IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.6.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeal No.1384 of 2008 K.S.Nagarajan ... Appellant Vs. 1.Government of India, represented by its Secretary, Ministry of Petroleum and Natural Gas, New Delhi. 2.The Chairman and Managing Director, Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun. 3.The Director (Human Resources) Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun. 4.The Director (Technical and Field Services) Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun. ... Respondents * * * Writ Appeal preferred under clause 15 of the Letters Patent, as against the order of the learned single Judge dated 27.6.2008 made in W.P.No.25571 of 2003. Writ Petition praying to issue a Writ of certiorarified Mandamus calling for the records pertaining to the impugned communication of the second respondent made in his reference No.31(1930)/200/TS/E1 dated 7.8.2003 quash the same and consequently direct the respondent Nos.2 to 4 to count the service of the Petitioner rendered with Indian Navy between 16.10.1967 and 31.10.1977 and his service with the Madras Port Trust between 11.2.1978 and 12.2.1984 for the purpose of calculating the petitioner's retirement benefits under the voluntary retirement scheme on condition that the petitioner should pay the sum of Rs.1,300/- with interest at the rate of 6% p.a. from 31.10.1977 till https://hcservices.ecourts.gov.in/hcservices/ date and the sum of Rs.2,850/- with interest at the rate of 6% p.a. from 12.1.1984 till date. * * * For appellants : Mr.B.N.Suchindran For R.1 : Mr.P.Chandrasekaran For R.2 to R.4 : Mr.Vijayan for M/s.King & Patridge * * * JUDGMENT ELIPE DHARMA RAO, J. The appellant, a retired employee of the respondents 2 to 4/Oil and Natural Gas Corporation (ONGC for short) has filed these writ proceedings, seeking to count his past service with the Navy and the Madras Port Trust for gratuity purposes. His case is that he joined as Wireless Telegraphist in Indian Navy on 16.10.1967 and after completion of ten years of service, he was discharged from service on 31.10.1977. Thereafter, he joined the service of Madras Port Trust as Mazdoor on 17.2.1978 and later on, he was re-designated as Assistant/Technician. While in the service of the Madras Port Trust, the appellant has applied to the ONGC, through proper channel. Upon his appointment in the ONGC, he resigned his services in the Madras Port Trust on 12.1.1984 and joined the services of ONGC on 16.1.1984 as Junior Engineer. Gradually, he rose upto the level of Deputy Superintending Engineer (Electrical). While so, the ONGC has promulgated a scheme for voluntary retirement by an order dated 31.8.2001 in Office Order No.30/2001. The appellant has opted for this scheme and in fact, retired as such on 30.9.2003. However, during the pendency of his application for voluntary retirement, the appellant has requested the respondents 2 to 4/ONGC to take into count his earlier service in the Navy from 16.10.1967 to 31.10.1977 and his service in the Madras Port Trust from 17.2.1978 to 12.2.1984 for the purpose of calculating the gratuity. Considering his request, the ONGC, by its communication dated 28.2.2002 has informed the appellant his past services in Madras Port Trust can be considered for counting for the purpose of gratuity only, provided the amount is transferred to ONGC along with 12% interest per annum. He has also been informed, under the said communication that he is not entitled to get any consideration for the service rendered by him in the Indian Navy since he has not joined directly in ONGC from Indian Navy. This communication of the appellant dated 28.2.2002 was challenged by the appellant by filing W.P.No.11734 of 2002 and a learned single Judge of this Court, by the order dated 24.7.2002, has directed the appellant to make his representation before the second respondent within three weeks and the second respondent was directed https://hcservices.ecourts.gov.in/hcservices/ to consider and dispose of the representation of the appellant on merits and in accordance with law with an opportunity for the appellant to be heard within four weeks thereafter. 2. Thereafter, the appellant submitted his representation on 3.9.2002 and contending that even though personal hearing took place on 28.10.2002, and he also submitted his clarifications to certain queries raised by the ONGC, by letter dated 4.11.2002, his representation was not disposed of by the ONGC officials, the appellant filed Contempt Petition No.630 of 2003 before this Court, praying to punish the second respondents for disobeying the order of the Court. But, since, during the pendency of this contempt petition, the present impugned order came to be passed, the said contempt petition was closed by this Court, the appellant has initiated the present writ proceedings. Since a learned single Judge of this Court has dismissed his prayer, the appellant has come forward to file this writ appeal. 3. We have heard the learned counsel appearing for both sides. 4. The learned counsel for the appellant would argue that the Voluntary Retirement Scheme promulgated by the respondents/ONGC assured gratuity as per ONGC Death, Retirement and Terminal Gratuity Rules, 1995 ('Rules', in short). The learned counsel would further argue that Rule 7 of the said Rules provides transfer of gratuity and applying the said provision of law, the respondents 2 to 4 should have ordered to take into count the services rendered by the appellant in Indian Navy and the Madras Port Trust for gratuity purposes. 5. Since the issue revolves around the said Rule, the same is extracted hereunder: "7. TRANSFER OF GRATUITY: 7.1: In case where an Employee of the Company moves to any other Public Sector Undertaking with the consent of the company and the other undertaking concerned, the Company shall arrange with the transferee undertaking to pay the gratuity earned during the service rendered in the Company as if the Employee concerned had retired from the service of the Company on the date of his transfer under the rules applicable to him. 7.2: The condition of minimum continuous service of 5 yeas specified in these Rules would not be invoked when such transfer takes place with the consent of both the organisations. 7.3: The provisions as per sub-rules 7.1 & 7.2 above shall be equally applicable to the Employees joining the Company from other Public Sector Undertakings/Government Companies. https://hcservices.ecourts.gov.in/hcservices/ However, in respect of Central Government Employees joining the Company this benefit of past service will not be available. 7.4 : In the past where the employees had joined the Company from other public enterprises without break in service and have not deposited or got the gratuity transferred to the Company but had received payment towards gratuity, they can request for counting of their past service towards payment of gratuity. In that case the amount of gratuity received should be deposited with the Company along with interest @ 12% p.a. by the individual. In such cases the period of service actually rendered in the previous organisation may be taken into account for calculation of gratuity finally payable by ONGC in accordance with the Company's Rules." 6. The above Rule makes it clear that the services rendered by the employees can be taken into count for calculating gratuity, under the conditions mentioned therein. But, it has been clearly mentioned therein that this benefit will not be applicable to the Central Government Employees joining the ONGC. 7. The appellant is placing reliance on Rule 7.3 above to contend that his past services, both in Navy and Madras Port Trust, should be taken into count. 8. The stiff opposition from the ONGC is that since the appellant has not joined the ONGC directly from Indian Navy, that service cannot be taken into count. The appellant placed reliance on Rule 19 of the Central Civil Services (Pension) Rules, to contend that even the military service rendered before civil employment has to be taken into count. 9. It is to be pointed out that Rule 19 of the Central Civil Services (Pension) Rules contemplated counting of military service rendered before civil employment. Under Rule 19(1) of the CCS (Pension) Rules, 1972, a Government servant who is re-employed in a civil service or post is required to give an option at the time of his confirmation in the civil post whether he would like to get past military service counted for pension in the civil post whether he would like to get past military service counted for pension in the civil post or service. 10. The Government had issued orders vide O.M.No.38/16/Pension Unit/80, dated the 30th December, 1980, allowing the Government servants to get pension after completion of twenty years of service either on invalidation or superannuation. On the recommendations of the Fourth Central Pay Commission, the Government has further decided, vide OM No.2/4/87-PIC, dated the 14th April, 1987, that a Government servant will get pension under the CCS (Pension) Rules, https://hcservices.ecourts.gov.in/hcservices/ either on superannuation or on invalidation after rendering ten years of temporary service in the Government. Thereafter, it has been decided that all those Government servants who retire on superannuation or invalidation without confirmation after rendering not less than ten years of combined military and civil service shall be entitled to the benefit of counting of service under Rule 19(1). But, even according to the appellant, as could be seen from Para No.6 of the affidavit filed in support of the writ petition, if the re- employed ex-serviceman desires to take advantage of the retirement benefits based on combined military and civil services he should exercise such option within one year from the date of his re- employment. But, despite such circulars and memorandum, the administrative officials of Public Sector Undertakings failed to incorporate such clauses in their appointment orders and hence, the Government has issued another office Memorandum in OM No.28/29-93-P- PW(D), dated 23.5.1994, extending the time for such option upto 23.11.1994. According to the appellant, he has submitted his representation on 24.9.1993 to the Member (Technical), ONGC, pointing out clearly that his services in Indian Navy and under the Madras Port Trust, should be counted for the purpose of calculating his benefits at any point of time. 11. But, as has been rightly pointed out on the part of the respondents, the appellant has not joined the services of respondents 2 to 4/ONGC directly from the Indian Navy, so as to say that ONGC should apply Rule 19 of the Central Civil Services (Pension) Rules to the case of the appellant. The appellant should have taken steps during his service with the Port Trust, to take his service in Navy also into count while calculating his terminal benefits. Having left that opportunity, he cannot seek his third employer in the row, the ONGC, to take his services both with Navy and Port Trust to count his gratuity. Had the appellant taken such steps with the Madras Port Trust itself, there would not have been any impediment for the respondents 2 to 4/ONGC to take that service also into count, since in the impugned order itself they have agreed to take into consideration the services rendered by him in the Madras Port Trust w.e..f. 17.2.1978 to 12.1.1984 for the purpose of gratuity only, but with some conditions necessary. The intention of the ONGC from the impugned order is clear that they could take into count the services of the appellant in the Madras Port Trust, if he deposits the entire gratuity amount received from Madras Port Trust along with 12% interest per annum with ONGC. But, since the appellant was contending that he did not receive any gratuity, the appellant has been advised to take up that issue with the Madras Port Trust, if he so desires. 12. At this juncture it is also to be pointed out that even though at the initial stages, the respondents 2 to 4/ONGC have taken strong objection to take into count the services rendered by the https://hcservices.ecourts.gov.in/hcservices/ appellant in the Madras Port Trust on the ground that there is break of service (the appellant resigned the services of Madras Port Trust on 12.1.1984, but joined the ONGC only on 16.1.1984), under the impugned order, they were generous enough to ignore this aspect. However, since the benevolent act of the respondents 2 to 4/ONGC has not helped him, in view of lack of any material in support of his contentions regarding the gratuity paid/payable by the Madras Port Trust, the appellant has filed these writ proceedings. 13. It has been argued on behalf of the appellant that on his submitting the application for counting his past service, the present employer/ONGC should have taken steps to get the details from the Madras Port Trust, instead of fixing burden on him. There cannot be any doubt that in the service jurisprudence, if an employee submits such an application, to take into count his past services for pensionary benefits, it is for the employer to call for details from the erstwhile employer of the employee. In the case on hand, the present employer of the appellant viz. ONGC has onerously discharged this duty, by addressing a letter in No.DBG/PF-03/2000, dated 11.12.2001 to the Madras Port Trust, calling for the details of the service of the appellant with the Madras Port Trust. By the letter dated 16.3.2002, placed at page No.23 of the typed set of papers, the Madras Port Trust (now Chennai Port Trust) has informed the ONGC that 'the records for the period from 17.2.1978 to 12.1.1984 of the appellant were destroyed by their and hence the request for discharge of the pro-rata pension liability for the services rendered by him for the said period could not be furnished as required, at this distant date.' 14. Thus, we cannot find fault with the ONGC since they have acted promptly and properly in accordance with the established principles of service jurisprudence. But, since the attempt made on the part of the ONGC emanated no fruitful result, they have to necessarily fall back on the appellant to get authenticated material regarding his request. When the ONGC has thus sought information from the appellant, the appellant has stated that the burden lies with the ONGC to get those particulars, which we are unable to appreciate. 15. Further, even though, the appellant is maintaining that he did not receive any amount from the Madras Port Trust, with abundant caution, he calculated his probable gratuity at the Madras Port Trust at Rs.2,850/= and attempted to remit the same with 6% interest per annum on that amount with the ONGC, which was refused to be accepted by ONGC. But, in the absence of any records or materials to prove as to whether the appellant has received any gratuity from the Madras Port Trust and if so to what extent, we find no logic in the prayer of the appellant to arrive at his own calculation of the gratuity and remitting the same with the Madras Port Trust. https://hcservices.ecourts.gov.in/hcservices/ 16. The fact remains that the appellant has not made the Port Trust as a party to these proceedings so as to assess the claim of the appellant. While on the part of the appellant it is being claimed that he has not received any amount as gratuity from the Port Trust, there is nothing on record to verify the genuineness or otherwise of this contention of the appellant, due to lack of records. 17. It has been argued on the part of the respondents 2 to 4 that the appellant has given his application, only after his retirement. This contention of the respondents 2 to 4 has been stoutly denied on the part of the appellant, stating that he has submitted his representation on 24.9.1993 to the Member (Technical), ONGC, pointing out clearly that his services in Indian Navy and under the Madras Port Trust, should be counted for the purpose of calculating his benefits at any point of time. Even if the applicant had given his application only after retirement, as has been contended on the part of the respondents 2 to 4, we cannot find any fault with the appellant for the simple reason that there is no time limit prescribed in the ONGC Gratuity Rules, to submit such application. Therefore, the request of the appellant has rightly been rejected by the respondents. This appeal filed by the appellant lacks merits and the same is, accordingly, dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Rao To 1.The Secretary to Government of India, Ministry of Petroleum and Natural Gas, New Delhi. 2.The Chairman and Managing Director, Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun. 3.The Director (Human Resources) Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun. https://hcservices.ecourts.gov.in/hcservices/ 4.The Director (Technical and Field Services) Oil and Natural Gas Corporation, Headquarters, Tel Bhavan, Dehradun +1 CC to Mr.Kind and Patridge, Advocate, S.R.No.37755 +1 CC to Mr.P.Chandrasekaran, Advocate, S.R.No.37309 +1 CC to Mr.B.N.Suchindran, Advocate, S.R.No.37240 Judgment in W.A.No.1384/2008 GV(CO) SRA(20/7/2011) https://hcservices.ecourts.gov.in/hcservices/