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Allahabad High Court · body

2016 DIGILAW 3462 (ALL)

RANI PANDEY v. UNION OF INDIA

2016-10-18

TARUN AGARWALA, VINOD KUMAR SRIVASTAVA III

body2016
JUDGMENT By the Court.—Heard Sri Narendra Kumar Giri, learned counsel for the petitioner and Sri Akshat Sinha, Advocate holding brief of Sri Y.K. Sinha, learned counsel for respondent Nos. 2 and 3. 2. Petitioner’s husband Bhupndra Naraian Pandey was employed in the Indian Telephone Industries, at Naini, in the District Allahabad on the post of Chief Manager. The respondent issued a circular No. 481 of 17.11.2003 introducing a scheme for premature retirement on medical grounds. The scheme provided payment of gratuity, provident fund etc. In addition to the aforesaid, ex-gratia payment was also given under certain conditions. The condition and the benefits of the scheme are extracted herein under: “1. The scheme is applicable to all permanent Non-officers and officers up to and including Gr. 10 who have completed a minimum of 10 years of service in the Company GR who have attained 40 years and above of age. 2. A Medical Board consisting of three doctors as may be constituted by the Unit Head/Functional Head or his authorized representative shall medically examine the continued fitness or otherwise of the employee and give a report as to whether, the employee can continue to do the job for who he /she is engaged. 3. Based on Medical report if the Unit Head or his authorized representative comes to the conclusion that the employee cannot continue to do the job for which he/she is engaged the services of such an employee shall be deemed to be prematurely retired from services on medical grounds. 4. BENEFITS 4.1. An officer Non-officer whose request for Premature Retirement is accepted will be entitled to the following normal terminal benefits. (a) Gratuity. (b) Provident Fund. (c) Encashment of Drivilege Leave at credit as on the date of release. (d) Encashment of unavailed Casual Leave in proportion up to the date of release on VR; (e) TA/DA to self and family members to move to one’s home town/selected place of residence any where in India where he/she and his/her family wish to settled down, as per TA Rules. (f) Unavailed LLTC encashment for the current block. (g) One telephone instrument, free of Cost (TPS-90 or NET-1 for northern Units and ALFA Modular or FACE DELTA for southern Units). (f) Unavailed LLTC encashment for the current block. (g) One telephone instrument, free of Cost (TPS-90 or NET-1 for northern Units and ALFA Modular or FACE DELTA for southern Units). The benefits at (a), (b), (c), (d), (f) and (g) will be settled at the time of release subject to completion of all formalities and there being no dues to the company. 4.2 EX-GRATIA Taking a compassionate view of the circumstances in such cases, it has been decided that the employees whose services are being prematurely retired on Medical Grounds will be paid 90% of the ex-gratia payment as indicated below in addition to his/her normal terminal benefits. An employee will be entitled to opt for any one of the following method of calculation of ex-gratia payment: (I) Ex-gratia payment to be computed at the rate of 1.5 months emoluments (Basic+DA) for each completed year of service or the monthly emoluments (Basic+DA) at the time of Premature Retirement multiplied by the balance months’ of service left before attaining the age of 58, whichever is less - (SCHEME-A) OR (ii) 35 days salary (Basic Pay +DA) for every completed year of service and 25 days salary for every year of balance service left up to the age of 58 years. The ex-gratia will be subject to a minimum of Rs. 25,000/- or 250 days salary whichever is higher. However, ex-gratia shall not exceed the sum of the salary that the employee would draw at the prevailing rates for the balance of the period left upto the age of 58 years.- (SCHEME-B). Note: (1) For the purpose of calculation of one day’s salary for the ex-gratia a month is to be reckoned as 30 days for both the options e.g. : Basic Pay (Rs.7000/-) + DA(Rs.2500/-) = Rs. 9500/- Rs. 9500/30 days Rs. 316.66 (one day’s salary). (2) In option (i) above/only completed year of service will be taken into account and not fractions thereof. (3) In option (ii) above the calculation of VCR has to be made for complete years and for part service (i.e. months and days). Calculation of VRC for completed years of service; completed years of service X 35 X salary (one day’s salary as calculated at (1) above). (3) In option (ii) above the calculation of VCR has to be made for complete years and for part service (i.e. months and days). Calculation of VRC for completed years of service; completed years of service X 35 X salary (one day’s salary as calculated at (1) above). Ex-gratia for part service has to be calculated on pro-rata basis as follows : (a) for complete months: one day’s salary as calculated at (1) above X 35 X completed months/12. (b) for complete days: one day’s salary as calculated at (1) above X 35 X completed days/12/30. A similar method has to be adopted for calculation of ex-gratia for leftover service except that instead of 35 days 25 days has to be substituted.” 3. The petitioner’s husband was not keeping good health since December 2003 and was admitted to Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow, on the advice of the authorized doctor of the respondent company and remained in the hospital for a couple of months. Even after discharge from the hospital the petitioner’s husband health deteriorated and accordingly the petitioner indicated his helplessness to discharge his official duties. The petitioner’s husband consequently applied for premature retirement on medical grounds by moving an appropriate application dated 10th June 2004. As per the circular dated 17.11.2003, based on the petitioner’s husband application, a panel of doctors authorised by the respondent company examined him on 18th June 2004 and found that the petitioner’s husband was not fit to continue in the job in which he was engaged. The recommendations of the Medical Board is as under: “He is suffering from left cavernous sinus lateral wall Metastasis (Squamous Cell Carcinoma) with right Hemiparesis with left fifth nerve paresis, left seventh nerve paresis and left Opthalmopleaie BP 100/70. He is in a Semiconscious state so his signature could not be taken and his thumb impression was obtained with the help of his son. The Medical Board is of this opinion that he is not fit to continue in the Job in which he is engaged.” 4. He is in a Semiconscious state so his signature could not be taken and his thumb impression was obtained with the help of his son. The Medical Board is of this opinion that he is not fit to continue in the Job in which he is engaged.” 4. The report of the Medical Board was examined by the competent authority of the company and by an order dated 13th July 2004, the application of the petitioner’s husband was rejected on the ground that the officer was not in a position to fulfil the procedural requirement of the scheme and therefore, he could not be considered for release under the Voluntarily Retirement Scheme. 5. The petitioner’s husband died soon thereafter, on 1st August 2004. The petitioner made a representation dated 15th March 2005 for reconsideration and for payment of ex-gatia under the scheme, which was rejected by an order dated 23rd March 2005. The petitioner, being aggrieved by the said orders, has filed the present writ petition. 6. The counter-affidavit reveals that the petitioner’s husband died on account of cancer. The respondent have tried to justify the rejection of the petitioner’s husband application on the ground that the petitioner has received terminal benefits amounting to Rs. 21,65,221.41 (Rupees Twenty one lakhs, sixty five thousand, two hundred twenty one and forty one paise) towards provident fund, gratuity, encashment of the death relief fund etc. The respondents have further tried to justify the rejection of the petitioner’s husband application on the ground that the petitioner’s husband could not fulfil the procedural requirement of the scheme, namely that he was required to fill the form accepting the report of the Medical Board and accepting the payment of full and final settlement for past and future liability, including the scheme for reinstatement and other benefits for this purpose. A memorandum of settlement was also required to be signed by the employee which the petitioner’s husband could not do so as he was in a semi concious stage and was unable to append his signature. The respondent thus contended that since the petitioner’s husband could not fulfil the procedural requirement under the scheme, his claim for premature retirement was rejected. 7. The respondent thus contended that since the petitioner’s husband could not fulfil the procedural requirement under the scheme, his claim for premature retirement was rejected. 7. Having heard the learned counsel for the parties and having examined the scheme and the format of settlement that was required to be signed by employee, we find that the onus was totally upon the respondent company to examine the medical report and pass an appropriate order on it. The main criteria under the scheme is that a conclusion was required to be arrived at as to whether, the employee could continue to do the job, for which he was engaged. This conclusion is to be passed on the basis of the medical report. The medical report indicates that the petitioner’s husband was not fit to continue for the job in which he was engaged. The medical report has not been disputed by the respondent company. The opinion given by the Medical Board in fact has been accepted by the respondent company. The mere fact that the petitioner’s husband was not in a position to sign any further document could not allow the company to reject his application on a technicality. If the medical condition of the petitioner’s husband was in such a deteriorating condition that he was unable to put his signature then, it was all the more necessary for the respondent company to discharge him under the premature medical retirement scheme. The action of the respondent in rejecting the petitioner’s husband application, in our opinion appears to be wholly, arbitrary and violative of Article 14 of the Constitution of India. We also find that soon thereafter the petitioner’s husband died in-harness on 1st August 2004. 8. Even though terminal dues has been paid to the petitioner, the same was not done out of largesse being granted by the respondent company. The petitioner’s husband was entitled to receive such terminal benefits as a matter of right under the terms and conditions of service. When the respondent floated the scheme dated 17.11.2003 with regard to premature retirement, an additional incentive was given for payment of ex-gratia in addition to the terminal benefits such as provident fund, gratuity, encashment of leave, etc. 9. The petitioner’s husband was entitled to receive such terminal benefits as a matter of right under the terms and conditions of service. When the respondent floated the scheme dated 17.11.2003 with regard to premature retirement, an additional incentive was given for payment of ex-gratia in addition to the terminal benefits such as provident fund, gratuity, encashment of leave, etc. 9. We are of the opinion that considering the opinion given by medical Board and the state of health of the petitioner’s husband, the application for premature retirement on medical grounds should have been allowed. If the respondents had not acted in an arbitrary and cavalier fashion, the petitioner’s husband would also have been entitled to the ex-gratia as per the circular on 17.11.2003. 10. For the reasons stated aforesaid, we quash the impugned order dated 30th July 2004 by which the petitioner’s husband application for premature retirement was rejected as well as the order dated 23rd March 2005 by which the petitioner’s representation was also rejected. 11. We issue a writ of mandamus commanding the respondents to treat the petitioner’s husband as retired prematurely with effect from 13th July 2004 i.e. date when the petitioner’s husband application was rejected by the respondents and direct the respondent company to grant the benefits which are payable under the circular of 17.11.2003. Such benefits shall be paid to the petitioner within six weeks from the date of the production of the certified copy of the order.