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2014 DIGILAW 395 (CAL)

Chitta Ranjan Das v. Union of India

2014-04-29

SAMBUDDHA CHAKRABARTI

body2014
JUDGMENT 1. The Court: By the present writ petition the petitioner has inter alia prayed for a writ in the nature of Mandamus commanding the respondents to release the pension and to grant pensionary benefits in terms of Calcutta Dock Labour Board circular, dated February 13, 1985 and for other reliefs. 2. The case of the petitioner inter alia is that he joined the service of the respondent no. 2, i.e., the Calcutta Dock Labour Board (the Board, for short) in November, 1960 and was subsequently promoted as an Accounts Officer, Class II. In the year 1982 he resigned from service due to ill health. 3. According to him he came to know that the circular dated February 1985 had been issued by the respondent no. 2 informing the officers of the Board that in terms of the concerned Ministry’s letter and subsequent resolution of the Board the Class I and Class II officers of the Board governed by the Contributory Provident Fund Scheme (CPF scheme, for short) might exercise option to come over to the pension scheme by May 31, 1985. The said option for pension was only open to those officers who were in service on August 1, 1982 but had retired from service after that date till date of issue of the Ministry’s order, i.e., upto November 20, 1984. The petitioner opted for pension scheme in the year 1991. 4. Pursuant to an order passed by this court to consider the application of the petitioner the Chairman of the respondent no. 2 had rejected the petitioner’s prayer by an order dated July 28, 2008 in terms of the circular of the Board. It was inter alia mentioned in the said order that the petitioner did not opt for pension as was required in cases of employees recruited before April 1, 1972 and who were in service on that date in terms of the relevant provision of the Calcutta Dock Labour Board Employees’ Pension and Gratuity Rules (the Rules, for short). The petitioner was paid all the terminal benefits including provident fund dues treating him under the CPF Scheme. In terms of Rule 1(c) of the said Rules option once exercised by an employee either to elect for a pension scheme or to remain on the CPF Scheme would be regarded as final. The petitioner was paid all the terminal benefits including provident fund dues treating him under the CPF Scheme. In terms of Rule 1(c) of the said Rules option once exercised by an employee either to elect for a pension scheme or to remain on the CPF Scheme would be regarded as final. Thus option given by the office circular was open to those officers who were in service on 1st August, 1982 but had retired from service after that date till issue of those orders. 5. According to the said authority it is clear from the concerned circular that government did not allow any Class I or Class II officer who resigned from their services to switch over to pension scheme as Rule 26(1) of CCS (Pension) 6. Rules specified that resignation from service or a post unless it is allowed to be withdrawn in public interest by the appointing authority entails forfeiture of past service. 7. The principal reason for not allowing the application of the petitioner was that he had resigned from service and as such he is not entitled to opt for switchover to the pension scheme from the CPF Scheme in terms of the Board’s circular dated February 13, 1985. 8. The respondents have contested this petition by filing an affidavit wherein the allegations made by the petitioner have all been denied. It has inter alia been contended by the respondents that the said Rules came into force with effect from April 1, 1972. Rule 17(1) of the said Rules provides that resignation from Board’s service or dismissal or removal from it entails forfeiture of past service. 9. According to the respondents it will be clear from the contents of the Ministry’s letter that option for switchover to pension scheme was open to all Class I and Class II officers of major Port Trusts and the respondent no. 2 with effect from August 1, 1982 and the said option was also extended to those officers who were in service on August 1, 1982 but retired from service after that date till the date of issue of the said orders. 2 with effect from August 1, 1982 and the said option was also extended to those officers who were in service on August 1, 1982 but retired from service after that date till the date of issue of the said orders. According to the respondents the directions of the government showed that the past service rendered by such an officer would be deemed to have been rendered ab initio in a pensionable establishment and shall count as service qualifying for pension in the manner and to the extent provided in the Rules of the Port Trusts or the respondent no. 2 in force from time to time. 10. The answering respondents have given the same reasons in the affidavit as mentioned in the communication impugned in the writ petition. The respondents have reiterated that as the petitioner did not retire on superannuation but resigned from service, he is not entitled to get the pensionary benefits in terms of the directives of the Government. Another point taken by the respondents is that the petitioner does not have any indefeasible right to opt for a switchover to the pension scheme after tendering his resignation. He has no right to invoke the writ jurisdiction of this court as no right of him has been infringed. 11. The petitioner in reply has largely reiterated his stand in the petition. According to the petitioner Rule 48A came into force on November 28, 1978 which allows voluntary retirement after 20 years of qualifying service with pension. The petitioner claims that had Rule 48A been there in the pension rules of the Board at the time of his resignation he could have taken voluntary retirement either with pension or with CPF and he would have been eligible to switch over to the pension scheme as a voluntarily retired officer with CPF scheme. The petitioner has alleged that the option for pension to the officers retired under the CPF scheme was a general directive of the central government which has to be complied with as per the provisions of their own pension rules and cannot be an obstacle to officers like the petitioner who were also eligible to opt for pension as per the provision of the said statutory rules. According to him under Rule 48A he is entitled to pension or to opt for pension which has been delayed by the Board for such a ling time due to their ignorance. 12. Thus the sole question that crops up for consideration is whether the petitioner can rightfully avail himself of the option given by the Board pursuant to the directives of the concerned Ministry and whether by the order impugned any right of the petitioner was really infringed. 13. Mr. Majumdar, the learned advocate for the petitioner argued that the authority while rejecting the petitioner’s application has not mentioned any reason for rejecting the prayer. According to him it was incumbent upon the petitioner to mention the reasons in view of the High Court’s order. I have perused the order impugned and I find that sufficient reasons have been provided in the order. Thus it cannot be said that the order impugned is not a reasoned one or is silent about the reasoning on which the authorities proceeded to reject the prayer of the petitioner. Thus this contention of the petitioner fails. 14. It has further been sought to be argued that by rejecting the application of the petitioner the authority had gone against the intention of the legislature. The petitioner has referred to the office circular dated February 13, 1985 and argued that even the heirs of those who had died before the issue of the Ministry’s order their heirs were allowed to switch over from the CPF scheme to the pension scheme upon fulfillment of certain terms and conditions. From this the petitioner argued that the intention of the legislature was to bring as many persons as possible within the scope of the scheme and to give as many persons as possible the opportunity to switch over. The authorities exercising power had in fact frustrated the scheme by rejecting it to the petitioner. 15. This argument does not really appear to be very convincing. The option for pension scheme was open to officers who were in service on 1st August, 1982 but who had retired from service after that date till the date of the issue of the Ministry’s order. This benefit had also been extended to the families of those offices who were in service on August 1, 1982 but who had died before the issue of the Ministry’s order. This benefit had also been extended to the families of those offices who were in service on August 1, 1982 but who had died before the issue of the Ministry’s order. A closely look at both the clauses suggests that the common feature between the two categories was that they should be in employment on August 1, 1982 but could not be in employment till the date of issue of the Ministry’s order either by retirement or by death. In both the cases their disassociation with employment was not a voluntary act. That apart, those who had died where not in a position to exercise any option. 16. Moreover, it will not be proper to compare the families whose predecessors had died with those employees who had resigned from service. Death is an unpredictable eventuality over which nobody has any hand and, therefore, it will not be proper to compare the extension of benefit to the families of employees who had died with those who had resigned. 17. Mr. Dutta, the learned advocate for the respondents submitted that the petitioner did not opt for the pension scheme when it was first introduced in the year 1971. As such he is not entitled to say that he was not aware of the pension scheme or he would have opted for the present scheme if he had been in service. 18. That apart the relevant rules which were in vogue during the petitioner’s tenure in service dealt with qualifying service in Rule 17. In Rule 17(I) it was specifically provided that resignation from Board’s service or removal from it for certain reasons as mentioned therein entails forfeiture of past services. This, according to the respondents, disentitles the petitioner to ask for any pension after his resignation from service. 19. While the submissions of the respondents, largely re-iteration of the stand taken in the impugned order, is far too obvious, there is still one aspect that calls for a closer examination: why must one stick to the word only used in the letter of ‘resignation’ by the petitioner? Undoubtedly he resigned from his services. But why should not the authority after almost three decades of his dissociation with the former employer only focus on the word ‘resignation’ and try to interpret the rules with all the rigidity which is not expected of a statutory body or a model employer? Undoubtedly he resigned from his services. But why should not the authority after almost three decades of his dissociation with the former employer only focus on the word ‘resignation’ and try to interpret the rules with all the rigidity which is not expected of a statutory body or a model employer? This is all the more so in view of a more recent judgment of the Supreme Court where also a question like the present one came up for consideration and the apex court treated the ‘resignation’ of a former employee very differently so that the benefit contemplated in the particular scheme may also be extended to a former employee who, even though resigned, might well have voluntarily retired from the organization. 20. Mr. Majumdar has relied on the case of Sheel Kumar Jain –Vs.- New India Assurance Company Limited and Ors, reported in (2011) 12 SCC 197 . While the stand taken by the respondents were strictly according to the rules it cannot be disputed that the petitioner had completed 20 years of qualifying service and in a similar circumstance in the case of Sheel Kumar Jain (Supra) the Supreme Court had accepted the stand of the resigned employee. In that case paragraph 30 of the General Insurance (Employees’) Pension Scheme, 1995 was framed for the purpose of granting pensionary benefits to employees who after completing 20 years of qualifying service voluntarily retired upon acceptance of three months’ notice. The said scheme was made applicable also to those employees who had retired before November 1, 1993. The appellant in that case after completing 20 years of qualifying service resigned from his post and his resignation was accepted. After coming into force of the 1995 scheme he sought pensionary benefits which was rejected by the respondents on the ground that the said scheme would not be applicable to those who resigned from service in view of paragraph 22 thereof which provided that resignation shall entail forfeiture of past services. 21. The Supreme Court held that the appellant having completed 20 years’ qualifying service and having given three months’ notice on his intention to leave the service and the competent having accepted the notice and relieved him from service paragraph 30 of the 1995 scheme shall apply even though in the notice he had used the word ‘resigned’. 21. The Supreme Court held that the appellant having completed 20 years’ qualifying service and having given three months’ notice on his intention to leave the service and the competent having accepted the notice and relieved him from service paragraph 30 of the 1995 scheme shall apply even though in the notice he had used the word ‘resigned’. Since voluntary retirement unlike resignation does not entail forfeiture of past service and instead qualifies for pension the appellant to whom the 1995 scheme applied cannot be said to have resigned from service and the scheme cannot be so construed as to deprive the appellant of his pensionary benefits. 22. In the present case the petitioner also had rendered more than 20 years of qualifying service and the scheme also would have applied to him but from his resignation from service. In view of what has been held by the Supreme Court the authority should have treated it as voluntary retirement instead of resignation. It may be mentioned that Rule 9 of The Calcutta Dock Labour Board Employees Pension and Gratuity Rules which had come into force with effect from April, 1972 inter alia provides that retiring pension is granted to an employee if he retires voluntarily on completing a number of years and on reaching a particular age. If the petitioner had voluntarily retired he would have been entitled to the pension and following the ratio decided by the Supreme Court I am of the view that the company should have accepted it as a voluntary retirement and granted him the benefit of the scheme of 1985. 23. In the result the order impugned in the writ petition is set aside and I allow the writ petition. 24. I direct the respondents to dispose of the claim of the petitioner for pension in accordance with the relevant scheme and in the light of the decision of this judgment and intimate the decision to him within three months from today. 25. There shall, however, be no order as to costs.