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Babuna Mishra Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Patna
Decided On
Reported in(2008)(98)SLJ384CAT
AppellantBabuna Mishra
RespondentUnion of India (Uoi) and anr.
.....of the 3rd pay commission and in the year 1974, a liberalized pension scheme was introduced. by letter dated 22.7.1974, the railway board decided to give an opportunity to the employees governed by the srpf scheme to opt for the liberalized pension scheme. the petitioner not finding that to be beneficial, did not opt for the new scheme as the dearness allowance was not taken into account for the purpose of calculating the pension.subsequently, the pensionary benefits were improved as result of treatment of a portion of additional dearness allowance as pay for the purposes of calculating the pension vide letter dated 4.10.1982.thereafter the railway board decided to give another opportunity to the railway employees who had continued in the srpf pension scheme but who were in service as.....
1. Factual matrix necessary for a decision in this O.A. may be summarized as follows: The applicant joined Railway service and superannuated from service with effect from 31.3.1985. At the time he had joined the service, mandatory pension scheme was not implemented but thereafter the employees who were under Provident Fund (Contributory) Scheme, were given option to switch over to the pension scheme even before the pension was made mandatory. The simple dispute is that the applicant claims that he had filed his option for switching over to the pension scheme which option must be available in his service records, which the respondents have been denying in their Written statement and supplementary written statement. The respondents have claimed that the applicant had continued under contributory provident fund scheme and had never opted for pension. For that for the first time the applicant came up before this Tribunal in O.A. No. 242 of 1998 wherein the respondents had claimed that the applicant's personal records were destroyed as under rules those records could be preserved for a maximum period of ten years.

3. However, since the applicant is claiming pension which has recurring cause of action, the limitation for this claim will not apply though if he succeeds, the payment of arrears would be guided by limitation. For this, we may look at the decision of the Apex Court in the case of M.R.Gupta v. Union of India . That matter related to wrong fixation of salary of the petitioner. Their Lordships had held as follows: When the employee's grievance was that his fixation of initial pay was not in accordance with the Rules, the assertion being of continuing wrong the question of limitation would not arise. So long as the employee is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to the Rules. It is no doubt true that if the employee's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period.

The same principle would apply about claim of pension made by a retired employee.

4. It may be pertinent to note here that when earlier the applicant had come to this Tribunal in O.A. 242 of 1998 which was disposed of by an order dated 31.7.2003 (Annexure-A/1), this Tribunal had directed the respondent No. 2 to consider the claim of the applicant for payment and other retiral benefits, after giving a personal hearing and the applicant was also directed to co-operate the respondent No. 2 and to file relevant documents in support of his claim. The speaking order in pursuant thereto was recorded by the Divisional Railway Manager, E.C.Railway, Sonpur vice Annexure-A/3 dated 31.7.2003 in which following points were mentioned: (i) The applicant had retired on 31.3.1985 prior to the implementation of Mandatory Pension Scheme, hence he had no legal right for pension; (ii) Mr. Mishra after his superannuation had continued in Railway quarter and also had brought the matter before the Pension Adalat but he did not produce certain records which he was asked to. That quarter was ultimately allotted to another employee on 11.11.1985, hence the inference was that the applicant had remained in possession of the quarter up to 10.11.1985.

(iii) The applicant had not opted for pension scheme in time which was evident from Provident Fund Slip attached by the applicant (See Annexure-A/6) wherein the amount of bonus has also been shown along with Provident Fund Contribution, which was given only to the non-pensional group of staff. Annexure-A/6 would appear to the statement of contribution in Provident Fund along with bonus granted by the Govt. of India thereupon, as it stood at the end of the financial year on 31.3.1960.

5. In the W.S. the respondents have claimed that the Provident Fund Contribution with b6nus was calculated to be Rs. 14,121/- in favour of the applicant and, after deduction of the normal rent, damage rent and electric dues for the quarter occupied by him, total amount of Rs. 13,639/- was released vice order dated 5.7.2004 and sent through money order. However, it is submitted that the said money order returned back and the amount was not received by the applicant. The applicant has also claimed that till now he has not received any amount by way of retrial dues.

6. The applicant in his rejoinder to the written statement has stated in Para 7 that the Railway Board in their letter No. F(E)III-85-PN1/15 dated 18.6.1985 had granted opportunity to those employees who were in service as on 31.3.1985 and had retired under SRPF(C) scheme without opting for pension but now wanted to opt for pensionary benefits. This circular is at Annexure-A/12 to the rejoinder.

7. Certain features of this circular may be looked into. As per this circular, the Railway Board, with approval of the President of India, had decided to grant another opportunity for pension option to the Railway Staff were in service on 31.3.1985 and onwards, and still were governed by the SRPF(C) Rules but wanted to come over to the pension scheme including Family Pension. This option was also made available to the Railway staff who had retired on or after 31.3.1985 while under SRPF(C) Rules. Para 3 of this order further provides that in the case of retired Railway employees and the deceased Railway employees, if the Govt. contribution together with interest thereupon had already been paid, the person concerned should be apprised of the amount due to be recovered and asked to refund the same within one month from the date of receipt of the intimation to this effect.

8. This letter also provides that the special contribution to P.F. if paid to the person concerned, should be adjusted against the DCRG and the excess, if any, of special contribution over the DCRG be also advised to be refunded by the optee. The pension option was to be valid only after the above amount had been refunded by the person concerned.

If the retired Railway servants or the family members agreed to that, a request from them to that effect, duly accompanied by the amount to be refunded by them, had to be received before the last date for exercise of option or within a period of one month from the date of receipt of the communication of these orders to them, whichever was later (Emphasis supplied). The concerned officials were directed to ensure that in the above cases the requisite advice was issued as early as possible so that it reached the retired Railway servant/family in time to enable them to opt for pension before the expiry of the last date.

9. The Railway administration was further directed in the aforesaid circular, in Para 7, that it should take urgent steps to bring the contents of that letter to the notice of all concerned employees under their administrative control, and to facilitate prompt circulation of these orders. The contents of the letter should also be published by the Railways in their Gazettes, in an extraordinary issue, as early as possible. But in Para 8 of the circular, it was made clear that it was desirable to obtain an acknowledgment from each individual so that ignorance of this order was not pleaded as a later stage.

10. The option was to remain valid up to six months from the date of issue of the orders, i.e., up to 17.12.1985 or for a period of one month, as already seen, from the date of receipt of the communication of the order to the retired employees, whichever was later.

11. In Para 9 of the rejoinder to the written statement, the applicant has claimed that no such option for converting into pension was called from the applicant as directed in circular dated 18.6.1985 nor any acknowledgment was obtained from him, though while making this claim the argument has been forwarded by the applicant that it was due to the fact that he had already opted for pension scheme which was on the service record which was why the applicant had not been communicated as directed under Annexure-A/12.

12. Now, in this regard, decision of the Delhi High Court in the case of M.L. Khullar v. Union of India and Ors. 2004 (3) ATJ 147 may also be seen. Before applying the decision of the Delhi High Court, certain facts of that case may also be mentioned. The petitioner therein had joined service in the year 1948 at which time there was no pension scheme. SRPF was introduced on the recommendation of the 3rd Pay Commission and in the year 1974, a liberalized pension scheme was introduced. By letter dated 22.7.1974, the Railway Board decided to give an opportunity to the employees governed by the SRPF scheme to opt for the liberalized pension scheme. The petitioner not finding that to be beneficial, did not opt for the new scheme as the dearness allowance was not taken into account for the purpose of calculating the pension.

Subsequently, the pensionary benefits were improved as result of treatment of a portion of additional dearness allowance as pay for the purposes of calculating the pension vide letter dated 4.10.1982.

Thereafter the Railway Board decided to give another opportunity to the Railway employees who had continued in the SRPF pension scheme but who were in service as on 31.8.1982. The petitioner had retired on 31.7.1982, hence he was not covered under the scheme. However, by a subsequent letter dated 9th November, 1982, the Railway Board preponed the eligibility date to 31.1.1982, whereafter the applicant became eligible to exercise his option. However, the liberalized pension scheme dated 4.10.1982 as amended by the subsequent letter was not brought to the notice of the retired employee. The petitioner contended that he did not get any information from the Railway regarding fresh option to be exercised. It was contended on behalf of the petitioner that under letter dated 4.10.1982 it was incumbent upon the Railways to inform all the retirees individually about the scheme, more so when they were required to refund Railway contribution to their Provident Fund, in case they were to opt for the pension scheme. Subsequently, in February, 1997, the applicant learnt about the judgment rendered by the Supreme Court in the case of one Sh. DRFR Shastri wherein the Court had upheld the direction given by the Tribunal to the Railways to grant the benefit of the pension to Shastri despite the fact that he had exercised option much after the stipulated date. It was also brought to the notice of the Court that another retired Railway employee K.V.Kasturirangan had also been allowed to change over to the pension scheme after a gap of over 21 years, by the Board itself. Having come to know that, the petitioner in that case made a representation to the Ministry of Railway but that did not evoke any response hence he filed application before the Central Administrative Tribunal. The Tribunal did not accept the contention that he was not aware of the option till November, 1987. Thereafter, the applicant preferred writ petition before the Delhi High Court.

13. Their Lordships of the Delhi High Court in that case had considered the direction given in the letter dated 4.10.1982, that the instructions should be brought to the notice of all the retirees.

14. Their Lordships held that from a bare reading of the aforesaid circular it was clear that the contents of the said letter were required to be brought to the notice of the eligible retired Railway servants individually, including the amount he was required to refund in case he opted under the pension scheme. The Hon'ble High Court held that, the respondents were under obligation to inform each of the employees about pension scheme giving them fresh option to migrate to the same. In the result, the writ petition was allowed.

15. The learned Counsel for the applicant, Mr. Sudama Pandey, also brought to the notice of this Tribunal various decisions in this regard, coming from various Benches of the Tribunal, such as in the case of S.V. Subramanyan v. Union of India and Ors. (1997) 35 Administrative Tribunals Cases 3. This is an order of the Ernakulam Bench of the Tribunal allowing similar prayer, also taking into account certain decisions as in the case of R Subramanyam v. Chief Personnel Officer, Central Railway, Ministry of Railways which was approved by the Apex Court .

16. In the circular at Annexure-A/12, it was clearly stated that the Railway Authorities would bring that to the notice of the eligible retired persons or their families, and the option was to be exercised by the concerned employees by a given date, or within one moth of the communication of the order. The applicant has clearly stated in its rejoinder that such communication was never made, nor any acknowledgment was obtained from him as the authorities were asked to obtain in the aforesaid circular order. The respondents have thereafter filed supplementary written statement, but in this they have not specifically claimed that the aforesaid order at Annexure-A/12 was communicated to the applicant and his acknowledgment was obtained.

17. Obviously, in this case, question of re-payment by the employee of the Govt. contributions to Provident Fund did not arise as admittedly the applicant had not received any such payment though the respondents claim that same was sent through money order. The applicant has claimed, through Annexure-A/2 and A/4, dated 30.9.2003 and 11.2.2004, respectively, that he had written about that to the DRM also but with no result. This has been replied to in Para 15 in which receipt of the letter has not been specifically denied though it has been mentioned that when asked to appear, the applicant had appeared before the DRM, E.C. Railway, Sonpur but he had not produced any document.

18. It has been claimed by the respondents that the applicant had been absent from 21.1.1979 till his retirement on 31.3.1985. It was also intimated that for such absence, no departmental action was taken against him. Therefore, he was allowed to continue in service though he was absent for such a long time. In that view of the matter, his pension may be calculated in accordance with law taking into account the period during which he actually had worked.

19. It has been pointed out in Para 17 of the written statement that General Insurance Scheme was introduced to the employees of the Railways w.e.f. 1.1.1982 when the applicant was absent from work, and had continued to be so absent till his superannuation, hence he is not entitled on this score. This plea is accepted.

20. To conclude, either the applicant had opted in time for pension scheme as has claimed. If so, he was entitled to be inducted into pension scheme. But, for argument's sake, if the plea of respondents is accepted that he had not, then as per circular of 1985 (Annexure-A/12) that had to be brought to the notice of each retired employee, and acknowledgment obtained. Applicant has denied that this instruction was carried out whereas this claim has not been denied by the respondents.

Keeping in view this fact, as also decision of the Delhi High Court in the case of M.L. Khullar (supra) and decisions of Benches of CAT as already noticed, this application has to be allowed.

21. In the result, this application is allowed and the respondents are directed to allow pension with effect from the date of his retirement.

His pension and other retiral benefits including family pension would be calculated in accordance with law and the extant rules. However, as pointed out in the order of the Supreme Court in the case of M.R. Gupta (supra), the applicant would be eligible to be paid the arrears of pension w.e.f. one year prior to the date of filing of O.A. No.244/1998 (17.4.1998) only.

22. This order be implemented within a period of three months of the receipt of a copy of this order whereafter the arrears as admissible including other retiral benefits be also paid within one month. If not done within this period, the arrears would be payable with interest of 8% per annum from the date of expiry of the period stipulated in this order, till the arrears are paid. The application, accordingly, is disposed of. No cost.

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