Case BriefsSupreme Court

Supreme Court: Finding the Bombay High Court’s judgment directing the State to extend the pensionary benefits to the employees of Water and Land Management Institute (WALMI) unsustainable, both in law and on facts, the bench of MR Shah* and BV Nagarathna, JJ held that the employees of WALMI, which is an independent autonomous body registered under the Societies Act are not entitled to the pensionary benefits and that,

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

Holding that the State Government and the Autonomous Board/Body cannot be put on par, the Court explained that,

“Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions.”

Cautioning the Courts to refrain from interfering with the policy decision, which might have a cascading effect and having financial implications, the Court observed that whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.

In the case at hand, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules.

The State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits applicable to the State Government employees to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government.

In such facts and circumstances, the Supreme Court held that the High Court was not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

The Court was also not pleased with High Court’s observation that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. It noticed that WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

Observing that the grant of pensionary benefits is not a one-time payment but a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. The Court said that merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. Hence, the interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.

[State of Maharashtra v. Bhagwan, CIVIL APPEAL NOS. 7682-7684 OF 2021, decided on 10.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Appellants: SG Tushar Mehta and AOR Sachin Patil

For respondents: Advocate J.N. Singh

Case BriefsSupreme Court

Supreme Court: In a case where a soldier, after serving in the Regular Army for 25 years, was re-enrolled in the Infantry Battalion (Territorial Army), Ecological Task Force (ETF) and was denied disability pension in view of the letter of the Government of India, Ministry of Defence, dated 31st March 2008 which provides that the members of ETF would not be entitled for disability pension, the bench of L. Nageswara Rao and BR Gavai*, JJ has held that it was wrong to deny the claim as the ETF is established as an additional company for 130 Infantry Battalion of Territorial Army and the other officers or enrolled persons working in the Territorial Army are entitled to disability pension.

Factual Background

  • After serving for about 25 years in Infantry of the Regular Army, the appellant got re-enrolled in the Territorial Army as a full-time soldier on 1st August 2007.
  • After availing the annual leave, when the appellant was coming back on his scooter to rejoin his duty, on 24th April 2009, he met with a serious accident.
  • The Medical Board assessed the appellant’s disability to be  80%. However, it could not give any opinion about the attributability aspect of the injury.
  • The Court of Inquiry (CoI) found that the injury sustained by the appellant was attributable to military service and it was not due to his own negligence.
  • Subsequently, on the basis of the opinion of the Invaliding Medical Board, on 1st January 2012, the appellant was invalided out of service with 80% disability which was attributable to military service.
  • The AFT though held, that the injury sustained by the appellant which resulted into 80% disability was found by the competent authority to be aggravated and attributable to the military service, it rejected the claim of the appellant on the ground that a separate scheme and service conditions have been created for the Members of ETF, which was accepted by the appellant and hence, he was not entitled to disability pension.

What does the law state?

  • as per Government of India, Ministry of Defence’s letter, dated 31st March 2008, the members of ETF would not be entitled for disability pension. Vide the said communication, the Government of India has   communicated   to   the   Chief   of   Army   Staff,   the sanction of the President of India for raising two additional companies   for   130   Infantry   Battalion   (Territorial   Army) Ecological under Rule 33 of Territorial Army Act, Rules 1948.
  • every such officer or enrolled person in Territorial Army when holds the rank, shall be subject to the provisions of Army Act, 1950 and the rules or regulations made thereunder, equivalent to the same rank in the Regular Army.
  • as per the Regulation No. 292 of the Pension Regulations for the Army, 1961, the grant of pensionary awards to the members of the Territorial Army shall be governed by the same rules and regulations as are applicable to the corresponding persons of the Army except where they are inconsistent with the provisions of regulations in the said chapter.
  • as per Regulation No. 173 of the Pension Regulations for the Army, 1961, an individual who is invalided out of service on account of disability, which is attributable or aggravated by Military Service in non-battle casualty and is assessed 20% or more, would be entitled to disability pension.

Analysis

Disability pension to member of ETF

The ETF is established as an additional company for 130 Infantry Battalion of Territorial Army. Since other officers or enrolled persons working in the Territorial Army are entitled to disability pension under Regulation No. 173 read with Regulation No. 292 of Pension Regulations for the Army, 1961, the appellant, who is enrolled as a member of ETF which is a company for 130 Infantry Battalion (Territorial Army), cannot be denied the disability pension. Specifically so, when the Medical Board and COI have found that the injury sustained by the appellant was attributable to the Military Service and it was not due to his own negligence.

Signing on a “Certificate” agreeing to not getting any enhanced pension  

The appellants had signed a document dated 30th August 2007, titled “Certificate”, wherein he had agreed to the condition that he will not be getting any enhanced pension for having been enrolled in   ETF. However, the same cannot be used to deny disability pension to the appellant for the following reasons:

  • the said document deals with enhanced pension and not disability pension. A conjoint reading of Section 9 of the Territorial Army Act, 1948 and Regulation Nos. 292 and 173 of the Pension Regulations for the Army, 1961, would show that a member of the Territorial Army would be entitled to disability pension.
  • even accepting that the appellant has signed such a document, it needs to be noted that a Right to Equality guaranteed under Article 14 of the Constitution of India would also apply to a man who has no choice or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be.

“Can it be said that the mighty Union of India and an ordinary soldier, who having fought for the country and retired from Regular Army, seeking reemployment in the Territorial Army, have an equal bargaining power.”

Conclusion

The Union of India was, hence, directed to grant disability pension to the appellant in accordance with the rules and regulations applicable to the Members of the Territorial Army with effect from 1st January 2012 and to also clear arrears from 1st January 2012 within a period of three months from the date of this judgment with interest at the rate of 9% per annum.

[Pani Ram v. Union of India, 2021 SCC OnLine SC 1277, decided on 17.12.2021]


Counsels

For appellant: Advocate Siddhartha Iyer

For UOI:  Additional Solicitor General Vikramjit Banerjee


*Judgment by: Justice BR Gavai

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension

Case BriefsHigh Courts

Patna High Court: Rajeev Ranjan Prasad, J., denied bail to the advocate booked for allegedly misappropriating his client’s money and committing breach of trust being an attorney. The Bench stated,

“Despite repeated caution made to learned counsel for the appellant that the appellant being an Advocate must come out with a fair stand even at this stage, there is no change of stand.”

The appellant was seeking to set aside the order of the Trial Court with regard to the offence under Sections 406, 420 of the Penal Code, 1860 and Sections 467, 468, 471, 120(B) of the Indian Penal Code and Section 3(r)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, by which the prayer of the appellant for his release on bail had been rejected.

The appellant, who was an Advocate, had filed a case in the Railway Claims Tribunal on behalf of one Lalan Pasi for compensation under Section 125 and Section 16 of the Railway Act. The Tribunal allowed claim and directed the State to grant Rs. 8 Lakhs with interest at the rate of 9% to the claimant. Accordingly, a sum of Rs. 4 Lakhs was to be transferred in the account of Smt. Sanjhariya Devi (mother of the deceased). Accordingly, a joint account was opened and a sum of Rs. 10,52,000/- was transferred to the said account.

The case of the prosecution was that the appellant, taking advantage of his position as an Advocate of the victims/claimants withdrew the whole amount from the joint account of Lalan Pasi which was awarded as compensation to Lalan Pasi and Sanjhariya Devi on account of the death of their only son Gorakh Pasi.

Contesting the bail appeal, the State submitted that the act of the appellant robbing his client, being an Advocate was highly condemnable and the allegation against him were serious in nature when considered from the point of view of the professional ethics of an Advocate and the duty cast upon him towards his client.

Observing that, despite repeated caution to return the entire amount to the claimant, the appellant was reluctant to do so and was only willing to return a sum of Rs. 5 lakhs, the Bench stated that the appellant being an Advocate must come out with a fair stand.

In the light of the above, the Bench held that since the appellant being an Advocate had allegedly committed a breach of trust and had misappropriated his client’s money and was not ready to return the money which belonged to his clients, his case was not fit for bail.[Santosh Kumar Mishra v. State of Bihar, Cr. Appeal (Sj) No.3564 of 2021, decided on 27-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance:
For the Appellant/s: Mr.Ajit Kumar, Advocate
For the Respondent/s: Ms. Usha Kumari – 1, Special P.P.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and A.S. Bopanna*, JJ., condoned the non pensionable sandwiched period between pensionable services rendered in Central and State government for the purpose of providing a single bock of pensionable service.

The appellant worked as a Technician in the Telecom Department during the period 05-02-1974 to 31-05-1984. Later on, the appellant joined the Technical Education Department on 31-05-1987, where he served till 30-06-2006 and got retired on attaining the age of superannuation. During the period between those services the appellant had worked in Steel Industries Limited, Kerala (SILK), a Public Sector Undertaking.

The appellant had requested the State to condone the period served by him in PSU and consider the services rendered by him under the Telecom Department and Education Department as one for granting pension which was rejected by the State. On application the Kerala Administrative Tribunal allowed benefit of pension to the appellant by condoning the period of break in service, as being permissible in the circumstance. However, the same was set aside by the High Court by the impugned judgment.

Admittedly, the service rendered by the appellant in ‘SILK’ which was a PSU was not pensionable service. Therefore, the said period of service acted as a disconnect between the two different pensionable service and the same needed to be condoned to provide a single block of pensionable service.

The case of the appellant was not that the non­ pensionable service be reckoned and the entire service from 05-02-1974 to 30-06-2006 be admitted for computing the pensionary benefits as assumed by the High Court.

Rather what the appellant sought was to exclude the service rendered in ‘SILK’ and condone that period from being treated as a disjoint or break between the two pensionable services.

The appellant had relied on a Government Order dated 12-11-2002 by which the government had declared that the employees of the State Government Departments who had left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment in State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department.

Similarly, the Government Order dated 24-09-2014 the government had provided for condonation of the non­qualifying sandwiched period to reckon the qualifying service.

After perusing the referred Government Orders, the Bench opined that the benefit sought for by the appellant was provided and the sandwiched non qualifying service as break in the two services was condonable and the prior public service should be reckoned as qualifying service for pension.

Rejecting the State’s contention that the appellant had retired on 30-06-2006, while the Government Order was dated 24-09-2014 and as such could not be made applicable retrospectively, the Bench stated the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17-09-2014 was still pending when the Government Order was issued. Moreover, the said Government Order in para 2 had taken note of the several requests received to reckon the prior qualifying service.

In the backdrop of above, the Bench was of the opinion that the Tribunal was justified in its conclusion and the High Court had erred in setting aside the same. Accordingly, the impugned order was set aside and the order of the Tribunal was restored for its implementation.

[Valsan P. v. State of Kerala, 2021 SCC OnLine SC 953, decided on 21-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: P.V. Surendranath, Senior Counsel

For the Respondent: C.K. Sasi


*Judgment by: Justice A.S. Bopanna

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to “late entrant” under Pension Regulations for Army. The Bench stated,

“When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Armed Forces Tribunal (Srinagar Bench) by which the Tribunal had granted terminal/pensionary benefits to the respondent and directed the government to process his claim taking his qualifying service as 15 years as regards “late entrant” in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the government had approached the Court seeking intervention.

Factual Fulcrum

The respondent was commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer for a period of five years. Later on he was granted Permanent Commission on 28-01-1998 and thereafter he first became a Graded Specialist and then Classified Specialist.

By letter/application dated 15-04-2000, the respondent applied for resignation on the ground of lack of promotional prospects. At that time his actual date of superannuation at 56 years of age was 31-05-2014. The resignation application, having being initially rejected was later accepted vide order dated 31-01-2007 only after the intervention of the High Court, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave. Aggrieved by the said order, the respondent approached AFT.

Stand taken by the Central Government   

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a “late entrant” under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for “voluntary retirement”. The State contended that it was not a case of “voluntary retirement”, but of “resignation” by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as “late entrant”.

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of “voluntary retirement” at the time he applied for resignation and that he was not even eligible for premature retirement as he had rendered service for 15 years and 27 days while minimum qualifying service required for retirement, i.e., 20 years under Regulation 25(a).

Submissions by the Respondent

The respondent argued that in accordance with Pension Regulations, 2008, respondent’s pre-commission service as Research Scholar with Gandhi Medical College, Bhopal and as a Medical Officer with BHEL, totalling to 6 years 4 months and 6 days should also be counted towards his total qualifying pensionable service. Accordingly, it was submitted that thus the respondent’s total qualifying pensionable service was 22 years 11 months and 2 days.

The respondent submitted that his real intention was to seek premature retirement but he was told that since he had less than 10 years of service at that point of time, premature release before 10 years of service had to be termed as “resignation” and not as “premature retirement”; therefore his application was treated as one of “resignation” and not as “premature retirement” due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.

Opinion and Analysis

“If we see the averments in the writ petition all throughout the word used by the respondent is “resignation”. Therefore, only as an afterthought and to get the benefit of “late entrant” under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for ‘voluntary retirement’ and it was not an application for ‘resignation’”

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for “voluntary retirement” and therefore he used the word “resignation” to get out of the technical reason, the Bench stated that the respondent had tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” as there is a distinction between “resignation” and “voluntary retirement” because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered “resignation”, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was “premature retirement” and not “resignation”.

Applicability of Pension Regulations, 2008

Rejecting the argument of the respondent that as per Regulation 19(h) and 19(j) of the Pension Regulations, 2008 a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification should also be counted for the purpose of pensionable service, the Bench opined that case of the respondent would be governed by the Pension Regulations, 1961, which had no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent’s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.

Whether the respondent was entitled to the benefit of Regulation 15 as a “late entrant”?

According to Regulation 15 if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a “late entrant” and is entitled to pensionary benefits by getting 5 years grace period. Hence, as the respondent did not retire on reaching the prescribed age limit for compulsory retirement, he could not be said to be a “late entrant”, therefore was not entitled to the pensionary benefits.

Decision

Resultantly, the impugned judgment and order passed by the AFT was hereby quashed and it was held that the respondent was not entitled to the terminal/pensionary benefits as a “late entrant” in terms of Regulation 15 of the Pension Regulations.

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021]

_________________________________________________________________________
Kamini Sharma, Editorial Assistant has put this report together 

_________________________________________________________________________

Appearance by:

For the Union of India: ASG Madhavi Divan

For the Respondent: Senior Advocate Vikas Singh


*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., refuses to grant relief to the claimant who urged to include 10 years of practice as an advocate for the purpose of calculating pension in addition to qualifying service as Judicial Member of Railway Claims Tribunal.

Petitioner submitted that he was enrolled as an Advocate with the Bar Council of Delhi and also cleared the exam for Advocates on Record and was duly enrolled on October 15, 1998.

In 2015 he was appointed to the post of Member (Judicial) Kolkata Bench of Railway Claims Tribunal (RCT). Then in 2016, he was transferred to the Secunderabad Bench of the RCT where he worked till January 19th. Thereafter, he was transferred to Gauhati Bench of the RCT where he worked till, he completed 5 five years’ tenure on April 21, 2020.

He stated that in terms of Section 5 of the Railway Claims Tribunal Act, 1987, which stipulated qualifications for appointment as Chairman, Vice-Chairman and other Members; a person shall not be qualified for appointment as a Judicial Member unless he is, or has been, or is qualified to be a Judge of a High Court.

According to the petitioner, in view of the above-said provision, he was selected for the post of Judicial Member RCT being found as qualified to be a Judge of a High Court and as per Article 217 of the Constitution of India, the qualifications needed for appointment to the post of a Judge of a High Court, was that one must have at least 10 years of practice as an Advocate.

Primary Claim:

Claim was with regard to counting of 10 years of practice as an Advocate for the purpose of calculating pension in addition to qualifying service of the petitioner as Judicial Member of the RCT, for pension.

Question of Consideration:

Whether the petitioner is entitled to the counting of 10 years of practice at the Bar, along with the qualifying period put in by him as Judicial Member in RCT?

Analysis, Law and Decision

High Court stated that the Supreme Court’s decision in Government of NCT of Delhi v. All India Young Lawyers Association, (2009) 14 SCC 49, was concerning the Officers of the DHJS, who were appointed to the service, being Advocates practicing at the Bar. Supreme Court while reducing the period from 15 years to 10 years did not interfere, with respect to the grant of benefit of counting of the period of practice put in by an Advocate.

Bench stated that joining the service between the ages of 35 to 45 years, a DHJS Officer puts in at least 15 years of service before demitting the office, which was not the case here, since the appointment of the petitioner was only for a period of 5 years and upon completion of 5 years, he demitted the office.

Therefore, his plea that he was qualified to be a High Court Judge, was appointed as Judicial Member and as such 10 years of practice at the Bar needed to be counted for the pension was unmerited, for the reason that the pension as a Member (Judicial) shall still be governed by the Rules of 1989.

Sr. Panel Counsel, Jagjit Singh during his submission had drawn the attention of the Court towards the Supreme Court decision in Madras Bar Assn. v. Union of India, WP (C) No. 804 of 2020, 27-11-2020 wherein the Supreme Court while considering the Tribunal Rules of 2020, which were notified on 12-02-2020, held Chairpersons, Vice-Chairpersons and Members of the Tribunals appointed prior to 12-02-2020 shall be governed by the parent Statutes and Rules as per which, they were appointed.

Therefore, since the petitioner was appointed prior to 12-2-2020, terms and conditions of appointment of the petitioner as Judicial Member RCT shall necessarily be governed under the Rules of 1989.

In view of the above petitioner was not entitled to any relief. [Ajit Kumar Pande v. Union of India, 2021 SCC OnLine Del 4590, decided on 4-10-2021]


Advocates before the Court:

For the Petitioner: In-person

For the Respondent: Jagjit Singh, Sr. Panel Counsel with Mr Preet Singh, Mr Vipin Chaudhary & Ms Rashmi Malhotra, Advs.

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice Umesh Chandra Srivastava and  Vice Admiral Abhay Raghunath Karve, Member (A) denied to grant any relief to the person invalidated from service due to Alcohol Dependence Syndrome.

Brief facts of the case were that the applicant was enrolled in Army on 09-03-2002 as a Craftsman (CFN) and was invalided out from service on 28-03-2016 in low Medical Category due to ‘Alcohol Dependence Syndrome (Relapse) F-10.2’.

The applicant alleged that he was discharged from service under hatched conspiracy of unit which he was serving at the time of discharge by making false allegations in the back drop of his previous medical history i.e. Alcohol Dependence Syndrome, by sending him for frequent medical check-ups.

Evidently, the applicant stated drinking in 2007 and had been hospitalized for intoxication and his medical category was downgraded to S3 (T-24). His medical report suggested, ‘Due to lack of self control over his drinking habit, hence not attributable nor aggravated by military service’.

Alcohol Dependence Syndrome is primarily a disease where an individual cannot control his excessive drinking habits. This disease leads to being drunk while on duty and poor performance during discharge of official duties. Moreover, all efforts are made by military doctors and the organization to help a soldier who has become a victim of ‘Alcohol Dependence Syndrome’ and only when all efforts fail the soldier is invalided out on ground of ‘Alcohol Dependence Syndrome’.

The Bench took note of the fact that the applicant being habitual drinker refused to obey orders of superiors and was punished five times during the period 2010 to 2015, further, the said punishments were awarded in different units in which he served and not in the unit from where he was invalided out of service due to hatching of a conspiracy by the unit concerned, as alleged by the applicant.

Thus, keeping in view that applicant was awarded four punishments prior to induction in new unit; the Bench rejected the allegation that a conspiracy theory was hatched against the applicant. Moreover, the applicant had also earned five (red and black ink) entries and, therefore, could be categorized as a habitual offender.

In the light of the above, the Bench rejected the applicant’s contention that consuming alcohol in Army is not an offence as it is supplied in the organization, and held that there was no reason to interfere with the process and provide any relief to the applicant as, the Bench opined, the applicant was rightly invalided out of service being suffering from Alcohol Dependence Syndrome. [Ajit Kumar Singh v. Union of India, 2021 SCC OnLine AFT 4896, decided on 03-09-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

Counsel for the Applicant: Advocate Yashpal Singh, Advocate Sachindra P Singh

Counsel for Union of India: Advocate Pandey

Legislation UpdatesNotifications

The Government of Arunachal Pradesh has granted dearness relief to government pensioners or pensioner’s families with an advice for early payment of the entitlement vide circular dated September 01, 2021. The Dearness relief payable to the government pensioners has been increased from 17% to 28%.

The circular shall come into effect from 1st July, 2021.

 


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has referred the question as to whether there would be a cut-off date under paragraph 11(3) of the Employees’ Pension Scheme to a larger bench. The larger bench will also decide whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809 would be the governing principle on the basis of which all these matters must be disposed of.

What was held in RC Gupta case?

In R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809, the Court had held that

“… the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme.

In RC Gupta case, the Court was dealing with a matter where the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs 5000 or Rs 6500 per month, as the case may be. In such a case, the Court held that a beneficial scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date.

“We do not see how exercise of option under Para 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under Para 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme is inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.”

The Court had explained that if both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme s inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

It was, hence, noticed that all that the Provident Fund Commissioner is required to do is an adjustment of accounts which in turn would have benefited some of the employees. At best what the Provident Commissioner could do was to seek a return of all such amounts that the employees concerned may have taken or withdrawn from their provident fund account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.

Why is the decision required to be re-visited?

Senior Advocate C.A. Sundaram invited the Court’s attention towards the difference between the Provident Fund Scheme and the Pension Scheme.

Under Provident Fund scheme, the contributions made by the employer and the employees during the employment of the employee would be made over to the employee along with interest accrued thereon at the time of his retirement. Thus, the obligation on the part of the operators of the Provident Fund Scheme would come to an end, after the retirement of the employee; whereas the obligation under the Pension Scheme would begin when the employee retired. The liability was only to pay interest on the amount deposited and to make over the entire amount at the time of his retirement.

Under Pension scheme, it would be for the operators of the Pension Scheme to invest amount deposited in such a way that after the retirement of the concerned employee the invested amount would keep on giving sufficient returns so that the pension would be paid to the concerned employee not only during his life time but even to his family members after his death. If the option under paragraph 11(3) of the Scheme, was to be afforded well after the cut-off date, it would create great imbalance and would amount to cross-subsidization by those who were regularly contributing to the Pension Scheme in favour of those who come at a later point in time and walk away with all the advantages.

Hence, it was submitted that the emphasis on investment of the amount in both the funds would qualitatively be of different dimension.

This difference was enunciated in Krishena Kumar Vs. Union of India, (1990) 4 SCC 207 and was not noted in the subsequent decision in R.C. Gupta. Submitting that it would not be a mere adjustment of amount to transfer from one fund to another as stated in R.C. Gupta case, it was submitted before the Court that the decision in R.C. Gupta was required to be re-visited.

The Court, hence, noted that

“These, and the other submissions touching upon the applicability of the principle laid down in the decision in R.C. Gupta1 go to the very root of the matter. Sitting in a Bench of two Judges it would not be appropriate for us to deal with said submissions. The logical course would be to refer all these matters to a Bench of at least three Judges so that appropriate decision can be arrived at.”

The matter has hence, been referred to a larger bench.

[Employees’ Provident Fund Organisation v. Sunil Kumar B., 2021 SCC OnLine SC 630, decided on 24.08.2021]

Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a writ petition which was filed aggrieved about non-payment of gratuity and pension after retirement.

The petitioner had joined the service of the Government of Tripura in the year 1992 as a Lower Division Clerk on a reserved post for Scheduled Tribe wherein she had claimed that she belonged to Laskar(Tripuri) community which was recognized as a Scheduled Tribe in Tripura.

The question of Laskar community being recognized as a Scheduled Tribe became a focal point of long legal controversy. Eventually, the Supreme Court had upheld the judgment of the Tripura High Court holding that the Laskar community is not a recognized Scheduled Tribe in the State of Tripura. It was however decided that those belonging to Laskar community and who had been granted any benefit of reservation up to 31-03-1990, the same shall not be withdrawn looking at the longstanding disputes.

The cancellation of the petitioner’s caste certificate and consequentially, her appointment in Government service also went through several legal stages. At one stage, the Judge allowed the petition and set aside the order passed by the State Level Scrutiny Committee(SLSC) cancelling her caste certificate, in the writ appeal the Division Bench confirmed the above order. SLSC once again passed a fresh order, cancelling the caste certificate of the petitioner and the government acting upon the order cancelled petitioner’s appointment which was based on the false claim of Scheduled Tribe status.

The petitioner aggrieved by this had approached the High Court and the Judge had stayed the implementation of the order and accordingly, the petitioner had rejoined the duties.

While this petition was pending the petitioner retired and the petition was eventually dismissed, the decision was challenged, which was again dismissed. In the present petition direction for release of her gratuity and pension was prayed for.

The Court after perusal of facts and documents opined that based on the cancellation of the caste certificate, her appointment also stood cancelled and these orders had achieved finality since Single Judge, as well as the Division Bench, had dismissed the petition challenging this order. The Court further held that in this view of the matter, the petitioner cannot claim post-retiral benefits of pension and gratuity.

The Court while dismissing the petition however held that on the principles of quantum meruit, the salary already paid to the petitioner for the work done cannot be a subject matter of recovery but the benefits of Government employment, promotion or admission in educational institutions on the strength of false claim of reserved category candidate, would be withdrawn once it is proved that the caste status was falsely claimed.[Sipra Debbarma v. State of Tripura, 2021 SCC OnLine Tri 380, decided on 29-07-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


For Petitioner(s): Ms A Debbarma and Mr Samarjit Bhattacharjee

For Respondent(s): Mr Biswanath Majumder, CGC and Mr S Dey

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava (Chairperson) and Vice Admiral Abhay Raghunath Karve, Member (A) held that there is no barometer that can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus.

Briefly stated facts of the case were that the applicant was enrolled in the Indian Air Force on 14-11-1995 and was discharged on 30-11-2015 in Low Medical Category (Permanent). At the time of his retirement, the Release Medical Board (RMB) assessed his disability ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ at 15-19% for life and opined the disability to be neither attributable to nor aggravated (NANA) by service. The applicant approached the respondents for grant of disability pension but the same was rejected, pursuant to which the applicant had preferred the present Original Application.

The applicant pleaded that he was enrolled as Radio Fitter (Electronics & Telecommunication) trade and was working in advance defence ground environmental system which deals with Radar and Radio equipments and such units are usually at High Altitudes, thus environmental condition leads to stress and strain which had affected his health badly. He submitted that in the year Dec 1998, he was posted at High Altitude Area i.e. Dalhousie (H.P.) located above 10,000 feet and to protect from cold large heating blowers were used. Due to high altitude there was lack of oxygen and due to use of blowers there was lack of moisture content which resulted in breathing problems. In the last phase of his three years tenure, he started having breathing problems at High Altitude due to Nasal Blockage. He further submitted that claim for the grant of disability pension was wrongly rejected on the ground of disability percentage being less than 20% and NANA.

Regarding the issue of disability being assessed as less than 20%, the Tribunal stated that various Tribunals and Courts had found that,

“The assessment of disability to the tune of 15-19% itself is a doubtful assessment and cannot be final for the simple reason that there is no barometer which can assess the disability percentage to the extent of 1% and therefore, the percentage of disability which has been assessed as 15-19% may be 20% also and there may be variation of at least two percent plus also. In case of doubt as the benefit should always be given to the applicant.”

Noticeably, the applicant was enrolled in Indian Air Force in fully fit condition after rigorous medical examination and the disability was detected for the first time in January 2008 after more than 12 years of Air Force service. Therefore, the Tribunal held that disability of the applicant must be presumed to have arisen in the course of service which must, in the absence of any reason recorded by the Medical Board, be presumed to had been attributable to or aggravated by service. Further, there was neither any note in the service record of the applicant at the time of his entry nor was any reason been recorded by the RMBoard that the disease which the applicant was found to be suffering from, could not have been detected at the time of his entry into service hence the reasoning for denying disability pension to applicant was not convincing and did not reflect the complete truth on the matter. The Tribunal remarked,

“The opinion that ‘SEVERE OBSTRUCTIVE SLEEP APNOEA (OLD)’ is caused by obesity and included anatomical variations resulting in airway collapse and apnoea is an good opinion, but nowhere rules out that this may not occur due to conditions of service.”

In the backdrop of above, the Tribunal held that the benefit of doubt in should be given to the applicant and the disability of the applicant should be considered as aggravated by military service. Accordingly, the impugned orders rejecting claim for grant of disability element to the applicant were set aside. The respondents were directed to grant disability element of the pension at 15-19% to the applicant, which was directed to stand rounded off to 50% from the date of discharge.[Rohitash Kumar Sharma v. Union of India, 2021 SCC OnLine AFT 1413, decided on 18-01-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Tribunal:

For the Applicant: Rohitash Kumar Sharma (In-person)

For the Union of India: Govt. Counsel Kaushik Chatterji

Case BriefsHigh Courts

Punjab and Haryana High Court: G.S. Sandhawalia, J., allowed the instant petition against the order of State whereby the petitioner’s claim for grant of arrears of monthly financial assistance and family pension had been rejected.  While hearing the petition, the Bench stated,

“It is not disputed that the petitioner has committed the offence of murder and is on bail and her sentence has been suspended and, therefore, she requires to maintain herself and cannot be denied the financial assistance and it is not a bounty, as such, and is her right on account of the services rendered by her husband to the Government.”

The petitioner was widow of one Tarsem Singh, who was a teacher in the respondent-Education Department on regular basis since 1986. On his death on 17-11-2008, financial assistance became payable to his widow as per Rules of 2006, and the same was to be continued till the date specified in the Rules of 2006 or the date the employee would have retired from the Government service on attaining the age of superannuation, which in the present case was 31-10-2017. The petitioner continued to draw the monthly financial assistance for some time, but later on, she alleged that no order had been passed for releasing the family pension and other admissible benefits.

The respondents took the defence that since the order of conviction for murder and sentence had been passed against the petitioner, therefore, on account of her lack of good conduct, the amount of monthly financial assistance had been stopped. The respondent claimed,

“The pension is not a charity or bounty and it is a conditional payment depending upon the sweet will of the employer. The person, convicted for the offence of murder, cannot be allowed the said benefit”

 Since the petitioner’s conviction had not been stayed and only her sentence had been suspended while releasing her on bail, the respondent stated that the widow was not entitled to any pecuniary benefits. The provisions relied by the respondent were:

 Punjab Civil Services Rules, Volume-II 2 .2 (a):

Future good conduct is an implied condition of every grant of pension. The appointing authority reserves to itself the right of withholding or withdrawing a pension or any part of it if the pensioner be convicted of serious crime or is guilty of grave misconduct.

 Rule 4(a) and (b) of the Family Pension Rules, 1964 4-A.

(a) If a person, who in the event of death of government employee while in service, is eligible to receive family pension under this rule, is charged with the offence of murdering the Government employee or for abetting in the commission of such an offence, the claim of such a person, including other eligible member or members of the family to receive the family pension, shall remain suspended till the conclusion of the criminal proceedings instituted against him.

(b) If on the conclusion of the criminal proceedings referred to in clause (a), the persons concerned– (i) is convicted for the murder or abetting in the murder of the government employee, such a person shall be debarred from receiving the family pension which shall be payable to other eligible member of the family, from the date of the death of government employee.

The Bench, after observing the above provisions stated that, there was nothing mentioned about the misconduct, as such, of the family members for not being entitled for the monthly financial assistance and, therefore, eligibility to continue receiving monthly financial assistance could not have been denied by the respondents as per Punjab Civil Service Rules. Further, the Bench said that, only if the Government employee had been murdered, the disqualification, as such, would arise. The said provision was based on the principle as provided under Section 25 of the Hindu Succession Act, 1956, wherein any person who commits murder or abets the commission of murder is disqualified from inheriting the property of the person murdered. In the present case, the conviction of the petitioner was not on account of murdering her husband, the Government employee.

“Even as per Rules of 2006, the object, is to tide over the emergent situation of the family of the deceased employee, resulting from the loss of the bread-earner by giving financial assistance…it is a beneficial piece of legislation, which fact has been lost sight of while passing the impugned order.”

 Resultantly, the Court opined that the order of denying pension to the petitioner on account of her conviction was unrelated to the death of her husband and was not sustainable. Accordingly, the said order was set aside and mandamus was issued to the respondents to pay the arrears of monthly financial assistance to the petitioner.

The Court further directed that the case of the petitioner for payment of family pension should also be processed and the arrears be paid to her with interest at 6% per annum. [Baljinder Kaur v. State of Haryana, 2021 SCC OnLine P&H 192, decided on 25-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench of S.A. Bobde, CJ and L. Nageswara Rao and Vineet Saran, JJ., heard the instant application filed for seeking clarification of the order dated 30-01-2018 as the applicants were not granted pension in accordance with the said order, though their names were found in the list of 214 beneficiaries. On January 30, 2018, the Court had held that the the Appellants were entitled to be paid the pension and had directed the State to pay pension to 214 beneficiaries in accordance with the relevant Scheme with effect from 01.01.2018. 

Government of Punjab had introduced a pension scheme in lieu of Contributory Provident Fund in the year 1991 which was ultimately introduced in 1999. The cut-off date fixed for implementation of the pension scheme was 01-07-1999. The appellants had approached this Court in past with Civil Appeal No.1298 of 2018, wherein the decision of the High Court of Punjab and Haryana of not interfering with the decision of Government whereby Government had rejected the request made by the applicants for altering the cut off date on the ground that there would be huge financial burden on the State exchequer. The Court had directed the State to obtain instructions about the actual financial liability of the State regarding a pension scheme proposed by it.

State had submitted that there were 214 persons who were eligible for the pension/family pension and the annual liability of the State would be Rs.3.79 Crores. It was also submitted by the State that the persons who retired between 1995 and 1999 would be eligible for the benefit of the scheme. Consequently, a direction was given by this Court to pay pension in accordance with the scheme to 214 beneficiaries mentioned by the State w.e.f. 01-01-2018.

The grievances of the applicants were that applicant 1 was retired on 30-04-1994 and the applicant 2 retired on 20-09-1997. The State had denied granting a pension to both the applicants on the ground that they had been retired prior to 11-05-1995 in spite of their name being in the list of 214 beneficiaries.

The Bench said that there was no merit in the argument of the state that only those persons who retired from service between 11-05-1995 and 30-06-1999 should be eligible for the benefit of the pension scheme. The Bench held that, the persons who were included in the list of 214 names given by the Government could not be deprived of the benefit of the scheme on any ground whatsoever.

Noticing the above mention, the Bench disposed of the present application by clarifying the judgment dated 30-01-2018 in Civil Appeal No.1298 of 2018 that all the 214 persons who were included in the list prepared by the State Government were entitled to grant of benefit in accordance with the pension scheme.

[Darshan Singh v. State of Punjab, 2021 SCC OnLine SC 37, decided on 22-01-2021]


Kamini Sharma, Editorial Assistant has put this story together

Business NewsNews

It has been brought to the notice of RBI that the recovery of excess /wrong pension payments from the pensioners are being made in a manner that is not in keeping with the extant guidelines / Court orders.

The said issue has been examined by RBI and it has been decided that the following circulars issued by Department of Government and Bank Accounts, Reserve Bank of India related to the recovery of excess pension paid by agency banks stands withdrawn with effect from the date of this circular –

  1. Circular no DGBA.GAD.No.2960/45.01.001/2015-16 dated March 17, 2016
  2. Circular no CO.DGBA (NBS) No.44/GA.64 (11-CVL) 90/91 dated April 18, 1991
  3. Circular no CO DGBA (NBS) No.50/GA.64 (11-CVL) 90/91 dated May 6, 1991.

Further, RBI noted that though the above-mentioned circulars issued under the signature of RBI stand withdrawn, agency banks are requested to seek guidance from respective Pension Sanctioning Authorities regarding the process to be followed for recovery of excess pension paid to the pensioners, if any.

As regards the issue of refund to be made to the government of excess/wrong pension payments, banks may be guided by the guidelines laid down in our Circulars Nos.DGBA.GAD.H10450/45.03.001/2008-09 dated June 1, 2009, and DGBA.GAD.H.4054/45.03.001/2014-15 dated March 13, 2015. Agency banks are again advised that, where excess pension payment has arisen on account of mistakes committed by the bank, the amount paid in excess should be refunded to the Government in lump sum immediately after detection of the same and without waiting for recovery of any amount from the pensioners.


Reserve Bank of India

Notification dt. 21-01-2021

Case BriefsHigh Courts

Allahabad High Court: Dr Kaushal Jayendra Thaker, J., modified the sum of the award granted to a widow by the Motor Accident Claims Tribunal.

The instant appeal was filed challenging the judgment and award passed by the Additional District Judge wherein the sum of Rs 70,000 with an interest of rate 7% was awarded.

Brief facts

The deceased was 62 years of age at the time of the accident. The claimant was the sole surviving legal heir of the deceased. Further, it was added that the deceased was a retired railway employee and was getting pension.

In view of the above circumstances, the pension was halved and the widow was getting Rs 14,000 which shows that she lost Rs 14,000 because of the sad demise of her husband.

MACT awarded a sum of Rs 70,000 while relying on the decision of Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 holding that there was no loss of income.

Further tribunal held that claimant was the legal heir and legal representative of the deceased, the deceased was 62 years of age whose income was shown to be Rs 30,000 per month but no document was produced, hence tribunal did not believe the income to the deceased to be Rs 30,000.

Tribunal also added to its observation that the deceased had been receiving the pension of Rs 28,000 and after his death, family pension of Rs 14,000 is being received by the claimant herself.

Therefore, as the deceased was getting Rs 28,000/- approx as a pension, 50% of the same he would be spending on himself and, therefore, Rs 14,000 would be the monthly datum figure available to the widow.

Issue:

Can the claimant a widow who receives family pension be deprived of compensation is the main question which arises for consideration. If the answer to it is in the negative, what compensation is she entitled to?

Bench stated that, Tribunal ought to have considered the fact that had her husband survived, she would have got a sum of Rs 28,000 per month which has now been halved. Court stated that the multiplier applicable would be ‘7’ as the deceased was in the age bracket of 61-65 years in view of the decision of the Supreme Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 which has been not considered by the Tribunal and has given reasonings which can be said to be questionable.

Further, relying on the decision of this Court in Regional Manager, UPSRTC v. Nisha Dubey, First Appeal from Order No. 3154 of 2013, no deduction from the pension is allowed.

In view of the above, total compensation of Rs 4,97,000 would be granted.

As far as the issue of rate of interest is concerned, it should be 7.5% in view of the latest decision of the Supreme Court in National Insurance Co. Ltd. v. Mannat Johal, (2019) 15 SCC 260.

The claimant is the widow of a railway officer and, therefore, she is not illiterate, hence, all the amount need not be invested but shall be transferred to her account.

In view of the above, the appeal was partly allowed. [Subhadra Pandey v. Siddharth Agrawal, First Appeal From Order No. 1237 of 2018, decided on 07-12-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal, Ernakulam: The Coram of Bidisha Banerjee (Judicial Member) and Nandita Chatterjee (Administrative Member) allowed the application granting desired relief to the ailing applicant.

The applicant has filed the present application seeking the disbursement of all the pensionary benefits with all consequential and incidental benefits due to him since his retirement and also in the future. The facts of the case are such that the applicant retired from the post of a police constable on 28-02-2017. He completed all the requisite formalities for disbursement of his post-retirement benefits. However, later he was informed that his service and office records were found to be incomplete and that his service register has been forwarded for verification meanwhile a recommendation for a provisional pension was made. Even after multiple representations for speedy disposal of all pensionary benefits, the same hasn’t been done by the respondent. Currently, the applicant is only drawing a provisional pension which is peanuts compared to what his actual monthly pension should be. Benefits to the tune of approximately Rs 30 lakhs are still due towards him from his employer department. The applicant has alleged that the delay in disbursement of full pension and terminal benefits is not due to the fault of the applicant but due to the laxity and callousness of the concerned higher officers. The applicant contends that he cannot be penalised for his senior’s fault. The applicant is a heart patient and he has landed in a tight spot both economically and mentally.

The applicant had earlier filed OA No. 56 of 2018 before this tribunal for a direction to the respondents to disburse the balance retirement benefits and balance pensionary benefits and the tribunal had disposed of the above OA by directing the respondents to consider his representation and dispose of the same by a speaking order within a period of two months. The respondent has still not initiated any steps to release the full pension.

Counsel for the respondent, S. Manu has submitted a detailed reply contending that the applicant is not entitled to receive the benefits prayed for. Upon verification of the service records, several discrepancies were revealed which indicated that the applicant used to habitually overstay his leave on several occasions without the permission of the competent authority and subsequently he was warned on several occasions. It is contended that there’s no deliberate delay on part of the respondents in sanctioning the pension. The applicant’s leave account is incomplete and there is a break in his service. Pensionary benefits can only be settled once the process of verifying the service record of the applicant is complete.

On careful perusal of the facts, circumstances and the arguments advanced this tribunal observed that it is evident that there is no serious dispute preventing the disbursement of full pension to the applicant. The applicant is entitled to receive his post-retirement benefits without any further delay.  The delay has been caused due to the actions of the department which failed to collect the details of applicant’s leave and period of overstay. More than two years have passed since his retirement and only a meager pension has been paid to him in this duration.

The tribunal finds no dispute regarding applicant’s eligibility of pension and the respondents have been directed to complete all the document-related formalities within a period of three months from the date of receipt of a copy of this order and pass necessary orders releasing the pensionary benefits entitled to the applicant. In the event of failure, the respondents will be liable to pay interest @ 12% per annum for the delay in granting the pensionary benefits to the applicant.

In view of the above, the present application has been allowed by the tribunal in applicant’s favour. [K. Koya v. Superintendent of Police, 2020 SCC OnLine CAT 333, decided on 07-09-2020]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.M. Shaffique and Gopinath P., JJ., while addressing the issue of disbursement of post-retirement benefits during the pendency of disciplinary proceedings held that only pension is to be paid with other benefits to be kept on hold.

The present petition has been filed by the State (respondents) against the interim order dated 12-12-2018 passed by the Kerala Administrative Tribunal (KAT) in O.A. No. 1873 of 2018.

The facts of the case are such that the respondent had filed an application (O.A. No. 1873 of 2018) before the KAT requesting disbursement of pension and other benefits, including DCRG due to him post-retirement. It was submitted by him that no proceedings are pending against him except an oral enquiry. The tribunal ended up granting him an interim relief observing that disciplinary proceedings will not stand in the way of disbursement of the pensionary benefits due.

Counsel for the petitioner, Chandrasekharan Nair has contended that no disciplinary proceedings were initiated against the respondent prior to his retirement. The enquiry has been sanctioned vide Govt. order dated 02-08-2018, pursuant to which proceedings were initiated against the respondent and an enquiry officer has been appointed. Failed attempts have been made to serve the memo of charges on the delinquent respondent. There are also other actions pending against the respondent. Given the circumstances, the tribunal ought to not have issued the order for disbursement of all the post-retirement benefits.

Counsel for the respondent, Gokul Babu has reiterated the respondent’s contention that he’s already been paid the requisite pension but DCRG and other benefits are still due to him.

After careful consideration of the facts, circumstances and the arguments advanced the Court observed, bearing in mind that certain disciplinary proceedings are still pending against the respondent, it would only be pertinent that the proceeding under the aforementioned O.A. is expeditiously disposed off. Also, till the time the same is disposed of, it is only fit that the payment of DCRG and other benefits to the delinquent respondent be kept in abeyance. Though, the respondent will continue to receive his pension as before.

In view of the above, the bench disposed of the petition in favour of the petitioners, staying KAT’s interim order dated 12-12-2018. [State of Kerala v. K. Jayakumar, 2020 SCC OnLine Ker 3613, decided on 20-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of R.K. Deshpande and N.B. Suryawanshi, JJ., while addressing an issue with regard to the deduction of pension by the Bank without any confirmation from the employer, observed that,

“The pension payable to the employees upon superannuation is a ‘property’ under Article 300-A of the Constitution of India and it constitutes a fundamental right to livelihood under Article 21 of the Constitution of India.”

“Pension cannot be deducted without authority of law.”

Petitioner a retired assistant foreman had a basic pension of Rs 1,334 as on 01-10-1994, consequent upon an increase in the pension and dearness allowance, the basic pension of Rs 25, 634 was fixed, for which the petitioner was entitled to and accordingly he was paid.

Right to Information Act, 2005

In the month of August, 2019 petitioner’s pension was reduced without consent or knowledge of the petitioner and thus he filed an application under the Right to Information Act, 2005 to know the reason for deduction and details as to the revision of the pension during the period 2015-16 and 2016-17.

Excess Payment of Pension

Respondent stated that there was an excess payment of pension to the petitioner.

Petitioner in view of the above approached the Court challenging the action of the respondent and sought a further direction to the respondents to restore the position in respect of payment of pension, prevailing prior to the deduction which commenced from 01-08-2019.

Excess Payment by SBI

State Bank of India-respondent stated that an amount of Rs 872 per month was erroneously paid in excess to the petitioner due to technical error in the system.

Reserve Bank of India

According to Circular No.RBI/2015-16/340-DGBA.GAD.No.2960/45.01.001/2015-16 dated 17-3-2016, clause (c), the bank claims to have an authority to recover the excess payment to the petitioner.

“c) In case the pensioner expresses his inability to pay the amount, the same may be adjusted from the future pension payments to be made to the pensioners. For recovering the over-payment made to pensioner from his future pension payment in installments 1/3rd of net (pension + relief) payable each month may be recovered unless the pensioner concerned gives consent in writing to pay a higher installment amount.”

Employer’s stand is very clear in the present case that the fixation of the petitioner’s pension was correct and proper.

Further, the employer has supported the claim of the petitioner and has no role to play in the matter of reduction of pension or its recovery.

Bench states that it is not the authority of the Bank to fix the entitlement of the pension amount of the employees other than the employees of the respondent-Bank.

Hence the action of the Bank to reduce the pension of the petitioner is unauthorised and illegal.

Furthermore, the Bank has failed to demonstrate any technical error in the calculations.

With regard to the RBI clause as stated above, Court stated that “once we hold that in fact there was no excess payment made to the petitioner, the question of applicability of the instructions issued by the RBI or undertaking given by the petitioner does not arise.” 

Principles of Natural Justice

Without following the principles of natural justice in the manner of either carrying out correspondence with regard to the correctness of the pension or an explanation in respect of the deduction, the said action on the part of the Bank is arbitrary, unreasonable, unauthorised and in flagrant violation of the principles of natural justice.

Breach of Trust

Bank is the trustee of the pensioner’s account and has no authority in the eyes of the law to dispute the entitlement of the pension payable to the employees other than those who are employed in the bank.

To tamper with the account is nothing but a breach of trust.

Court directed Bank to refund the amount of Rs 3,26,045 to the petitioner by crediting it in his pension account with interest at the rate of 18% p.a. from the date of deduction.

Further, the bank is required to be directed to pay the costs of Rs 50,000 to the petitioner towards the expenses of this petition.

Unfortunately, the time has come to tell the Bank that the aging is natural process, which leads to weakening of the body and mind.

Adding to its conclusion, Court stated that the Bank officials must realize that tomorrow it may be their turn, upon superannuation, to fight for the pension or post-retiral benefits. The thought process, therefore, to be adopted should be of a person in a situation like the petitioner.

Respect, dignity, care, sensitivity, assistance, and security would automatically follow.

Senior Citizens

It is a high time for the Banks to create a separate cell and to device a method to provide personal service through the men of confidence, at the door-step to the old aged, disabled and sick persons who are the senior citizens.

Bench directed registry to forward the copies of the Judgment to the Centralized Processing Pension Centres of all the Nationalized Banks and also to the Reserve Bank of India and the Chief Secretary, Government of Maharashtra, to consider the question of the constitution of separate cell and release of appropriate guidelines so as to attain the constitutional goal of providing respect, dignity, care, sensitivity, assistance and security to all the pension account holders in the Banks.[Naini Gopal v. Union of India, LD-VC-CW-665 of 2020, decided on 20-08-2020]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: A Division Bench of Justice Rajendra Menon (Chairperson) and Lt. Gen Phillip Campose (Member) A, allowed the application.

In the instant case, the respondents has prayed for revision of pension in accordance with the last rank held by him before retirement as a Junior Warrant Officer vide Government circular dated 09-02-2001 which states that ten months continuous service in the last rank is not required for grant of pension in such rank.

Counsel for the petitioners, Manoj Kumar Gupta has relied on the judgment titled Pramod Kumar Singh v. Union of India (O.A. 1166 of 2017) and Ashok Kumar Tanwar v. Union of India (O.A. of 882 of 2016) which waived on 10 months pension. He further submitted that pension cannot be deprived to an individual to a rank for which he has already rendered service and earned pension in the rank of JWO and is entitled for the same.

Counsel for the respondents, Avdhesh Kumar Singh submitted that holding the last rank before retirement for calculating pension has been dispensed with and the present calculation to give pension for the lower rank is financially beneficial.

After hearing both sides, the Tribunal relied on the judgment titled P. Gopalakrishnan v. Union of India (O.A. No. of 62 of 2014) and held that after going through various circulars presented it was found that the calculation made for the respondents was detrimental. He further observed that pension is a statutory right and the respondents cannot be denied the entitlement of the same. It was directed to recalculate the pension based on the relied judgment.

In view of the above, the application was allowed.[JWO Meghnath Majumdar v. Union of India, 2020 SCC OnLine AFT 1601, decided on 05-08-2020]


*Arunima Bose, Editorial Assistant has put this story together