CWP No. 13382 of 2007 ( 1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13382 of 2007 Date of Decision: 25-01-2008 (1) CWP No. 13382 of 2007 Kirpal Singh .......Petitioner Versus National Insurance Company Ltd. and another ....Respondents Present: Shri K.L. Kohli, Advocate, for the petitioner. Shri D.R. Bansal, Advocate, for the respondents. (2) CWP No. 978 of 2005 Shamsher Singh Puri .......Petitioner Versus United India Insurance Company Ltd. and others ....Respondents Present: Shri R.S. Bajaj, Advocate, for the petitioner. Shri D.R. Singla, Advocate, for Shri Pradeep Bedi, Advocate, for the respondents. (3) CWP No. 19331 of 2006 Davinder Singh .......Petitioner Versus The New India Assurance Co. & Ors. ....Respondents Present: Shri Rajesh Arora, Advocate, for the petitioner. Shri Ashwani Talwar, Advocate, for the respondents. CWP No. 13382 of 2007 ( 2) Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. This order shall dispose of Civil Writ Petition No. 13382 of 2007, whereby the petitioner, an employee of National Insurance Company Ltd. has sought pension in terms of General Insurance (Employees) Pension Scheme, 1995, on completion of 10 years of qualifying service. This order shall also dispose of Civil Writ Petition No. 978 of 2005, wherein the petitioner, an employee of United India Insurance Company Ltd., has sought pension under the aforesaid Scheme on completion of 10 years qualifying service. Similarly, in Civil Writ Petition No. 19331 of 2006, the petitioner, an employee of the New India Assurance Company, has again claimed pension in terms of the aforesaid Scheme, after putting in more than 10 years of qualifying service. Since the questions raised in all the three petitions are common questions of law and facts, all these three petitions are being disposed by a common order. However, for the facility of reference, facts are taken from Civil Writ Petition No. 13382 of 2007. The claim of the petitioner in the said writ petition is for quashing of the order dated 10.1.2007 (Annexure P.1), whereby the claim of the petitioner for pension in terms of the Pension Rules, as are applicable to the respondent-Company, was declined. CWP No. 13382 of 2007 ( 3) The petitioner joined the services under the respondent on 14.1.1988. The respondent is a Subsidiary Company of the General Insurance of Corporation of India formed by the Central Government for the purposes of superintending, controlling and carrying on the business of insurance under Section 9 of the General Insurance Business (Nationalisation) Act, 1972 (for short `the Act'). On 1.1.2004, the General Insurance Employees' Special Voluntary Retirement Scheme, 2004 (hereinafter to be referred as `the Scheme') was notified by the Central Government in exercise of the powers conferred by Section 17-A of the Act. All permanent/full time employees of all the Insurance Companies were eligible to seek voluntary retirement provided they have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification. The Scheme was to remain open for a period of 60 days from the date of notification in the Official Gazette. Para 6 of the notification of the Scheme provides for other benefits. Para 6(1)(c) of the Scheme, contemplates to provide pension including commuted value of pension. The relevant clause reads as under:- “6(1)(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 pension and commutation of pension.” On 14.1.2004, the respondent-National Insurance Company issued the administrative guidelines (Annexure P.5), after the publication of the Scheme in the Official Gazette. No such guidelines were CWP No. 13382 of 2007 ( 4) issued by the other two Companies However, while issuing the said guidelines, the said Company incorporated another clause in the matters of payment of pension payable under the General Insurance (Employees) Pension Scheme, 1995 (hereinafter referred to as `the Pension Scheme'). The same reads as under:- “Those who have not completed twenty years of minimum service for eligibility of pension as on the date of Notification shall not be entitled for any pension. The additional notional benefit of five years of added service as stipulated in Para 30(5) of the Pension Scheme, 1995 shall not be admissible for the purpose of determining the quantum of pension and commutation of pension.” The stand of the respondent is that in terms of Annexures P.5, the petitioner is not entitled to pension as he has not completed 20 years of minimum service and therefore, the order declining request of the petitioner for pension does not warrant any interference in writ jurisdiction. In the alternative, it is argued that in terms of para 30 of the Pension Scheme, the petitioner is not entitled to pension. On the other hand, learned counsel for the petitioner has vehemently argued that in terms of the Scheme notified by the Central Government, the pension is payable in terms of the Pension Scheme. The condition of 20 years of qualifying service circulated vide Annexure P.5, is not part of Scheme, therefore, the same is illegal and void. It is contended that Chapter -IV of the Pension Scheme prescribes 10 years of minimum service as qualifying service for being entitled to pension. Since there is no reference in the Scheme notified by the Central Government that the CWP No. 13382 of 2007 ( 5) pension would be payable after completion of 20 years of qualifying service, therefore, any provision beyond the Scheme, is not enforceable. At this stage, reproduction of certain provisions of the Pension Scheme, is necessary:- “2. Definition:- In this Scheme, unless the context otherwise requires:- xx xx xx (q) “pension” includes the basic pension and the additional pension referred to in Chapter-IV of the scheme; xx xx xx (t) “retirement” means- (i) xx xx xx (ii) xx xx xx (iii) voluntary retirement in accordance with the provisions contained in paragraph 30 of this scheme.” xx xx xx 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. xx xx xx 29. Superannuation Pension: Superannuation pension shall be granted to an employee who has retired on his attaining the age specified in paragraph 12 of General Insurance (Rationalisation and Revision of Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 and in paragraph 4 of General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976. 30. Pension on Voluntary retirement: (1) At any CWP No. 13382 of 2007 ( 6) 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 from service: xx xx xx (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 the 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; Having heard learned counsel for the parties at some length, we are of the opinion that the action of the respondents in rejecting the claim of the petitioner for pension in terms of the Pension Scheme, is not tenable in law. The Scheme notified by the Central Government is an exercise of the statutory powers conferred on the Central Government under Section 17-A of the Act. The said Scheme can be amended or varied only by the Central Government in terms of the provisions of the Act. Therefore, the administrative instructions stipulating qualifying service to be 20 years, which is not stipulated or part of the Scheme, cannot be made applicable to the officials seeking voluntary retirement under the Scheme. Therefore, claim of the petitioner could not have been rejected on the basis of the guidelines which are not in conformity with the Scheme. CWP No. 13382 of 2007 ( 7) The argument that the claim of the petitioner for pension is governed by Para 30 of the Pension Scheme is wholly misconceived. Para 2(t)(iii) of the Pension Scheme defines voluntary retirement in accordance with para 30 of the Pension Scheme. Para 30 of the Pension Scheme i.e. Pension on Voluntary Retirement, is complete code in itself. It is general in nature. Such para is applicable to all the employees of the respondent independent of the Scheme. Para 30 of the Pension Scheme is to the effect that the pension is payable on voluntary retirement in ordinary circumstances in the regular course of service. Under the said Para, pension is payable to an employee who has completed twenty years of qualifying service who has given notice of not less than three months in writing. Still further, the employee has a right to seek withdrawal of his offer for voluntary retirement before the retirement becomes effective. The petitioner has not given three months notice. The petitioner sought retirement in terms of the Scheme which provides for pension in terms of the Pension Scheme. The petitioner has opted for voluntary retirement under a special scheme, which is not part of the Pension Scheme. There is no clause in the Scheme that either para 30 of the Pension Scheme would be applicable or it is voluntary retirement as per Para 2(t)(iii) of the Pension Scheme. Therefore, para 30 of the Pension Scheme cannot be extended in respect of the claim of the petitioner for pension. The provisions of para 6(1) of the Scheme notified by the Central Government, does not refer to either para 29 or para 30 of the Pension Scheme under which an employee shall be entitled to pension seeking voluntary retirement under the Scheme notified. The petitioner has CWP No. 13382 of 2007 ( 8) not sought voluntary retirement in terms of para 30 of the Pension Scheme. In fact, the petitioner has sought voluntary retirement under a Special Scheme and, therefore, the claim of the petitioner for pension has to be considered and decided in terms of the provisions of the Scheme. In fact, Para 6(1) of the Scheme excludes Clause 5 of Para 30 of the Pension Scheme. It is not indicative of the fact that the claim of an employee for pension is to be governed by para 30 of the Pension Scheme. It is pertinent to mention that all employees, who have completed 40 years of service, were eligible to seek voluntary retirement under the Scheme. In the absence of specific exclusion of para 29, a person who has completed 10 years of qualifying service eligible to seek voluntary retirement, would be entitled to pension under para 29 of the Pension Scheme. The grant of pension is a relevant factor on the basis of which an employee would decide whether to opt for retirement under the Scheme or not. In the absence of any clear stipulation in the Scheme that pension would be payable on completion of 20 years of qualifying service, the same cannot be made applicable to the petitioner by implication. In view of the above, we are of the opinion that the rejection of the claim of the petitioner for pension vide letter dated 10.1.2007 (Annexure P.1), is wholly illegal and not tenable in law. Consequently, the impugned orders (Annexure P.1 in CWP No. 13382 of 2007; Annexure P.3 in CWP No. 978 of 2005 and Annexure P.6 in CWP No. 19331 of 2006) are quashed. The respondents are directed to calculate the amount of pension and disburse the same to the petitioners within a period of three months from the date of this order, failing which the petitioners shall be entitled to interest on such amount @ 9% p.a. from the CWP No. 13382 of 2007 ( 9) date the amount became due till the actual disbursement. The writ petition is allowed in the above terms. (HEMANT GUPTA) JUDGE (MOHINDER PAL) JUDGE January 25 , 2008 ds