rendered by her in the office of earlier organization, TFAI shall be counted for the purpose of retirement benefits in respondent No. 3, she cannot be put to disadvantage by the respondents later on, by refusing to give her the said benefit in computing the period of service rendered by her with respondent No. 3 as 27 years (18-1/2 years in respondent No. 3, 3/1-2 years in the TFAI and 5 years of service as additional benefits) as per the rules. ( 13 ) HAVING acceded to the request of the petitioner for considering her past service as continued service for the purposes of retirement benefits by issuing the Office Order dated 1st February, 1994, thereafter insisting on limiting the said benefit to the earlier VRS floated under Rule 48-A of the CCS (Pension) Rules and excluding the benefit of counting the said period of past service for the purposes of the subsequent VRS floated under the Circular dated 21st May, 1994 is unjustified on the part of the respondents. The contention of the respondents that in case the respondents give the petitioner benefit of counting the period of three years eight months of service rendered by her with the TFAI, the same will be contrary to the decision taken by them in the year 1975 to the effect that any person joining the said organization after the cut off date. e. 24th April, 1972 would not be entitled to the benefit of past service would be negated, is unacceptable in the light of the exception carved out by the respondents themselves in the case of the petitioner by relaxing the rules in her case. The contention of the respondents that the said rule was relaxed for the petitioner keeping in view her willingness to opt for voluntary retirement from the service of respondent No. 3, is also not borne out upon perusal of the letter dated 9th September, 1991 issued by the petitioner and contained in the records produced by the respondent in the court. In the said letter addressed by the petitioner to respondent No. 3, the only request made by her was to the effect that the previous period of service rendered by her with the TFAI may be counted for retirement benefits. In the said letter addressed by the petitioner to respondent No. 3, the only request made by her was to the effect that the previous period of service rendered by her with the TFAI may be counted for retirement benefits. There is not a whisper in the said letter with regard to the petitioner expressing her willingness to exercise the option for voluntary retirement. Thus the plea raised by the respondents to this effect is not borne out from the record. Furthermore, the Memorandum dated 8th April, 1993 was diluted by the respondents themselves by issuing the subsequent Office Order dated 1st February, 1994. Once the petitioner applied for seeking VRS on 7th January, 1994, which application was not decided by the respondents either ways, the petitioner cannot be blamed for the inaction on the part of the respondents, nor can she be put to jeopardy on the said count by the respondents. ( 14 ) THE other plea raised on behalf of the respondents that the benefit under the Office Order dated 1st February, 1994 was given in the context of the letter dated 25th September, 1991 which in turn was issued pursuant to the earlier VRS floated by the respondents in the year 1991 and that the said benefit could not be extended to the petitioner for the purposes of availing of the subsequent VRS floated by the respondents as there was no corelation between the two, is also fallacious for the reasons that a perusal of the letter dated 25th September, 1991 shows that the same was not issued pursuant to the earlier VRS Scheme, but was issued in response to the representation dated 9th September, 1991 forwarded by the petitioner and referred to hereinabove. In fact, a specific reference is made to the said representation of the petitioner in the letter dated 25th September, 1991. ( 15 ) THE plea of the respondent that the terms of the earlier VRS offered by the respondents under Rule 48-A of the CCS (Pension) Rules ought to be impliedly read into the Office Order dated 1st February, 1994 and that the concession given to the petitioner in the said Office Order could not be extended to the subsequent VRS offered vide circular dated 21st May, 1994 is misconceived and contrary to the decision taken by the respondents as contained in the said Office Order. The term stated in the said Office Order being express and unambiguous, there is no scope of impliedly reading conditions into it, when the same do not find specific mention therein. It cannot be lost sight of that the respondents themselves relaxed the rules, for the petitioner and gave her the benefit of counting the period of service rendered by her with the TFAI, and that the Office Order in question was preceded by an application dated 7th January, 1994 made by the petitioner seeking VRS and also depositing the amount of gratuity as mentioned in the letter dated 25th September, 1991 and memorandum dated 8th April, 1993, on which the respondent subsequently refused to act. ( 16 ) ACCEDING to the aforesaid argument of the respondent would amount to imposing a double jeopardy on the petitioner as on the one hand the respondent refused to act on the application of VRS made by the petitioner on 7th January, 1994 and on the other hand, it confined the application of the office Order dated 1st February, 1994 only to the earlier VRS. The same cannot be permitted. If at all there is any ambiguity in the Office Order dated 1st february, 1994, which has admittedly not been withdrawn by the respondents, the benefit of the same ought to enure in favour of the employee,. e. the petitioner. ( 17 ) KEEPING in view the aforesaid facts and circumstances, the writ petition is allowed. The respondents are directed to release the retirement benefits of the petitioner to her as per the terms contained in the VRS floated under the Circular dated 21st May, 1994 by computing the said benefits by counting the period of service rendered by the petitioner in the office of the TFAI from 22nd January, 1972 to 30th September, 1975. The respondents shall calculate and pay the entire balance amount to the petitioner on the aforesaid basis within a period of four weeks along with interest payable @ 9% p. a. with effect from 1st November, 1994, along with costs of the present petition, quantified at Rs. 5,000/ -.