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2020 DIGILAW 610 (JK)

Abdul Rashid Makroo v. State of J&K

2020-11-20

ALI MOHAMMAD MAGREY

body2020
Judgment Ali Mohammad Magrey, J.—By medium of the instant petition, the petitioner has craved the indulgence of this Court in granting him the following relief(s): “(i) Writ of Mandamus commanding the respondents to release the monthly pension in favour of petitioner, which has already been fixed to the tune Rs.70158/- as on November, 2018 and also release the arrears of pension which have been calculated to the tune of Rs.39,34,206/- upto November, 2018, in terms of the pension scheme notified by the respondent-JKSPDC. The respondents be further directed to release the rest of arrears of pension from November, 2018 till date at revised applicable rates and ensure its continuous disbursement in favour of the petitioner without any let or hindrance. The Hon’ble Court may be further pleased to command the respondent No.2 to issue PPO forthwith and respondent No.4 be also commanded to release the monthly pension regularly in favour of the petitioner. (ii) Writ of Mandamus commanding the respondents to pay the interest @ 18 per annum for intentionally withholding the payment of pension/ arrears of pension calculated taking into consideration judgment of the Hon’ble Apex Court reported in AIR 2000 SC 3513 governing the field. (iii) This Hon’ble Court may further be pleased to award costs of litigation to the tune of Rs.2.00 lacs in favour of the petitioner and same may be recovered from respondents and also Rs.1.00 lac as compensation for causing mental agony and loss of valuable time to the petitioner. (iv) Any other order, writ or direction may also be issued in favour of the petitioner and against the respondents which this Hon’ble Court deems fit and necessary in the facts and circumstances of the case.” 2. The case of the petitioner, put in a nutshell, is that he, on the basis of his qualification and merit, initially in the year 1982, came to be appointed in the Jammu and Kashmir State Industrial Corporation. On the basis of his performance, the petitioner, in the year 1995, was sent on deputation in the Bureau of Public Enterprise. Subsequently, by way of Government Order No.1245-GAD of 1997 dated 7th of August, 1997, the petitioner was sent on deputation in the Jammu and Kashmir State Power Development Corporation (hereinafter referred to as “the Corporation”). On the basis of his performance, the petitioner, in the year 1995, was sent on deputation in the Bureau of Public Enterprise. Subsequently, by way of Government Order No.1245-GAD of 1997 dated 7th of August, 1997, the petitioner was sent on deputation in the Jammu and Kashmir State Power Development Corporation (hereinafter referred to as “the Corporation”). The petitioner claims to have accepted the aforesaid assignment only keeping in view the fact that since the Corporation, being one of the premier Corporations of the erstwhile State dealing in generation of power, was following the rules of the Government of Jammu and Kashmir vis-à-vis the service benefits of the employees in letter and spirit, as such, pension after retirement of an employee in the Corporation was one of the benefit which will flow to the petitioner after his retirement. Thereafter, in terms of Order No. PDC/103 of 2001 dated 29th of August, 2001, the post of Financial Analyst manned by the petitioner in the respondent Corporation was upgraded from 10000-35-15200 to 12000-375-16500 and the grade was ordered to be released in favour of the petitioner with immediate effect. In the said order, it was specifically provided that the other terms and conditions governing the services of the petitioner will be the same as are applicable to other employees borne on the establishment of the Corporation till such time the Corporation adopts its own rules. After upgrading the post of Financial Analyst held by the petitioner, the highest decision-making authority in the Corporation realized that the services of the petitioner are indispensable for the Corporation, as such, the petitioner was permanently absorbed in the Corporation vide order No. PDC/MD/6084 dated 25th of September, 2001. After the said absorption, the petitioner was given further promotions keeping in view the expertise and services rendered by the petitioner, thereby making the petitioner a permanent employee of the Corporation. The petitioner was, thereafter, promoted/ redesignated as Chief General Manager in the respondent Corporation, in terms of order dated 1st of April, 2008. After the said absorption, the petitioner was given further promotions keeping in view the expertise and services rendered by the petitioner, thereby making the petitioner a permanent employee of the Corporation. The petitioner was, thereafter, promoted/ redesignated as Chief General Manager in the respondent Corporation, in terms of order dated 1st of April, 2008. Upon absorption of the petitioner in the Corporation, all the service conditions as applicable to the Government employees of the erstwhile State of Jammu and Kashmir were made applicable in case of the petitioner as well, as a corollary thereof, the Corporation discontinued the contribution of CP Fund of the petitioner and commenced contribution towards the General Provident Fund as per Government rules applicable in the Corporation. Accordingly, while working as Managing Director, in the Corporation, the petitioner reached the age of superannuation and, in terms of Order No. PDC/CJ/57 of 2014 dated 31st of January, 2014, it was notified by the Corporation that the petitioner shall retire on attaining the age of superannuation on 31st of January, 2014. After superannuation of the petitioner, the respondent Corporation failed to settle all the post retiral benefits in favour of the petitioner, whereafter the petitioner made several requests, orally as well as in writing, before the respondents for releasing all the post retiral benefits in his favour. Thereafter, although, the Corporation released some post retiral benefits in the shape of Gratuity, Leave Salary and GPF accumulations in favour of the petitioner as per the Jammu and Kashmir Civil Service Rules, but they failed to release the pensionary benefits to which the petitioner was legally entitled as per the rules pertaining to the other Government employees of the erstwhile State being followed in the Corporation. Since, despite repeated requests, the monthly pension as well as arrears thereof were not released in favour of the petitioner, the petitioner was filed series of representations before the respondents seeking redressal of his grievance, besides serving legal notices through his counsel to the Corporation, requesting the Corporation to release the monthly pension as well as arrears thereof in his favour. The grievance of the petitioner, however, was not redressed and the pension claim of the petitioner was not released, though it was fixed and calculated by the Corporation, constraining the petitioner to approach this Court through the medium of the instant petition for the above stated relief. 3. The grievance of the petitioner, however, was not redressed and the pension claim of the petitioner was not released, though it was fixed and calculated by the Corporation, constraining the petitioner to approach this Court through the medium of the instant petition for the above stated relief. 3. Mr S. A. Makroo, the learned counsel appearing on behalf of the petitioner, submits that the action of the respondents in delaying the disbursement of pension in favour of the petitioner has infringed the ‘Right to Life’ of the petitioner, as guaranteed to him by the Constitution. It is submitted that pension is the property of an employee and that the delay in disbursement of the pension defeats the very purpose for which the monthly pension is being disbursed to a retired employee by the Government or any other authority where the employee has retired from service. It is further submitted that as per well settled legal position, a duty is cast upon the employer to prepare the pension case in advance and get all the requisite NOCs from the concerned departments and the purpose of processing the file in advance is that an employee gets the pension immediately after his retirement and does not face any problem. The learned counsel contents that the case of the petitioner for payment of pension has been delayed for about five years on one pretext or the other and, despite umpteen requests/ representations made by the petitioner, the pension of the petitioner is not being released, though same has been fixed and arears calculated. It is pleaded that the pension is a compensation for the services rendered by an employee and the payment of pension is not dependent upon the discretion of the employer, instead, the employer is bound to release the pension in terms of the rules and the law governing the subject. The next argument raised by the learned counsel is that the Corporation has invidiously discriminated the petitioner vis-à-vis release of pension in his favour, as in case of one similarly situated employee, namely, Ghulam Qadir Wani, pension has been released on the basis of judgment rendered by this Court, which stands upheld by the Division Bench of this Court and, subsequently, confirmed by the Hon’ble Supreme Court. Mr Makroo, in this behalf, contends that on the basis of the said judgment, the Corporation has framed a policy covering 51 employees, including the petitioner, but the petitioner’s pension is not being released though same has been fixed and arrears calculated by the Corporation. In order to buttress his arguments, the learned counsel for the petitioner has referred to and relied upon the following case law: 1) D. S. Nakara V. Union of India & Ors.: AIR (1983) SC 130; 2) Uma Agarwal V. State of UP: AIR 1999 SC 1212 ; 3) Vijay L. Mehrotra V. State of UP & Ors.: AIR 2000 SC 3513 ; and 4) Mubarik Ahmad (Dr.) V. State of J&K & Ors.: 2010(3) JKJ 931 . 4. Objections stand filed on behalf of the respondents. 5. The respondents 1 to 3, in their objections, submit that since its existence, the respondent Corporation has not adopted any rules with regard to pension from the Government of Jammu and Kashmir. It is stated that time and again, posting of officers/ officials/ employees have been made from the Administrative Department and other Departments of the Government of Jammu and Kashmir and the said employees stand governed by the rules and regulations from their parent Department/ Organization. The Corporation, till date, as stated, has not adopted pensionary rules of Government of Jammu and Kashmir, as such, the petitioner has no right to plead the same before the Court as on date. It is contended that the Corporation, for the benefit of its employees, who came to be appointed before the New Pension Scheme (NPS), entered into Memorandum of Understanding (MoU) with the respondent No.4-Life Insurance Corporation of India in the year 2018 for adoption of JKSPDCL Group Superannuation Scheme. It is also averred that the Scheme aforesaid covers 51 employees, including the petitioner, wherein all the benefits of superannuation will transpire to the beneficiaries. The Scheme was approved by the Chairman of the Corporation, the then Chief Minister, with a condition to get it confirmed from the Board of Directors of the Corporation. The Scheme was approved by the Management and Finance Sub-Committee and recommendations send to the Board of Directors. The Board of Directors, in its 74th meeting, returned the case to the Management and Finance Sub-Committee for fresh recommendations. The Scheme was approved by the Management and Finance Sub-Committee and recommendations send to the Board of Directors. The Board of Directors, in its 74th meeting, returned the case to the Management and Finance Sub-Committee for fresh recommendations. The Management and Finance Sub-Committee, again made recommendations for confirmation of the scheme to the Board of Directors, however, the meeting of the Board of Directors has not been convened till date, as such, the scheme is still pending approval for final decision. It is contended that if the Board of Directors approves/ confirms the aforesaid Group Pension scheme, the case of the petitioner will be settled and all the consequential benefits attached will be released in his favour, however, as on date, the petitioner’s claim for seeking release of Pensionary benefits cannot be considered. 6. In their objections, the respondent No.4 has submitted that a Memorandum of Understanding (MoU) was entered between it and the Corporation on 13th of June, 2018 and the initial contribution made by the Corporation was to the tune of Rs.2,96,50,000/- (rupees two crores, ninety six lacs and fifty thousand only) on 19th of June, 2018 and a policy number 110000744 was allotted to the Corporation. Thereafter, Rs.3,50,00,000/- (rupees three crores and fifty lacs only) was deposited by the Corporation on 28th of March, 2019 against the said aforesaid policy number. It is further submitted that the Corporation communicated to the respondent No.4 that payment in the shape of monthly pension be released in favour of Mr Ghulam Qadir Wani which was, thereafter, released in his favour with effect from July, 2018. It is pleaded that respondent No.4, till date, has not received any intimation/ communication regarding the disbursement of pension in favour of the petitioner and that, whenever any decision is received by the respondent for release of pension in favour of the petitioner from the Corporation, the respondent No.4 will disburse the pension in favour of the petitioner accordingly. 7. Heard learned counsel for the parties, perused the pleadings on record and considered the matter. I have also gone through the relevant record as made available before the Court by the learned Deputy Advocate General, representing respondents 1 to 3. 8. The respondent Corporation, which is a Government-owned Corporation, is an authority in terms of Article 12 of the Constitution of India. I have also gone through the relevant record as made available before the Court by the learned Deputy Advocate General, representing respondents 1 to 3. 8. The respondent Corporation, which is a Government-owned Corporation, is an authority in terms of Article 12 of the Constitution of India. The respondent Corporation entered into contract with the petitioner when he was appointed in the Corporation. The respondent Corporation, being conscious of the fact that there were no rules available in the Corporation which would permit the authorities to pay retiral benefits to the petitioner, agreed to pay him retiral benefits. The mandate of order dated 29th of August, 2001, whereby the post held by the petitioner in the respondent Corporation has been upgraded, is unambiguous and clear in its tone and toner and provides that the petitioner will be entitled to pensionary/ retiral benefits which are being paid to the other officials/ employees borne on the establishment of the Corporation till such time Corporation adopts its own rules. Since, the Corporation has not framed its own rules, therefore, in the case of the petitioner, in view of the conditions contained in the order dated 29th of August, 2001, the Corporation is bound to pay the pensionary/ retiral benefits to the petitioner in accordance with Government rules, viz. Jammu and Kashmir Civil Service Regulations. May be the petitioner may not have opted for employment of the respondent Corporation had they not extended the promise of paying pensionary/ retiral benefits, which promise matured into a contract in terms of order dated 29th of August, 2001. The respondent Corporation cannot be permitted to wriggle out of its commitment to pay the pensionary/ retiral benefits to the petitioner. 9. Law on the subject is no more res integra and thus does not need to be reiterated herein. It is well settled position of law that pensionary/ retiral benefits become the principal source of sustenance to an employee after his retirement, payment whereof is not a bounty being paid to the employee concerned, but these are paid in recognition of the service rendered by an employee to his employer. The purpose for grant of pensionary/ retiral benefits is to ensure that after retirement of an employee, the said employee is in a position to sustain himself. The purpose for grant of pensionary/ retiral benefits is to ensure that after retirement of an employee, the said employee is in a position to sustain himself. Besides, any delay in settlement and disbursement of pension has to be visited with the penalty of payment of interest at the current market rates till actual payment is made. The liability to pay penal interest on these dues at the current market rates commences at the expiry of two months from the date of retirement. The delay of depriving retiral benefits, in this case, is clearly attributed to the respondents and, thus, entitles the petitioner to interest on the dues at the current market rates to commence at the expiry of two months from the date of retirement. 10. Apart from the above, what requires to be stated in this case is that the action of the respondents, being the functionaries of the Government, has to be transparent. The State cannot discriminate between similarly circumstanced persons. Ours is a welfare State which aims at the goal where everyone is/has to be, as far as possible, looked after. The case of the petitioner had to be considered on the same parameters and analogy as was evolved in the case of the similarly situated employee of the Corporation, namely, Ghulam Qadir Wani, who too had attained the age of superannuation in the year 2010 and was granted the pensionary benefits after the passing of judgment dated 8th of April, 2015 in SWP No. 184/2011 filed by the said Ghulam Qadir Wani. The Corporation, thus, has treated the case of the petitioner as a ‘sui generis’ case and have invidiously discriminated him. 11. Justice is not only law and its administration, but is, in most cases, above law and is done to save the individual from whatever he/ she seeks protection. Our country, in particular, aims at the goal of achieving the welfare State where everyone is/ has to be, as far as possible, looked after. There can be no discrimination between two individuals who are equally placed. Our country, in particular, aims at the goal of achieving the welfare State where everyone is/ has to be, as far as possible, looked after. There can be no discrimination between two individuals who are equally placed. The respondents have not been able to show any dissimilarity between the case of the petitioner herein and the said Ghulam Qadir Wani, whose pensionary benefits stand released by the respondents in compliance of the judgment passed by this Court, which judgment stands upheld by the Division Bench of this Court and confirmed by the Apex Court of the country. 12. In view of the above discourse, this Writ petition is allowed and, by a ‘Writ of Mandamus’, the respondents are directed to release the pensionary/ retiral benefits, including gratuity etc.; alongwith arrears thereof with interest @ 6 percent per annum which shall commence at the expiry of two months from the date of retirement of the petitioner, in favour of the petitioner in accordance with the rules which are applicable to the employees of the Government of Jammu and Kashmir. The respondents shall pass orders, in this behalf, within a period of two months from the date copy of this order is served on them. 13. Writ petition disposed of as above, alongwith all connected CMs. 14. The record, as produced by Mr Irfan Andleeb, learned Deputy Advocate General, is returned to him through the Bench Secretary of this Court.