Dilip Kumar P.S. v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 22ND DAY OF SEPTEMBER 2020 / 31ST BHADRA, 1942** ## **WP(C).No.18959 OF 2017(T)** ## **PETITIONER:** **DILIP KUMAR P.S. S/O LATE. PARAMESWARAN THAMPI, AGED 56 YEARS, ESWARI VIHAR, EVRA-272, T.C.44/25,KRISHNA VILASOM ROAD, JAGATHY, THIRUVANANTHAPURAM. 695014.** **BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY,MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES (INSURANCE DIVISION) JEEVAN DEEP BUILDING, PARLIAMENT STREET, NEW DELHI. 110001.** - **2 THE CHAIRMAN CUM MANAGING DIRECTOR NATIONAL INSURANCE COMPANY LTD, HEAD OFFICE,3,MIDDLETON STREET, KOLKOTTA.700071.** - **3 THE DEPUTY DIRECTOR INSURANCE MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, JEEVAN DEEP BUILDING,PARLIAMENT STREET, NEW DELHI. 110001.** **4 ADDL R4.THE DIVISIONAL MANAGER DIVISIONAL OFFICE,ST.JOSEPH'S PRESS BUILDING OPP.COTTON HILL G.H.S,VAZHUTHACAUD P.O, THIRUVANANTHAPURAM -695 014. ADDL R4 IS IMPLEADED AS PER ORDER DATED 08/09/2020 IN I.A 3/2019 IN WP(C).18959/2017** **R1 & R3 BY SRI.KRISHNADAS P.NAIR, CGC R1 & R3 BY ADV. SRI.KRISHNADAS P.NAIR CGC R2 & R4 BY SRI.P.K.MANOJ KUMAR,SC,NATIONAL INSURANCE CO. LTD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)No.18959 of 2017 -2- **"CR"** ## **T.R. RAVI, J.** **------------------------------------------------** ## **W.P.(C)No.18959 of 2017** **--------------------------------------------------** ## **Dated this the 22[nd] day of September, 2020 JUDGMENT** The petitioner entered the service of the 2[nd] respondent as Assistant in the clerical cadre. He was later promoted as Assistant Administrative Officer. The 1[st] respondent brought in the General Insurance (Employees) Pension Scheme, 1995 (hereinafter referred to as pension scheme), which was notified on 28.6.1995 and made applicable to all the employees under the General Insurance companies. The scheme gave the employees a right to opt to come under the pension scheme within 120 days from the notified date and become a member of the fund. According to the petitioner, he could not exercise his option under the scheme. Later, the petitioner opted for voluntary retirement under the General Insurance Officerss Special Voluntary Retirement Scheme, 2004 (hereinafter referred W.P.(C)No.18959 of 2017 -3- to as the 2004 scheme) as per which all officers who had attained the age of 40 years and completed 10 years of qualifying service as on the date of notification were eligible to avail the scheme, and he voluntarily retired from service at the age of 43 years. At the time of retirement he had a continuous service of 19 years, 6 months and 29 days. Prior to his retirement, the petitioner submitted a representation before the 2[nd] respondent praying for an opportunity to opt for the pension scheme. The petitioner submits that he has been making several representations from 2004 onwards, but to no avail. It is also submitted that a similar scheme was introduced in the banking sector in the year 1995 and the employees were afforded the chance to opt to come under the pension scheme as per Exhibit P3 memorandum of settlement dated 27.4.2010. The petitioner has approached this Court, praying for (i) a declaration that he is entitled to come under the pension scheme, (ii) a direction to the respondents to afford him an opportunity to opt for the pension scheme and (iii) for consequential benefits. 2. A statement has been filed on behalf of the 2[nd] -4- W.P.(C)No.18959 of 2017 respondent. It is submitted that all employees under the General Insurance companies in India were governed by the Contributory Provident Funds Act scheme framed by the Government of India till the year 1995, that after the introduction of the pension scheme in 1995, the 2[nd] respondent had requested all the employees to exercise their option to be governed by the pension scheme or by the General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff scheme, 1976. A further option was granted in 1997 also, to opt for either the pension fund or the provident fund. Along with a statement, the 2[nd] respondent has produced Annexure 2(a), which is a copy of the option submitted by the petitioner, wherein he has specifically stated that he does not want to be governed by the pension scheme. According to the 2[nd] respondent, the petitioner had made the choice, being fully aware of the merits and demerits of the schemes available to the employees at the time of giving the option. It is further stated that the petitioner had opted for voluntary retirement under the 2004 scheme and had received all the monetary benefits payable W.P.(C)No.18959 of 2017 -5- to him in full and final settlement. The 2[nd] respondent further states that the pension scheme was amended by Exhibit P7 on 23.04.2019, wherein it is provided that persons who had accepted voluntary retirement under the 2004 scheme, after rendering qualifying service for a minimum period of 20 years, will be eligible for inclusion in the pension scheme. According to the 2[nd] respondent, the petitioner had not completed the qualifying service of 20 years, and as such he will not be able to avail the benefits of Exhibit P7. 3. Heard Sri James Abraham on behalf of the petitioner, Sri T.K. Manoj Kumar on behalf of the 2[nd] and 4[th] respondents and Sri Krishnadas P. Nair on behalf of respondents 1 and 3. 4. To appreciate the contentions of the petitioner, it will be useful to extract the relevant provisions of the 2004 Scheme and the Pension Scheme. 2004 Scheme, paragraphs 3, 5, 6 and relevant portions of paragraph 8 read thus: - "3. ELIGIBILITY:- 1) All Officers will be eligible to seek special voluntary -6- W.P.(C)No.18959 of 2017 retirement under this Scheme provided they have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. 2) An officer who is under suspension or against whom disciplinary proceedings are pending or contemplated shall not be eligible to opt for the Scheme: Provided that the case of an Officer who is under suspension or against whom disciplinary proceeding is pending or contemplated may be considered by the Board of the Company concerned having regard to the facts and circumstances of each case and the decision taken by the Board shall be final. 3) Officers who are posted abroad or on deputation abroad shall not be eligible to opt for the Scheme. xxxxxx xxxxxxx xxxxxxx 5. AMOUNT OF EX-GRATIA: 1. An officer seeking Special Voluntary Retirement under this Scheme shall be entitled to lower of the ex-gratia amount as given below, namely:- Sixty days salary for each completed year of service Or Salary for the number of months of remaining service 2. The ex-gratia shall be computed on the basis of his/her salary as on the date of relieving. In case, wage revision is effected from a date prior to this notification, the benefit of revised pay for the purpose of payment of exgratia will be allowed. -7- W.P.(C)No.18959 of 2017 ## 6. OTHER BENEFITS :- 1) An officer opting for the Scheme shall also be eligible for the following benefits in addition to the ex-gratia amount mentioned in paragraph 5, namely:- a) Provident Fund b) Gratuity as per Payment of Gratuity Act, 1972 (Act 39 of 1972) or gratuity payable under the Rationalisation Scheme, as the case may be; c) Pension (including commuted value of pension) as per General Insurance (Employees') Pension Scheme 1995, if eligible. However, the additional notional benefit of 5 years of added service as stipulated in paragraph 30 of the said pension scheme shall not be admissible for the purpose of determining the quantum of pension and commutation of pension. d) Leave encashment 2) An Officer who is opting for the Scheme shall not be entitled to avail Leave Travel Subsidy and also encashment of leave while in service during the period of sixty days from the date of notification. xxxxxx xxxxxxx xxxxxxx ## 8. GENERAL CONDITIONS: xxxxxx xxxxxxx xxxxxxx (ii) For the purpose of calculating the amount of ex-gratia payable under paragraph 5 of the Scheme, **the fraction of service for 6 months and above will be reckoned as one year. (emphasis supplied)** -8- W.P.(C)No.18959 of 2017 ## Pension Scheme, Paragraph 18 and relevant portion of paragraph ## 30 read thus: ## " **18. Broken period of service of less than one year** - If the period of service of an employee includes broken period of service of less than one year, then, if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less, it shall be ignored. xxxxxx xxxxxxx xxxxxxx ## - **30. Pension on voluntary retirement** (1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service: Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. (2) The notice of voluntary retirement given under subparagraph (1) shall require acceptance by the appointing W.P.(C)No.18959 of 2017 -9- authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period (3) xxxxxx xxxxxxx xxxxxxx - (4) xxxxxx xxxxxxx xxxxxxx (5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement. (6) xxxxxx xxxxxxx xxxxxxx 5. On 23.04.2019, the Central Government introduced the General Insurance (Employees) Pension Amendment Scheme, 2019, whereby the employees who had joined the service of the Corporation or a Company, as the case may be, before 28.06.1995, but retired before 23.04.2019, were permitted to exercise an option in writing to become the member of the fund. On 09.08.2019, this Court by an interim order permitted the petitioner to submit an option to opt the Pension Scheme, based W.P.(C)No.18959 of 2017 -10- on the above amendment, subject to further orders in the Writ petition. It is submitted by both sides that the necessary application form was made available to the petitioner and, he has submitted an option to come under the pension scheme. 6. According to the counsel for the respondents, the amendment introduced in 2019, will not help the petitioner in any manner since the amendment specifically says that persons who had opted for special voluntary retirement under the 2004 Scheme will be able to opt for the Pension Scheme, only if they had retired after rendering qualifying service for a minimum period of twenty years. 7. The issue involved thus boils down to the question as to the manner in which the qualifying service of an employee should be calculated. Going by the provisions available in the Pension Scheme and the 2004 Scheme, there is no clause which specifically deals with the manner in which such calculation is to be made. There is an indication in paragraph 18 of the Pension Scheme, regarding the manner in which broken period of less than one year is to be treated. The paragraph specifically says W.P.(C)No.18959 of 2017 -11- that if the broken period is more than 6 months, it shall be treated as one year. So also, paragraph 8(ii) of the 2004 Scheme dealing with the General Conditions specifically says that for the purpose of calculating the ex-gratia fraction of service for six months and above will be reckoned as one year. According to the petitioner, he should be treated as a person who has completed 19 years of service and a broken period of more than 6 months of service and applying paragraph 18 of the Pension Scheme, he satisfies the condition of qualifying service of twenty years. Per contra, the counsel for the respondent submits that the requirement under the amendment brought in, in 2019, is that a fresh option can be preferred by a person who has opted for the 2004 scheme, to come under the Pension Scheme, provided he has rendered qualifying service for a minimum period of 20 years. He further submits that the requirement of a minimum period of twenty years does not warrant a rounding off of periods less than twenty years, by applying paragraph 18. The requirement of twenty years of service is present even in paragraph 30 of the Pension Scheme, which provides for pension W.P.(C)No.18959 of 2017 -12- on voluntary retirement. The amendment brought in has only in effect made paragraph 30 applicable to persons who voluntarily retired under the 2004 scheme, after rendering the qualifying service of 10 years as provided in the said scheme. That is to say, a person who voluntarily retired before completing 20 years of qualifying service as required under paragraph 30, by availing the 2004 scheme, can also now opt to come under the pension scheme, provided he has rendered qualifying service for a minimum period of 20 years. 8. The counsel for the petitioner relies on the judgement of the Supreme Court in **Indian bank and another v. N. Venkatramani** reported in **[(2007) 10 SCC 609]** in support of his contention. In the said decision, the Apex Court was concerned with the provisions contained in Indian Bank Employees Pension Regulations, 1995. The respondent before the Supreme Court had completed 14 years, 9 months and 17 days of service and he applied for voluntary retirement which was rejected on the ground that he had not completed 15 years of service. A writ petition filed by him was dismissed and an appeal W.P.(C)No.18959 of 2017 -13- was allowed by the Division Bench of the High Court and the bank was directed to grant pensionary benefits as per the Regulations. The bank had approached the Supreme Court. The specific question posed for decision by the Apex Court was the meaning of the term broken period of service for the purpose of grant of pension while implementing a voluntary retirement scheme. The provisions of the Scheme of the appellant bank are similar to the provisions contained in the Scheme applicable to the Insurance sector. 9. The provision regarding broken service applicable to the appellant Bank in the above case is verbatim similar to paragraph 18 of the Pension Scheme, which is being considered in this writ petition. The specific contention raised on behalf of the appellant Bank before the Supreme Court, as seen from paragraph 5 of the judgment is that the High Court committed a manifest error in coming to its conclusion, as it failed to take into consideration that qualifying service for obtaining a pension was minimum fifteen years of service and Regulation 18 providing for "broken period" would not come within the purview thereof. The W.P.(C)No.18959 of 2017 -14- ## Supreme Court in Paragraphs 9 and 13 of the judgement stated as follows: "9. We may notice that although various provisions have been made, providing for qualifying service to which our attention has been drawn by Mr Raju Ramachandran, the manner in which the period of services to be measured is contained in regulation 18 of the regulations, which reads as under: "Regulation 18: Broken period of service of less than one year:-If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less, it shall be ignored" xxxxxx xxxxxxx xxxxxxx 13. It may be true that various provisions of the regulations as, for example, regulations 16, 17, 19, 23, etc. provided for qualifying service. Regulation 18 is not controlled by any of the said provisions. It does not broke any restrictive interpretation. It only provides for a rule of measurement. An employee, as noted herein before, was entitled to pension provided he has completed the specified period of service. How such a period of service would be computed is a matter which is governed by the statute. It is one thing to say that the statute provides for W.P.(C)No.18959 of 2017 -15- completion of 15 years of minimum service, but if provision provides for measurement of the period, the same cannot be lost sight of. Provision of the regulations, which are beneficial in nature, in our opinion, should be construed liberally." 10. Another decision relied on by the counsel for the petitioner is **State Bank of Patiala v. Pritam Singh Bedi and others** reported in **[(2014) 13 SCC 474]** . In the said case the respondents before the Supreme Court were employees who had completed more than 19 1/2 years of service, who are allowed to retire from the Bank of Patiala under the State Bank of Patiala Voluntary Retirement Scheme, 2000. Aggrieved by failure of the bank to release pension in accordance with the pension regulations of 1995, which was applicable to the bank, the employees had approached the High Court. Being unsuccessful before the High Court, the bank had approached the Supreme Court. A reading of the judgment of the Supreme Court would indicate that judgement in **[(2007) 10 SCC 609]** was not brought to the notice of the Bench, but, the Bench however concluded that the respondents who had completed more than W.P.(C)No.18959 of 2017 -16- 19 years and 6 months in the service of the bank were eligible to be treated as to have completed twenty years of service, going by regulation 18 regarding the manner of calculation of broken service. Broken service, broken spells of service, regular service, continuous service, etc. are terms which have specific meaning under the service jurisprudence. Left to myself, it is not possible to comprehend that a continuous service of an employee which stretches for a period of 19 years, 6 months and 29 days, can be split up as a regular period of 19 years and a broken period of 6 months and 29 days. However, since the Hon'ble Supreme Court has interpreted similar provisions contained in the Schemes applicable to employees in the banking sector, the said interpretation should necessarily be available to the benefit of the employees in the Insurance sector also. 11. In the light of the above binding precedents, the writ petition is liable to be allowed. The service of 19 years, 6 months and 29 days rendered by the petitioner is liable to be treated as Twenty years of service, which is the qualifying service required as per the Pension Scheme as amended in 2019. However, the -17- W.P.(C)No.18959 of 2017 benefit of additional period of 5 years of qualifying service which is available to persons who are governed by Paragraph 30 of the Pension Scheme will not be available to the petitioner since he is not a person who has voluntarily retired as per the said provison. The amended scheme also specifically states that the addition of 5 years is not available to persons who availed of the 2004 Scheme. The respondents are directed to accept the option submitted by the petitioner pending this writ petition and disburse the pensionary benefits that have to be extended to the petitioner, treating him as a person govrned by the Pension Scheme, at the earliest, at any rate within 4 months from the date of receipt of a copy of this judgment. If the petitioner is liable to forego some of the benefits he has already received, for the purpose of being continued under the Pension Scheme, the respondents shall inform the petitioner about the same and the petitioner shall comply with such requirement. The parties are directed to bear their respective costs. Sd/- **T.R.RAVI, JUDGE** dsn W.P.(C)No.18959 of 2017 -18- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION PERTAINING TO GENERAL INSURANCE OFFICER'S SPECIAL VOLUNTARY RETIREMENT SCHEME, 2004, DATED 1.1.2004.** **EXHIBIT P2 THE TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION OF GENERAL INSURANCE (EMPLOYEES') PENSION SCHEME, 1995 DATED 28.6.1995.** **EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PAGES OF THE MEMORANDUM OF SETTLEMENT DATED 27.4.2010.** **EXHIBIT P4 A TRUE COPY OF THE COMMON JUDGMENT IN CIVIL APPEAL NOS.256, 257 AND 258/2014 DATED 10.1.2014.** **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DATED 15.3.2017.** **EXHIBIT P6 THE TRUE COPIES OF THE LETTER ISSUED BY THE POSTAL DEPARTMENT.** **EXHIBIT P7 A TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 23/04/2019 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATED 09/05/2019 SENT TO THE 2ND RESPONDENT.** **EXHIBIT P9 A TRUE OCPY OF THE ACKNOWLEDGEMENT CARD.** **EXHIBIT P10 A TRUE COPY OF THE ADMINISTRATIVE INSTRUCTONS DATED 17/05/2019 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE R2(A) PHOTOSTAT COPY OF THE OPTION FORM DT.6.11.1995 SUBMITTED BY THE PETITIONER.**