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2016 DIGILAW 271 (ORI)

Akshaya Kumar Sahoo v. Oil India Limited

2016-04-06

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. 1. In this writ petition the following prayers have been made:- (a) To direct the opposite parties to consider the payment of benefits under the Pension and other retiral benefits to the petitioner considering his services from 9.6.1980 till 5.8.1999; (b) to direct the opposite parties to give proportionate pension to the petitioner as he has completed less than 20 years and more than 15 years of service with the oil India. 2. The facts of the case of the petitioner in brief is that in pursuance to an application made on 25.4.1980 and on being successful through a valid process of selection, the petitioner was offered with a post under the opposite party no.3 on 5th June, 1980 and started discharging his duty. Soon after joining the post, the petitioner applied to become member of the Burmah Oil (India) Provident Fund on 13.11.1980 which was admitted and the petitioner was found to be admitted to the Fund, the authorities have started deducting contribution from his salary w.e.f. November, 1980 which continued till the petitioner retired pursuant to the voluntary retirement scheme in August, 1999. In the meantime by virtue of Parliamentary Act in the name and style of Burmah Oil Company (Acquisition of Shares of Oil India Ltd and of the Undertakings in India or Assam Oil Company Ltd and the Burmah Oil Company (India Trading Ltd) Act, 1981 which came into force w.e.f. 14.10.1981 by Gazette of India Notification dtd.6.10.1981. In pursuance to the said Act the company in which the petitioner was working has been acquired by the Government and his services were transferred to Oil India, a Government of India undertaking Company. In pursuance to the said Act the company in which the petitioner was working has been acquired by the Government and his services were transferred to Oil India, a Government of India undertaking Company. The Act contains a provision U/s.11 which provides that an employee of a specified company who was immediately before the appointed day employed by that company in connection with its undertakings in India and before the appointed day, temporarily holding any assignment outside India shall, on the appointed day become an officer or the other employee, as the case may be, of the Central Government or the concerned Government Company in which the right, title and interest of the specified company in relation to its undertakings in India have vested under this Act and shall hold office or service under the Central Government or the successor Government company as the case may be on the same terms and conditions and with the same rights to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and shall continue to do so unless and until his employment under the Central Government or the successor Government Company is duly terminated or until his remuneration and conditions of service are duly altered by the Central Government or the successor Government company. According to the petitioner the petitioner’s service under Burmah Oil Company was taken over by the Oil India w.e.f.14.10.1981 and for all practical purposes the petitioner became an employee of the said transferee company from the said date. The Oil India after taking over Burmah Oil Company formulated the Oil India Pension Fund Rules which came into operation w.e.f.14.10.1981 containing a provision U/s.12 which stipulates that an employee of the specified companies will be entitled for getting pensionary benefits. For becoming eligible for getting the pensionary benefit the only eligibility was that the person concerned should be the member of the existing fund, and according to the petitioner he being a member of the Burmah Oil India Pension Fund of Oil India and a permanent account number was allotted to him in which the statutory amount has been deducted and deposited and as such he became entitled to get the benefit of proportionate pension as per the provision made in Sec.12 of the Acquisition Act. It is at this time the government has floated a scheme for voluntary retirement and accordingly the petitioner had opted for the same and his offer of voluntary retirement was accepted, he was separated from service w.e.f. 5.8.1999. The petitioner after obtaining VRS tried to rejoin his duty by withdrawing the said option but the same was rejected by the opposite parties but the rejection order was challenged by the petitioner before this Court in W.P. (C) No. 12506 of 2000 which was dismissed on 29.4.2002, the same was challenged before the Hon’ble Supreme Court in SLP No.18509 of 2002 which was also dismissed vide order passed on 9.1.2003. According to the petitioner although he was entitled for certain benefits among which benefit of pension as per provision under the State Rules and Oil India Pension Fund, 1981 and other consequential benefits have been denied, the petitioner had again moved this court vide W.P.(C) No.9537 of 2003 for issuance of direction to treat the period from 9.6.1980 to 2.1.1982 as regular service and the benefit of the voluntary retirement be provided by taking into account the said period as regular service and further for issuance of direction upon the opposite parties to pay the arrears as well as current dues of pension from Oil India Pension Fund w.e.f. 6.8.1999. This court vide order dtd.12.11.2009 has dismissed the writ petition against which the petitioner has filed a Civil Review Petition being RVWPET No.229 of 2009 which was disposed of giving liberty to the petitioner to file suitable representation before opposite party no.3 enclosing all relevant documents and service particulars, in terms thereof the petitioner has filed a representation before the authorities on 10.3.2010 for redressal of his grievance but the authorities vide order dtd.9.7.2010 rejected claim of the petitioner on the ground that since he was employed in the temporary service of the company only on 2.1.1982 hence not held to be eligible for the benefit. The said order is challenged in this writ petition. This writ petition has again been filed praying therein to pay the retiral dues of the petitioner considering the period of his service from 9.6.1980 to 5.8.1999 and to release proportionate pension since he has completed less than 20 years and more than 15 years of service with the Oil India. 3. So far as the prayer no. This writ petition has again been filed praying therein to pay the retiral dues of the petitioner considering the period of his service from 9.6.1980 to 5.8.1999 and to release proportionate pension since he has completed less than 20 years and more than 15 years of service with the Oil India. 3. So far as the prayer no. (a) is concerned, it has been submitted by learned counsel for the petitioner that since he was engaged on 9.6.1980, thereafter he was taken into regular establishment and as such the said period is to be counted for counting the pensionary benefit. While on the other hand it has been contended by the learned counsel representing the opposite parties that the petitioner is not entitled to take advantage of the period from 9.6.1980 to 2.1.1982 because the said issue has already been settled by an order passed by this Court, which has been affirmed by the Hon’ble Apex Court. 4. After hearing the learned counsels for the parties and after going through the relevant records the prayer made by the petition in prayer no.(a) is not fit to be entertained for the following reasons:- (i) The petitioner who had initially been appointed on 9.6.1980, purely on temporary basis as Clerk-cum-Typist for the period of six months under Oil India Ltd. And while working there he made an application in pursuance to an advertisement by which applications have been invited for the post of Telex Operator in which the petitioner, on being considered, was selected and appointed on 3.1.1982. The petitioner continued as Telex Operator by way of fresh appointment and thereafter in pursuance to a scheme floated by the opposite parties in the name and style of voluntary retirement scheme the petitioner has given option for separation from service which was accepted and the petitioner was made to retire w.e.f. 5.8.1999. The petitioner has filed writ petition being O.J.C. No.12506 of 2000 alleging therein that although he has filed application for withdrawal of his earlier application for voluntary retirement but the opposite party had illegally accepted the offer without considering the withdrawal application but the said writ petition was dismissed vide order dtd.29.4.2002 and while declining to interfere with the order accepted the VRS of the petitioner. Thereafter the petitioner has approached Hon’ble Apex Court but the Special Writ Petition has also been dismissed. Thereafter the petitioner has approached Hon’ble Apex Court but the Special Writ Petition has also been dismissed. The petitioner has filed a separate writ petition being W.P.(C) No.9537 of 2003 but the said writ petition was also dismissed holding therein as follows:- “Order No.18, dated 12.11.2009:- xxx xxx xxx xxx 6. In view of the discussions made above and as the appointment of the petitioner from 9.6.1980 to 2.1.1982 was purely temporary and on ad hoc basis and as the petitioner in response to an advertisement applied for a regular post of Telex Operator in the year 1982, this Court has no hesitation to hold that he is not entitled to for regularization of the period of service rendered by him on purely temporary and ad hoc basis. The writ petition is accordingly dismissed.” In view of the order passed by this court in W.P.(C) No.9537 of 2003 decided on 12.11.2009 the prayer made under heading (a) with respect of consideration of period from 9.6.1980 till 5.8.1999 for the purpose of accounting the entire service period for getting pensionary benefit is not tenable since this court has held the appointment of the petitioner made on 9.6.1980 to 2.1.1982 as purely temporary and on ad hoc basis and as such the petitioner has been held not entitled for regularization of the said period and once he has been held not entitled for regularization of the period from 9.6.1980 the period cannot be accounted for any other purpose, even for pension. In view of this the first prayer made in this writ petition is dismissed. 5. So far as the second prayer, i.e. issuance of direction to give proportionate pension to the petitioner as he has completed less than 20 years of service and more than 15 years of service with the Indian Oil, the contention raised by the learned counsel for the petitioner that in view of the condition laid down in condition No.12 he is entitled to be given the benefit of proportionate pension since there is a provision of proportionate pension under the condition when an employee will get separated from service under voluntary retirement scheme. To demonstrate his argument learned counsel for the petitioner has relied upon various provision of Oil India Pension Fund and the scheme of the voluntary retirement scheme. To demonstrate his argument learned counsel for the petitioner has relied upon various provision of Oil India Pension Fund and the scheme of the voluntary retirement scheme. In order to appreciate the argument advanced in this regard by the learned counsel representing the petitioner, it would be necessary to quote clause 11 and 12 of the Oil India Pension Fund which is being reproduced herein below:- “PART IV :- BENEFITS 11. A former employee shall be entitled to receive normal pension as hereinafter defined if as on the date of his retirement:- (i) he had attained the pension age; (ii) he had completed not less than 20 years of service; (iii) he was a member of the Oil India Limited Staff Provident Fund or of the Oil India Limited Employees’ Provident Fund maintained by the Company and his membership of such fund or funds was continuous for not less than 10 years or his membership of such fund or funds together with his membership of the Burmah Oil – (India) Provident Fund or provident & Insurance Fund (India) Recognized or of both funds was continuous for not less than 10 years. “Normal pension” for the purpose of the Rule represents a yearly sum equal to the Basic figure. 12. A former employee who is not entitled to normal pension under these Rules shall entitled to receive a proportionate pension provided as on the date of retirement:- (i) he had attained the pension age; (ii) he had completed less than 20 years but more than 15 years of service; (iii) he had otherwise qualified for a normal pension under the provision of Rule-II hereof. The amount of the proportionate pension shall be a yearly sum equal to the sum proportion of the Basic figure applicable to the beneficiary as the period of service, calculated to the nearest months, bears to 20 years.” From perusal of condition as contained in Clause-11, the same pertains to receive normal pension and as such the same is not relevant for the purpose of consideration of the prayer of the petitioner since he is seeking proportionate pension under the condition provided in voluntary retirement scheme under which he has been separated from service. The provision for giving proportionate pension has been discussed in Clause 12, the condition contained therein is that an employee had attained the pension age, he had completed less than 20 years but more than 15 years of service and he had otherwise qualified for a normal pension under the provision of Rule-11 thereof. According to the petitioner he has attained the pension age, he has completed less than 20 years and more than 15 years of service even taking the date of appointment as 2.1.1982 and he is also a member of Oil India Ltd Staff Provident Fund maintained by the company as required under clause 11 (iii). To substantiate his argument learned counsel representing the petitioner has relied upon Annexure-3 which is an application of admission for getting Provident Fund and according to the petitioner the Provident Fund account number has been given to him. There is no denial about the fact that the Provident Fund account number has been given being 9/6/90 but that pertains to Burmah Oil India Provident Fund. Learned counsel representing the petitioner has given much emphasis that since the petitioner is a member of that Fund and contributed to that fund and as such he will be held to be entitled to get the proportionate pension. But, however, this argument has vehemently been opposed by the learned counsel representing the opposite party by submitting that the Provident Fund membership allotted to the petitioner while he was in the service under Burmah Oil India Ltd. cannot be taken into consideration for the reason that the petitioner was appointed on temporary basis on 9.6.1980 and thereafter in pursuance to an advertisement he was appointed afresh under the opposite party and as such whatever benefit the petitioner was enjoying including the membership of the Fund that will seize to exist in view of the fresh appointment of the petitioner having been given effect from 2.1.1982 and the moment the petitioner has got fresh assignment by way of reappointment which will be said to be fresh and all the benefit which the petitioner was accruing will seize to exist. He further submitted by placing reliance upon the appointment order dtd.13.1.1982 which although the petitioner has not annexed, but the same has been annexed by the petitioner in his earlier writ application being W.P.(C) No.9537 of 2003 in which the order of appointment dtd.13.1.1982 is at Annexure-2 and by relying upon the said document it has been submitted that the petitioner was appointed as Telex Operator in Grade-III of the Clerical Programme in the organization w.e.f. 2.1.1982 with the specific condition that the temporary employment with the company vide letter No.BEP/ADMN/AKS-1733 dated 21.12.1981 stands terminated after the close of working hour on 1.1.1982. By referring to this condition it has been submitted that since the service rendered by the petitioner prior to 1.1.1982 has been terminated which itself suggests that the past benefits which the petitioner was enjoying shall stand terminated in view of the nature of the order and as such the petitioner cannot claim with respect to the benefit of having membership under the erstwhile employer. He has further submitted that the petitioner has been separated from service under a scheme floated by opposite party in the name and style of Voluntary Retirement Scheme, but the said scheme does not contain any benefit either for normal pension or for proportionate pension for such type of employee who have been separated or are being separated under the said separation scheme and since the petitioner has opted in pursuance to the scheme having no condition for getting either normal pension or proportionate pension for such category of employee, the petitioner cannot be held to be entitled for getting proportionate pension. He has further submitted that even as per Annexure-1 he is not entitled to get proportionate pension since the petitioner is claiming on the basis of clause 4.0 which contains a condition for getting proportionate pension but the condition as stipulated in condition no.4.0 of Annexure-1 is not applicable so far as it relates to the petitioner because the said benefit as contained in condition no.4.0 is only applicable for the period from 19.9.1999 to 31.3.2000 and here the petitioner had been separated w.e.f. 5.8.1999 and as such this condition is not applicable. In order to appreciate the rival submission of the parties this court has perused the original record of W.P.(C) No.9573 of 2003 and from its perusal it transpires from the order of appointment dtd.13.1.1982 that the petitioner was appointed afresh on the basis of application dtd.25.4.1980 as Telex Operator in Grade-III of the Clerical Programme w.e.f. 2.1.1982 with the condition that the temporary employment shall stand terminated after the close of working hour on 1.1.1982, relevant part of the order of employment which is at annexure-2 of the writ petition being W.P.(C) No.9573 of 2003 is being quoted herein below:- “We refer to your application dtd.25.4.1980 and to your subsequent interview with us and are pleased to offer you employment as a Telex Operator in Grade-III of the Clerical Programme in our Organisation with effect from 2nd January, 1982. Please note that your temporary employment with us vide our letter No.BEP/ADMN/AKS-1733 dtd.31.12.1981 stands terminated after the close of working hour on 1.1.1982.” From perusal of the terms and conditions of offer of appointment it is evident that the petitioner was appointed in pursuance to an advertisement issued by the opposite party – Corporation and on being assessed he was appointed as Telex Operator in Grade-III of the Clerical programme w.e.f. 2nd January, 1982 with a specific condition that the temporary employment stand terminated. The moment past service have been directed to be terminated and it was terminated, the petitioner will be seized to be the beneficiary of any benefit in the subsequent employment that will be the effect of termination of the past service. The moment past service have been directed to be terminated and it was terminated, the petitioner will be seized to be the beneficiary of any benefit in the subsequent employment that will be the effect of termination of the past service. In view of such settled situation, the claim of the petitioner that he has been offered with membership of Fund under Burmah Oil India Company as the petitioner refers Annexure-3 and on this ground he is claiming to come under the provision of condition no.12 of the Corporation Pension Fund is of no substance for the reason that even assuming that the petitioner had membership of the Fund but the moment his membership of the Fund being in employment under Burmha Oil India in the capacity of temporary employee and the moment temporary employment has been terminated the said benefit cannot be said to be carry forward to the subsequent appointment even after acquisition of the Burmah Oil India Ltd. and also for the reason that the petitioner has been made new member after subsequent employment which also clarifies the position that petitioner cannot derive any benefit from the membership of Fund having with Burmha Oil India Ltd. Thus, on this ground the claim of the petitioner to come under the condition 12 of the Orissa Pension Fund Rules is of no substance. Even otherwise also the petitioner is claiming that he is entitled to get proportionate pension under Annexure-A annexed to the counter affidavit which contains a condition to provide proportionate pension, for ready reference the same is quoted herein below:- “6.5.1.5 Revised Voluntary Retirement Scheme: (Applicable for the period from 19.9.1999 to 31.3.2000) 4.0. Employees eligible for Early pension/Proportionate Pension as per Oil India Pension Fund rules shall be extended the same in addition to the VR benefits as in para 2.0 & 3.0 above.” From perusal of the condition as per quoted version it is evident that the revised voluntary retirement scheme which was applicable from 19.9.1999 to 31.3.2000 such category of employee has been held to be eligible for Early Pension / Proportionate Pension under the Oil India Pension Fund Rules. The petitioner on the basis of this condition is claiming for the proportionate pension but this cannot be said to be applicable so far as the case of the petitioner is concerned because admittedly the petitioner was separated from service w.e.f. 5.8.1999 and the condition as contained in clause 4.0 is applicable for the period from 19.9.1999 to 31.3.2000 as would be evident from the quoted version referred herein above. The petitioner is also not entitled to the proportionate pension for the reason that the petitioner has made an application under the scheme which was floated on 9th December, 1998, although copy of the same has not been annexed but it is at Annexure-7 in W.P.(C) No.9537 of 2003 and in order to appreciate this argument and to adjudicate this issue this court has gone into the said voluntary retirement scheme and from its perusal it is evident that there is no provision to give any proportionate pension to the employee who have been separated from service under the said scheme. Rather the terminal benefits have been provided to be given, that is the balance of Provident Fund/cash equivalent/Gratuity as per the gratuity rules and one month notice, etc. Thus it is the admission on the part of the petitioner hat he has made an application for getting separation under the VRS in pursuance to the scheme dtd.9th December, 1998 and after offering himself for separation and on its acceptance he was separated from service w.e.f. 5.8.1999. The petitioner is not claiming that he has not been paid any benefit which the petitioner was entitled under the scheme, rather he is claiming the proportionate pension but the same cannot be given on account of the fact that there is no provision to give proportionate pension to the petitioner under the voluntary retirement scheme in pursuance to which the petitioner was separated from service and it is settled that the employee will be said to be entitled for benefit under the VRS as per the terms and conditions contained therein. It is also settled that normal pension or proportionate pension is supposed to be given to the employee under a scheme, according to the admissibility or eligibility and if the scheme itself does not provide any condition the said employee cannot be held to be entitled for getting normal or proportionate pension. It is also settled that normal pension or proportionate pension is supposed to be given to the employee under a scheme, according to the admissibility or eligibility and if the scheme itself does not provide any condition the said employee cannot be held to be entitled for getting normal or proportionate pension. Here in this case the petitioner was separated from service under the VR scheme dtd.9.12.1998 which contains no condition of proportionate pension and the petitioner cannot place reliance upon another scheme which was applicable for the period from 19.9.1999 to 31.3.2000, hence on that basis the petitioner cannot claim any benefit of proportionate pension. In view of the foregoing reasons the prayer no. (b) is of not worth consideration and as such the same is also hereby rejected. In the result the writ petition stand dismissed.