IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 WP(C).No. 11014 of 2006(J) -------------------------------------- PETITIONERS: --------------------- 1. T.K.VANCHI, AGED 61 YEARS, S/O.LATE T.V.KAILASA IYER, R/O. KAILASAM, VPS 327, PATTAVILA ROAD, THIRUMALA, TRIVNAD. 2. J.CHACKO, AGED 58, S/O.LATE M.K.CHACKO, “SUMANUSHAM”, VI 239-A, THRIKKAKKARA P.O, COCHIN – 682 021. 3. P.K.ALEXANDER VAIDYAN, 58 YEARS, S/O.LATE P.K.KUNCHERIA VAIDYAN, R/O.RAJ BHAWAN, KADAPPA, MYNAGAPPALLY P.O, KOLLAM, 695 019. 4. V.GOVINDAN, AGED 56 YEARS, S/O.K.S.VENKITARAMAN BHAT, R/O. ASWATHY, HOUSE NO. 6, VISHNU NAGAR, PUDUPPARIYARAM, PALAKKAD- 678 519. 5. ROSELINE RAJAN, AGED 58 YEARS, W/O.LATE RAJAGOPAL, R/O. 35/2183, RAJ BHAWAN, PIPE LINE ROAD, PALARIVATTOM, COCHIN – 682 025. 6. RAJASEKHARAN C.WARRIER, S/O.R.CHANDRASEKHARAN WARRIER, AGED 57 YEARS, R/O. 49/ 842-D, ROHINI MERCY GARDEN, ELAMAKKARA, COCHIN – 682 026. 7. C.S.BABU, S/O.LATE C.A.SANKU, AGED 55 YEARS, R/O.AP/XVI/263, CHIRAPPURATHU HOUSE, WEST AMMANEYAM TEMPLE, AROOR -688 534. 8. S.PARAMESWARAN, AGED 56 YEARS, S/O.LATE T.P.SHIVRAM IYER, R/O. 39/5588, ALAPPATT ROAD, RAVIPURAM, COCHIN- 682 016. 9. C.P.BALAKRISHNAN, AGED 61 YEARS, S/O.LATE K.P.DAMODARA PANIKKER, R/O.21/346, SABARI, IYENGAR ROAD CROSS, KALLAI, CALICUT - 673 003. W.P.(C). NO.11014/2006-J: 10. P.G.ARAVINDAKSHAN, AGED 58 YEARS, S/O.LATE P.GOPALAN NAIR, PARAYIL, VALAPPIL HOUSE, RAJ BHAWAN, K.K. ROAD, CHALAKKUDY, TRICHUR - 680 307. 11. SABU LONAPPAN, AGED 48 YEARS, S/O.M.T.LONAPPAN, R/O. MALIACKAL HOUSE, THOTTAKATTUKARA, ALUVA -683 108. 12. SAJU PETER, AGED 51 YEARS, S/O.K.J.PETER, R/O.KALAPPURACKAL HOUSE, NETHAJI ROAD, KADAVANTHRA, COCHIN -682 020. 13. K.T.THRESSIA, AGED 55 YEARS, W/O.THOMAS PALOCARAN,R/O. PALOCARAN HOUSE, PALOCAREN AVENUE, NADATHARA, TRICHUR- 680 751. 14. T.CHERRY JOB, AGED 54 YEARS, S/O.LATE T.C.JOB, TC III/566, THENGUNGAL, VIYYUR, TRICHUR - 680 010. 15. P.V.DAKSHINA MOORTHY, 56 YEARS, S/O.LATE P.V.V.IYER, R/O.”ANUGRAHAM”, 44 MURUGA NAGAR, PUNKUNNAM, TRICHUR - 680 002. 16. V.C.THOMAS, AGED 55 YEARS, S/O.LATE V.M.CHANDY, R/O.VAZHAPPARAMBIL, KANCHIYAR P.O. IDUKKI- 685 511. 17. N.VASUDEVAN, AGD 56 YEARS, S/O.LATE S.NARAYANAN, R/O. SREE NIVAS, LAYAM ROAD, TRIPUNITHURA P.O. ERNAKULAM- 682 301. 18. P.NARAYANAN KUTTY, AGED 60 YEARS, S/O.LATE S.NARAYANA MENON, PERAYIL HOUSE, CHANGAMPUZHA NAGAR, KANATTUKARA, TRICHUR- 680 010. 19. N.S.SANKARAN, AGED 54 YEARS, S/O.LATE N.S.SRINIVASAN, TC 40/965/1, AISWARYA, SREEVARAHAM, MANACAUD P.O. TRIVANDRUM- 695 009. 20. K.P.SURESH KUMAR, AGED 57 YEARS, S/O.G.KARUNAKARAN NAIR, 7-F, J.M.CRESCENT, P.J.ANTONY ROAD, MAMANGALAM, COCHIN- 682 025. 21. S.S.RAMAN, AGED 55 YEARS, S/O. S.R.SUBRAMANIAN, R/O. “ANUGRAHA”, 24 SELVAM NAGAR, VADAVALLY, COIMBATORE- 641 041,. 22. P.U.MOHANDAS, AGED 60 YEARS, S/O.LATE P.ACHUTHAN NAIR, SREEVALSAM, NO.7/929(28) KAMALALAYAM COLONY. W.P.(C). NO.11014/2006-J: 23. ANSON FABER, AGED 60 YEARS, S/O.LATE ALPHONSE FABER, XVIII/2512-A, KOCHUPALLY ROAD, THOPPUMPADY, COCHIN -682 005. 24. T.A.VARGHIS, AGED 57 YEARS, S/O.LATE T.I.ABRAHAM, R/O.THATTUPURACKAL, 31/41, AMBELIPPADAM, VYTTILA, COCHIN- 682 019. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, INSURANCE DIVISION, NORTH BLOCK, NEW DELHI -110 001. 2. GENERAL INSURANCE CORPORATION OF INDIA, NO.1.SURAKSHA, J.T.ROAD, MUMBAI -400 020, REPRESENTED BY ITS CHAIRMAN CUM MANAGING DIRECTOR. 3. ORIENTAL INSURANCE COMPANY LIMITED, REGISTERED OFFICE, UIL BUILDING, ESPLANADE, CHENNAI -600 108, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR NO.3. MIDDLETON STREET, KOLKATTA -700 001. R1 BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA, SRI.T.SANJAY, CGC, SRI.BOBBY MATHEW, CGC R3 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, SRI.P.K.MANOJKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11014/2006-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION DTD. 01/01/2004 ISSUED BY THE MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, INSURANCE DIVISION, GOVERNMENT OF INDIA. EXT.P.2: COPY OF THE NOTIFICATION DTD 21/12/2005 ISSUED BY THE MINISTRY OF FINANCE, DEPARTMENT OF ECONOMIC AFFAIRS, INSURANCE DIVISION, GOVERNMENT OF INDIA. EXT.P.3: COPY OF THE REPRESENTATION DTD. 14/01/2006 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENTS. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.11014 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of October, 2010 J U D G M E N T The petitioners are retired employees of the Oriental Insurance Company Ltd. The Government of India promulgated the General Insurance Officer's Special Voluntary Retirement Scheme, 2004 in exercise of powers conferred by Section 17A of the General Insurance Business (Nationalization) Act, 1972, by which employees of the 3rd respondent were offered a chance to retire voluntarily with certain benefits guaranteed as per the scheme formulated by the Government. That scheme is Ext.P1 in the writ petition. The petitioners opted for the benefits of the scheme and retired voluntarily as per the provisions of the scheme. They received benefits due under Ext.P1 scheme on such voluntary retirement. Subsequently the pay of the employees of the 3rd respondent company were revised with retrospective effect from a date anterior to the W.P.(C) No.11014 of 2006 -2- date of retirement of the petitioners. According to the petitioners, they are also entitled to the benefits of such retrospective pay revision and also to have the benefits under Ext.P1 scheme calculated on the basis of their revised pay in accordance with the retrospective revision of pay. The petitioners therefore seek the following reliefs: “i) Issue a writ in the nature of certiorari or any other appropriate writ or order or direction, calling for the records leading to issue of Ext.P-2 and quash the same to the extent it denies the benefit of revision of pay to the incumbents who sought Special Voluntary Retirement Scheme under Ext.P-1. ii) Issue a writ of mandamus or any other appropriate writ or order of direction, directing the respondents to grant the petitioners arrears of pay and allowances on the revised terms of pay from 01-08-2002 to the date of severance. iii) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to grant proportionate revision of pension and other terminal benefits on the basis of revised pay and allowances. iv) Issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to grant enhanced leave surrender benefit and DCRG on the basis of the revised pay and allowances pursuant to Ext.P-2 and other further terminal benefits as may be granted in revision of pay and allowances. v) Declare that the petitioners are entitled for notional fixation of pay and allowances and consequential payment of arrears of salary from 01-08-2002 to date of their severance, consequential revision of pension and other terminal benefits, enhanced leave encashment benefits and revised DCRG. W.P.(C) No.11014 of 2006 -3- vi) Issue a writ of mandamus or any other appropriate writ or order or direction to the second respondent to consider and pass appropriate orders on Ext.P-3 representation submitted by the petitioners.” 2. A counter affidavit has been filed by the 3rd respondent disputing the claim of the petitioners. They would submit that, Ext.P1 scheme offered a package to the petitioners and they are only entitled to that package and no other amounts even if the pay has been revised subsequent to their retirement retrospectively. They would rely on the decision of the Supreme Court in HEC Voluntary Retd. Employees Welfare Society v. Heavy Engg. Corpn. Ltd (2006) 3 SCC 708 in support of their contention. 3. I have considered the rival contentions in detail. 4. As per Ext.P1, the benefits payable to the employees who opt for voluntary retirement under the scheme are contained in paragraphs 5 & 6 of the scheme which read as follows: “5. Amount of ex-gratia.- (1) An Officer seeking Special Voluntary Retirement under this Scheme shall be entitled to lower of the W.P.(C) No.11014 of 2006 -4- ex-gratia amount as given below, namely:- Sixty days salary for each completed year of service, Or Salary for the number of months of remaining service. (2) The ex-gratia shall be computed on the basis of his/her salary as on the date of relieving. In case, wage revision is effected from a date prior to the date of this notification, the benefit of revised pay for the purpose of payment of ex-gratia will be allowed. 6. Other Benefits.- (1) An Officer 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 Rationalisation 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 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. (d) Leave encashment. (2) An Officer who opts for the scheme shall not be entitled to avail Leave Travel Subsidy and also encashment of leave during the period of sixty days from the date of notification of this scheme.” (underlining supplied) W.P.(C) No.11014 of 2006 -5- 5. The contention of the petitioners is that, the scheme does not exclude payment of benefits to the persons who have opted for voluntary retirement as per Ext.P1 scheme on the basis of the revised pay, which is clear from paragraph 5 (2) of Ext.P1. The counsel for the petitioners would submit that, the only difference between a person who voluntarily retired under Ext.P1 scheme and a person who has retired normally under the regulations of the 3rd respondent is payment of ex-gratia which is covered by Clause 5. As far as other benefits covered by Clause 6 are concerned that is applicable to other employees as well. Therefore, such benefits should be paid to the petitioners as applicable to other employees of the company who retire normally is their contention. According to them for calculating ex-gratia, taking into account the revised pay is permitted. Insofar as there is no specific exclusion of other benefits on the basis of the revised pay, the 3rd respondent cannot deny such benefits on the basis of the revised pay, is W.P.(C) No.11014 of 2006 -6- the contention raised by the counsel for the petitioners. 6. I am unable to countenance the contention of the petitioners. The effect of a scheme for voluntary retirement has been considered by the Hon'ble Supreme Court in various decisions, one of which is HEC Voluntary Retd. Employees Welfare Society's case (supra) therein the Supreme Court has categorically held that, once an employee accepts the offer for voluntary retirement under a scheme and receives the benefit thereof which would be more than what an employee who does not opt for voluntary retirement gets, he has to accept the benefits of the Voluntary Retirement Scheme as a package and he would not be entitled to any payment other than what has been specifically conferred on him as per the scheme unless he has a right for other benefits conferred by a statute issued for the purpose. Here, the revision of pay is not a benefit conferred by a statute. The petitioners had already received the package as per Ext.P1 scheme. As per that W.P.(C) No.11014 of 2006 -7- scheme, in case of subsequent revision of pay retrospectively with effect from a date prior to the date of voluntary retirement, then the ex-gratia would be revised on the basis of the revised pay. Such a benefit is absent in Clause 6. I am of opinion that, when in respect of ex-gratia specifically the benefit is conferred on the employees who opt for voluntary retirement under the scheme, then the very same benefit is impliedly excluded in respect of other benefits. The Hon'ble Supreme Court had in the HEC Voluntary Retd. Employees Welfare Society's case (supra) given very elaborate reasons for taking such a view, which includes that under a Voluntary Retirement Scheme considerable amount is paid to the employee as ex-gratia besides the terminal benefits in case he opts for voluntary retirement. The payment of compensation is granted not for doing any work or rendition of service but in lieu of his leaving the services of the company. The Hon'ble Supreme Court has also taken into account the fact that, the W.P.(C) No.11014 of 2006 -8- employees have an option either to opt for or not to opt for voluntary retirement under the scheme. Once an employee accepts the offer there is a concluded contract between the employer and the employee and thereafter there is a severance of employer - employee relationship between the employer and the employee and therefore unless specifically conferred by a policy decision of the employer or by statutory rule, subsequent revision of pay would not be applicable to those employees who have opted for voluntary retirement under the scheme. That judgment is squarely applicable to the petitioners' case. The petitioners' challenge against Ext.P2 is on the ground that by Ext.P2, other benefits calculated on the revised pay has been excluded contrary to Ext.P1 scheme. I do not agree with that proposition. I am of opinion that, Ext.P2 has been issued only in accordance with Ext.P1 scheme and there is no departure in Ext.P2 from Ext.P1 scheme. The petitioners have already been paid ex-gratia calculated on the basis of W.P.(C) No.11014 of 2006 -9- the revised pay as contemplated in Clause 5 (2) of Ext.P1 scheme. In view of the above position, the petitioners are not entitled to either payment of arrears of revised pay or other benefits as claimed by them or calculation of benefits under Ext.P1 scheme other than ex-gratia payment on the basis of the revised pay. Therefore there is no merit in the writ petition and accordingly the same is dismissed. S. SIRI JAGAN JUDGE shg/