T.K.Vanchi vs Union Of India on 6 October, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11014 of 2006(J)


1. T.K.VANCHI, AGED 61 YEARS, S/O.LATE
                      ...  Petitioner
2. J.CHACKO, AGED 58, S/O.LATE
3. P.K.ALEXANDER VAIDYAN, 58 YEARS,
4. V.GOVINDAN, 56 YEARS,
5. ROSELINE RAJAN, 58 YEARS,
6. RAJASEKHARAN C.WARRIER,
7. C.S.BABU, S/O.LATE C.A.SANKU,
8. S.PARAMESWARAN, 56 YEARS,
9. C.P.BALAKRISHNAN,   61 YEARS,
10. P.G.ARAVINDAKSHAN, 58 YEARS,
11. SABU LONAPPAN, AGED 48 YEARS,
12. SAJU PETER, 51 YEARS, S/O.K.J.PETER,
13. K.T.THRESSIA, AGED 55  YEARS,
14. T.CHERRY JOB, AGED 54 YEARS, S/O.LATE
15. P.V.DAKSHINA MOORTHY, 56 YEARS,
16. V.C.THOMAS, 55 YEARS, S/O.LATE
17. N.VASUDEVAN, AGD 56 YEARS,
18. P.NARAYANAN KUTTY, 60 YEARS,
19. N.S.SANKARAN, 54 YEARS,
20. K.P.SURESH KUMAR, 57 YEARS,
21. S.S.RAMAN, AGED 55 YEARS,
22. P.U.MOHANDAS, AGED 60 YEARS,
23. ANSON FABER, AGED 60 YEARS,
24. T.A.VARGHIS, AGED 57 YEARS,

                        Vs



1. UNION OF INDIA, REPRESENTED BY THE
                       ...       Respondent

2. GENERAL INSURANCE CORPORATION OF INDIA,

3. ORIENTAL INSURANCE COMPANY LIMITED,

                For Petitioner  :SRI.K.P.DANDAPANI (SR.)

                For Respondent  :SRI.BOBBY MATHEW, CGC

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :06/10/2010

 O R D E R
                       S. SIRI JAGAN, J.
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                  W.P.(C) No.11014 of 2006
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          Dated this the 6th day of October, 2010

                         J U D G M E N T

The petitioners are retired employees of the Oriental

Insurance Company Ltd. The Government of India

promulgated the General Insurance Officer’s Special

Voluntary Retirement Scheme, 2004 in exercise of powers

conferred by Section 17A of the General Insurance Business

(Nationalization) Act, 1972, by which employees of the

3rd respondent were offered a chance to retire voluntarily

with certain benefits guaranteed as per the scheme

formulated by the Government. That scheme is Ext.P1 in

the writ petition. The petitioners opted for the benefits of

the scheme and retired voluntarily as per the provisions of

the scheme. They received benefits due under Ext.P1

scheme on such voluntary retirement. Subsequently the

pay of the employees of the 3rd respondent company were

revised with retrospective effect from a date anterior to the

W.P.(C) No.11014 of 2006
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date of retirement of the petitioners. According to the

petitioners, they are also entitled to the benefits of such

retrospective pay revision and also to have the benefits

under Ext.P1 scheme calculated on the basis of their

revised pay in accordance with the retrospective revision of

pay. The petitioners therefore seek the following reliefs:

“i) Issue a writ in the nature of certiorari or any other
appropriate writ or order or direction, calling for the records
leading to issue of Ext.P-2 and quash the same to the extent it
denies the benefit of revision of pay to the incumbents who
sought Special Voluntary Retirement Scheme under Ext.P-1.

ii) Issue a writ of mandamus or any other appropriate writ
or order of direction, directing the respondents to grant the
petitioners arrears of pay and allowances on the revised terms
of pay from 01-08-2002 to the date of severance.

iii) Issue a writ of mandamus or any other appropriate writ
or order or direction, directing the respondents to grant
proportionate revision of pension and other terminal benefits
on the basis of revised pay and allowances.

iv) Issue a writ of mandamus or any other appropriate writ
or order or direction, directing the respondents to grant
enhanced leave surrender benefit and DCRG on the basis of the
revised pay and allowances pursuant to Ext.P-2 and other
further terminal benefits as may be granted in revision of pay
and allowances.

v) Declare that the petitioners are entitled for notional
fixation of pay and allowances and consequential payment of
arrears of salary from 01-08-2002 to date of their severance,
consequential revision of pension and other terminal benefits,
enhanced leave encashment benefits and revised DCRG.

W.P.(C) No.11014 of 2006
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vi) Issue a writ of mandamus or any other appropriate writ
or order or direction to the second respondent to consider and
pass appropriate orders on Ext.P-3 representation submitted by
the petitioners.”

2. A counter affidavit has been filed by the

3rd respondent disputing the claim of the petitioners. They

would submit that, Ext.P1 scheme offered a package to the

petitioners and they are only entitled to that package and

no other amounts even if the pay has been revised

subsequent to their retirement retrospectively. They would

rely on the decision of the Supreme Court in HEC Voluntary

Retd. Employees Welfare Society v. Heavy Engg. Corpn. Ltd

(2006) 3 SCC 708 in support of their contention.

3. I have considered the rival contentions in detail.

4. As per Ext.P1, the benefits payable to the

employees who opt for voluntary retirement under the

scheme are contained in paragraphs 5 & 6 of the scheme

which read as follows:

“5. Amount of ex-gratia.-

(1) An Officer seeking Special Voluntary Retirement
under this Scheme shall be entitled to lower of the

W.P.(C) No.11014 of 2006
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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 the
date of this notification, the benefit of revised pay
for the purpose of payment of ex-gratia will be
allowed.

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 para 5, namely:-

            (a)     Provident Fund;

            (b)     Gratuity as per Payment of Gratuity Act, 1972 (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 five years of added service as
stipulated in para 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 opts for the scheme shall not be

entitled to avail Leave Travel Subsidy and also
encashment of leave during the period of sixty
days from the date of notification of this scheme.”

(underlining supplied)

W.P.(C) No.11014 of 2006
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5. The contention of the petitioners is that, the

scheme does not exclude payment of benefits to the persons

who have opted for voluntary retirement as per Ext.P1

scheme on the basis of the revised pay, which is clear from

paragraph 5 (2) of Ext.P1. The counsel for the petitioners

would submit that, the only difference between a person

who voluntarily retired under Ext.P1 scheme and a person

who has retired normally under the regulations of the

3rd respondent is payment of ex-gratia which is covered by

Clause 5. As far as other benefits covered by Clause 6 are

concerned that is applicable to other employees as well.

Therefore, such benefits should be paid to the petitioners as

applicable to other employees of the company who retire

normally is their contention. According to them for

calculating ex-gratia, taking into account the revised pay is

permitted. Insofar as there is no specific exclusion of other

benefits on the basis of the revised pay, the 3rd respondent

cannot deny such benefits on the basis of the revised pay, is

W.P.(C) No.11014 of 2006
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the contention raised by the counsel for the petitioners.

6. I am unable to countenance the contention of the

petitioners. The effect of a scheme for voluntary retirement

has been considered by the Hon’ble Supreme Court in

various decisions, one of which is HEC Voluntary Retd.

Employees Welfare Society’s case (supra) therein the

Supreme Court has categorically held that, once an

employee accepts the offer for voluntary retirement under a

scheme and receives the benefit thereof which would be

more than what an employee who does not opt for voluntary

retirement gets, he has to accept the benefits of the

Voluntary Retirement Scheme as a package and he would

not be entitled to any payment other than what has been

specifically conferred on him as per the scheme unless he

has a right for other benefits conferred by a statute issued

for the purpose. Here, the revision of pay is not a benefit

conferred by a statute. The petitioners had already

received the package as per Ext.P1 scheme. As per that

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scheme, in case of subsequent revision of pay

retrospectively with effect from a date prior to the date of

voluntary retirement, then the ex-gratia would be revised

on the basis of the revised pay. Such a benefit is absent in

Clause 6. I am of opinion that, when in respect of ex-gratia

specifically the benefit is conferred on the employees who

opt for voluntary retirement under the scheme, then the

very same benefit is impliedly excluded in respect of other

benefits. The Hon’ble Supreme Court had in the HEC

Voluntary Retd. Employees Welfare Society’s case (supra)

given very elaborate reasons for taking such a view, which

includes that under a Voluntary Retirement Scheme

considerable amount is paid to the employee as ex-gratia

besides the terminal benefits in case he opts for voluntary

retirement. The payment of compensation is granted not

for doing any work or rendition of service but in lieu of his

leaving the services of the company. The Hon’ble Supreme

Court has also taken into account the fact that, the

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employees have an option either to opt for or not to opt for

voluntary retirement under the scheme. Once an employee

accepts the offer there is a concluded contract between the

employer and the employee and thereafter there is a

severance of employer – employee relationship between the

employer and the employee and therefore unless

specifically conferred by a policy decision of the employer

or by statutory rule, subsequent revision of pay would not

be applicable to those employees who have opted for

voluntary retirement under the scheme. That judgment is

squarely applicable to the petitioners’ case. The petitioners’

challenge against Ext.P2 is on the ground that by Ext.P2,

other benefits calculated on the revised pay has been

excluded contrary to Ext.P1 scheme. I do not agree with

that proposition. I am of opinion that, Ext.P2 has been

issued only in accordance with Ext.P1 scheme and there is

no departure in Ext.P2 from Ext.P1 scheme. The petitioners

have already been paid ex-gratia calculated on the basis of

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the revised pay as contemplated in Clause 5 (2) of Ext.P1

scheme. In view of the above position, the petitioners are

not entitled to either payment of arrears of revised pay or

other benefits as claimed by them or calculation of benefits

under Ext.P1 scheme other than ex-gratia payment on the

basis of the revised pay. Therefore there is no merit in the

writ petition and accordingly the same is dismissed.

S. SIRI JAGAN
JUDGE

shg/