IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 7266 of 2005(M) ----------------------------------- PETITIONER(S): ---------------------- R.K.MALAYATH, MALAYATH VIEW, COURT ROAD, NILAMBUR, MALAPPURAM DISTRICT. DEV.OFFICER(RTD) MANJERI BRANCH . BY ADV. SRI.P.K.VIJAYAMOHANAN SRI.M.P.PRABHANANDAN RESPONDENT(S): ----------------------- 1. THE NEW INDIA ASSURANCE COMPANY LTD., NEW INDIA ASSURANCE BUILDING, 87, M.G.ROAD, FORT, MUMBAI 400 001, REP. BY THE GENERAL MANAGER. 2. THE REGIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., REGIONAL OFFICER, 36/707. KANDAMKULATHIL TOWERS, POST BOX 1049, M.G.ROAD, ERNAKULAM. ADV. SRI.SAJI VARGHESE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7266 of 2005(M) 2 APPENDIX EXT.P1 TRUE COPY OF THE OFFICE ORDER OF THE COMPETENT AUTHORITY DATED 20.5.1999. EXT.P2 TRUE COPY OF THE ORDER DATED 4.9.2001 OF THE 1ST RESPONDENT. EXT.P3 TRUE COPY OF THE REPRESENTATION DATED 7.12.2001 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE REPRESENTATION DATED 12.5.2004 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P5 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER FOR PENSION BEFORE THE RESPONDENT COMPANY. EXT.P6 TRUE COPY OF THE COMMUNICATION NO.ERO:IBD:NR:04 DATED 24.9.2004 FROM THE 2ND RESPONDENT. // TRUE COPY// P.A.TO JUDGE S.SIRI JAGAN,J -------------------- W.P.C. NO. 7266 OF 2005 --------------------------------- Dated this the 23rd day of November, 2009 JUDGMENT Petitioner challenges Ext.P6 order passed by the respondents. By Ext.P6 order the petitioner has opted for voluntary retirement from the service of the New India Insurance Company under the GIC Pension Scheme on the ground that he does not have the qualifying service prescribed for being eligible for pension. This order has been passed without considering the period of service from 13.11.1991 to 20.05.1999, during which period the petitioner was out of service on account of suspension. The facts leading to the order are as follows:- Disciplinary proceedings were initiated against the petitioner,which resulted in the order of removal from service with effect from 13.11.1991. Pursuant to an order of this court in a writ petition filed by the petitioner, the matter was re-considered by the Regional Manager of the 1st respondent wherein the following order was passed. “Having carefully considered the various elements, documents on record and attending circumstances involved in the matter, I have decided to impose the penalties on Mr,Malayath as below, by which I am satisfied that the ends of justice are properly and sufficiently met with. W.P.C. NO. 7266 OF 2005 2 1. The basic salary of Mr.Malayath is reduced by one stage as existed on his removal from the services of the company on 13.11.91 as stipulated under Rule 23e of the CDA Rules 1975 i.e. on reinstatement his Basic Pay shall be the one existed on 13.11.91, reduced by one stage. 2. Mr.Malayath shall not be entitled for any salary or Non-core benefits during the period from 13.11.91 to date of this order (20.5.99). Such period shall be treated as period on loss of pay. 3. The period from 13.11.91 to date of this order shall rank for all service benefits like Gratuity, P.F,Pension(If opted bt Mr.Malayath) and there shall not be any break in service. 4. Mr. Malayath is reinstated in the services of the company w.e.f date of this order i.e.20.5.99. 5. Mr.Malayath can opt for joining the General Insurance employees Pension scheme 1995 if he so desires. However such option in writing has to be exercised by him within 15 days from the date of reinstatement.” Pursuant to the same, the petitioner was reinstated in the service. Thereafter, he opted for voluntary retirement. The period from 13.11.91 to 25.5.99 during which period he was out of service was excluded for the purpose of determining his qualifying service for pension on the ground that the GIC Pension Scheme does not allow considering that period as qualifying service for the purpose of pension. 2. The contention of the petitioner is that Ext.P6 is squarely against the finding in Ext.P1 wherein it has been held that the period from 13.11.91 W.P.C. NO. 7266 OF 2005 3 to 25.05.99 would rank for all service benefits like gratuity, PF, pension and there shall not be any break in service. 3. The respondent has filed a counter affidavit in which in paragraph 5, it is stated thus:- “With regard to the claim for pension, the idea and understanding of the petitioner in mooting the claim simply referring to Ext.P1, is quite wrong and misconceived. The General Insurance Employees Pension Scheme 1995, was published by the government of India as per the Extra- ordinary Gazette Notification dated 20.6.95 issued by the Ministry of Finance; which clearly stipulates the conditions for eligibility in qualifying service. Rule 18 of Chapter IV specifically deals with the broken period of service, stating that, if the period of service of an employee included broken period service of less than one year, then, if such broken period is more than 6 months, it shall be treated as one year and if such broken period is 6 months or less, it shall be ignored. In the case of the petitioner, as borne by Ext.P2 Order, he had broken service of nearly 8 years commencing from 13.11.91 to 20.5.99; which period has been ordered to be treated as on 'loss of Pay'- making it clear that the petitioner is not entitled for any salary or non-core benefits for the said period. It has been further stated therein, that since the petitioner has not worked during the said period, nor has he procured any premium during the said period, the question of giving salary and such other benefits does not arise,. since the above period was treated as on' Loss of Pay', the said service is not liable to be counted as 'Qualifying Service' for Pension in view of the specific stipulations in the Pension Scheme and it is more so, in view of the binding judicial precedents holding that pension is not a bounty, but a 'service benefit' in respect of the work extracted from the employees during his/her tenure. As no work has been extracted from the petitioner in respect of the above broken period involving the 'Loss of Pay, the petitioner does not have the required qualified service of 20 years when he left on SVRS on 1.4.03; on which date, the petitioner will fall short of 2 years and 6 months. It was after considering the above vital facts and figures meticulously that the Trustees under the Pension Scheme of the respondent Company observed that the petitioner was having a service period of only 18 years and 4 months. accordingly, it was held that the petitioner was not eligible for the Pension under the GIC Pension Scheme 1995; which in turn was communicated to him as per Ext.P6- which is not assailable under any W.P.C. NO. 7266 OF 2005 4 circumstance.” 4. They rely on clause 17 of Ext.P7 Pension Scheme which reads thus:- “Counting of period spent on leave- all leave during service in the Corporation or concerned Company, for which leave salary is payable shall count as qualifying service. Provided that extra-ordinary leave on loss of pay granted on medical certificate or on account of employees inability to join duty due to civil commotion, not exceeding twelve months during the entire service, shall also count as qualifying service.” 5. According to the respondents, notwithstanding Ext.P1 qualifying service has to be calculated as per clause 17 of Ext.P7. 6. After considering the rival contentions, I am unable to accept the contention of the respondents. Clearly the respondents themselves decided to treat the period between 13.11.91 and 20.05.99 as qualifying service for the purpose of retirement benefits. Therefore, as per clause 17 also that period would be considered as qualifying service. In view of the above finding, there is no merit in the contentions of the respondent and accordingly Ext.P6 is quashed. The respondents are directed to grant pension to the petitioner treating the period from 13.11.91 to 20.05.99 also as qualifying service for pension. Orders in this regard W.P.C. NO. 7266 OF 2005 5 shall be issued and arrears of pension shall be disbursed to the petitioner as expeditiously as possible at any rate within a period of two months from the date of a receipt of copy of this judgment. S.SIRI JAGAN,JUDGE mns