Sudhamani Thambi v. New India Assurance Co. Ltd. and Others

W.P(C).No.1980/2019-V 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941** ## **WP(C).No.1980 OF 2019(V)** ## **PETITIONER:** **SUDHAMANI THAMBI, AGED 57 YEARS, KALLUMPURATH HOUSE, AYIKUNNAM, SASTHAMCOTTA P.O., KOLLAM DISTRICT, KERALA 690 521 (ASSISTANT, VOLUNTARILY RETIRED FROM DIVISIONAL OFFICE, KOLLAM).** **BY ADV. SRI.N.SASIDHARAN UNNITHAN** ## **RESPONDENTS:** |**1**|**NEW INDIA ASSURANCE CO.LTD**| |---|---| ||**REPRESENTED BY THE MANAGING DIRECTOR,**| ||**NEW INDIA ASSURANCE BUILDING, GROUND FLOOR,**| ||**M.G. ROAD, FORT, MUMBAI 400 001.**| |**2**|**REGIONAL MANAGER,**| ||**NEW INDIA ASSURANCE COMPANY LIMITED,**| ||**KANDOMKULATHY TOWERES,**| ||**M.G ROAD, COCHIN 682 011.**| |**3**|**DIVISIONAL MANAGER,**| ||**NEW INDIA ASSURANCE COMPANY LIMITED,**| ||**KHAISE BUILDING, NEAR BENZIGER HOSPITAL,**| ||**BEACH ROAD, KOLLAM 691 001.**| ||**R1-3 BY ADV. SRI.A.A.ZIYAD RAHMAN**| ||**R1-3 BY ADV. SRI.LAL K.JOSEPH**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).No.1980/2019-V 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.1980 of 2019-V ------------------------------------------- _Dated this the 10[th] day of March, 2020_ ## _**JUDGMENT**_ The petitioner, who worked in the 1[st] respondent company for a period of 18 years 2 months and 28 days and retired from service after availing Special Voluntary Retirement, has filed this Writ Petition seeking a declaration to the effect that she is entitled for pension including commuted value of pension based on Ext.P1 scheme. The petitioner challenges Ext.P6 letter rejecting her request and seeks a direction to the respondents to pay the benefits. 2. The petitioner was relieved from the office of the 3[rd] respondent on 12.3.2004. It is stated that as per Ext.P1 scheme which was floated as Special Voluntary Scheme (`SVRS' for short) in 2004, a person who has attained the age of 40 years and has completed 10 years of qualifying service as on 1.1.2004 was eligible to avail voluntary retirement provided no disciplinary proceedings were pending or contemplated. The benefits admissible under Ext.P1 included P.F, gratuity, pension as per general insurance employees pension scheme 1995 etc., apart from the leave encashment and group medical benefits. The normal date of superannuation W.P(C).No.1980/2019-V 3 of the petitioner was on 31.5.2020. The petitioner submitted Ext.P2 application on 19.01.2004 for retirement under the SVR scheme. As per Ext.P3 order her application was accepted and she was allowed to retire w.e.f 12.3.2004 in accordance with the terms of SVRS 2004. Thereafter, she submitted Ext.P4 representation requesting for pension/invalid pension stating that she was suffering from mental infirmity which permanently incapacitated her. She approached this Court thereafter and on the basis of the directions contained in Ext.P5 judgment her representation was considered and rejected as per Ext.P6 order informing her that since she retired under the Special scheme, she cannot be granted pension. It was stated that SVRS 2004 did not make a provision for grant of invalid pension though General Insurance Employees Insurance Scheme, 1995 provides for the same in para.31. It was further stated that she had opted for voluntary retirement under the special scheme since she did not satisfy the minimum qualifying service for grant of pension. 3. Relying on the judgment of the Apex Court in _**National Insurance Company Ltd. v. Kripal Singh**_ [(2014) 5 SCC 189] and Ext.P8 judgment dated 31.7.2017 of the Division Bench of Uttaranchal High Court the petitioner claimed pension on the basis of the number of years of service rendered by her. The learned counsel for the petitioner submitted that the issue arising in this case is similar to the one considered in Ext.P8. The learned counsel for the petitioner also relied on the judgment of a Division Bench of W.P(C).No.1980/2019-V 4 the Rajasthan High Court in Civil Special Appeal No.178/2009 in which also similar issue was considered in para.11 and following the judgment in _**Kripal Singh**_ 's case ( _supra_ ) it was held that the persons who rendered more than 10 years of service were entitled to pension and pensionary benefits. 4. The respondents have filed a counter affidavit seriously objecting to the claim. According to the respondents, the petitioner did not fulfill the conditions for retirement under Ext.R1(a) scheme which requires 20 years of qualifying service. Since the petitioner had only 18 years of service and since she retired from service under the special voluntary retirement scheme, she is not entitled for pension. It is stated that under the provisions contained in Ext.R1(a) scheme, superannuation pension is granted to an employee on attaining the age of retirement as specified in para.12 of the General Insurance (Rationalisation and Revision of Pay Scale and other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 and para.4 of General Insurance (Termination, superannuation and Retirement of Officers and Development Staff) Scheme, 1976. Since the petitioner had not retired on attaining the age of superannuation, she is not eligible for pension in accordance with paragraph 29 of 1995 scheme. As per clauses 3 to 10 under para.30 of the scheme also she is not eligible since it is admissible to only those who retired on voluntary retirement for which one ought to have completed 20 years of service. It was also stated that the retirement of the W.P(C).No.1980/2019-V 5 petitioner was not on invalid pension under para.31 of the scheme, under which employees who have rendered 10 years' service are retired on account of bodily and mental infirmity which permanently incapacitated him for service. She had retired voluntarily under Special VRS 2004 and therefore, she is not eligible for any kind of pension provided in the scheme. The respondents relied on the judgment dated 7.1.2015 of the Apex Court in Transfer Case (Civil) No.48 of 2010 in _**Manojbhai N.Shah & Ors. v. Union of India,**_ pointing out that Ext.P7 judgment was considered therein taking note of the different kinds of retirement under the 1995 scheme and the benefits under the 2004 scheme. 5. Heard the learned counsel for the petitioner as well as the learned Standing Counsel for the respondent. 6. Ext.P8 judgment is seen rendered by the Division Bench of the Uttaranchal High Court in Special Appeal No.446 of 2017 after distinguishing the judgment in _**Manojbhai N.Shah'** s case, as evident from p_ ara.15 thereof. It was held therein that in view of the law laid down by the Apex Court in _**M.Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das**_ [(2020) 1 SCC 1] that the appellant therein was not justified in placing reliance on the subsequent decision in _**Manojbhai N.Shah'** s case_ which has no bearing on the question raised in the Writ Petition. The case leading to Ext.P8 judgment was also filed by an employee who had retired voluntarily under the Special W.P(C).No.1980/2019-V 6 Voluntary Retirement Scheme in 2004. When he was not paid pension, he approached the Uttaranchal High Court relying on the judgment of the Punjab and Haryana High Courts which was upheld by the Apex Court in _**Kripal Singh**_ 's case ( _supra_ ) interpreting the provisions contained in para.2 relating to retirement service as well as para.30 of 1995 scheme which relates to pension on voluntary retirement, relying on para.11 of the Apex Court judgment upholding the judgment of the single Judge. In the judgment in _**Kripal Singh**_ 's case ( _supra_ ) the Apex Court considered the very same issue as the claim for pension by those who retired under SVRS 2004 and it was held as follows in para.10 : _**10.** The only impediment in adopting that interpretation lies in the use of the word “retirement” in Para 14 of the Pension Scheme, 1995. A restricted meaning to that expression may mean that Para 14 provides only for retirements in terms of Paras (2)(t)(i) to (iii) which includes voluntary retirement in accordance with the provisions contained in Para 30 of the Pension Scheme. There is, however, no reason why the expression “retirement” should receive such a restricted meaning especially when the context in which that expression is being examined by us would justify a more liberal interpretation; not only because the provision for payment of pension is a beneficial provision which ought to be interpreted more liberally to favour grant rather than refusal of the benefit but also because the Voluntary Retirement Scheme itself was intended to reduce surplus manpower by encouraging, if not alluring employees to opt for retirement by offering them benefits like ex gratia payment and pension not otherwise admissible to the employees in the ordinary course. We are, therefore, inclined to hold that the expression “retirement” appearing in Para 14 of the Pension Scheme, 1995 should not only apply to cases which fall under Para 30 of the said Scheme but also to a case falling under the Special Voluntary Retirement Scheme of 2004. So interpreted, those opting for voluntary retirement under the said SVRS of 2004 would also qualify for payment of pension as they had put in the qualifying service of ten years stipulated under Para 14 of the Pension Scheme, 1995._ 7. The petitioner would also be governed by the judgments Exts.P7 and P8. The respondents do not have a case that they have taken up the matter W.P(C).No.1980/2019-V 7 before the Apex Court or if at all it is taken up, those judgments are reversed. Therefore, Ext.P6 order shall stand set aside. There shall be a direction to the respondents to sanction and disburse the pension along with arrears as well as commuted value of pension to the petitioner on the basis of the total service rendered by her. The Writ Petition is allowed accordingly. _Sd/-_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(C).No.1980/2019-V 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SPECIAL VOLUNTARY RETIREMENT SCHEME -2004, ISSUED FROM THE 1ST RESPONDENT INSURANCE COMPANY.** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 19/1/2004 OF THE PETITIONER FOR VOLUNTARY RETIREMENT.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 5/3/2004 OF THE 2ND RESPONDENT SENT TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 14/8/2017 OF THE PETITIONER SENT TO THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 11/4/2018 IN WPC.No.13003/2018.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 12/7/2018 OF THE 2ND RESPONDENT SENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN (2014) 5 SUPREME COURT CASES 189.** - **EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN SPECIAL APPEAL NO.446/2017 DATED 31/7/2017 OF THE UTTARANCHAL HIGH COURT.** **RESPONDENT'S EXHIBITS: EXHIBIT R1(a) TRUE COPY OF THE PENSION SCHEME.**