IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 OP.No. 13900 of 2002(D) ---------------------------------- PETITIONER(S): ---------------------- T.M.FRANCIS, S/O.LATE SHRI T.P.MATHAI, EX.MANAGER,MMTC LTD.,RESIDING AT THOTTUMKAL HOUSE, THAIKKATTUKARA P.O.-683 106, ALUVA VILLAGE, ALUVA TALUK,ERNAKULAM DISTRICT, KERALA STATE. BY ADV. MR.M.N.MATHEW RESPONDENT(S): -------------------------- 1. MMTC LIMITED, SCOPE COMPLEX, 7, INSTITUTIONAL AREA, LODI ROAD, NEW DELHI-110 003, REPRESENTED BY ITS CHAIRMAN-CUM-MANAGING DIRECTOR. 2. THE DEPUTY GENERAL MANAGER,MMTC LTD., SUB REGIONAL OFFICE, POST BOX NO.3597, JOS TRUST BUILDING, CHITTOOR ROAD, ERNAKULAM, KOCHI-682 035. 3. THE SECRETARY, MMTC EMPLOYEES' CONTRIBUTORY SUPERANNUATION-CUM-FAMILY ANNUITY TRUST (REGD.), SCOPE COMPLEX, 7,INSTITUTIONAL AREA LODI ROAD, NEW DELHI-110 003. MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE FOR R1,R2 ADV. MR.D.PEETHAMBARAN FOR R1 , R2 MR.R.ANIL FOR R2 MR.K.V.SADANANDA PRABHU FOR R3 SMT.R.REMJI FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON 20/02/2009 DELIVERED THE FOLLOWING: OP.NO.13900/2002 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LETTER NO.FEDN/MMTCEUS/ DT. 15.2.88 ISSUED BY THE SECRETARY GENERAL OF THE FEDERATION OF MMTC EMPLOYEES' UNIONS TO THE IST RESPONDENT . P2:- COPY OF THE APPROVAL LETTER NO.22(6) 88-FT(M&O) DT. 8.1.90 ISSUED BY GOVERNMENT OF INDIA, MINISTRY OF COMMERCE, UDHYOG BHAVAN, NEW DELHI TO THE IST RESPONDENT. P3:- COPY OF THE LETTER DT. 17.4.90 ISSUED BY THE SECRETARY GENERAL OF THE FEDERATION OF MMTC OFICERS' ASSOCIATIONS TO THE IST RESPONDENT. P4:- COPY OF THE ORDER NO.5/5/89-IR DT. 15.5.90 AND SALIENT FEATURES OF THE MMTC EMPLOYEES' CONTRIBUTORY SUPERANNUATION CUM-FAMILY ANNUITY SCHEME ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE CIRCULAR NO.5/5/89-IR DT. 5.5.95 ISSUED BY THE 3RD RESPONDENT. P6:- COPY OF THE LETTER NO.MMTC/PENSION /(RB)/MISC./1/1-02/ DT. 9.11.01 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER . P7:- COPY OF THE PETITIONER'S LETTER DT. 9.1.02 ISSUED TO THE IST RESPONDENT WITH COPY TO THE 2ND RESPONDENT. P8:- COPY OF THE REGD AD LAWYER NOTICE DT. 12.3.02 ISSUED ON BEHALF OF THE PETITIONER TO THE IST RESPONDENT WITH COPY TO THE 2ND RESPONDENT. P9:- COPY OF THE DRAFT PENSION SCHEME DT. 3.3.88 SUBMITTED BY THE COMMITTEE TO THE IST RESPONDENT. P10:- COPY OF THE LETTER NO.22/6/88-FT(M&O) DT. 29.8.88 ISSUED BY THE JOINT SECRETARY MINISTRY OF COMMERCE, GOVERNMENT OF INDIA DIRECTING THE IST RESPONDENT TO REWORK THE SUPERANNUATION SCHEME. P11:- COPY OF THE TRUST DEED DT. 29.3.89 MADE BY THE IST RESPONDENT WITH ITS OFFICERS. P12:- COPY OF THE IST RESPONDENT'S LETTER NO.1/1/88-89/FA/MA DT. 1.3.89 ISSUED TO ITS FINANCE MANAGERS. P13:- COPY OF THE MMTC EMPLOYEES' CONTRIBUTORY SUPERANNUATION-CUM- FAMILY ANNUITY SCHEME PUBLISHED BY THE IST RESPONDENT TOGETHER WITH ANOTHER BENEFICIAL SCHEME, IN MMTC NEWS, ITS QUARTERLY HOUSE JOURNAL OF VOL.VII NO.4 1990. P14:- COPY OF THE CIRCULAR DT. 8.7.91 ISSEUD BY THE OFFICER'S ASSOCIATION TO ITS MEMBERS. P15:- COPY OF THE ORDER NO.8/114/72-76/RB DT. 1.5.92 ISSUED BY THE IST RESPONDENT. OP. NO.13900/2002 P16:- COPY OF THE ORDER DT. 31.3.92 ISSUED BY THE IST RESPONDENT TO AN EMPLOYEE RETIRED ON 31.3.92. P17:- COPY OF THE ORDER NO.08/66/98/RB DT. 27.3.98 ISSUED BY THE IST RESPONDENT. P18:- COPY OF THE 2ND RESPONDENT'S DO LETTER NO.7/11/84-IR DT. 29.8.88 ISSUED TO ALL ITS REGIONAL HEADS AND TO THE CORPORATE GENERAL MANAGERS OF ADMINISTRATION AND ACCOUNTS. P19:- COPY OF THE 2ND RESPONDENT'S DO LETTER NO.7/1184-IR DT. 15.11.88 ISSUED TO ALL ITS REGIONAL HEADS AND THE GENERAL MANAGERS OF ADMINISTRATION AND ACCOUNTS. P20:- COPY OF THE MEMORANDUM OF UNDERSTANDING DT. 25.4.90 SIGNED BY THE REPRESENTATIVES OF THE EMPLOYER AND THE OFFICERS' ASSOCIATION. P21:- COPY OF THE LETTER NO.5/589-IR DT. 28.3.90 ISSUED BY THE 2ND RESPONDENT TO THE SOUTHERN ZONE SENIOR GENERAL MANAGER. P22:- COPY OF THE NO.CIT-II/SA FUND/04-05/814 DT. 23.7.04 ISSUED BY THE COMMISSIONER OF INCOME TAX, DELHI-II, NEW DELHI TO THE RESPONDENTS. P23:- COPY OF THE ORDER DT. 8.2.05 OF THE HONOURABLE HIGH COURT OF KARNATAKA IN WRIT PETITION NO.33259/03 (S-RES). P24:- COPY OF THE MEMORANDUM OF SETTLEMENT SIGNED AT NEW DELHI ON 26.7.88 BY THE REPRESENTATIVES OF THE IST RESPONDENT AND THE REPRESENTATIVES OF EMPLOYEES. P25:- COPY OF THE REPLY LAWYER NOTICE DT. 10.8.90 ISSUED ON BEHALF OF THE IST RESPONDENT TO THE LAWYER OF SOME OF THE OFFICERS AS TO THE COVERAGE OF OFFICERS UNDER ID ACT, 1947. P26:- COPY OF THE LETTER DT. 14.6.01 ISSUED BY THE IST RESPONDENT TO THE PETITIONER TO TRANSFER THE BENEVOLENT FUND TO PENSION ACCOUNT. P27:- COPY OF THE LETTER DT. 21.6.01 ISSUED BY THE PETITIONER ENCLOSING FILLED IN FORMS AND AUTHORISATION FOR TRANSFER OF THE BENEOLENT FUND GRANTED TO HIM TO THE PENSION ACCOUNT ENABLING THE IST RESPONDENT TO DRAW MONTHLY PENSION. RESPONDENT'S EXHIBITS R3-1:- COPY OF THE RESOLUTIONS OF 19TH MEETING OF TRUSTEES OF MMTC EMPLOYEES SUPERANNUATION CUM-FAMILY ANNUITY TRUST HELD ON 12TH JULY 2002. R3-2:- COPY OF THE AMENDMENTS TO THE MMTC OF INDIA LTD. EMPLOYES' CONTRIBUTORY SUPERANNUATION -CUM-FAMILY ANNUITY SCHEME. R3- 3:- COPY OF THE ORDER DT. 16.10.1997 OF THE COMMISSIONER OF INCOME TAX, DELHI I, NEW DELHI. OP. NO.13900/2002 R3-2:- COPY OF THE OPERATIVE PORTION OF THE SCHEME OF WINDING UP IN RESPECT OF 3RD RESPONDENT TRUST. R3-3:- COPY OF THE LETTER DT. 14.9.06 ISSUED BY THE 3RD RESPONDENT ADDRESSED TO SHRI,.M.SURYANARANAN. R3-4:- COPY OF THE ORDER DT. 20.9.06 IN C.C.C. (CIVIL) NO.161/06 OF THE HONOURABLE HIGH COURT OF KARNATAKA. R3-5:- COPY OF THE JUDGMENT DT. 8.2.05 IN WP. NO.33259/03 OF THE HONOURABLE HIGH COURT OF KARNATAKA. R3-6:- COPY OF THE JUDGMENT DT. 22.9.06 IN WRIT APPEAL NO.304/06 OF THE HONOURABLE HIGH COURT OF KARNATAKA. /TRUE COPY/ P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.13900 of 2002-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of February, 2009. JUDGMENT The substantial relief sought for in the writ petition is to direct the first respondent to effect payment of Annuity Pension to the petitioner from the month of July 2001 as per MMTC Employees' Contributory Superannuation – cum- Family Annuity Scheme. 2. The first respondent is a Government company. The petitioner was working as the Manager in the said company and he retired from service on 30.6.2001 from its Sub Regional Office, Kochi on attaining the age of 60. 3. The pension scheme named as MMTC Employees Contributory Superannuation – cum- Family Annuity Scheme provides for recurring monthly pension as annuity to the employees. This was formulated based on negotiated bilateral settlements between the Corporation and its employees. It was approved by the Government of India under the Ministry of Commerce letter dated 8.1.1990. It was introduced with retrospective effect from 1.4.1988. In the writ petition the petitioner has given all details regarding the scheme as well as the various steps taken for finalization of OP 13900/2002 2 the same. It is pointed out that the Board of Directors of the first respondent Corporation had sent it to the Central Government for approval after framing the same. Meanwhile, the Corporation started deduction of contribution from the salary of the employees, pending approval by the Government of India. It recovered their surrendered allowances, adjusted cash value of various perquisites already granted to them or committed to be granted to them under bilateral and negotiated settlements, and added the equivalent amount to the Pension Fund retrospectively from 1.4.1988. The employees had generated a sum of Rs.130 lakhs at the commencement of the Scheme. They have been surrendering uniform , washing allowance, tea/coffee subsidy, grant in aid and by contributions through pay roll to the fund. Ext.P2 is the order of approval granted by the Government of India. By Ext.P3, MMTC Employees Association resolved to contribute more to pension fund additionally from 1.4.1990. Ext.P4 is the scheme thus framed. 4. It is submitted that the first respondent recovered all the contributions from the petitioner, from the monthly salary. Apart from the same, the entire cash value of various perquisites such as cost of Uniform, per head share of employees' benevolent fund, Annual Grant-in-aid and tea/coffee subsidy, etc. have also been adjusted. 5. Going by Ext.P4, the employees are either entitled to the monthly OP 13900/2002 3 pension upon voluntary retirement or on normal superannuation or to the refund of the full and accumulated contributions with interest at the rate of 10% per annum on resignation/retirement without completing the qualifying service. 6. The petitioner had a long period of service from 10.1.1967 till 30.6.200. The petitioner, after waiting for action on their part did not get any favourable orders, had been representing to them in the matter, continuously. He was issued Ext.P6 stating that the Annuity Fund is a trust promoted by the employees based on monthly contribution received from individual employees and is not a pension scheme of the company. The Pension Trust is passing through severe financial crisis and hence the Board of Directors decided to constitute a sub committee of trustees. It is pointed out that the sub committee has to submit a report within two months and till such time purchase of annuities have been kept under suspension. This is under challenge in the writ petition. 7. The respective respondents have filed counter affidavits in the matter. Pending the writ petition, interim orders have been passed by this court directing the first respondent to inform the petitioner total amount of pension contribution recovered from his monthly salary and the total amount of various allowances, etc. OP 13900/2002 4 8. In the memo filed on behalf of the first respondent, the details of the amounts have been shown. Later, by order dated 2.9.2003 this court directed the amounts to be paid to the writ petitioner with 9% interest. This was modified by order dated 29.1.2004 directing to pay the amount with 5% interest. Accordingly, Rs.91,116/- was paid to him, as seen from the order dated 14.9.2004 in C.C.C.No.69/2004. 9. The contentions raised by respondents 1 and 2 and the third respondent have to be adverted to. Respondents 1 and 2 have declined their liability in the matter. It is stated that the third respondent is a private trust and once the contributions have been gone into the trust, respondents 1 and 2 are not primarily liable for any claim by the petitioner. The first respondent is not liable to pay anything to the petitioner under the fund. It is further revealed from the counter affidavit that in view of the financial position of the trust and as decided by the trustees, the annuities which have become due and pending as on 1.11.2000 have been suspended. The trust in their meeting held on 13th and 14th of September, 2001 have further decided to appoint a sub committee to look into various aspects regarding revival of the scheme. In the counter affidavit filed on behalf of the third respondent, the above position has been reiterated. Ext.R3(1) is the resolution of the 19th meeting of the trustees held on 12.7.2002. It is pointed OP 13900/2002 5 out that the eligibility of the petitioner for monthly benefits under the scheme with effect from 1.7.2001 could not have been in dispute, but for the decision of the trustees to suspend the purchase of annuity in respect of all cases pending since November 2000. It is also stated in para 9 of the counter affidavit that the benefits mentioned by the petitioner would have been normally admissible. 10. The petitioner has filed a reply affidavit and an additional counter affidavit has been placed on record by the third respondent. In the additional counter affidavit, the details leading to the scheme becoming unworkable, have been stated in para 4. It is submitted that the Fund was practically dead by the time the original petition was filed. Ext.R3(2) is the resolution passed by the trustees in its meeting held on 9.8,.2005 wherein they have decided to wind up the trust unanimously. The scheme of winding up envisages the payment of refund of salary contribution with 5% interest per annum and an amount of Rs.1800/- per every completed year of contributory service in the union cadre towards the compensation for uniform allowance, besides the benevolent fund of superannuation of the employees concerned to the Trust. The said winding up scheme was intended to cover around 2800 member/employees either superannuated or otherwise eligible to get the benefits out of the fund. It is also pointed out OP 13900/2002 6 that the Trust has since settled the claims of around 95% of the member/employees on the basis of the scheme of winding up. The remaining few claims are also expected to be settled soon. Reference is made to the directions in the judgment in Writ Petition NO.33259/2003 by the High Court of Karnataka and about subsequent orders passed in the said case. 11. Learned counsel for the petitioner contends that it is up to the first respondent to disburse the amount and the trust was only administering the fund and the present attempt of respondents 1 and 2 to disclaim any liability cannot be accepted at all. It is pointed out that monthly contributions were being collected by them annually and reliance is also placed on the judgment in Writ Appeal No.1803/2006 and connected cases, wherein the direction given by the learned Single Judge to extend similar treatment in the case of the petitioner in Writ Petition No.33259/2003 before the High Court of Karnataka, has been upheld. It is stated that the first respondent is now trying to wriggle out of the situation on untenable pleas. Reliance is also placed on various judgments of the Apex Court to contend that right to receive pension is a right to property. 12. A reference about the decision of this court adopting the directions issued by the Karnataka High Court will be relevant. In OP 13900/2002 7 O.P.No.28527/2002 the writ petition was disposed of with a direction to extend a similar treatment in the case of the petitioner in Writ Petition No.33259/2003 before the High Court of Karnataka, in the case of the petitioner therein also. Learned counsel for the petitioner has made available the judgment in Writ Appeal Nos.1795/06, 1803/06 & 1806/06. The Writ Appeals were filed by respondents 1 and 2 herein. After referring to the contentions, in para 2 the Division Bench directed thus: “What the learned Single Judge has directed is “to extend a similar treatment in the case of the petitioner in W.P.No.3359/2003 before the High Court at Karnataka in the case of the petitioners” in the writ petition as well. In such circumstances, the benefit that had been granted by the Karnataka High Court shall have to be extended by the appellant fund, because it cannot take one stand in one case and a different stand in another case like this. It has to be noted that the said appellant had preferred an Appeal as 304/2006 (S.RES) against the said judgment of the Karnataka High Court and it has been disclosed by the appellant themselves that they had paid the amount directed in that judgment. The petitioner in that case submitted before the Division Bench of the Karnataka High Court that more amount was due from the said appellant. It was observed that if there was any dispute regarding the implementation or enforcement of the judgment impugned before the Karnataka High Court, it has to be resolved in appropriate proceedings. Thus the judgment has been upheld really. In such circumstances, they canot OP 13900/2002 8 further reagitate the matter in a different line before this Court as the very same appellant is administering the very same scheme and fund. What had been directed is to treat the petitioners before this Court also in the similar line as the petitioner before the Karnataka High Court.” The writ appeals were thus dismissed. Normally, when the writ petitioner is a similarly placed person, he will be entitled for similar benefits. The stand taken by respondents 1 to 3 is that the trust fund has become unworkable and there is a decision to wind up the trust. Learned counsel for the petitioner vehemently submitted that even though in the writ petition he has clearly stated that he is entitled for an amount over Rs.4 lakhs, the same has not been disputed. According to the petitioner, his liability towards cost of annuity was about Rs.62,500/- only but there is an excess recovery from him which is refundable with 18% interest. It is pointed out that no details as to the amount actually payable to the petitioner have been stated either in the counter affidavit or in the additional counter affidavit. It is stated that the attempt is to wriggle out of the liability even though the first respondent company is a flourishing one. 13. The case pleaded by the petitioner that he has been paying contributions to the fund, are not disputed by the respondents. Now it appears that there is a decision to wind up the fund. It is stated that 95% of OP 13900/2002 9 the contributories have received the amount by way of accepting the winding up fund. Pursuant to the interim directions passed by this court, some amounts have been received by the petitioner. Such adjustment can only be towards the balance amount due to him. So far, the same has not been disclosed at all. Merely because others have accepted the amount offered to them, that will not bind the petitioner herein. The directions of this court in other cases will govern this case also. The parties who have been benefited by the directions of the Karnataka High Court which was followed by this court in other cases, are also similarly placed. The petitioner cannot be discriminated in the matter of such benefits. Therefore, I am of the view that the objections raised by the respondents regarding unworkability or unviability of the fund thus cannot be accepted. 14. Therefore, the writ petition is allowed. Respondents 1 to 3 shall issue appropriate communication to the petitioner showing the balance payable by them under the scheme, within three weeks from the date of receipt of a copy of this judgment. The amount already paid will be adjusted towards the same. Since it is pointed out that the trust has decided to wind up the fund, the balance amount due to the petitioner will be paid as a one time measure rather than paying it by monthly contributions along with interest at 5% per anum. Appropriate payments shall be made within a OP 13900/2002 10 period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/