1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1385 OF 2001 Padma T. Motihar … Petitioner. Versus Central Warehousing Corporation & Anr… Respondents. Ms. Tanu Mehta Tiwari for petitioner. Ms. S.I. Shah for respondents. CORAM: D.K. DESHMUKH & R. G. KETKAR, JJ. DATED: 1st October, 2009. P.C. 1 Facts which are relevant and material for deciding this petition are that the petitioner was in the service of the respondents. She joined the service in April, 1966. In the month of February, 1998 respondent No.1 introduced Special Voluntary Retirement Scheme. On 31.03.1998 petitioner had applied for the said Voluntary Retirement Scheme. On 2 27.04.1998 petitioner’s application for Voluntary Retirement Scheme was accepted by the respondents and the petitioner was told that she will stand retired from 30th June, 1998, because on that date the period of three months from the date of her application was going to end. On 28.05.1998 the Service Rules governing retirement age of the employees was amended by the respondent and the retirement age was extended from 58 years to 60 years. The petitioner retired on 30th June, 1998 but when the payment was made to her under the Voluntary Retirement Scheme, it was made on the footing that her age of Retirement is 58 years. The petitioner therefore made a grievance before the authority. That was not accepted. Therefore, this petition has been filed. 2 The learned counsel appearing for the petitioner invited our attention to the Special Voluntary Retirement Scheme. Clause V of the Voluntary Retirement Scheme lays down that an employee, whose offer for voluntary retirement under this scheme is accepted, will be entitled for the benefits which are mentioned in clause V of the Voluntary Retirement Scheme. The learned counsel appearing for the petitioner pointed out that for calculating retirement benefits the balance 3 months of service left before normal date of retirement, is to be taken into consideration. He also pointed out the Note appearing below clause V of the Special Voluntary Retirement Scheme, which indicates that the actual pay of the employee on the date of the voluntary retirement shall be taken into account and that all benefits including revision of wages or pay structure that take place till the date of retirement are to be taken into consideration. 3 The learned counsel appearing for the petitioner took us through the Notification dated 29.05.1998 which provides for the amendment to the Rules governing the age of retirement of the employees. It is pointed out that amendment to the age of the retirement of the employees is with effect from 28.05.1998. The only defence of the respondents is that though the petitioner has retired from service on 30th June, 1998, as her offer for voluntary retirement was accepted on 27.04.1998, the benefits of the amended Services Rules regarding the age of retirement which came into effect after the offer made for the Special Voluntary Retirement Scheme was accepted, will not be applicable. 4 4 In our opinion, to understand the controversy it is necessary to see clause V. 1. of the Special Voluntary Retirement Scheme, it reads as under: V. 1. Ex-Gratia payment equivalent to 1½ (one and a half months emoluments (Pay + DA) for each completed year of service in the Corporation, or the monthly emoluments (Pay + DA) at the time of retirement multiplied by the balance months of service left before normal date of retirement whichever is less. 5 Perusal of the above clause shows that for the purpose of determining benefits under the scheme the balance months of service left before normal date of retirement is to be taken into consideration. Now turning to the term normal date of retirement means the date of retirement as per the Service Rules which were in force on the date on which the employee concerned retired. That position is made further clear by the Note which appears below Rule V. That Note reads as under: 5 NOTE: The Compensation/ex-gratia payment as mentioned in Clause V(1) above will be paid by the Corporation in lump-sum immediately on acceptance of the request for voluntary retirement and actual relief from the service of the Corporation. “The Actual Pay” drawn by the employee just before the date of voluntary retirement (irrespective of the fact whether the employee is on probation on a higher post) shall be taken into account for calculating the compensation. Apart from the amount to be determined as mentioned above, under the voluntary retirement scheme benefits which would accrue to them under any revision of wage/pay structure would also be admissible. 6 Perusal of above ‘Note’ makes the position clear that for arriving at the payment, ‘the actual pay drawn’ by the employee on the date of retirement is taken into consideration. 6 It means that for the purpose of calculating benefits conditions of Service existing on the actual day of retirement are to be taken into consideration. If that is so, it is clear that as on 30th June, 1998 because of amendment of the Service Rules with effect from 28.05.1998, the age of retirement was 60 years and not 58 years, and therefore, the petitioner was entitled to have her benefits calculated under the Special Voluntary Retirement Scheme on the footing that her age of retirement is 60 years. So far as defence taken by the respondents is concerned, in our opinion, bare reading of the order dated 27.04.1998 makes the position clear and beyond reasonable doubt. 7 It is clear that the application made by the petitioner for voluntary retirement was dated 31.03.1998 from which date the period of three months was to expire on 30.06.1998. The said application was accepted, and it was stated that she will be relieved from the services of the Corporation on 30.06.1998. It clearly means that the petitioner continued in service of the Corporation till 30th June, 1998. The submission of the learned counsel appearing for the respondents that the petitioner ceases to be in employment from 27.04.1998, is meaning less, because if that submission is accepted these words 7 “Accordingly she will be relieved from the service of the Corporation on 30.06.1998 on expiry of 3 months notice period” in the order dated 27.04.1998 would become surplus. If the petitioner ceased to be in the employment on 27.04.1998 there was no question of relieving her on a subsequent date. In our opinion, the petition therefore deserves to be allowed. It is accordingly allowed. 8 The respondents are directed to calculate the monetary benefits payable to the petitioner as per the Special Voluntary Retirement Scheme on the footing that on the date of her retirement i.e. on 30th June, 1998 her age of retirement is 60 years and not 58 years. Respondents shall calculate amount payable to the petitioner in accordance with this order, in any case within a period of three months and make payment also. 9 Rule made absolute accordingly. 10 Respondent shall pay costs of the petition. (D.K. DESHMUKH, J) (R.G. KETKAR, J)