Case: IFCI LTD Vs. SANJAY BEHARI

the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the context of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, no doubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the concerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten (10) months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the context of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months? notice in writing.30. It is not as if pension is being paid to the private respondents contrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten (10) months prior to that date when their relationship stood terminated, the pension has been calculated.31. The private respondents cannot claim parity with such people who had retired after full length of service and did not terminate their relationship. We had specifically put a question to the learned counsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have not been paid the benefit of revised pension for the past period.32. We must keep in mind that pension is for past services, as elucidated. However, it was not the full tenure, but the tenure was terminated by mutual consent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned counsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were not given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of not much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents.33. We may also deal with the inappropriate comparison with Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra) case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25. We have already discussed the terms of the Scheme, which are quite clear. The benefits under VRS-2008 are many, in terms of the financial package. Pension is only one of the items of that package, while calculating the amounts as per clause 7.2 of the Scheme. There is no ambiguity left by the propounders of the Scheme while setting out the prohibitive clause against any further compensation, in clause 9.4, or while stating that no revision shall be made in the voluntary retirement amount on account of pay revision, as per clause 9.12. The latter, in our mind, leaves no manner of doubt. The plea of the private respondents that there were certain aspects on which the Scheme was nebulous and, thus, the benefits on those accounts must be available to the respondents (Bank of India v. K. Mohandas & Ors. (2009) 4 SCALE 576 ( para 39)) is, hence, without any basis.26. Learned counsel for the private respondents did endeavour to emphasise the nature of the pension by referring to the constitution Bench judgment in D.S. Nakara v. Union of India (1983) 1 SCC 305  , in para 46, which reads asat this stage the method adopted when pay scales are revised. Revised pay scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only. Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages.It is trite to say that the aforesaid principle really applies to a retiree, and not to one who terminates his relationship with the employer earlier, often for greener pastures, and takes a complete package of various financial benefits, pension being only one of them.28. The complete substratum of the reasoning of the impugned order, and for that matter, the arguments of the learned counsel for the private respondents, supporting the reasoning, is based on the presumption that VRS-2001 (in operation from 14.12.2000 to 15.1.2001) was an open ended scheme in character. This, in our view, is a fallacious approach for the reason that every scheme for voluntary retirement really has a time frame. Not only that, VRS-2001 was followed by a fresh Scheme in 2003-2004, and thereafter in 2008. The terms of the Schemes were different. While the 2001 scheme initially, in clause 8.7, provided for a full and final settlement of claims, it is as per a clarification issued on 4.1.2001 that the benefit was extended, to provide for future pay revisions. This was so far as the 2001 Scheme is concerned. Even the 2003-2004 Scheme did not provide such clarification, and the endeavour to take up this issue, through the resolution of the Rajya Sabha Committee was not successful as the IFCI stuck by its original plan. VRS-2008 left no manner of doubt, and possibly, the IFCI was more cautious to, again and again, emphasise through different clauses that it would not be called upon to incur any other financial liability.29. No doubt the Pension Regulations referred to aforesaid were specifically included as a benefit under VRS-2008. However, the Pension Regulations and the VRS have to be read harmoniously and, in the context of its inclusion, along with the other terms of the VRS. If we refer to the Pension Regulations, no doubt the date of retirement includes the date on which the employee voluntarily retires, but that would mean that the concerned employee would be deemed to have retired on the date he terminates his relationship with the IFCI. As to how emoluments have to be calculated, it is the average emoluments of the last ten (10) months of his service. This would naturally mean the emoluments received just prior to the termination of the relationship of employment. If we turn to the IFCI Regulations, 1974, more specifically Regulation 33, in the context of retirement under the said Regulations taking their meaning from the 1974 Regulations, it refers to an option with an employee, on attaining 50 years of age, to retire any time by giving the Corporation three months? notice in writing.30. It is not as if pension is being paid to the private respondents contrary to the terms of VRS-2008. The only thing is that, based on the calculation of average emoluments for a period of ten (10) months prior to that date when their relationship stood terminated, the pension has been calculated.31. The private respondents cannot claim parity with such people who had retired after full length of service and did not terminate their relationship. We had specifically put a question to the learned counsel for the appellant, as to what would be the position qua persons who may have retired on the same date, on attaining the age of superannuation, as the persons who sought termination of relationship under VRS-2008 with all the benefits. The answer is categorical that such persons have not been paid the benefit of revised pension for the past period.32. We must keep in mind that pension is for past services, as elucidated. However, it was not the full tenure, but the tenure was terminated by mutual consent, before it would have reached the end, on superannuation. To grant the private respondents the benefit of pay revision, retrospectively, and that to be taken into account for grant of future pension would be a bounty which cannot be given to these private respondents. The benefit is meant for persons who are actually in service, i.e., serving employees. The endeavour of learned counsel for the respondents to plead that the CTC structure was, in fact, more beneficial and, thus, the benefits were not given retrospectively, of the RBI 2007 pay-scales, made applicable from 1.11.2013, would be of not much use for the reason that even the CTC structure was introduced after the termination of relationship between IFCI and the private respondents.33. We may also deal with the inappropriate comparison with Ms. Sweety Bhalla, who was the serving employee, and opted for continuation of RBI pay-scales, in view of her special position, being visually challenged. She was the sole person in this category and thus, benefits were given retrospectively to her. She was not an optee of the VRS.34. We may also elucidate further, with reference to the P .P . Vaidya & Ors. (supra)case, that it was the case of the same parties and some other similarly placed employees, albeit with respect to special benefits and incentives. It, once again, talked about the aspect of a ‘Golden Handshake? and the delay in approaching the Court from the time when the cause of action really arose. In that context, it was observed that ?the employees who opt for voluntary retirement make a planning for future and take into consideration all its implications. At the time of giving the option, they know where they stand and they cannot get additional benefits other than mentioned in the Scheme. They prepare themselves to contract out of the jural relationship and are bound by their own acts.?35. We may also note one last aspect, which is the plea of delay. This is coupled with the commonality of some of the respondents in the P .P . Vaidya & Ors. (supra) case and the present case. In their context, more so, this is a second battle which has been waged against the IFCI, claiming to be on a different cause of action. The principle as to why no other benefit, other than under the VRS-2008 should be made available, remains the same. Even if we accept that their knowledge was derived only in 2014, when for the first time they raised the issue, the same was rejected promptly by the appellant within a few days. Continuing representation on the same issue is really not of much use. As observed earlier, there is a gap of one and a half years between the last representation and the sending of a legal notice. This, by itself, could have been fatal, but the private respondents must fail on multifarious grounds, discussed aforesaid and this aspect has been discussed only in the context of the plea being raised by IFCI/appellant.36. If the RBI pay-scales had been adopted by IFCI with retrospective effect, the private respondents could never have had a claim as their chapter was closed. Merely because, for existing employees, RBI pay- scales had been applied, albeit retrospectively, without past benefits, that cannot be a ground to start getting pension on the basis of a calculation based on those revised pay-scales, on the reasoning that pension is a continuing right for past services rendered. The very cut-off date for calculation of pension, for the private respondents, was the date of their termination of relationship, and the calculation of pension under the Pension Regulations also proceeds on the basis of the last ten (10) months? salary prior to that date.37. We are firmly of the view that the present endeavour by the private respondents is a misadventure and has to be rejected without any hesitation.The principle ground for assailing the impugned order is that any scheme for voluntary retirement is a package by itself. One cannot, thus, look to other voluntary retirement schemes, or other rules and regulations for the said purpose.22. In our view, there can be no quibble with this fundamental principle. In fact, we had the occasion to recently propound the legal position in this behalf, in National Insurance Special Voluntary Retired/Retired Employees Association & Anr. v. United India Insurance Co. Ltd. & Anr (2018) 18 SCC 186.   The view taken is that it is not appropriate to add or subtract from the Scheme, nor can any concessions be given contrary to the Scheme, or if they are not provided for under the Scheme. What is to be seen are the clauses of the scheme under which voluntary retirement has been taken and the terms of the scheme must be strictly followed. This Court has observed asWe have, thus, no hesitation in coming to the conclusion that statutory or contractual, such voluntary retirement schemes as the SVRS-2004 Scheme have to be strictly adhered to, and the very objective of having such schemes would be defeated, if parts of other schemes are sought to be imported into such voluntary retirement schemes. What is offered by the employer is a package as contained in the schemes of voluntary retirement, and that alone would be admissible.20. The issue which arose in Manojbhai N. Shah [Manojbhai N. Shah v. Union of India, (2015) 4 SCC 482   : (2015) 2 SCC (L&S) 55] was qua the revision of pay, with retrospective effect. That was the only issue. That issue was decided against the beneficiaries of the SVRS-2004 Scheme. If there are certain observations made by that Bench while deciding so, qua aspects which are not forming the subject- matter of that dispute, the same cannot be read to amount to grant of relief/benefits, contrary to the terms of the Scheme, and that too, in the absence of any specific directions.;. ….22. It is, thus, abundantly clear that nothing more would be given than what is stated in the scheme, and for that matter, nothing less. If the employees avail of the benefit of such a scheme with their eyes open, they cannot look here and there, under different schemes, to see what other benefits can be achieved by them, by seeking to take advantage of the more beneficial schemes, while simultaneously enjoying the more beneficial aspects of the SVRS-2004 Scheme.In the present case, VRS-2008 has received consideration right till the Supreme Court and attained finality on the issue of benefits and incentives sought to be claimed beyond the Scheme, in P .P . Vaidya & Ors. (supra) case. Interestingly, some of the respondents, apparently, are common between that case and the present case. Thus, not having succeeded on one aspect, another aspect is now sought to be agitated.