IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.135 of 2006 ***** 1. New India Assurance Company Co. Ltd., through The Chairman Cum Managing Director New India Assurance Building 87 Mahatma Gandhi Road Fort Mumbai 1 .. .. (Respondent No.1) 2. The General Manager, New India Assurance Company Co. Ltd. New India Assurance Building 87 Mahatma Gandhi Road Fort Mumbai 1 .. .. (Respondent No.2) 3. Regional Manager, New India Assurance Company Co. Ltd. .. (Respondent No.3). 4. The Deputy Manager, New India Assurance Company Co. Ltd. .. .. (Respondent No. 4) Both of Regional Office New India Assurance Company Co. Ltd. 7th Floor B.S.F.C. Building Fraser Road, Patna. All through Sri Bhaskar Mallick Son of Late S.P. Mallick, Manager Cum Duly Constituted Attorney of the New India Assurance Company Co. Ltd. 7th Floor B.S.F.C. Building Fraser Road, Patna. …. …. Appellants Versus Mr.Anand Mohan Jha Son of Late Shyam Sunder Jha at present residing at the house of Nilkamal House No.20A East Anandpuri West Boring Canal Road Patna-13. …. …. Respondent ----------- For the Appellants : Mr. Ashok Priyadarshi, Advocate Mr. Annamma Mathew, Advocate For the Respondents : Mr.Sanat Kumar Mishra, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 10th December, 2008. The New India Assurance Company Limited and its functionaries have taken exception to the judgment and order dated 15th December, 2005 passed by the Single Judge, whereby he allowed the writ petition in favour of the present respondent and held that he - 2 - was entitled to the benefit of pension contemplated by Clause 6.3.(c) of the General Insurance Employees Special Voluntary Retirement Scheme, 2004. 2. For the sake of convenience and brevity, we shall refer, the present respondent, „the petitioner‟ and the appellants, „the company‟. 3. The facts are in very narrow compass and as a matter of fact there is no dispute with regard to the following facts: - (i) The petitioner joined the service of the company as an Assistant on 18th August, 1994. (ii) On coming into force of the General Insurance Employees Pension Scheme-1995 (for short, „Pension Scheme-1995‟), the petitioner had opted for the said Scheme. (iii) The Government of India made the scheme called General Insurance Employees‟ Special Voluntary Retirement Scheme, 2004 (for short „SVRS, 2004‟), which was notified on 1st January, 2004. (iv) Pursuant to the SVRS, 2004 the petitioner made an application for voluntary retirement on 29th January, 2004. (v) On 5th July, 2004, the Company informed the petitioner that his voluntary retirement has been accepted with effect from 12th March, 2004. (vi) The petitioner was paid under SVRS, 2004 all his entitlement dues except pension. (vii) Vide communication dated 21st July, 2004, the - 3 - petitioner was informed by the Company that since he has not completed 20 years of qualifying service at the time of his voluntary retirement effective from 12th March, 2004, he is not entitled to pension under Clause 6.3.(c) of SVRS, 2004. 4. The petitioner challenged the action of the Company whereby his claim for pension under Clause 6.3.(c) was denied by the Company. The Company contested the claim of the petitioner before this Court. The Single Judge after hearing the parties vide his order dated 15th December, 2005 allowed the writ petition and, as indicated above, held that the petitioner was entitled to the benefit of pension contemplated by Clause 6.3.(c) of SVRS, 2004. 5. Pension Scheme-1995 was notified on 28th June, 1995. Clause 14 of the Scheme (Chapter-IV) provides qualifying service, which reads thus: - “14. Qualifying Service:- Subject to the other condition contained in this scheme, an employee who has rendered a minimum ten years of service in the Corporation or a Company, on the date of retirement shall qualify for pension.” 6. Commencement of qualifying service is explained in Clause 15, which is as follows: - “15. Commencement of qualifying service:- Subject to the provisions contained in this Scheme, qualifying service of an employee shall commence from the date he takes charge of the post to which he is first appointed on regular basis.” 7. Clause 18 of the Pension Scheme-1995 is a deeming clause, which provides that if broken period of service is - 4 - more than six months, it shall be treated as one year. Clause 18 reads thus: - “18. Broken period of service of less than one year:- If the period of service of an employee includes broken period of service of less than one year, then, if such broken period is more than six months it shall be treated as one year and if such broken period is six months or less it shall be ignored.” 8. There are two classes of pension under the Pension Scheme-1995: (one) superannuation pension, and (two) pension on voluntary retirement. The provision with regard to pension in case of voluntary retirement is found in Clause 30, which is thus: - “30. Pension on Voluntary retirement:- (1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire form service: Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year: Provided further that this sub-paragraph shall not apply to an employee who seeks retirement from service for being absorbed permanently in an autonomous body or a public sector undertaking to which he is on deputation at the time of seeking voluntary retirement. (2) The notice of voluntary retirement given under sub-paragraph (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3) (a) An employee referred to in sub-paragraph - 5 - (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than ninety days giving reasons therefor: (b) on receipt of request under clause (a), the appointing authority may, subject to the provisions of sub-paragraph (2), consider such request for the curtailment of the period of notice of ninety days on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the appointing authority may relax the requirement of notice of ninety days on the condition that the employee shall not apply for commutation of a part of his pension before the expiry of the notice of ninety days. (4) An employee who has elected to retire under this paragraph and has given necessary notice to that effect to the appointing authority shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for such withdrawal shall be made before the intended date of his retirement. (5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement. (6) The pension of an employee retiring under this paragraph shall be based on the average emoluments as defined under clause (d) of paragraph 2 of this scheme and the increase, not exceeding five years in his qualifying service, shall not entitle him to any notional fixation of pay for the purpose of calculating his pension; Explanation:- For the purpose of this paragraph, the appointing authority shall be the appointing authority specified in Appendix-1 to this scheme.” 9. As already noticed above, upon coming into force of Pension Scheme-1995, the petitioner opted for that scheme - 6 - and he was, thus, governed by that scheme. 10. Then a special scheme called SVRS, 2004 was made by the Central Government on 1st January, 2004. Clause 5 provides for entitlement of amount of ex-gratia to the optee under SVRS, 2004 and its computation, which reads thus: - “5. Amount Of Ex-Gratia 3. An employee seeking Special Voluntary Retirement under this Scheme shall be entitled to lower of the ex-gratia amount as given below, namely:- a. Sixty days salary for each completed year of service. Or b. Salary for the number of months of remaining service.” 11. Clause 6 provides for other benefits, e.g. provide fund, gratuity, pension and leave encashment to an optee. The said clause reads thus: - “6. Other Benefits: 3. An employee opting for the Scheme shall also be eligible for the following benefits in addition to the ex-gratia amount mentioned in para 5 namely:- a) Provident Fund b) Gratuity as per Payment of Gratuity Act, 1972 (39 of 1972) or gratuity payable under the Rationalization Scheme, as the case may be c) Pension (including commuted value of pension) as per General Insurance (Employees‟) Pension Scheme, 1995, if eligible. However, the additional notional benefit of the five years of added service as stipulated in para 30 of the said Pension Scheme shall not be admissible for the purpose of determining the quantum of pensions and commutation of pension. d) Leave Encashment” 12. The only question that falls for our determination is: is service of 19 years 6 months and 24 days rendered by the - 7 - petitioner on the date of his voluntary retirement can be treated equal to 20 years qualifying service for the purposes of pension under Clause 6.3.(c) of SVRS, 2004. 13. As a matter of fact answer to the said question has to be found in paragraph 18 of Pension Scheme-1995. Clause 18 of Pension Scheme-1995 is a general provision applicable to all circumstances if an issue of broken period of service of less than one year arises. The said provision, which is a deeming one, gets attracted under the scheme where period of service is to be computed in a case of broken year. As a matter of fact this provision is nothing new but in consonance with the general principle of conversion of fraction into one. If it is less than half, it has to be treated zero; on the other hand in case of fraction exceeding half, it may be deemed to be one. Thus, while computing qualifying service or the tenure of service under the scheme, if broken period of service is involved, then service of six months and more but less than one year is deemed to be one year and if it is less than six months, it has to be ignored. We have no hesitation in holding that paragraph 18 of the scheme shall be applicable where qualifying service of an employee is to be computed under Clause 30. It is not possible for us to hold that Clause 18 should come into play for the purposes of Clause 30 only if the 20 years full service is completed. 14. In the case of Indian Bank vs. N. Venkatramani, A.I.R. 2007 S.C. 3159, a similar provision like Clause 18 was under consideration before the Supreme Court. While - 8 - dealing with Indian Bank Employees‟ Pension Regulation, 1995, the Supreme Court considered a voluntary retirement scheme that was floated by Indian Bank in the year 2000, which was quite similar to SVRS, 2004 with which we are concerned. Regulation 18 of Indian Bank Employees‟ Pension Regulation, 1995 is couched in exactly the same phraseology with which Clause 18 of Pension Scheme-1995 is drafted. The Supreme Court referred to Regulation 18 and the term „broken lot‟ in paragraph 8 and 9 of the report thus: - “8. The matter relating to pension is governed by the pension regulations. 9. We may notice that although various provisions have been made providing for qualifying service to which our attention has been drawn by Mr. Raju Ramchandran, the manner in which the period of service is to be measured is contained in Regulation 18 of the Regulations which reads as under: “Broken period of service of less than one year:- If the period of service of an employee includes broken period of service less than one year, then if such broken period is more than six months, it shall be treated as one year and if such broken period is six months or less it shall be ignored” 15. Then in paragraph 15 Supreme Court held with regard to Regulation 18 that it is not controlled by any of the provisions (16, 16, 19 23 etc.) of the Regulation and it does not brook any restrictive interpretation. This is what the Supreme Court said: - “… … … It only provides for a rule of measurement. An employee, as noticed hereinbefore, was entitled to pension provided he has completed the specified period of service. How such a period of service would be computed is a matter which is governed by the statute. It is one thing to say that a statute provides for completion of fifteen years of minimum service, but if a provision provides for measurement of the period, the - 9 - same cannot be lost sight of. Provision of the Regulations which are beneficial in nature, in our opinion, should be construed liberally.” 16. In paragraph 14 of the report the Supreme Court held that a person otherwise entitled to the benefit of beneficial provision of a statute should not ordinarily be deprived therefrom. 17. That Pension Scheme-1995 as well as the SVRS, 2004 are beneficial schemes cannot be denied. There being no direct or indirect restriction on applicability of Clause 18 of Pension Scheme-1995 to Clause 30 of the said scheme or Clause 6.3.(c) of SVRS, 2004, we are of the considered view that the benefit of legal fiction provided in Rule 18 has to be given to the petitioner. 18. We find ourselves in agreement with the view taken by the Single Judge. 19. Consequently, Letters Patent Appeal has no merit and is dismissed without cost. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-