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2015 DIGILAW 962 (HP)

Rajinder Singh Shandil v. Union of India

2015-07-29

RAJIV SHARMA

body2015
Judgment Rajiv Sharma, J. In exercise of powers conferred under Section 17-A of the General Insurance Business (Nationalization) Act, 1972, the Central Government has framed the Scheme to further amend the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Scheme, 1976. The Scheme was called the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003. It has come into force on the day of publication in the official gazette. It was published on 3.1.2003. Para 15 C. of the Scheme reads as under: “15 C. Special Option.—(1) A Development Officer may, within sixty days of the commencement of the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003, opt: (a) for Special Voluntary Retirement Package as per Annexure-I appended hereto; or (b) to render his services as Development Officer (Administration) under paragraph 21A, as per Annexure-II. (2) A Development Officer, who does not exercise any of the options under sub paragraph (1) within the stipulated period of sixty days, shall continue to render service as such under the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003.” 2. It is evident from combined reading of para 15C of the Scheme that the Development Officer was required within sixty days of the commencement of the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003, to opt for special voluntary retirement package or to render his services as Development Officer (Administration). The Development Officer, who did not exercise any of the options under sub paragraph (1) within the stipulated period of sixty days, was required to continue to render services as such under the General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 2003. The petitioners, admittedly, have not exercised the options as per clause 15C. The principal ground taken by the petitioners for not exercising the option is that they have filed CWP No. 3204 of 2003 before the Punjab and Haryana High Court. The Punjab and Haryana High Court has ordered status quo on 31.3.2003. The petitioners, admittedly, have not exercised the options as per clause 15C. The principal ground taken by the petitioners for not exercising the option is that they have filed CWP No. 3204 of 2003 before the Punjab and Haryana High Court. The Punjab and Haryana High Court has ordered status quo on 31.3.2003. The United Insurance Company preferred a Special Leave Petition SLP (C) No. 13261 of 2003 as well as Transfer Case No. 64 of 2003 before the Hon’ble Supreme Court against the interim order dated 31.3.2003, rendered by the Punjab and Haryana High Court. The SLP/Civil Appeals filed by the Insurance Company were allowed by the Hon’ble Supreme Court vide judgment dated 3.4.2008. The judgment is reported in (2008) 5 SCC 472 , in the case of National Insurance Company Limited vrs. General Insurance Development Officers Association and others. The operative portion of the same reads as under: “[26] In para 28 it was held that there was no need for any consultation with the employees. When the changes introduced by the scheme are considered in the background of the position in law and the decision of this Court by a Constitution Bench in Prakash Sharma's case (supra) there is no scope for interference in these appeals. However, it would be in the interests of the officers and the insurance companies if the Development Officers who work within the cost ratio are not transferred unless the transfer is required to be done in public interest. So far as the promotional prospects and the wage revision are concerned, a draft policy stated to have been formulated for the latter be finalized within a period of three months. The writ petitions filed in different High Courts stand dismissed because of this judgment. Consequentially, the interim orders passed which form the subject matter of challenge in the appeals are vacated subject to the directions given supra.” 3. Thereafter, on 19.6.2008, notification was issued pertaining to pay revision. Letter dated 1.1.2009 pertains to promotion policy for Development Officers Grade-I to the cadre of Scale-I Officers. The Development Officers who had exercised any of the options within 60 days, as per Clause 15C have been granted the benefits under the Scheme. The petitioners continued to work as Development Officers. The similarly situated persons have also approached the Hon’ble Supreme Court by way of I.A. No.2. The Development Officers who had exercised any of the options within 60 days, as per Clause 15C have been granted the benefits under the Scheme. The petitioners continued to work as Development Officers. The similarly situated persons have also approached the Hon’ble Supreme Court by way of I.A. No.2. It was permitted to be withdrawn with liberty to pursue the same before the appropriate authority/Court, vide order dated 16.8.2010. 4. Their lordships of the Hon’ble Supreme Court in the case of New India Assurance Co. Ltd. vrs. Raghuvir Singh Narang and anr. reported in (2010) 5 SCC 335 , have held that the provisions of Amendment Scheme, 2003 were statutory in character and the provisions of the Scheme would prevail over the provisions of the Contract Act or any other law or any principles of contract, having regard to the binding nature of the Scheme and an employee, upon exercising option, cannot withdraw from the same. This case pertains to Voluntary Retirement under the Scheme. 5. The petitioners have been informed, specifically, about the Scheme on 23.1.2003 and despite that they have not exercised their options. The representations made by the petitioners No. 1, 4 & 6 were considered by the highest decision making body of the Insurance Company. The same were rejected on 28.3.2011. The Scheme has become functional after its publication in the official gazette. The underlying principle of the Scheme was also to allow its employees; (a) to seek voluntary retirement; (b) to go from marketing to administrative side; or (c) to continue in service. The employees who have opted for the Scheme within 60 days have changed their positions. The petitioners, now after more than 12 years, cannot be permitted to give fresh option. 6. Their lordships of the Hon’ble Supreme Court in the case of Union of India and others vrs. Shri Hanuman Industries and another, reported in (2015) 6 SCC 600 , have held that it is a fundamental legal diktat that delay has to be explained by cogent, convincing and persuasive explanation to justify condonation thereof. It has been held as follows: “20. The gravamen of the authorities pertaining to delay highlight in unison that the same has to be explained by cogent convincing and persuasive explanation to justify condonation thereof. It has been held as follows: “20. The gravamen of the authorities pertaining to delay highlight in unison that the same has to be explained by cogent convincing and persuasive explanation to justify condonation thereof. The legal diktat being so fundamental that a detailed treatment of the decisions relied upon by the respondents in this regard is not warranted. 22. On a consideration of the totality of the aspects involved, we are thus of the unhesitant view that the respondents herein in view of their deliberate laches, negligence and inaction have disentitled themselves to the benefit of the adjudication in the earlier lis. In the accompanying facts and circumstances in our comprehension, it would be iniquitous and repugnant as well to the public exchequer to entertain the belated claim of the respondents on the basis of the doctrine of promissory estoppel which is even otherwise inapplicable to the case in hand.” 7. Mr. Ajay Mohan Goel, Advocate, appearing for the petitioners, has also vehemently argued that when the amendments were carried out in the Scheme in the year(s) 2008-09, the petitioners were permitted to give fresh option. The option was to be exercised within 60 days from the promulgation i.e. 2003 Scheme. It is reiterated that there is no correlation between the notification/letter dated 19.6.2008 and 1.1.2009. 8. This Court in the case of Khem Chand Sharma & anr. vrs. Union of India & ors., reported in 2012(1) Him. L.R. 57, has held that option once exercised cannot be withdrawn. It has been held as follows: “9. Submission has been noticed only to be rejected. Scheme, as per its clause 1(2), was to come into force, fromthe date of its publication in the Official Gazette. In the reply, it is stated that Scheme was published in the Official Gazette on 3.1.2003. Petitioners have filed rejoinder, in which they have not denied this fact. That means, Scheme was published in the Official Gazette on 3.1.2003 and, thus, requests for voluntary retirement made by the petitioners, were within 60 days of the commencement of the Scheme. 10. In the reply, it is stated that Scheme was published in the Official Gazette on 3.1.2003. Petitioners have filed rejoinder, in which they have not denied this fact. That means, Scheme was published in the Official Gazette on 3.1.2003 and, thus, requests for voluntary retirement made by the petitioners, were within 60 days of the commencement of the Scheme. 10. Another submission made on behalf of the petitioners is that because of the stay granted by the High Court of Punjab and Haryana, vide order Annexure P-3, which is dated 31.3.2003, implementation of the Scheme stood stayed and hence respondent No. 2 could not have lawfully issued orders for the acceptance of requests of the petitioners for voluntary retirement and could also not have relieved them vide orders, Annexures P-7 and P-8. This submission is also without merit. order Annexure P-3, was made applicable only in the area, within the jurisdiction of Punjab and Haryana High Court, as is clear from a bare reading of para 2 of the said order. Petitioners were working within the jurisdiction of this Court and, therefore, stay order, copy Annexure P-3, was not applicable in their case. 11. Also, petitioners, having once exercised their option for voluntary retirement, could not have withdrawn those options, in view of clause (4) of Para 5 of Annexure –I to the Scheme, Annexure P-1. Aforesaid clause (4) of para 5 says that a Development Officer shall not be eligible to withdraw the option once made for Special Voluntary Retirement Package. 12. Hon’ble Supreme Court, while dealing with a case arising out of this very Scheme, in New India Assurance Company Ltd. V. Raghuvir Singh Narang, (2010) 5 SCC 335 , has held that Special Voluntary Retirement Package is a Scheme, statutory in nature and the provisions of the Scheme, prevail over the provisions of the Contract Act or any other law or any principles of contract, having regard to the binding nature of the Scheme and an employee, upon exercising the option, cannot withdraw from the same, in view of clause (4) of Para 5 of Special Voluntary Retirement Package. So, this submission can also not be upheld. 13. Another submission made on behalf of the petitioner is that money payable to the petitioners, on account of exgratia, having not been offered within 45 days of their relieving, they are entitled to reinstatement. So, this submission can also not be upheld. 13. Another submission made on behalf of the petitioner is that money payable to the petitioners, on account of exgratia, having not been offered within 45 days of their relieving, they are entitled to reinstatement. Scheme, Annexure P-1 does not provide that in case money, payable to a person seeking voluntary retirement, is not paid within the prescribed period of 45 days, the employee will be reinstated automatically or will be entitled to be reinstated on his asking. In the absence of any provision in the Scheme, the consequence of non payment of gratuity money, within the prescribed period can, at the most, be that the affected person can seek compensation or ask for payment of interest or even penal interest, on the amount of gratuity, which the petitioners, in the present case, have not claimed. Also, I find that money, on account of gratuity, which the petitioners, in the present case, have not claimed. Also, I find that money, on account of gratuity, payable to the petitioners, was offered to be paid to them within 10 days of the expiry of 45 days time, but they refused to accept the same.” 9. It would be apposite to mention at this stage that the similarly situated persons who have approached the Hon’ble Punjab and Haryana High Court, have withdrawn their CWP No. 4571 of 2010 and analogous matters, on 27.5.2011. 10. In view of the observations made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any.