ORISSA HIGH COURT: CUTTACK W. P.(C) NO. 265 OF 2002 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Port Pensioners Association, represented through the General Secretary, Sri Duryodhan Barik and others. …… Petitioners -Versus- Union of India and others ……. Opp. Parties For Petitioners : M/s. B.Routray, D.K.Mohapatra, D.Routray & P.Sinha. For Opp. Parties : Mr A.K.Mohanty-A, A.S.C. (Central) (For O.P.1) M/s. S.K. Padhi M.Padhi, D.Mohapatra D.Das & G.Mishra. (For O.Ps 2 and 3 ) ----------------------- Decided on 27.07.2010. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ---------------------------------------------------------------------------------------- M.M. DAS, J. The petitioners are the association of employees of Paradeep Port Trust, who have retired and are receiving pension known as “The Port Pensioners Association and its Office bearers”. The grievance of the petitioners in the present writ petition is that the authority of the Paradeep Port Trust (for short, ‘the P.P.T.’) are not releasing the medical allowance as per the decision of the Government of India, which is payable to the pensioners (members of the petitioners’-association) and the family pensioners with effect from 1.4.1995. The petitioners have prayed for issuance of a direction to the opp. parties 2 and 3 to implement the decision dated 3.1.2001 of the Union of India – opp. party no. 1 under Annexure-1 and subsequent clarification thereto by giving medical allowance to the members of the petitioners-association with effect from 1.4.1995 till December, 2000. On 2.8.2000, the settlement of Wage Revision, Retirement Benefits and Condition of Service of Port and Dock Workers was signed between the National Workers Federation and Management of all Major Port Trusts of India and the same was signed by the Director (Labour), Ministry of Surface Transport (Annexure-13). Thereafter, on 11.8.2000, the Chairman of the Bipartite Wage Negotiation Committee informed all Major Port Trusts of India including the P.P.T. that since the above settlement has been arrived at under section 12 (3) of the Industrial Disputes Act, 1947, there is no necessity to take further approval from the Central Government (Annexure-E/2 to the further affidavit filed by the opp. party no.2).Under Annexure-1, the Central Government informed the Chairman of 2 all Major Port Trusts of India including the P.P.P - opp. party no. 2 that pending finalization of the pension regulation, benefits in respect of 9 numbers of items of the pension regulation has been extended by the Central Government including payment of medical allowance with effect from 1.4.1995. The relevant portion of the said letter under Annexure-1 reads as follows:- “ GOVERNMENT OF INDIA, MINISTRY OF SURFACE TRANSPORT. No. A-38011/4/98-P.E.I. 3rd January, 2001. To The Chairman of al Major Port Trusts and Deputy Chairman of Dock Labour Boards. Subject- Liberalization of pension and pensionery benefits to the employees of the Major Port Trusts and Dock Labour Boards including the existing pensioners w.e.f. 1.4.1995. Sir, I am directed to say that the question of liberalization of the retirement benefits of the employees of the Major Port Trust and Dock Labour Boards has been under consideration of the Government. In this regard, a new pension scheme applicable to all categories of employees of the Port Trusts and Dock Labour Boards effective from 1.4.1995 is also under consideration of the Government. Pending finalization of the new pension regulations and duly made applicable in the Ports and docks, it has been decided to extend the following liberalized retirement benefits to the port and all employees who have retired or will retire under the Central Government definition of pay for the purpose of pension and pensionery benefit w.e.f. 1.4.1995. Xx xx xx Xx xx xx 3 IX. Medical Allowances: Pensioners residing in an area other than their port cities and not covered by the Port Trust medical facilities will be given a fixed amount of Rs. 150/- per month for meeting the expenditure on day- to-day expenses that do not require hospitalization.” 2. The P.P.T. in its letter dated 6.1.2001 under Annexure-7 extended the retirement/death gratuity in terms of Annexure-1 issued by the Central Government with effect from 1.4.1995. However, on 29.1.2001 under Annexure-4, the opp. party no. 2 – P.P.T. issued an office memorandum with a stipulation that medical allowance shall be allowed from January, 2001 to the pensioners/family pensioners not covered under Port Trust Medical facilities. 3. Mr. B. Routray, learned senior counsel for the petitioners contended that the above decision under Annexure-4 of the opp. party no. 2 – P.P.T. is contrary to the decision of the Central Government as well as the Bipartite settlement, which has been arrived at under the Industrial Disputes Act inasmuch as from the Annexure-R.I.C. made to the additional count affidavit filed by the Union of India, it is found that on 31.5.2001, the Central Government informed the Managing Director, Indian Ports Association that it has communicated its 4 decision to give effect to the pension and pensionery benefits to the pensioners and family pensioners from 1.4.1995. However, clarification was made by the Union of India on 28.6.2001 as at Annexure-3 that the pensionery benefits extended in its letter dated 3.1.2001 (Annexure-1) will also apply to the petitioners, who retired prior to 1.4.1995 in respect of the medical allowance. From Annexure-1 made to the affidavit filed by the opp. parties 2 and 3, it transpires that on 19.12.2005 the Central Government informed all the Chairmen of Major Port Trusts of India including the P.P.T. that the Common Pension Regulations have been approved by the Central Government in principle, pursuant to which, the P.P.T. Board obtained approval for payment of gratuity under the Payment of Gratuity Act, 1972 instead of payment under the C.C.S. (Pension) Rules, 1972. 4. This Court in course of hearing of the writ petition, on 16.3.2009 directed the opp. party no. 1 Union of India to file further affidavit clarifying as to whether the letter under Annexure-1 has been superseded by any competent authority of the Government of India or not. The P.P. T. was also directed to file a further affidavit stating as to whether it was following the P.P.T. Employees (Pension) Regulation, 2000 or not. The only statement that has been made in the affidavit is 5 that the P.P.T. is following the C.C.S. Pension Rules as the aforesaid regulation has not been approved by the Central Government. The petitioner filed a further affidavit in reply to the affidavit of the of the P.P.T., inter alia, enclosing the pension papers of the two retired employees of the P.P.T. which goes to show that the aforesaid regulation 2000 has been followed after 3.1.2001 and not C.C.S. (Pension) Rules, 1972, as has been stated in the affidavit filed by the Port Trust. This stand is also unsustainable in view of the fact revealed from Annexure-15 series, which goes to show that by an order dated 12.8.2000 the Port Trust sanctioned payment under Superannuation in which 33% of pension was being commuted and after Port Pensioners’ Regulation, 2000 was introduced, 40% of pension is being commuted as would be seen from the order dated 20.1.2005 of the Port Trust. In the additional affidavit filed by the Union of India in response to the direction of this Court, the Central Government admitted that its order dated 3.1.2001 under Annexure-1 regarding grant of medical allowance has not been superseded by any competent authority. 5. Mr. S.K. Padhi, learned senior counsel appearing for the P.P.T. vehemently argued that the petitioners have not challenged the Government of India notification dated 3.1.2001 6 (Annexure-1). They have sought to implement the said Annexure-1 and they have not challenged the validity of Annexure-1, which is the communication issued by the Under Secretary to the Government of India, Ministry of Surface Transport and the communication has been made to the Chairmen of all Major Port Trusts. The subject of the said notification is started as “Liberalization of pension and pensionery benefits to the employees of the Major Port Trusts and Dock Labour Boards including the existing pensioners w.e.f. 1..4.1995”. Notwithstanding the heading under the subject that the liberalization of pension and pensionery benefits of the employees would be given with effect from 1.4.1995, the contents of the said letter would indicate that different benefits would be given from different dates. The said letter also indicates that family pension would be given from 1.1.1997 and medical allowance of Rs. 150/- would be given. The letter does not say that the medical allowance shall be given with effect from 1.4.1995 and all new benefits unless specifically made retrospective, are always prospective in nature. Hence, the contention of the petitioner that implementation of Annexure-1 would mean that the medical allowance would be given with effect from 1.4.1995 is itself misconceived. In the clarification given by the Government of India under Annexure-2 7 as per the query of Kandia Port Trust, it has been stated that the family pensioners are entitled to get an amount of Rs. 150/- per month for meeting the expenditure in case they do not require hospitalization. In the said clarification, it has also not been stated that the benefits would be from 1.4.1995. In the clarification dated 28.1.2001, it has also not been stated that the medical allowance would be given with effect from 1.4.1995. The entire claim of the petitioners that Annexure-1 itself indicates that the medical allowance would be given effect from 1.4.1995 has no basis. He further submitted that the benefit of medical allowance is not under any statute or rules of the Government and it is under the administrative instruction/directions issued by the Ministry of Surface Transport. Mr. Padhi further submitted that the aforesaid instruction does not have any ambiguity and does not contain any clause by which it can be inferred that the medical allowance would be payable with effect from 1.4.1995. Even assuming that there is any amount of ambiguity in the aforesaid communication made under Annexure-1, any instruction of the Government can only be clarified by the Government and none else. The Government of India has clarified the aforesaid fact in various affidavits filed before this Court. Therefore, Mr. Padhi submitted that in view of the affidavit of the Government of India clarifying that the 8 medical allowance shall be extended with effect from 3.1.2001, there remains no ambiguity or doubt regarding the interpretation of Annexure-1. Regarding the question as to whether the medical allowance is payable from 1.4.1995 or with effect from the date of order, i.e. 2001 (because of the heading of the letter that pensionery benefits with effect from 1.4.1995). Mr. Padhi submitted that Annexure-1 has been issued to all Major Port Trusts and all Major Ports are guided by the said instructions/directions of the Government of India and the same cannot have any retrospective attached to it. It has been clarified by all the Major Ports that the medical allowance is payable by their respective Ports with effect from January, 2001. This communication has been made by Kandia Port Trust, Chennai Port Trust, Visakhapatnam Port Trust, Cochin Port Trust, Kolkata Port Trust, Tumcorin Port Trust vide Annexure-C/2 series. It was further contended by Mr. Padhi that the Government of India having stated in the affidavit that the introduction of new fixed medical allowance is an additional facility and not liberalization of an existing pensionery benefit, such new benefit has to be reckoned from a prospective date unless a decision to the contrary is available and, therefore, the said allowance of Rs. 150/- per month being a new benefit, it 9 should be extended only from the date of issuance of the order, i.e., 3.1.2001 and not retrospectively. 6. On a plain reading of Annexure-1, it is clear that the Government of India was unambiguous with regard to its intention that till a new/uniform pension scheme is made applicable to all Major Port Trusts and Dock Labour Boards, which is under consideration of the Government of India, pending finalization of such new pension regulations and till such uniform pension scheme is duly made applicable to the Ports and Docks, Government of India decided to extend the said liberalized retirement benefits to the Ports and Docks employees, who have retired or will retire under the Central Government definition of Pay for the purpose of pension and pensionery benefit with effect from 1.4.1995. Stating thus, the Government of India has added the medical allowance as pensionery benefits under Clause IX in the said letter. As already stated, the Government of India in its further affidavit has made it clear that the said letter under Annexure-1 has not been superseded by any competent authority. It is also an admitted case that the new/uniform pension regulation, which is intended to be made applicable to all Port Trusts and Dock Labour Boards, which was under the consideration of the Government of India, has not yet 10 come into effect. Therefore, the contention of Mr. Padhi that the medical allowance does not come under liberalization of pension and pensionery benefits, cannot be accepted. 7. In view of the above conclusion of this Court, this writ petition is bound to succeed. Hence, it is directed that the P.P.T. shall pay the medical allowance to all the pensioners residing in an area other than the Port Cities and not covered by the Port Trust medical facilities @ Rs. 150/- per month with effect from 1.4.1995 since the said allowance is being paid from January, 2001 to such pensioners/family pensioners, the amount due for the period from 1.4.1995 till December, 2000 shall be paid to such pensioners/family pensioners by the P.P.T. within a period of one month from the date of communication of this order. 8. In the result, the writ petition is allowed, but in the circumstances, without cost. ………………… M.M. Das, J. Orissa High Court, Cuttack. July, 27th , 2010/Biswal. 11 12 13 14