Videsh Sanchar Nigam Ltd. & Anr vs Ajit Kumar Kar & Ors

3. Briefly stated, the facts of the case are as follows:-

6. The Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Pension and Pension Welfare) later on vide O.M. bearing No. 4/18/87-P & PW (D) dated 7.2.1990 issued clarification in the following terms:-

7. A fresh Staff Notice, bearing Ref. No. HQ-A/01-01/90 PE1 dated 21.2.1990, was issued by VSNL by which the employees were called upon to exercise their option as to whether they wanted to retain the pensionary benefits available to them under the Government Rules or be governed by the Rules of the PSU/Autonomous Body. The clarificatory information was annexed to the said Notice which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits (Pension & Gratuity) on the basis of emoluments/average emoluments drawn by the employee at the time of retirement from VSNL and in accordance with the Rules of the Central Government.

8. The Government of India vide Office Memorandum dated 24.12.1992 conveyed to the VSNL the revision of the pay structure of Executives (below Board level) and Non- Executives/employees of VSNL recruited on or after 1989 to the Industrial Dearness Pattern (IDP). This O.M. also provided that D.A. admissible to Executives and Non-Executives would be at the rates specified in the DPEs O.M. dated 22.1.1991 as amended from time to time. The letter in the 'Fitment Method' would show that the basic pay plus Central D.A. was merged in the Basic Pay to be fixed in the appropriate stage of the IDA pattern scale of pay and it was also clarified that the total emoluments would be drawn by VSNL employees in the Government scale of pay and D.A. pattern as on 2.1.1990 and, accordingly, the pay scales of Non-Executive employees of VSNL were changed over to IDA pay scale in May, 1993 with retrospective effect from 2.1.1990. The VSNL vide Office Order No. HQ-A/01-04/91-PE1 dated 3.9.1993 in reply to the clarifications sought for by its Centres/Units as to whether the pay drawn on IDA scales could be treated as emoluments for the purpose of calculation of pension in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules but have changed over to the IDA pattern of pay scales. It was clarified in a letter dated 3.9.1993 with reference to O.M. dated 5.7.1989 that in respect of those employees who have changed over to IDA pattern of pay scales with effect from 2.1.1990, emoluments for the purpose of calculation of pension and other terminal benefits shall be the treated emoluments drawn by them in IDA Scale at the time of retirement/resignation/death from the Company. This Order stated that pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of the Central Government in that behalf. The order further clarified: "Admissible Dearness Relief shall also be allowed on the pension so arrived at as per the existing Central Government Rules."

(v) The Hon'ble Court failed to appreciate that if it could be stated that the respondent Nos. 1 to 8retirees have vested right to receive DR as per Central Government Rules, then they did not have any vested right to receive pension as per IDA pay scale;

(vi) The Hon'ble Court failed to appreciate that the respondents No. 1 to 8 retirees were approbating and reprobating at the same time in as much as when it came to the payment of pension as per IDA pay scale, although the same was introduced retrospectively much after their retirement, the same was acceptable to them whereas DR as notified by the Government for employees of PSUs was not acceptable to them on the ground that it was taking away their vested right to receive DA/DR;

(vii) The Hon'ble Court failed to appreciate that the impugned order would result in adverse discrimination to other employees of VSNL who retired subsequently inasmuch as the subsequent retirees would get pension at the IDA pay scale and DR as notified by the Government for PSU employees whereas the respondents Nos. 1 to 8 - retirees would get that pension as per CDA scale and at the same time they would get DR as per Central Government Rules, which was also much larger then the DR as notified by the Government for employees of PSUs on IDA scale.

22. Fresh Staff Notice bearing No. HQ-A/01-01/90-PE1 dated 21.2.1990 came to be issued by VSNL to all the permanent employees in Government Service whose services had been transferred to VSNL from the OCS and who had opted for absorption in VSNL calling upon them to exercise their option in terms of sub-para (a) of Department of Pension and Pensioners' Welfare O.M. No. 4/18/87-P & PW dated 05.07.1989 which was placed on record of the High Court as Annexure P4 along with a clarificatory information which inter alia provided that the option to retain pensionary benefits under the Central Government Rules will mean that the employees will receive pensionary benefits (pension and gratuity) on the basis of emoluments/average emoluments drawn by the employees at the time of retirement from VSNL and in accordance with the Rules of the Central Government. In short, it was clarified that when the employees of VSNL will retire from the Nigam, he shall retire with pensionary benefits as if he had retired from Central Government service. Along with the clarificatory information three formats in the form of model (1), model [2] and model [3] were annexed requesting VSNL employees either to retain pensionary benefits under the Government Rules or retiral benefits of the Company by exercising their options as enumerated in either of the model form. It appears from the record that vide order dated 24.11.1996, the Government of India conveyed its approval to the revision of pay structure of Executives Employees and Non-Executives Employees of VSNL to the IDA pattern who were recruited on or after January 1, 1989. This order also provided that DA admissible to Executives and Non-Executives will be at the rates specified by the Department of Public Enterprises in their O.M. dated 22.1.1991 as amended from time to time. The letter in the 'Fitment Method' would show that the basic pay plus Central D.A. has been merged in the basic pay fixed in the appropriate stage of the IDA pattern scale of pay. It was specifically clarified in the said letter that the total emoluments drawn by VSNL employees in the Central Government scale of pay and DA pattern as on 2.1.1990 would stand protected and their pay would be fixed as clarified in the said order. Further, it was also specifically provided that after 2.1.1990 the employees of VSNL would draw increments and DA as per IDA pattern. Based on this direction from the Government of India, Department of Telecommunications, the pay scale of Non-Executives of VSNL was changed over to IDA pay scale in May, 1993 with retrospective effect from 2.1.1990 and for Executives in December, 1993 with retrospective effect from 2.1.1990. The respondents- retirees who were petitioners before the High Court have also relied upon the said letter dated 24.12.1992 in paragraph 28 of the writ petition. Again, VSNL issued office order bearing No. HA-A/01-04/91-PE1 dated 03.09.1993 in reply to clarification sought for by its Centres/Units as to whether pay drawn under IDA pattern could be treated as emoluments for the purpose of calculation of pension and other terminal benefits on or after 2.1.1990 in respect of employees who opted to retain pensionary benefits available to them in terms of Government of India Rules and also for change over to the IDA pattern of pay scale. In accordance with O.M. dated 5.7.1989 issued by Ministry of Personnel, Public Grievances and Pension, (Department of Pension and Pensioners' Welfare) being AnnexureP4, it was clarified that in respect of those employees who had changed over to IDA pattern of pay scale with effect from 2.1.1990 emoluments for purposes of calculation of pension and other terminal benefits shall be the emoluments drawn by them in the IDA scales at the time of their retirement/resignation/death, etc. from the Company. The said order also prescribed that the pension and other terminal benefits in the above case shall be calculated in accordance with the Rules of Central Government in that behalf. It further stated that "Admissible Dearness Relief" (ADR) shall also be allowed thereupon so arrived at as per the existing Central Government Rules. The respondents-retirees pleaded in the High Court the clarificatory order as existing facility and accrued right and the mode of computation of pensionary benefits to the OCS employees who were absorbed in VSNL. The letter dated 3.9.1993 (Annexure- P10) was a simple internal clarificatory circular exchanged between VSNL and its Centres/Units and in no circumstances the terms and conditions contained in the said letter could have been treated as a mode of computation of pensionary benefits of VSNL employees. When the clarificatory order stated: "Admissible Dearness Relief" shall also be allowed on the pension so arrived at as per existing Central Government Rules", the words 'so arrived at' have to be read and construed to be on the basis of the emoluments drawn in the IDA pay scales and nothing more or nothing less. It appears that due to some uncertainty on the part of VSNL for some period pension was paid on emoluments arrived at as per the IDA pay scales and DR accrued on IDA pay scale was wrongly given as per the CDA scales. This method and calculation was totally contrary to and inconsistent with the Government Circular dated 24.12.1992 which was referred to and relied upon by the respondents-retirees themselves in paragraph 28 of the writ petition and, therefore, the payment of pension made under bona fide mistake would, under no circumstances, be viewed and treated as vested right of VSNL employees who were drawing pay in IDA scales.

(ii) overseas pay, special pay and personal pay; and

28. In this view of the matter, our conclusion on the question of denial of Dearness Relief on pension in case of those retired employees of VSNL who have drawn pay on IDA pay scales with IDA Dearness Relief is legal and just. Therefore, the view taken by the High Court in this regard cannot be sustained. In the result, this appeal is allowed and the order of the Division Bench in MAT No. 171 of 2002 dated 25.11.2004 affirming the order recorded by the learned Single Judge in CWP No. 6935(W) of 1999 dated 15.10.2001 shall stand set aside. We direct dismissal of the writ petition. We make it clear that if any pensionary benefits have been given to respondents-retirees or to any similarly situated persons of VSNL at the time of mistaken calculation of the pensionary benefits or in compliance to the order of the High Court, such benefits shall not be recovered from them.

29. However, in the fact and circumstances of the case, there shall be no order as to costs.