Thakorbhai J. Desai Vs. Union of India (Uoi) and ors. - Court Judgment

Excerpt:
1. mr. thakorbhai j. desai, has filed this o.a. under section 19 of the administrative tribunals act, 1985, praying therein that the respondents authorities may be directed to make payment of the pension to the applicant and allow him to opt for pension scheme and settle the pensionary dues of the present applicant along with 12% interest from the date of retirement.2. the factual metrics of the case are that the applicant joined the railway service on 4.4.1941. he submitted his resignation on 21.8.1970 due to the family circumstances and his health problem. it is also the case of the applicant that he has put in 29 years and 9 months service without any blot on his service sheet. the pension scheme was introduced in 1957 and option forms were called for from the staff who joined before november 1957. circulars were issued from time to time.however, it is said that the applicant had no notice for such circulars nor got any instructions in this regard from railway authorities. in this view of the matter very few employees could take benefit of this scheme. no such advertisement was published in the local news papers.3. further it has been submitted that fifth pay commission has made a provision for srpf retirees and have granted rs. 600/- as ex gratia payment with effect from 1.11.97 (wrongly written in the petition as 1.12.97). the applicant also applied for the same but the authorities have turned down his request to produce that he has submitted his resignation. he has also applied to the railway board to give him ex gratia payment and also permit him to opt for pension scheme, but his case was turned down on the ground that he resigned. it is also been mentioned that since he has rendered more than 20 years of service which is the minimum qualifying service for seeking voluntary retirement and therefore, he is entitled to pensionary benefits. he has also placed reliance on the judgment of the apex court in writ petition (civil) no. 881/93, r. subramaniam v. chief personnel officer, central railway. further he has also mentioned number of decisions wherein certain persons who have gone to the retirement allowed such benefit from cpf to pensionary scheme. however, the case of the applicant is that only on the ground that he resigned from service, he has not been extended the benefit of either the pensionary benefit or that of ex gratia payment.4. a detailed reply has been field on behalf of the respondents controverting the facts and grounds taken in the o.a. it has been submitted that the serving of the applicant for 29 years does not entitled him for opting to the pensionary scheme or grant of ex gratia payment since he resigned from service and his case does not fall within the rules. a counter affidavit in rejoinder has also been filed by the applicant on behalf of the reply filed by the respondents.5. we have heard the learned counsel for both the parties and have carefully perused the records of this case.6. at the very out set the learned counsel for the applicant has relied upon the judgment in the case of r. subramaniam v. chief personnel officer, central railways (supra), wherein it was held that the railway employee while retiring opting for cpf scheme and not for" pension scheme, directing the benefit of its decision to be given to all the railway employees who retired during the period from 1.4.1969 to 14.7.1972 were entitled to the benefit of pension scheme since during this period no option was available for switching on from the cpf system to the pensionary scheme. the learned counsel for the respondents have drawn our attention to the subsequent judgment of the tribunal in v.k. ramamurthy v. union of india and anr. (1996) 10 scc 73=1997(1) slj 16 (sc), wherein it has been held that cpf retiree were not entitled to opt for pension long after retirement and the case quoted by the applicant was distinguished. in this view of the matter the applicant's claim for changing over from cpf optee to pensionary scheme is not sustainable in law.7. as regards the grant of ex gratia pension the specific circulars have been issued by the railway board on dated 27.1.98 as rbe no. 19/98 and rbe no. 260/98 dated 23.11.98. the relevant paras from these circulars are abstracted as under: "the ex gratia payment is not admissible to (a) those who were dismissed/ removed from service and (b) those who resigned from service. 1. with reference to board letter of even number dated 27.1.98 instructions have been issued for grant of ex gratia payment at rs. 600 per month with effect from 1.11.97 to the superannuating crpf (c) retires of the period from 1.4.97 to 31.12.85 subject to the condition that such retires should rendered at last years of continuous service prior to their superannuation for becoming eligible to the ex gratia payment. a reference has been received from one of the railway seeking clarification as to the applicabilities of these instruction to case of retirement on medical, invalidation, voluntary retirement etc. it is hereby clarified that in terms of instructions contained in board's letter dated 27.4.98 ibid ex gratia payment is admissible only to those who had retired on superannuation subject fulfillment of the condition that the superannuated crpf (c) beneficiaries should have rendered at least 20 years of continuous service prior to their superannuation those crpf (c) beneficiaries who had retired from service other than on superannuation viz; on medical invalidation, voluntary retirement, compulsory retirement as a measure of penalty, premature retirement, retirement absorption in/or under (a) corporation or company or body corporate or incorporate etc., are not eligible for grant of ex gratia payment." 8. a perusal of the aforesaid provision clearly indicates that the scheme does not apply to the person who has resigned from service. not only this it does not apply even to the person who has not retired on superannuation. it also excludes a number of other type of retirement and clearly specifies that it would apply only to the person who are retired on superannuation. in this view of the matter also the applicant's claim is not sustainable. the aforesaid rules framed by the railway board have not been challenged.9. the learned counsel for the applicant has also taken support of the judgment of the apex court in union of india and ors. v. lt. col. p.s.bhargava,(sc), j.k, cotton spg. & wvg.mills company ltd. v. state of u.p. and ors., air 1990 sc 1808=1990(3) slj 105 (sc). in these judgments it has been said that if a person has completed the requisite number of year of qualifying service and although resigning voluntarily he would entitle the terminal benefit.in the second case it has been held that voluntary retirement does not amount to retrenchment and the case is covered by voluntary retirement.none of these cases support the contention of the applicant. however, we are further of the considered opinion that even if the contention of the applicant is accepted that the applicant's resignation ought to have been treated as voluntary retirement still no benefit can be extended for the reason elaborated in above and he cannot be allowed to opt for (sic) "the result is rather than unfortunate, but in view of the rules position, foregoing discussions especially the law laid down by the hon'ble supreme court in case of v.k. ramamurthy (supra) and specific circulars issued by the railway board (supra) there is no option but to dismiss the o.a. we dismiss the same accordingly but with no order as to costs.

Judgment:
1. Mr. Thakorbhai J. Desai, has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, praying therein that the respondents authorities may be directed to make payment of the pension to the applicant and allow him to opt for pension scheme and settle the pensionary dues of the present applicant along with 12% interest from the date of retirement.

2. The factual metrics of the case are that the applicant joined the Railway service on 4.4.1941. He submitted his resignation on 21.8.1970 due to the family circumstances and his health problem. It is also the case of the applicant that he has put in 29 years and 9 months service without any blot on his service sheet. The pension scheme was introduced in 1957 and option forms were called for from the staff who joined before November 1957. Circulars were issued from time to time.

However, it is said that the applicant had no notice for such circulars nor got any instructions in this regard from Railway Authorities. In this view of the matter very few employees could take benefit of this scheme. No such advertisement was published in the local news papers.

3. Further it has been submitted that Fifth Pay Commission has made a provision for SRPF retirees and have granted Rs. 600/- as ex gratia payment with effect from 1.11.97 (wrongly written in the petition as 1.12.97). The applicant also applied for the same but the authorities have turned down his request to produce that he has submitted his resignation. He has also applied to the Railway Board to give him ex gratia payment and also permit him to opt for pension scheme, but his case was turned down on the ground that he resigned. It is also been mentioned that since he has rendered more than 20 years of service which is the minimum qualifying service for seeking voluntary retirement and therefore, he is entitled to pensionary benefits. He has also placed reliance on the judgment of the Apex Court in Writ Petition (Civil) No. 881/93, R. Subramaniam v. Chief Personnel Officer, Central Railway. Further he has also mentioned number of decisions wherein certain persons who have gone to the retirement allowed such benefit from CPF to pensionary scheme. However, the case of the applicant is that only on the ground that he resigned from service, he has not been extended the benefit of either the pensionary benefit or that of ex gratia payment.

4. A detailed reply has been field on behalf of the respondents controverting the facts and grounds taken in the O.A. It has been submitted that the serving of the applicant for 29 years does not entitled him for opting to the pensionary scheme or grant of ex gratia payment since he resigned from service and his case does not fall within the rules. A counter affidavit in rejoinder has also been filed by the applicant on behalf of the reply filed by the respondents.

5. We have heard the learned Counsel for both the parties and have carefully perused the records of this case.

6. At the very out set the learned Counsel for the applicant has relied upon the judgment in the case of R. Subramaniam v. Chief Personnel Officer, Central Railways (supra), wherein it was held that the Railway employee while retiring opting for CPF scheme and not for" pension scheme, directing the benefit of its decision to be given to all the railway employees who retired during the period from 1.4.1969 to 14.7.1972 were entitled to the benefit of pension scheme since during this period no option was available for switching on from the CPF system to the pensionary scheme. The learned Counsel for the respondents have drawn our attention to the subsequent judgment of the Tribunal in V.K. Ramamurthy v. Union of India and Anr. (1996) 10 SCC 73=1997(1) SLJ 16 (SC), wherein it has been held that CPF retiree were not entitled to opt for pension long after retirement and the case quoted by the applicant was distinguished. In this view of the matter the applicant's claim for changing over from CPF optee to pensionary scheme is not sustainable in law.

7. As regards the grant of ex gratia pension the specific circulars have been issued by the Railway Board on dated 27.1.98 as RBE No. 19/98 and RBE No. 260/98 dated 23.11.98. The relevant paras from these circulars are abstracted as under: "The ex gratia payment is not admissible to (A) Those who were dismissed/ removed from service and (B) those who resigned from service.

1. With reference to Board letter of even number dated 27.1.98 instructions have been issued for grant of ex gratia payment at Rs. 600 per month with effect from 1.11.97 to the superannuating CRPF (c) retires of the period from 1.4.97 to 31.12.85 subject to the condition that such retires should rendered at last years of continuous service prior to their superannuation for becoming eligible to the ex gratia payment.

A reference has been received from one of the Railway seeking clarification as to the applicabilities of these instruction to case of retirement on medical, invalidation, voluntary retirement etc. It is hereby clarified that in terms of instructions contained in Board's letter dated 27.4.98 ibid ex gratia payment is admissible only to those who had retired on superannuation subject fulfillment of the condition that the superannuated CRPF (c) beneficiaries should have rendered at least 20 years of continuous service prior to their superannuation those CRPF (c) beneficiaries who had retired from service other than on superannuation viz; on medical invalidation, voluntary retirement, compulsory retirement as a measure of penalty, premature retirement, retirement absorption in/or under (a) Corporation or company or Body corporate or incorporate etc., are not eligible for grant of ex gratia payment." 8. A perusal of the aforesaid provision clearly indicates that the scheme does not apply to the person who has resigned from service. Not only this it does not apply even to the person who has not retired on superannuation. It also excludes a number of other type of retirement and clearly specifies that it would apply only to the person who are retired on superannuation. In this view of the matter also the applicant's claim is not sustainable. The aforesaid rules framed by the Railway Board have not been challenged.

9. The learned Counsel for the applicant has also taken support of the judgment of the Apex Court in Union of India and Ors. v. Lt. Col. P.S.Bhargava,(SC), J.K, Cotton Spg. & Wvg.

Mills Company Ltd. v. State of U.P. and Ors., AIR 1990 SC 1808=1990(3) SLJ 105 (SC). In these judgments it has been said that if a person has completed the requisite number of year of qualifying service and although resigning voluntarily he would entitle the terminal benefit.

In the second case it has been held that voluntary retirement does not amount to retrenchment and the case is covered by voluntary retirement.

None of these cases support the contention of the applicant. However, we are further of the considered opinion that even if the contention of the applicant is accepted that the applicant's resignation ought to have been treated as voluntary retirement still no benefit can be extended for the reason elaborated in above and he cannot be allowed to opt for (sic) "The result is rather than unfortunate, but in view of the rules position, foregoing discussions especially the law laid down by the Hon'ble Supreme Court in case of V.K. Ramamurthy (supra) and specific circulars issued by the Railway Board (supra) there is no option but to dismiss the O.A. We dismiss the same accordingly but with no order as to costs.