BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.06.2016
CORAM
THE HONOURABLE SMT. JUSTICE PUSHPA SATHYANARAYANA
Writ Petition (MD) Nos. 19431 of 2015 to 19433 of 2015 and 21110 of 2015
N. Srinivasan .. Petitioner in W.P(MD)No.19431/2015
V. Selvaraj .. Petitioner in W.P(MD)No.19432/2015
D. Rajasekaran .. Petitioner in W.P(MD)No.19433/2015
S. Anandraj .. Petitioner in W.P(MD)No.21110/2015
Vs.
1. Union of India
Rep. by its Secretary
Ministry of Finance
Dept. of Economic Affairs, Banking and Insurance
IIIrd Floor, Jeevan Vikar
Sansad Marg
New Delhi ? 110 001 .. R1 in all W.Ps. (MD)
2. United India Insurance Co. Ltd.
Rep. by its General Manager (P)
Whites Road
Royapettah
Chennai ? 600 014 ..R 2 in W.P. (MD) 19431/2015
3. New India Assurance Co. Ltd.
Rep. by its General Manager
No. 87 Mahatma Gandhi Road
Fort, Mumbai
Maharashtra ? 400 001 ..R 2 in W.P. (MD) 19432/2015
4. National Insurance Co. Ltd.
Rep. by its General Manager
No. 3 Middleton Street
Kolkatta
West Bengal ? 700 001 ..R 2 in W.P. (MD) 19433/2015
5. Oriental Insurance Co. Ltd.
Rep. by its General Manager
A-25/27 Asaf Ali Road
New Delhi ? 110 002 ..R 2 in W.P. (MD) 21110/2015
6. National Insurance Special Voluntary
Retired / Retired Employees' Association
7-A (Old No. 4-A)
South Gangai Amman Kovil 1st Street
Choolaimedu
Chennai ? 600 094
Rep. by its General Secretary
Mr.V.A. Nagarajan
..R 3 in W.P. (MD)19431 to
19433 of 2015
[R3 impleaded vide Court order dated
08.01.2016 in MP (MD) No. 1 of 2015]
Petitions filed under Article 226 of the Constitution of India for
issuance of Writ of Certiorarified Mandamus calling for the records connected
to the issue of the impugned orders dated 23.9.2015, 14.9.2015, 14.9.2015 and
14.9.2015 passed by the respective second respondent Insurance Company and
quash the same as illegal and void and consequently direct the second
respondent for the grant of notional benefit of 5 years added service as
stipulated in paragraph 30 of the General Insurance (Employees') Pension
Scheme 1995 as confirmed by the Hon'ble Supreme Court of India in its
decision dated 07.1.2015 in Transfer Case No. 7 of 2011, etc. and further
direct the respondents to calculate pension, and disburse the same with
arrears and interest thereon from the date of retirement.
!For Petitioner in : Mr. V. Parthiban all W.Ps. ^For R1 in all W.Ps. : Mr. N. Shanmughaselvam For R2 in W.P. (MD) Nos. : Mr. V. Perumal 19431 to 19433 of 2015 For R3 in W.P. (MD) Nos. : Mr. V. Vijayshankar 19431 to 19433 of 2015 For R2 in W.P.No.21110 of 2015 : No appearance :COMMON ORDER
Since the issue involved in all these Writ Petitions is with
regard to the entitlement of retiral benefits by the petitioners, who are ex-
employees of the respective second respondent Insurance Companies, they are
taken up together and disposed of by this common order.
2. Considering the common point to be decided, before going
into the merits of the case, it would be better to brief the Schemes
introduced in this regard.
3. With a view to enable the employees of the Insurance
Companies to retire prematurely on certain conditions with some special
benefits, the Government of India vide Notification dated 01.01.2004
introduced a Scheme called General Insurance Employees' Special Voluntary
Retirement Scheme 2004 [for short referred to as ?SVRS 2004?], which was made
applicable to all 5 Public Sector Insurance Companies, viz., General
Insurance Company, National Insurance Company, Oriental Insurance Company,
United India Insurance Company and New India Assurance Company, as per which
the employees and officers who had attained the age of 40 years and completed
10 years of qualifying service as on the date of Notification were eligible
for voluntary retirement.
4. Earlier, in 1995, a pension scheme was introduced for
General Insurance Employees called General Insurance (Employees) Pension
Scheme 1995 which stipulated additional notional benefit of 5 years of added
service for retiring employee voluntarily subject to the condition that the
qualifying service rendered by such employee shall not in any case exceed 33
years and it does not take him beyond the date of retirement. For the sake of
convenience, the said scheme is hereinafter referred to as the ?Principal
Pension Scheme?.
5. The petitioners before us joined in the various Insurance
Companies as Assistant between 1972 and 1980 and opted for retirement under
Special Voluntary Retirement Scheme 2004 [for short referred to as ?SVRS
2004?] and accordingly retired in various capacities on different dates
during March 2004. According to the petitioners, weightage of additional 5
years conferred by Clause 30(5) of the Principal Pension Scheme was not
allowed to them. Challenging the same, the petitioners made representations
to the employers / Insurance Companies seeking for the benefit of 5 years
added service but the same went in vain. Therefore, they filed Writ Petitions
in W.P. (MD) Nos. 6435 to 6438 of 2015 seeking for Mandamus directing the
respective Insurance Companies to dispose of their representations claiming
for the notional benefit of 5 years and this Court, by common order dated
27.4.2015, disposed of the same directing the respondents to consider the
claim of the petitioners within a period of four months from the date of
receipt of a copy of the order after affording opportunity of hearing to the
petitioners. Since the claim of the petitioners was rejected by the
respondents by impugned orders dated 23.9.2015, 14.9.2015, 14.9.2015 and
14.9.2015 respectively, the present Writ Petitions have been filed.
6. Relying on paragraph 30 of the Principal Pension Scheme,
learned counsel appearing for the petitioners vehemently contended that as
pension, which is a right of an employee for the services rendered in the
past, depends upon the last drawn salary, he must be given the benefit of the
revised pay and his pension must also be enhanced accordingly. It is the
submission of the learned counsel that inasmuch as the pension is payable
only under the Scheme, there cannot be differential treatment for the purpose
of grant of additional notional benefit of 5 years added service to the
retirees. According to him, despite the eligibility of the petitioners under
the Pension Scheme, they were not granted the notional benefit of 5 years
added service while calculating their pension.
7. In support of his contention, learned counsel for the
petitioners seeks in aid the decision of the Nagpur Bench of the Bombay High
Court in Shamsunder and others vs. New India Assurance Company Ltd. and
others [W.P.No. 4131 of 2010] wherein the grant of benefit of additional 5
years of service in respect of Development Officers in the Insurance Sector
was allowed and the same was also confirmed by the Hon'ble Supreme Court in
SLP No. 32540 of 2013 dated 01.9.2014.
8. Learned counsel representing the Insurance Companies /
second respondent submitted that the employees retiring under the Principal
Pension Scheme and the SVRS 2004 are two separate classes of employees and
cannot be treated on an equal footing. Pointing out Clause 8(xiv) of the
SVRS 2004, learned counsel representing the Insurance Companies / second
respondent submitted that the benefits payable under this Scheme will be in
full and final settlement of all claims of whatsoever nature, whether arising
under the regulation or otherwise to the employee. He further submitted that
an employee who voluntarily retires under SVRS 2004 shall not have any claims
against the Company or re-employment or compensation or employment of any of
his or her relative on compassionate grounds in the service of the company or
for any other like benefits.
9. Heard the learned counsel appearing for the parties and
perused the records.
10. For better understanding of the Schemes, it would be
relevant to refer to Clause 30(5) of the Pension Scheme which reads as
follows:-
?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.?
11. As per SVRS 2004, all permanent full time employees will be
eligible to seek special voluntary 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.
12. Clause 6 of SVRS 2004 states other benefits. Clause 6(1)(c)
reads as follows:-
?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.?
12(a). From the above facts, it is clear that till 1995,
there was no pension scheme at all for insurance company employees. Only in
1995, it was introduced and it is valid till today. In order to weed out
extra employees, it was thought fit to introduce the SVRS 2004. The said SVRS
2004 neither amended the 1995 Principal Pension Scheme nor varied the same.
12(b). According to the learned counsel for the second
respondent that special VRS is distinct and different and is to be
distinguished from normal VRS available under para 30 of the Principal
Pension Scheme 1995. It was contended further that the petitioners having
opted under special VRS are deemed to have waived any legal right or
subsequent benefits and estopped from making any claim.
13. In the instant petitions, since the Principal Pension
Scheme vide its Clause 30(5) confers advantage of adding five years or then
maximum qualifying service of 33 years, the petitioners urge that they could
not be denied the weightage of five years. From a mere reading of the
Schemes, it is clear that a person who had put in 20 years of service
automatically becomes eligible under the Pension Scheme. If an employee
opting SVRS 2004, is eligible for the other benefits of Pension Scheme, he
will get the notional benefit of addition of five years. Nowhere in Clause
6(1)(c) it is stated that they are not eligible. Therefore, in the absence
of any specific clause, it is to be presumed that a person seeking voluntary
retirement is eligible to get pension under para 30(5) of the Pension Scheme
with due weightage. Even according to the second respondent, the SVRS 2004
did not supercede the 1995 Principal Pension Scheme. Therefore, pension
become payable only under the Principal Pension Scheme regardless of
retirement whether under Special Scheme or Pension Scheme. In as much as the
pension is payable under 1995 Scheme, there cannot be a differential
treatment for the purpose of grant of additional notional benefit of five
years added service for the retirees.
14. Significantly, in Shamsunder case (cited supra) relied on
by the learned counsel, like SVRS 2004, Special Voluntary Retirement Scheme
was notified in 2003 for development Officers with identical conditional and
clauses. It is also relevant to point out that they were also governed by
the same Pension Scheme 1995 as applicable to the present petitioners.
15. Earlier, when several retired employees and the third
respondent in W.P. (MD) Nos. 19431 to 19433 of 2015, viz., National Insurance
Special Voluntary Retired / Retired Employees' Association approached various
High Courts seeking consequential benefits of retrospective revision of pay
made applicable to all General Insurance Public Sector Companies, which came
into effect from 01.8.2002, they were all transferred to the Hon'ble Supreme
Court. Thus, the controversy raised in the instant Writ Petitions that
whether the employees who had opted for voluntary retirement under the
Scheme, are entitled to get the benefit of additional pension on the basis of
revised salary in pursuance of the Notification was already decided by the
Hon'ble Supreme Court in Transfer Application No. 7 of 2011 [National
Insurance Special Voluntary Retired / Retired Employees' Association vs.
Union of India and others] reported in (2015) 4 SCC 482 by its decision dated
07.01.2015 wherein the Hon'ble Apex Court, while dismissing the claim of the
employees and the Association of the benefit of retrospective revision of
pay, however, observed that the employees are entitled to get the benefit of
additional 5 years of service while calculation as stipulated in paragraph 30
of the Pension Scheme notwithstanding the bar in the SVRS 2004. It is
pertinent to note that as against the said observation, the Management has
not chosen to file a review or appeal. As such, the Management is bound to
implement the observations of the Hon'ble Supreme Court
16. In view of the foregoing discussion and in the light of the
decision of the Hon'ble Supreme Court cited supra, by which the right of the
petitioners to get the benefit of 5 years added service for the purpose of
calculation of pension has been crystalized, this Court is of the considered
opinion that the impugned orders are liable to be set aside.
17. The Writ Petitions are accordingly allowed setting aside
the impugned orders. The respondents are directed to provide necessary
weightage and resulting hike in the VRS amount to the petitioners by
completing necessary exercise within a period of six months from the date of
receipt of a copy of this order. However, in the circumstances of the case,
there shall be no order as to cost.
To
1. The Secretary
Union of India
Ministry of Finance
Dept. of Economic Affairs, Banking and Insurance
IIIrd Floor, Jeevan Vikar
Sansad Marg, New Delhi ? 110 001
2. The General Manager (P)
United India Insurance Co. Ltd.
Whites Road, Royapettah,
Chennai ? 600 014
3. The General Manager
New India Assurance Co. Ltd.
No. 87 Mahatma Gandhi Road
Fort, Mumbai, Maharashtra ? 400 001
4. The General Manager
National Insurance Co. Ltd.
No. 3 Middleton Street
Kolkatta, West Bengal ? 700 001
5. The General Manager
Oriental Insurance Co. Ltd.
A-25/27 Asaf Ali Road
New Delhi ? 110 002
6. The General Secretary
National Insurance Special Voluntary
Retired / Retired Employees' Association
7-A (Old No. 4-A),
South Gangai Amman Kovil 1st Street
Choolaimedu, Chennai ? 600 094.
