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2016 DIGILAW 591 (CAL)

State of West Bengal v. Ranjit Chandra Bardhan

2016-08-01

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. Challenge in these writ petitions is against a judgment delivered by the learned Tribunal on 21st June, 2013. By the said judgment, four original applications being OA 722 of 2012, OA 1350 of 2012, OA 1012 of 2012 and OA 1433 of 2012 were disposed of. The said original applications were preferred before the learned Tribunal in the backdrop of the facts that on the basis of an agreement dated 12th December, 1966 executed by the Food Corporation of India (hereinafter referred to as FCI) and the State Government a good number of employees, including the respondents herein, were sent to work in FCI on deputation. Subsequently, they were absorbed in FCI and were given the pensionary benefits including the terminal benefits in terms of Rule 189A of the West Bengal Services (Death-Cum-Retirement Benefit) Rules, 1971 (hereinafter referred to as the DCRB Rules). In terms of the said Rules an absorbee received the terminal benefits equivalent to commuted value of 2/3rd of the pro-rata pension (calculated on the basis of length of service of the concerned employee) as one time benefit and normal commuted value of the remaining 1/3rd of the said pro-rata pension, restorable after 15 years as in the case of normal pensioners. The respondents were treated as normal pensioners during the period from the date of tendering resignation till the date of medical examination and were also paid the admissible amount of pension during the said period. In the midst thereof, the Revision of Pay and Allowances Rules, 1986 came into force with effect from 1st January, 1986 and the respondents were given the benefits of revised pension till the date of medical examination but after commutation of the pension from the date of medical examination, the State respondents granted the benefits on the basis of unrevised pension. Subsequent thereto, by a government order No.2430-F (Pen) dated 12th July, 2001 the government decided that the absorbees who received lump sum amount in lieu of pension under Rule 189A of DCRB Rules shall be entitled to the restoration of 1/3rd commuted portion of pension after 15 years from the date of commutation and the said order was given effect from 1st April, 2001. By a further government order No.2431-F (Pen) dated 12th July, 2001 the government further directed that the restored amount of 1/3rd commuted portion of pension shall be consolidated with effect from 1st April, 2001 and that the restored amount of pension will be notionally consolidated by merger of the restored amount of the 1/3rd commuted amount of pension plus notional relief. Thereafter by a government order No.01-F(Pen) dated 4th January, 2010 the amount of pro-rata pension already restored was directed to be further consolidated with effect from 1st January, 2010 by adding together the existing restored portion of pro-rata pension, dearness pension at the rate of 50% of existing pension and dearness relief at the rate of 24% of the pension plus dearness pension at the rate of 50% of the pension but the government declined to grant dearness relief upon revised pension as admissible to a normal pensioner. Aggrieved by such dissimilar treatment, the respondents made repeated representations but in vain and as such the respondents approached the Tribunal by preferring the original applications praying for the following reliefs:- (a) An order be issued directing the respondents and each of them to grant and pay: (i) The amount of revised pension which was neither commuted nor surrendered permanently from the date of medical examination and continue to pay the same. (ii) The dearness relief on the basis of pension as they stood on the date of medical examination. (b) To grant revised pension to the applicants after restoration of the commuted amount of pension together with the continued pension as indicated at sub para (ii) above at per with the normal pensioner. (c) To grant the benefits of family pension to the applicants in modification of the provision contained in Rule 189A of the West Bengal Death Cum Retirement benefits Rule, 1971. (d) Applicants may be directed to transmit all records pertaining to this case for better appreciation of the matter by this Hon’ble Tribunal. (e) Any other order and/or orders and/or orders or further orders as this Hon’ble Tribunal may deem fit and proper for administration of justice and equity. (f) Leave be granted to file the application collectively. (g) Costs. 2. Mr. Majumder learned Assistant Additional Government Pleader submits that the respondents being aware of the terms and conditions guiding absorption in FCI, exercised option and availed the consequential benefits. (f) Leave be granted to file the application collectively. (g) Costs. 2. Mr. Majumder learned Assistant Additional Government Pleader submits that the respondents being aware of the terms and conditions guiding absorption in FCI, exercised option and availed the consequential benefits. In appreciation of the fact that the pension is disbursed as a social security measure, commuted value of pension was subsequently restored in favour of the respondents and upon such restoration, the government consolidated the sum by adding the benefits of dearness relief. Having accepted the said benefits the respondents cannot now pray for the extension of the benefits of revision of basic pension in terms of the ROPA Rules. 3. He further submits that the rigors of Rule 189A of the DCRB Rules have not been properly appreciated by the learned Tribunal and it has proceeded being oblivious of the fact that the respondents on their own volition sought for absorption in FCI being aware of the terms and conditions and the benefits which would be available to them upon such absorption. As per Rule 189A, once a government servant exercises option under Clause IV, the benefit which the said employee would be entitled to has been specified under Clause X and that there is no provision towards grant of any further benefit as prayed for the respondents. Furthermore Clause VII of Rule 189A itself stipulates that after permanent absorption a Government servant shall not be entitled to the benefit of any further liberalization of pension rules decided upon by the Government. 4. He further argues that the learned Tribunal has erred in law in directing extension of benefits as available to the Central Government employees to the respondents being oblivious of the fact that under the Constitutional scheme of division of powers between the Central Government and the State Governments, the State Governments are competent to make rules in case of State Government employees and State Government pensioners and that there is no obligation on the part of the State Government to adopt all the rules applicable to Central Government employees and Central Government pensioners. 5. According to Mr. 5. According to Mr. Majumder, the learned Tribunal has misinterpreted the judgments delivered by the Hon’ble Supreme Court and has delivered the impugned judgment on a purported analogy that the rules governing the grant of benefits to the Central Government employees are identical to the rules governing the State Government employees and that irrespective of the relevant rules, the State Government is bound to treat the absorbee pensioners and the normal pensioners equally. In support of such contention reliance has been placed upon judgments delivered in the case of State of Bihar and others vs. Bihar Veterinary Association and others, reported in (2008) 11 SCC 60 and in the case of State of West Bengal vs. Subhas Kumar Chatterjee & Ors. reported in (2010) 11 SCC 694 . 6. Mr. Chakraborty, learned advocate appearing for the respondents submits that the judgment impugned does not suffer from any legal infirmity and the same has been delivered on the basis of the principles laid down by the Hon’ble Supreme Court in the case of the Common Cause, A Registered Society and others, Vs. Union of India, (1987) 1 SCC 142 and in particular, Welfare Association of Absorbed Central Government Employees in Public Enterprises Vs. Union of India and another and P.V. Sundara Rajan and another Vs. B.B. Tandon and others, (1996) 2 SCC 187 as well as in Accountant General of Orissa and another Vs. R. Rammurthy and another, AIR 2007 SC 622 wherein the Court enunciated certain principles in dealing with the cases pertaining to absorbee pensioners of Central Government in terms of which such absorbee pensioners are not only entitled to restoration of the commuted portion of pro-rata pension but also revision of such restored pension from time to time following revision of pension of Central Government employees and payment of dearness relief on the full amount of basic pension to which the absorbee pensioners would have been notionally entitled. 7. He further submits that on and from the year 1986 till the date of medical examination, the respondents were treated as normal pensioners and during the said period their pension was also revised in terms of the ROPA Rules, 1986 and that as such subsequent thereto, the State respondents could not have denied the benefits as available to the normal pensioners on a purported plea of having accepted absorption in FCI. 8. 8. He further submits that the learned Tribunal arrived at a finding that the absorbee pensioners should be treated in the same manner as normal pensioners on the basis of the judgments in the Hon’ble Supreme Court and particularly the judgment delivered in the case of Accountant General of Orissa (supra), wherein it has been noted as follows:- "The dearness relief on pension has been granted to pensioners to compensate them for the erosion in the value of money due to rise in the cost of living. It seems clear that the Government has permitted to the applicants dearness relief calculated only on one-third part of the pension restored while in case of other pensioners, the dearness relief is calculated on full pension including the commuted part of pension. As already noticed, the applicants are to be treated on the same footing as other Central Government employees insofar as the question of restoration of one-third of commuted pension is concerned and are entitled to the benefits as given in Common Cause case ( 1987 (1) SCC 142 ). In this respect, it would also be useful to notice that "pension" as defined in Central Civil Services (Pension) Rules, 1972 does not include dearness relief. Rule 3(1)(o) reads as under: "3(1)(o) ‘pension’ includes gratuity except when the term pension is used in contradistinction to gratuity, but does not include dearness relief." 9. In reply, Mr. Majumder sought to distinguish the said judgment by arguing that the definition of pension as quoted in the judgment delivered in the case of Accountant General of Orissa (supra) differs from the definition of pension as provided under the DCRB Rules inasmuch as in the definition of pension under the DCRB Rules, it has not been categorically incorporated to the effect that such pension does not include dearness relief. 10. 10. Dealing with all the judgments as relied upon by the parties and upon meticulous consideration of the same and on the rudiments of the admitted fact that prior to medical examination the respondents herein were treated as normal pensioners and they were granted the revised benefits in terms of the ROPA Rules, 1986, the learned Tribunal correctly observed that the commutation of pension and restoration of commuted portion should be on the basis of pension which was admissible on the date of medical examination and the State respondents were directed to grant such additional benefits, if any, upon verification of facts and as may be admissible according to the rules of commutation of pension. The learned Tribunal further directed that the applicants should be allowed dearness relief on the full amount of basic pension to which they would have been notionally entitled. The learned Tribunal further observed that the State respondents have made a distinction between the absorbee pensioners and the normal pensioners by framing different schemes for revision/consolidation of pension and such action runs contrary to the principles laid down by the Hon’ble Supreme Court and it was held that the same principle of revision/consolidation should be followed for both the categories of pensioners and it was directed that after restoration of the commuted portion of pro-rata pension, it should be revised if in the meanwhile any revision of pension has been made in the case of normal State Government pensioners and that thereafter on each occasion of revision of pension for normal State Government pensioners consequential benefits should be extended to the absorbee pensioners by applying the same formula. The argument to the effect that there is no obligation on the part of the State Government to adopt all the rules applicable to Central Government employees and Central Government pensioners has been rightly discounted by the learned tribunal on the basis of the dictum of the Hon’ble Supreme Court in the case of Welfare Association of Absorbed Central Government Employees in Public Enterprises (supra). 11. In the case of State of Bihar and others (supra), as relied upon by Mr. 11. In the case of State of Bihar and others (supra), as relied upon by Mr. Majumder, the dispute was that the Fitment Committee ignored the terms of reference as contained in the resolution of the State Government and erroneously recommended the revised pay scale and in the backdrop of the said facts it was, inter-alia, observed that pay scale essentially depends upon the resources of the government and that it is not always possible that the resources of the Central Government and the State Government are the same or even for that matter between two States. In the case of State of West Bengal (supra) the controversy involved centered around an issue as to whether the senior laboratory assistants in Public Works (Road) Department are entitled to the same pay scale at par with the research assistants and as to whether the Chief Engineer of the Directorate was competent to modify or amend the ROPA Rules. In none of the said judgments the lis was pertaining to grant of pro-rata pension and gratuity to government servants absorbed in public sector undertakings and that as such the said judgments are distinguishable on facts. 12. It is well settled that what can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. The learned Tribunal, upon dealing with all the factual issues arrived at specific findings in consonance with the judgments of the Hon’ble Supreme Court and we do not find any error, least to say any patent error of law in the judgment impugned. As a model employer the State Government must conduct itself with high probity and candour and ensure that its employees do not succumb to the procedural rigmarole particularly when the claim pertains to pensionary benefits. The scope of judicial review is very narrow and limited and such jurisdiction should be exercised sparingly and only in appropriate cases where the judicial conscience of the Court dictates. The impugned judgment does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice warranting interference of this Court. 13. For the reasons discussed above, we do not find any reason to interfere with the judgment impugned and the writ applications are, accordingly, dismissed. 14. The impugned judgment does not suffer from any jurisdictional error or any substantial failure of justice or any manifest injustice warranting interference of this Court. 13. For the reasons discussed above, we do not find any reason to interfere with the judgment impugned and the writ applications are, accordingly, dismissed. 14. There shall, however, be no order as to costs. 15. Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.