K. Krishna Kumar and others v Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** ## **FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934** ## **WP(C).No. 34008 of 2005 (W)** **------------------------------------------** ## **PETITIONER(S):** ## **----------------------** **1. K. KRISHNA KUMAR,** - **S/O. LATE MANIKKATH SIVARAM MENON, AGED 62 YEARS** - **R/O KARTHIKA SUBHASH COLONY, SOUTH JANATHA ROAD PALARIVATTOM, ERNAKULAM, COCHIN-682025.** **2. K.L. AUGUSTINE, S/O. K.A. LONAN, AGED 61 YEARS, R/O. 36/2360-A, KATTAKKARA ROAD KALOOR, COCHIN-682017.** **3. A. VIJAYAN, AGED 61 YEARS, S/O. K.S. ACHUTHAN, R/O. ANU BHAWAN, ERAMALLUR** - **P.O. CHERTHALAI, ALLEPPY DISTRICT.** **4. A.R. BALACHANDRAN, AGED 62 YEARS, S/O. A.V. RAGHUNATHA SHENOI, R/O. SUDARSAN HOUSE NO.1/1724, CHIRATTA PALAM, COCHIN-682001.** **5. M. KRISHNAN NAYAR, AGED 58 YEARS, S/O. P.MADHAVA PANICKER, R/O. REVATHY, GANDHI SQUARE POONITHURA, COCHIN-682038.** **6. N. JANARDHANA VADHYAR, AGED 61 YEARS, S/O. A NARASIMHA VADHYAR, R/O. K.P.XII/258 PANCHAJANYAM, THIRUMALA BHAGOM P.O., THURAVOOR ALLEPPEY-688018.** **7. ALEX ITTY CHERIAH, AGED 63 YEARS, S/O. LATE K.M.ITTY CHERIAH, R/O. KATTUNILAM ST. BENEDICT ROAD, ERNAKULAM, COCHIN-682018.** **8. V. MOHAN KUMAR, AGED 58 YEARS, S/O. T.V.MENON, R/O. 39/2115, PRATEEKSHA WARRIAM ROAD, ERNAKULAM, COCHIN-682016.** **9. K. SURENDRAN, AGED 57 YEARS, S/O. K.C. GOVINDAN NAMPOODIRI, R/O. ATHIRA ADAPPALLY ROAD, VENNALA, COCHIN-682028.** **tss** ## **W.P.(C) NO.34008/2005** **10. A.G. SEBASTIAN, AGED 62 YEARS,** - **S/O. A.T. GEORGE, R/O. SAFALLYA, GODOWN ROAD EDAPPALLY TOLL COCHIN-682024.** **11. ALEX DANIEL, AGED 61 YEARS, S/O. C. DANIEL, R/O. X/1421, SOUTH THAMARA PARAMBU COCHIN-682001.** **12. S. GOPALAKRISHNAN, AGED 65 YEARS, S/O. V. SREEDHARA MENON, R/O. KARTHIKA DEVANKULANGARA, EDAPPALLY, COCHIN-682024.** **13. D. GEORGE JACOB, AGED 63 YEARS, S/O. K.M. DOMINIC, R/O. KARIPPAPARAMBIL HOUSE MANKUZHY ROAD, EDAPPALLY TOLL COCHIN-682024.** **14. P. RANGANAYAKI, AGED 63 YEARS, D/O. S.PADMANABHA IYENGAR, R/O. 40/193 THOTTEKKAT ROAD, ERNAKULAM, COCHIN-682011.** **15. K. SETHU LAKSHMI, AGED 68 YEARS, D/O.LATE M. BALAKRISHNA MENON, R/O.KUTTIKKAT HOUSE CHITTUR ROAD, ERNAKULAM, COCHIN-682011.** **16. LILLY GEORGE MAMPILLY, AGED 69 YEARS, D/O. GEORGE MAMPILLY, R/O. HOUSE NO.III/893-B K.K. ROAD, SANKALPAM, CHEMBUMUKKU OPP. NEW HOPE, DARSHAN FLAT, KAKKANAD COCHIN-682021.** **17. M.K. RAJAMBAL, AGED 68 YEARS, S/O. LATE M. KRISHNAN IYER, R/O.KUMARAMANGALAM TEMPLE ROAD, MADATHIPARAMBIL MADOM, SOUTH PART TRIPUNITHURA.** **18. K.M. LEKSHMY DEVI, AGED 58 YEARS, D/O. LATE K.P. MADHAVA MENON, R/O. DEVIKRISHNA KALAPORAKAL, NADAMA, TRIPUNITHURA-682301.** **19. O. RAGHUNATH, AGED 66 YEARS, S/O. LATE K. DAMODHARAN NAIR, R/O. SREEPADAM SNVP SCHOOL ROAD, KOTTAPURAM, TRIPUNITHURA COCHIN-682301.** **20. V. RADHAKRISHNA MENON, AGED 63 YEARS, S/O. LATE N. VELAYUDHAN NAIR, R/O.CHAMBADY ROAD ELAMAKKARA P.O., COCHIN-682026.** **21. T.A. GEORGE, AGED 60 YEARS, S/O. T.V.AUGUSTHY, R/O. THOTTUMKAL, 36/291 KATHRUKADAVU, PULLEPPADY ROAD (CBI JUNCTION) KALOOR P.O., COCHIN-682017.** **tss** ## **W.P.(C) NO.34008/2005** **22. SAMUEL M.MATHUNNY, AGED 58 YEARS, S/O. LATE M.K. MATHUNNY, R/O.MEENATHETHIL HOUSE P.O. VETTICODE, KATTANAM, ALLEPPEY-690503.** **23. MARY KURIEN K., AGED 56 YEARS, W/O. LATE MATHEW KURIEN, R/O. MEENATHETHIL HOUSE P.O. VETTICODE, KATTANAM, ALLEPPEY-690503.** **24. A.S. VASUMATHY, AGED 59 YEARS, W/O. P.K. VASUDEVAN NAIR, R/O. HOUSE,NO.XVIII/159 SYRIAN CHURCH STREET, PALLURUTHY, COCHIN-682006.** **25. M.T. VALU, AGED 64 YEARS, S/O. M.T. KUTTU, R/O. XVI/900, INDIRA ROAD THOPPUMPADY, COCHIN-682005.** **26. K.S. HARI HARAN, AGED 55 YEARS, S/O. K.S. SUNDARA RAMAN, R/O. I-D KAIRALI APARTMENTS, CAYAM ROAD TRIPUNITHURA-682301.** **27. L. LALITHA BAI, AGED 64 YEARS, W/O. M.K. NANOO, R/O. KALATHIPARAMBIL HOUSE, VALAM SOUTH CHITTOOR P.O.,COCHIN-682027.** **28. T.N. VIJAYAKUMAR, AGED 60 YEARS,** - **S/O. T.N. PILLAI, R/O. SAGITTARIUS, ASAN LANE BHAGATH SINGH ROAD, PETTAH P.O.,TRIVANDRUM-695024.** ## **BY ADV. SMT.SUMATHY DANDAPANI (SR.)** **RESPONDENT(S):** **------------------------** **1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY,** **MINISTRY OF COMMERCE & INDUSTRY, DEPARTMENT OF COMMERCE, UDYOG BHAVAN, NEW DELHI-110001.** **2. THE ADDITIONAL SECRETARY-CUM-CHAIRMAN, EXPORT INSPECTION COUNCIL OF INDIA, MINISTRY OF COMMERCE, UDYOG BHAVAN, NEW DELHI-110001.** **3. THE DIRECTOR (INSPECTION AND QUALITY CONTROL), EXPORT INSPECTION COUNCIL OF INDIA 3RD FLOOR, ND YMCA CULTURAL CENTRE BUILDING NEW DELHI-110001.** **4. JOINT DIRECTOR IN-CHARGE, EXPORT INSPECTION AGENCY, COCHIN, MANOHAR BUILDING M.G. ROAD, ERNAKULAM, COCHIN-682011.** **BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR BY ADV. SRI.P.J.PHILIP, C.G.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011, THE COURT ON 13/07/2012 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.34008/2005** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** ## **P1:- COPY OF DETAILS OF 28 PETITIONERS (AGE,DATED OF BIRTH, ADDRESS ETC.).** **P2:- COPY OF OPTION DTD. 27.3.1986 GIVEN BY IST PETITIONER TO 4TH RESPONDENT.** **P3:- COPY OF VOLUNTARY RETIREMENT SCHEME NO.ETC/D(O/C)/VRS/121/94 DTD. 21.5.1994 ISSUED BY 3RD RESPONDENT** **P4:- COPY OF TABLE APPENDED TO CCS (COMMUTATION OF PENSION) RULES.** **P5:- COPY OF CALCULATION SHEET OF IST PETITIONER ISSUED BY 4TH RESPONDENT.** ## **P6:- COPY OF THE STAMPED RECEIPT DTD 2.1.1995 ISSUED BY THE IST PETITIONER TO THE 4TH RESPONDENT.** **P7:- COPY OF JUDGMENT DTD. 12.1.2000 OF THIS HONOURABLE COURT IN RP.458/1998 IN OP. 4938/1997.** **P8:- COPY OF JUDGMENT DTD. 29.10.2004 OF THE DIVISION BENCH OF THIS HONOURABLE COURT IN WA. 627/2006.** ## **P9:- COPY OF REPRESENTATION DTD. 3.01.2005 SUBMITTED BY IST PETITIONER BEFORE IST RESPONDENT.** **P10:- COPY OF LETTER NO.3/34/97 ET&EP DTD. 14.9.2005 ISSUED BY IST RESPONDENT TO IST PETITIONER .** **P11:- COPY OF LETTER NO.45/10ISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PENSION AND PENSIONERS' WELFARE.** **P12:- COPY OF REPRESENTATION DTD 22.6.20012 SUBMITTED BY IST PETITINOER TO 3RD RESPONDENT.** ## **P13:- COPY OF ORDER NO.EIA./CN.ACCTS.4/VRS/1994-95 .9308 DTD. 2.23-01-1995 ISSUED BY THE 4TH RESPONDENT TO IST PETITIONER.** **P14:- COPY OF OM. NO.4/3/86-P7PW(D) DTD.30-09-1996 ISSUED BY THE DEPT. OF PEN. AND PEN.WELFARE.** ## **RESPONDENT'S EXHIBITS:-** **R1(a):- COPY OF THE JUDGEMENT OF THE HONOURABLE HIGH COURT OF DELHI IN CW.6482/1999 DTD.23.4.2001.** **R1(b):- COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF ALLAHABAD IN CMWP. 43851/1999. DTD. 27.3.2003.** **//TRUE COPY//** **P.S. TO JUDGE** **tss** ## **B.P. Ray, J.** ==================================== W.P.(C)No.34008/2005 ==================================== Dated this the 13[th] day of July, 2012. ## **JUDGMENT** 1. Petitioners are retired employees of Export Inspection Agency, Kochi. During the tenure of their service, they appropriately opted for being guided under the Family Pension Scheme/GPF and Family Pension under the Central Civil Service Pension Rules and Central Civil Service Commutation of Pension Rules. During their service tenure, appropriate deductions were made from their monthly salary, which was added to the appropriate accounts particularly on account of retirement benefit of the petitioners. The scheme for voluntary retirement of the employees of Export Inspection Council and Export Inspection Agency was floated in the year 1994. As would appear on perusal of the said scheme, it had the approval of the Government of India, the salient features of the said VRS are as follows: i) Half a month's gratuity per year of service subject to a ceiling of Rs.1 lakh as admissible under the Gratuity Rules W.P.(C)No.34008/2005 -:2:- of EIC/EIAs. ii) Full matching CPF contribution from the Export Inspection Council/Agency side irrespective of whether such employees have completed five years service. (Applicable to such employees, if any, who have not opted for the pension scheme). iii) Full commutation of pension. iv) This offer will remain valid for a period of 60 days only from the date of issue of the letter. v) The payment under the scheme is subject to employees agreeing to adjust or clearing the advances against him or her such as House Building Advance, Conveyance advance, LTD advance, Festival advance etc. and any other outstanding dues. The employees are to either pay the amount of advance first or agree for its adjustment in full against payments that will be made under EIC/EIAs Voluntary Retirement Scheme. vi) The option once exercised is final and cannot be withdrawn under any circumstances.” 2. Petitioners also filed a writ petition claiming higher rate of interest for delayed payment which came up before this Court in O.P.4938/1997 and in R.P.458/1998. While disposing of the review ## petition, the learned single Judge observed as follows: “The next claim raised by the petitioners to be dealt with in the review petition is payment of relief on pension. It is an admitted case before me that the petitioners have commuted their entire pension. The relief on pension is payable to a person who is entitled to pension. When full pension is commuted and no pension is payable thereafter then there arise no question of payment relief on pension. Therefore, that claim cannot be granted. Reliefs granted by the Calcutta High Court cannot W.P.(C)No.34008/2005 -:3:- improve the case of the petitioners, because that aspect has never been projected in that judgment.” ## 3. Then they preferred writ appeal, W.A.617/2000 wherein the Division ## Bench of this Court observed as follows: “The next contention of the Government is that the court cannot grant more benefit than that is mentioned in Ext.P1 scheme and petitioners are, therefore, not entitled to restoration of commutation of pension after fifteen years. With regard to the above, the matter was left open. Petitioners were directed to give their respective claims to the Government and it is for the Government to decide the same, according to law. Hence, that question need not be considered in this writ appeal and the learned Judge did not direct the Government to grant that relief. Therefore, no interference is required on that ground also.” 4. Thereafter, the petitioners made a representation for restoration of pension after 15 years. Therefore, the crux of the controversy is as to whether the VRS Scheme can be said to have a superseding effect over the pension rules. Learned counsel for the petitioners submitted that Central Civil Service Pension Rules and the Central Civil Service Commutation of Pension Rules has the overriding effect over the VRS Scheme. According to them, after a lapse of 15 years from the date of voluntary retirement, they are entitled to full pension in W.P.(C)No.34008/2005 -:4:- terms of the pension rules. On behalf of the respondents, attention of this Court was invited to the VRS Scheme for the employees of the Export Inspection Council/Export Inspection Agencies dated 21.5.1994. It was specifically mentioned therein that such scheme provided for full commutation of pension. It was also laid down that Government is not obliged to formulate or approve any such scheme but it has been done so only as a special gesture. The scheme is a one-time offer and is not to be treated as a precedent. Learned counsel for the respondents cited a decision in HEC Volunatry Retd.Emps.Welfare Soc, & Anr. v. Heavy Engineering Corporation Ltd. & others (2006 (2) S.C.617) wherein it is held as follows: “An offer for voluntary retirement in terms of a scheme, when accepted, leads to a concluded contract between the employer and the employee. In terms of such a scheme, an employee has an option either to accept or not to opt therefor. The scheme is purely voluntary, in terms whereof the tenure of service is curtailed which which is permissible in law. Such a scheme is ordinarily floated with a purpose of downsizing the employees. It is beneficial both to the employees as well as to the employer. Such a scheme is issued for effective functioning of the industrial undertakings. Although the Company is a “State” within the meaning of Article 12 of the Constitution of India, the terms and W.P.(C)No.34008/2005 -:5:- conditions of service would be governed by the contract of employment.” Following the aforesaid dictum, I hold that the petitioners are not entitled to any relief sought for. Accordingly, I dismiss this writ petition. **B.P. Ray, Judge.** sl.