Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 1020 (ORI)

MENAKA NAYAK v. STATE OF ORISSA

2008-11-14

A.S.NAIDU

body2008
JUDGMENT : A.S. Naidu, J. - The Petitioner, a widow of an erstwhile employee of the then Orissa State Electricity Board ( 'Grid Company' later-on) (hereinafter referred to as 'Board') has filed this Writ Petition with a prayer for issuance of direction to the Opposite Parties to pay her family pension at enhanced rate as per the Orissa State Electricity Board Employees' Pension ( Including Old-age and Family Pension) Regulations, 1992 (hereinafter called 'the Regulations'). 2. The Petitioner's husband Ratnakar Nayak having died in harness while working as a Helper under the Board on account of an accident on 26th February' 1976, she applied for Family Pension. It is averred in the Writ Petition that she was first paid family pension at the rate of Rs. 60.00 per month from March' 1976 to March' 1982; then at the rate of Rs. 80.00 per month from April 1982 to March' 1983; then at the rate of Rs. 83.00 per month from April' 1983 to March' 1984 and then onwards at the rate of Rs. 400.00 per month. Her grievance is that as per Clause-5 of the Regulations and the parimateria provision made for the State Government employees, though she is entitled to enhanced family pension from the appropriate dates at the same rate as the widows of other deceased employees of the Board or Grid Company are receiving, the Opposite Party-authorities are not taking any steps with regard to her case, thereby discriminating her. She has further averred that the authorities without properly appreciating the matter, by communication to her on 26-4-2004 (vide Annexure-2) intimating her that she was not entitled to receive family pension at par with the widows of other deceased employees similarly placed like her husband, he (husband of the Petitioner) having died in the year 1976, i.e. long prior to introduction of the Regulations. The said communication Annexure-2 is assailed in this Writ Petition. 3. After receiving notice, Opposite Party No. 2, Asst. General Manager (F), Grid Company, has filed a counter-affidavit inter alia taking the stand that the Petitioner is not entitled to family pension in consonance with the Regulations framed in 1992 as her husband had died in the year 1976. The said communication Annexure-2 is assailed in this Writ Petition. 3. After receiving notice, Opposite Party No. 2, Asst. General Manager (F), Grid Company, has filed a counter-affidavit inter alia taking the stand that the Petitioner is not entitled to family pension in consonance with the Regulations framed in 1992 as her husband had died in the year 1976. After her husband's death she was receiving family pension in consonance with the provisions of the Employees' Family Pension Scheme, 1971 of the Board which was in vogue at the relevant time from the OSEB (EPF) Trust with enhanced doses from time to time as sanctioned by the EPF Organisation, Ministry of Labour, Government of India. It is further averred that the Petitioner had been receiving family pension at the rate of Rs. 514.00 per month with effect from 1-4-2000, and that might have been enhanced in the meanwhile. 4. This Court heard Learned Counsel for the parties at length and perused the relevant documents annexed to the pleadings. It appear that the Petitioner had earlier approached this Court vide OJC No. 13313 of 2000. This Court disposed of the said OJC on 19th March, 2004 granting liberty to the Petitioner to file a representation before the authority concerned and directed that the said authority would take a decision in the matter in consonance with Clause-5 of the Regulations. 5. Admittedly there was no Pension Scheme of the Board prior to 1 st April, 1990 and the employees were governed under the Contributory Provident Fund Scheme. In case of unfortunate death of an employee, his surviving legal heirs were receiving family pension from the Board's EPF Trust framed under the Employees' Family Pension Scheme, 1971 besides the money accumulated in the Contributory Provident Fund. Exercising its power u/s 79( c) of the Electricity Supply Act, 1948, in the year 1992 the Board framed Regulations in the name and style as "The Orissa State Electricity Board Employees' (Including Old-age Pension and Family Pension) Regulations, 1992" to regulate grant of pensionary benefits to its employees and their families. 6. Regulation 3 of the Regulations supra specifically stated that benefits would be available to all the regular employees of the Board with effect from 1 st April, 1990 except those who had opted otherwise. 6. Regulation 3 of the Regulations supra specifically stated that benefits would be available to all the regular employees of the Board with effect from 1 st April, 1990 except those who had opted otherwise. In consonance with the said Regulations, employees who had retired or the legal heirs of the employees who had died before 1 st April, 1990 were not eligible to the benefit of the said Regulations. Thus the husband of the Petitioner having died on 25th February, 1976, much before the said Regulations were framed, the benefits thereof cannot be extended to the Petitioner since there is no provision that the provisions of the Regulations had retrospective effect. 7. Mr. Swain, Learned Counsel appearing for the Petitioner, referring to Clause-5 of the Regulations submitted that the provisions of the Orissa Pension Rules, 1971 including various other Orders, Notifications, Memoranda and Resolutions issued from time to time by the State Government regulating pensionary benefits of its employees are to be extended also to the Board's employees mutatis mutandis. He submitted that in view of the aforesaid provision, the Regulations were applicable to the Petitioner. However, a cumulative reading of Regulations 3 and 5 gives an impression in the mind of this Court that a employee or his legal heirs to whom the Regulations were applicable could claim pensionary benefits under Regulation 5 & were entitled to benefits under the provisions of the Orissa Pension Rules, 1971 or other Notifications, Orders, Memoranda or Resolutions. But then the Regulations in question having come into effect from 1st April, 1990, an employee who retired prior to that date, or his legal heirs, cannot be brought within the purview of the said Regulations. This view of mine finds support from a decision of the Division Bench of this Court in the case of Purna Chn.Nanda v. Grid Company & Ors, 87 (1999) CLT 827 where being confronted with the problem as in the case at hand, it was held that so far as Board's Regulations for pensionary benefits were concerned, the cut-off date was 1-4-1990 and therefore the Petitioner Puma Chandra Nanda having retired prior to that date could not claim the benefit. This Court held that the proposition of law had been well settled by the Supreme Court in the cases of State of West Bengal and Others Vs. This Court held that the proposition of law had been well settled by the Supreme Court in the cases of State of West Bengal and Others Vs. Ratan Behari Dey and Others, ; and State of Rajasthan and Anr. Amritlal Gandhi & Ors, 1977 Lab.I.C.420. 8. Mr. Swain relying on the decision in the case of Dhan Raj and Others Vs. State of Jammu & Kashmir and Others submitted that as the said decision had not been taken note of by the Division Bench of this Court, the principle of per inquiriam should be applied. In the said decision, the Supreme Court had observed that there was no justifiable criteria for the State Government to draw a line between those retired earlier and those retired after June, 1981. Both sets of employees were equally placed in the same Undertaking/Corporation temporary in character and all had served the Organisation for more than twenty years. But then the facts of Dhanraj case reveal that there were no Regulations like that in the case at hand. Thus the said decision is quite distinguishable. Even otherwise, the ratio decided by the Division Bench of this Court is quite binding on a Single Bench, more so when there is no divergent or contrary decision. Law is also well settled that while dealing with an issue, a Bench consisting of a Single Judge cannot examine the correctness of a decision arrived at by a larger Bench on similar set of facts. The latter decision binds a Single Judge or the same Court and judicial discipline obliges the Single Judge to follow it regardless of any doubt about it and its correctness. However a Single Judge can refer a matter directly to a Full Bench where there is any conflicting judgment and/or the Single Bench comes to the conclusion that the judgment of the Division Bench is so incorrect that in no circumstances can the same be followed. The aforesaid ingredients are distinctly lacking in the case at hand. 9. In view of the aforesaid discussion, this Court finds no merit in the claim of the Petitioner and, accordingly, dismisses the Writ Petition. Final Result : Dismissed