IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 OP.No. 24013 of 2001(H) --------------------------------- PETITIONER: ----------------- V.S. RAVINDRANATHAN, VALATH HOUSE, P.O. NATTIKA, THRISSUR DIST. BY ADV. SRI.N.P.SAMUEL SRI.B.K.PURUSHOTHAMAN RESPONDENTS: ----------------------- 1. FOOD CORPORATION OF INDIA, REP. BY CHAIRMAN, FCI HEAD QUARTERS 'KHADYA SADAN', 16-20, BARAKHAMBA LANE, NEW DELHI- 110 001. 2. THE ZONAL MANAGER (NORTH), FOOD CORPORATION OF INDIA, ANSAL BHAVAN, K.G. MARG, NEW DELHI. 3. THE SENIOR REGIONAL MANAGER, FOOD CORPORATION OF INDIA, PUNJAB REGION, CHANDIGARTH- 160 022. 4. THE ASSISTANT MANAGER (PENSION), OFFICE OF THE ZONAL MANAGER (NORTH), FOOD CORPORATION OF INDIA, ZONAL OFFICE, NEW DELHI. BY ADV. SMT.V.P.SEEMANDINI (SR.) - SC - FCI GOVT. PLEADER SRI. SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008, THE COURT ON 27/05/2008 DELIVERED THE FOLLOWING: ORDER ON CMP NO. 39413/2001 IN OP NO. 24013/2001 H. DISMISSED 27/05/2008. SD/- P.N.RAVINDRAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE JUDGMENT DT. 2/11/00 OF THIS COURT. EXT.P2. COPY OF THE REPRESENTATION BY THE PETITIONER TO THE R2 DT. 30/1/2001. EXT.P3. COPY OF THE LETTER NO. EV/VSR/93-2000/735 DT. 18/5/2001 BY R4. EXT.P4. COPY OF THE REPRESENTATION BY THE PETITIONER BEFORE R2 ON 16/4/92. EXT.P4A. COPY OF THE REPRESENTATION BY THE PETITIONER TO THE R2 DT. 24/2/93. EXT.P5. COPY OF THE ORDER NO. VIG. 21(FZR-80)/89/8180 DT. 23/12/00 BY R3. EXT.P6. COPY OF THE REPRESENTATION BY THE PETITIONER BEFORE R3 DT. 15/6/2001. EXT.P7. COPY OF THE ORDER NO. PF/V/ 62.E1/NZ/361 DT. 13/5/91 BY R2. EXT.P8. COPY OF THE JUDGMENT IN CIVIL WRIT PETITION NO. 3746/87 OF THE HIGH COURT OF PUNJAB AND HARIYANA DT. 24/4/97. EXT.P9. COPY OF THE FCI NO. A/25(3)/FT/GPF/74 DT. 26/08/1974. RESPONDENT'S EXHIBITS: EXT.R1A. COPY OF THE ORDER DT. 2/12/80. EXT.R1B. COPY OF THE ORDER DT. 25/3/81. EXT.R1C. COPY OF THE ORDER DT. 20/4/93. EXT.R1D. COPY OF THE ORDER DT. 27/5/96. EXT.R1E. COPY OF THE GOVT. OF INDIA NOTIFICATION NO. 52/1/79 FCI/111 DT. 10/7/1979. EXT.R1F. COPY OF THE COMMUNICATION DT. 25/3/1981. EXT.R1G. COPY OF THE CIRCULAR NO. 13-1/74/ EP DT. 11/1/1977. True copy Tga P.N.Ravindran, J. ============== O.P.No.24013 of 2001 =============== Dated this the 27th day of May, 2008. JUDGMENT The petitioner entered service in the Food Department of the Government of India on 26.3.1959. After the Food Corporation of India was established and it took over the functions of the Food Department of the Government of India, the petitioner was absorbed in the service of the Food Corporation of India, hereinafter referred to as the "Corporation" for short. The petitioner retired from the service of the Corporation as Assistant Manager (QC) on 30.6.1993, while he was serving at Ferozepur in the State of Punjab. 2. When the functions of the Food Department of the Government of India were taken over by the Corporation, Section 12A was introduced in The Food Corporations Act, 1964, hereinafter referred to as the "Act", for short. Sub-section (1) of OP 24013/01 -: 2 :- Section 12A of the Act stipulated that where the Central Government has ceased or ceases to perform any of the functions which under Section 13 are functions of the Corporation, it shall be lawful for the Central Government to transfer to the Corporation any of the officers or employees serving in the Department of the Central Government dealing with food or any of its subordinate or attached offices engaged in the performance of those functions. Sub-section (3) of Section 12A of the Act provided that an officer or other employee transferred by an order made under sub-section (1) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, subject to the provisions of sub-sections (4), (5) and (6), be governed by the regulations made by the Corporation under the Act as respects remuneration and other conditions of service including pension, leave and provident fund, and shall continue to be an officer or employee of the Corporation unless and until his employment is terminated by the Corporation. Sub-section (4) of Section 12A of the Act as enacted reads thus: OP 24013/01 -: 3 :- "(4) Every officer or other employee transferred by an order made under sub-section (1) shall, within six months from the date of transfer, exercise his option in writing to be governed:- (a) by the scale if any applicable to the post held by him under the Government immediately before the date of transfer or by the scale of pay applicable to the post under the Corporation to which he is transferred, (b) by the leave, provident fund, retirement or other terminal benefits admissible to employees of the Central Government in accordance with the rules and orders of the Central Government as amended from time to time or the leave, provident fund or other terminal benefits admissible to the employees of the Corporation under the regulations made by the Corporation under this Act and such option once exercised shall be final: Provided that the option exercised under clause (a) shall be applicable only in respect of the post to which such officer or employee is transferred to the Corporation and on appointment to a higher post under the Corporation, he shall be eligible only for the scale of pay applicable to such higher post: Provided further that if immediately before the date of his transfer any such officer or employee is OP 24013/01 -: 4 :- officiating in a higher post under the Government either in a leave vacancy or in any other vacancy of a specified duration, his pay, on transfer, shall be protected for the unexpired period of such vacancy and thereafter he shall be entitled to the scale of pay applicable to the post under the Government to which he would have reverted or to the scale of pay applicable to the post under the Corporation to which he is transferred, whichever he may opt: Provided also that when an officer or other employee serving in the Department of the Ministry of the Central Government dealing with food or in any of its attached or subordinate offices is promoted to officiate in a higher post, in the Department or office subsequent to the transfer to the Corporation of any other officer or employee senior to him in that Department or office before such transfer, the officer or other employee who is promoted to officiate in such higher post shall, on transfer to the Corporation, be entitled only to the scale of pay applicable to the post he would have held but for such promotion or the scale of pay applicable to the post under the Corporation to which he is transferred, whichever he may opt." 3. Section 12A was introduced in the Act by Amendment OP 24013/01 -: 5 :- Act, 57 of 1968. The petitioner asserts that he had after joining the Corporation, opted to be governed by the Central Government Rules. He states that he was also allotted a new general provident account number. Reliance is placed on Ext.P9 letter dated 26.8.1974 sent by the District Manager of the Corporation at Ferozepur to the Senior Assistant Manager (A/Cs), Ferozepur, enclosing a copy of the letter dated 19.8.1974 sent from the Head Office of the Corporation. Therein, the petitioner's name appears at serial No.6 and it is seen that he was also allotted a new G.P.F. account number. It was after Section 12A was introduced in the Act that the petitioner opted to be governed by the Central Government Rules, as can be seen from Ext.P9. The effect of the option exercised by the petitioner under sub-section (4) of Section 12A of the Act was that he would be governed by the scale of pay applicable to the post held by him under the Central Government and to the leave, provident fund, retirement and other terminal benefits admissible to employees of the Central Government in accordance with the rules and orders of the Central Government as amended from time to time. By Amendment Act 12 of 1977, which came into force with effect OP 24013/01 -: 6 :- from 31.12.1976, sub-sections (4-A), (4-B) and (4-C) were introduced in Section 12A of the Act. Sub-sections (4-A), (4-B) and (4-C) of Section 12A of the Act read thus: "(4-A) Notwithstanding anything contained in sub-section (4):- (a) every officer or other employee in respect of whom an order of transfer under sub-section (1) had been made before the date of commencement of the Food Corporations (Amendment) Act, 1977 (hereinafter in this section referred to as the appointed day) shall, whether or not he had exercised the option under sub-section (4) before the appointed day, exercise such option within six months from the appointed day; and (b) every officer or other employee in respect of whom an order of transfer under sub-section (1) may be made after the appointed day shall, within six months from the date of such order, exercise his option under sub-section (4), and in each such case such option once exercised shall be final: Provided that where an officer or other employee having exercised an option under sub- section (4) before the appointed day- (i) has died or retired before the appointed day, OP 24013/01 -: 7 :- or dies or retires after the appointed day, before exercising the option as required by this sub-section or (ii) does not exercise the option as required by this sub-section, the option already exercised by him shall be deemed to have been validly exercised by him under sub-section (4). (4-B) Where an officer or other employee- (a) has died or retired, or dies or retires, after an order of transfer under sub-section (1) in respect of such officer or other employee is made but before exercising the option under sub-section (4) or, as the case may be, as required by sub-section (4-A); or (b) has died or retired, or dies or retires, before an order of transfer under sub-section (1) in respect of such officer or other employee is made, he shall, notwithstanding anything contained in sub-section (4) or sub-section (4-A)- (i) in a case falling under clause (a), be deemed to have exercised an option under sub-section (4); and (ii) in a case falling under clause (b), be deemed to have been transferred under sub-section (1) and exercised an option under sub-section (4), to be governed by the leave, provident fund, retirement or other terminal benefits admissible to the OP 24013/01 -: 8 :- employees of the Central Government in accordance with the rules and orders of the Central Government as amended from time to time. Provided that nothing in clause (a) of this sub- section shall apply to an officer or other employee who has, before the appointed day, been paid the terminal benefits as admissible to the employees of the Corporation under the regulations made by the Corporation under this Act, unless such officer or other employee refunds in a lump sum within six months from the appointed day the amount of contributions made by the Corporation towards such terminal benefits: Provided further that nothing in clause (b) of this sub-section shall apply to an officer or other employee who has intimated, under the proviso to sub-section (1), his intention of not becoming an employee of the Corporation. (4-C) Where an officer or other employee has exercised an option under sub-section (4), or exercises, or is deemed to have exercised, an option under that sub-section, read with sub-section (4-A) or sub-section (4-B), to be governed by the leave, provident fund, retirement or other terminal benefits admissible to the employees of the Central Government, such benefits shall be calculated on the OP 24013/01 -: 9 :- basis of the pay and allowances drawn by him in the Corporation." 4. In view of sub-section (4-A) of Section 12A of the Act, the petitioner and other employees of the Corporation who were transferred from the Food Department of the Government of India to the Corporation, had to exercise a fresh option within six months from the appointed day, namely, 31.12.1976. The proviso to sub-section (4-A) of Section 12A of the Act however stipulated that where an officer or employee having exercised an option under sub-section (4) before the appointed day (i.e. before 31.12.1976) does not exercise a fresh option as required by sub-section (4-A) of Section 12A of the Act, the option already exercised by him shall be deemed to have been validly exercised by him under sub-section (4) of Section 12A of the Act. Sub- section (4-C) of Section 12A of the Act as amended provides that where an officer or other employee has exercised an option under sub-section (4) to be governed by the leave, provident fund, retirement or other terminal benefits admissible to the employees of the Central Government, such benefits shall be calculated on the basis of the pay and allowances drawn by him in the OP 24013/01 -: 10 :- Corporation. Pursuant to the amendment introduced by Act 12 of 1977 to Section 12A of the Act, the Corporation issued Ext.R1(g) circular dated 11.1.1977 bringing to the notice of the officers and employees in the service of the Corporation that they are required to make a fresh option in terms of sub-section (4-A) of Section 12A of the Act within six months from 31.12.1976. The petitioner, admittedly did not exercise a fresh option within the time limit fixed in sub-section (4-A) of Section 12A of the Act. 5. By Ext.R1(e) order dated 10.7.1979, the Government of India transferred the petitioner and other employees serving in the Food Department of the Government of India, the Regional Directorate of Food, the Procurement Directorates and the Pay & Accounts Offices of the Department of Food to the Corporation. The said order was issued in terms of the proviso to sub-section (1) of Section 12A of the Act. Ext.R1(e) states that the employees named therein have not intimated their intention of not becoming employees of the Corporation as required by sub section (1) of Section 12A of the Act and within the time stipulated in the circular dated 16.4.1971 issued by the Central Government. In Ext.R1(e), the name of the petitioner appears at OP 24013/01 -: 11 :- serial No.12, his designation is shown as Senior Godown Keeper and the date of his transfer to the Corporation is shown as 1.3.1969. Ext.R1(a) letter dated 2.12.1980 discloses that the Regional Manager of the Corporation in the State of Punjab had called upon the District Managers of the Corporation at Amritsar, Bhatinda, Faridkot, Ferozepur, Gurdaspur, Hoshiarpur, Jullundur, Ludhiana, Patiala, Sangruna and also the Unit Managers of the Corporation at MRM Batala/ Patiala to verify whether the officials/officers named in the accompanying list have exercised their option as required under Section 12A of the Act. The name of the petitioner appears at serial No.4 in Ext.R1(a) and it also refers to Ext.R1(e) order dated 10.7.1979. Ext.R1(b) order dated 25.3.1981 states that the petitioner did not exercise a fresh option within six months from 31.12.1976 as required under sub- section (4-A) of Section 12A of the Act and therefore, he will be governed by the terminal benefits of the Corporation. Ext.R1(c) letter dated 20.4.1993 states that as the petitioner did not opt pursuant to Ext.R1(g) circular in terms of sub-section (4-A) of Section 12A of the Act, he will be governed by the terminal benefits of the Corporation. The petitioner challenges the stand OP 24013/01 -: 12 :- taken by the respondents that as he did not exercise a fresh option within six months from 31.12.1976 as required under sub- section (4-A) of Section 12A of the Act, he will be governed by the terminal benefits admissible to employees of the Corporation. The petitioner's case is that since he had as early as in the year 1973 opted to be governed by the Central Government Rules, he will be governed by the Central Government Rules even if he did not exercise a fresh option within six months from 31.12.1976 in terms of sub-section (4-A) of Section 12A of the Act. The petitioner also relies on Ext.P8 judgment of the Punjab and Haryana High Court in Civil Writ Petition No.3746 of 1987 in support of the said contention. The pleadings disclose that the petitioner had earlier filed O.P.No.28329 of 1999 in this Court aggrieved by the delay in the payment of terminal benefits. By Ext.P1 judgment delivered on 2.11.2000, this Court disposed of the said Original Petition in the following terms: "Petitioner retired from the service on 30.6.1993 while working as Asst. Manager in the service of Food Corporation of India. He has not been paid the retiral benefits like DCRG and provident fund. No counter has been filed. It is seen OP 24013/01 -: 13 :- from Ext.P5 produced along with CMP.No.49211/2000 that disciplinary proceedings initiated against him had also been dropped. In such a circumstances, there is no reason to delay the payment of the amounts as aforesaid. Even the Provident Fund amount due to the petitioner has been paid only in 1996. No reason for such delay is also explained. Petitioner has sought interest on the delayed payment of retirable benefits as well as provident fund. Accordingly O.P. is disposed as follows: (i) The respondent shall pay interest on the provident fund amount to the petitioner, at the rate applicable to the provident fund from 30.6.93 until its payment in June 1996. (ii) Retirement benefits like DCRG and group insurance amount payable to the petitioner also be disbursed with 9 per cent interest on the amount payable; (iii) Payment of the aforesaid amounts shall be made at any rate within a period of two months from the date of receipt of a copy of this judgment." 6. The grievance voiced by the petitioner in this Original Petition is that though he had opted to be governed by the Central Government Rules, the respondents have denied him OP 24013/01 -: 14 :- pension and family pension as per the Central Government Rules on the erroneous assumption that he is governed by the rules of the Corporation as regards leave, provident fund and other terminal benefits admissible to the employees of the Corporation under the regulations made by it. The Corporation has in Ext.R1 (b) order dated 25.3.1981 and in Ext.P3 letter dated 11.5.2001 stated that the petitioner is not entitled to the terminal benefits admissible to employees of the Central Government as he did not exercise a fresh option within six months from 31.12.1976 in terms of sub-section (4-A) of Section 12A of the Act. The petitioner has in this Original Petition challenged Ext.R1(b) order dated 25.3.1981 and Ext.P3 letter dated 18.5.2001 which state that he would be governed by the terminal benefits admissible to employees of the Corporation. The petitioner also has a grievance that though by Ext.P5, the period from 2.5.1989 to 5.9.1990 during which he had been placed under suspension has been regularised as period spent on duty for all intents and purposes, he has not been paid salary and allowances for the said period. The petitioner has in this Original Petition prayed for the following reliefs: OP 24013/01 -: 15 :- "(i) to issue a writ of certiorari or other appropriate writ, order or direction to quash Exhibit P3 order and Ext.R1(b) order; (ii) to issue a writ of mandamus or other appropriate writ, order or direction to respondents to sanction pension, family pension and other pensionary benefits to the petitioner as per the Central Government Pension Rules, with effect from 1.7.1993 with interest at 18% for the same from 1.07.1993 till the date of actual payment; (iii) to issue a writ of mandamus or other appropriate writ, order or direction to the respondents to sanction and release pay and allowances to the petitioner for the period from 2.5.1989 to 5.9.1990 in view of Ext.P5 order, with interest at 18% till actual date of payment;" 7. The learned counsel appearing for the respondents has filed a statement dated 12.3.2006 producing Exts.R1(a) to Ext.R1 (d). A counter affidavit dated 18.2.2008 has also been filed placing on record Exts.R1(e) to R1(f). The learned counsel for the Corporation has also produced Ext.R1(g) circular dated 11.1.1977 along with a memo dated 29.2.2008. The stand taken by the Corporation in the statement and in the counter affidavit is that OP 24013/01 -: 16 :- the services of the petitioner stood transferred to the Corporation vide Ext.R1(e) notification dated 10.7.1979, that he did not opt before 8.1.1980, the last date fixed for exercising the option and that as he did not exercise the option within the stipulated time, the third respondent informed the District Manager of the Corporation at Ferozepur of the said fact, that the third respondent thereafter issued Ext.R1(b) order dated 25.3.1981 to the effect that as the petitioner did not exercise the option within six months from 31.12.1976, he will be governed by the terminal benefits admissible to employees of the Corporation. The respondents also contend that the petitioner is not entitled to pension or family pension as per the Central Government Rules. As regards the relief sought in prayer (iii), it is stated that the pay and allowances for the period from 2.5.1989 to 5.9.1990 amounting to Rs.32,430/- were paid to the petitioner vide D.D.739059 dated 26.11.2000 sent along with a registered letter dated 27.11.2001. It is further stated that the petitioner has been paid gratuity, contributory provident fund, arrears of pay and allowances, the money payable under the Group Savings Linked Insurance Scheme and that no further amount is payable OP 24013/01 -: 17 :- to him. In the counter affidavit dated 18.2.2008, the respondents contend that the petitioner did not submit his option within the time limit of six months stipulated in sub-section (4- A) of Section 12A of the Act and that the belated option submitted by him was rejected. It is also stated that by Ext.R1 (b) order dated 25.3.1981, the petitioner was informed that he would be governed by the terminal benefits of the Corporation. With reference to Ext.P8 judgment of the Punjab and Haryana High Court, it is contended that the petitioner therein had exercised the option within the time limit prescribed in sub- section (4-A) of Act 12A of the Act. In the counter affidavit dated 18.2.2008, a contention is also taken that as no part of the cause of action for this Original Petition arose within the State of Kerala, it is not maintainable in this Court. 8. I heard Sri.N.P.Samuel, the learned counsel appearing for the petitioner and Smt.V.P.Seemanthini, the learned Senior Counsel appearing for the respondents. The learned counsel for the petitioner contended with reference to Ext.P9 that as the petitioner had opted to be governed by the Central Government Rules on his being transferred to the service of the Corporation, OP 24013/01 -: 18 :- even assuming that the petitioner did not exercise a fresh option in terms of sub-section (4-A) of Section 12A of the Act within six months from 31.12.1976, in view of the second limb of the proviso to sub-section (4-A) of Section 12A of the Act, the option already exercised by him under sub-section (4) before 31.12.1976 will be deemed to have been validly exercised and therefore, the petitioner will be governed by the Central Government Rules. The learned counsel placed reliance on Ext.P8 judgment of the Punjab and Haryana High Court in support of the said contention. It was submitted that Mr. Jagir Singh, the petitioner in Ext.P8 judgment who was also transferred to the Corporation and whose name appears in Ext.P9 at serial No.18 had not exercised a fresh option after sub-section (4-A) was introduced in Section 12A of the Act. 9. Per contra, the learned Senior Counsel appearing for the respondents contended that the petitioner was required to exercise a fresh option in terms of sub-section (4-A) of Section 12A of the Act within six months from 10.7.1979, the date on