Calcutta High Court (Appellete Side)
Shri Srikumar Chattopadhyay vs The State Of West Bengal & Ors on 12 March, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 14280 of 2015
Shri Srikumar Chattopadhyay
Vs.
The State of West Bengal & Ors.
For the writ petitioner :- Mr. Amalesh Ray. Adv.
Ms. Mousumi Bhowal, Adv.
For WBSETCL :- Mr. L.K. Gupta, Sr. Adv.
Mr. B. Mitra, Adv.
Mr. R. M. Chattopadhyay, Adv.
Hearing concluded on :- 04-02-2021
Judgment on :- 12-03-2021
Amrita Sinha, J.:-
The petitioner is aggrieved by the Office Order nos. 205/2015
dated 28th April, 2015 and 264/2015 dated 27th May, 2015, both issued
by the Director (HR), West Bengal State Electricity Transmission
Company Limited, herein after referred to as 'WBSETCL' for the sake of
brevity.
The petitioner is also aggrieved by the communication dated 2nd
January, 2015 whereby the scale of pay of the petitioner has been re-
fixed and revised.
The brief facts of the case are as follows:
2
The petitioner was serving as Company Secretary in the West
Bengal State Seed Corporation Limited, herein after referred to as
'WBSSCL' for the sake of brevity. He was paid in the unrevised scale of
pay and he was a member of the Contributory Provident Fund. His
unrevised scale of pay was Rs.10,000/- to Rs.15,525/-.
An advertisement was published in the daily newspaper on 22nd
May, 2007 inviting applications from Indian nationals for filling up the
post of Company Secretary in the unrevised scale of pay of Rs.16,400/-
to Rs. 20,450/- only and other admissible allowances of the WBSETCL.
The said advertisement clearly mentioned that candidates working with
government/semi-government public sector undertakings should send
their applications through proper channel or otherwise submit 'no
objection certificate' from their employer at the time of interview.
The petitioner expressed his intention to join WBSETCL. A no
objection certificate was issued in his favour by his erstwhile employer
WBSSCL. The petitioner was requested to attend the interview and on
being successful he was appointed in the post of Company Secretary
under the regular establishment of WBSETCL in the scale of pay of
Rs.16,400/- to Rs. 20,450/- with initial grade pay of Rs.16,400/-.
The petitioner was released from the service of WBSSCL on 1st
October, 2007 and on the self-same date he joined the office of
WBSETCL.
The petitioner retired from service upon attaining his normal age
of superannuation on 30th April, 2014.
3
The petitioner's grievance is that his retiral dues were not paid in
accordance with the West Bengal State Electricity Board Employees'
(Death-cum-Retirement Benefits) Regulations, 1985 hereinafter referred
to as the DCRB Regulations, 1985 introduced on 4th May, 1985.
By notification No. 315-PO/O/C-IV/2E-01/2007 dated 2nd June,
2008 published in the Kolkata Gazette, Extraordinary on 14th July,
2008 it was notified that the Governor was pleased to approve the
provisions of the DCRB Regulations, 1985 to apply mutatis mutandis to
the employees and pensioners (including family pensioners) of
WBSETCL for pension including family pension and gratuity benefits.
The benefits shall apply to the employees, who have joined WBSETCL on
or after 4th May, 1985 and to those who have exercised option for such
benefits with retrospective effect from 1st April, 1981.
The petitioner applied for coming under the purview of Rule 7(1) of
DCRB Regulations, 1985. In the aforesaid application the petitioner
specifically mentioned his date of joining in WBSETCL and the date of
release from his ex-employer WBSSCL. The period of service rendered by
him under his ex-employer in regular establishment before his
absorption in the WBSETCL was also clearly mentioned. The petitioner
requested for counting his previous service rendered under his ex-
employer as qualifying period for grant of pensionary benefits.
By a communication dated 4th November, 2008 the petitioner was
intimated by the Director (HR), WBSETCL that his past service under
WBSSCL for the period 25th January, 1999 to 30th September, 2007
followed by absorption in regular establishment in WBSETCL with effect
4
from 1st October, 2007 will be counted as qualifying service period
towards pensionary benefits under Regulation 7(i) of DCRB Regulations,
1985, since adopted by WBSETCL, however, subject to deposition of
terminal benefits; i.e. employer's share of CPF contribution and gratuity
from the previous employer together with interest thereon, at the rate of
6% p.a. from the date of receipt of such terminal benefits by him to the
date preceding the date of deposit of the same, within two weeks from
the date of issue of the order or within two weeks from the date of
receipt of payment of such terminal benefits by the incumbent.
In accordance with the aforesaid communication the petitioner
deposited the terminal benefits, that is, the gratuity and the employer's
share of Provident Fund along with interest on 2nd December, 2008.
On receipt of the aforesaid amount the General Manager (F&A) by
a communication dated 14th February, 2009 intimated the Director (HR),
WBSETCL that in pursuance of the Office Orders the past service
rendered by the petitioner under WBSSCL will be counted as qualifying
service towards pensionary benefits under Regulation 7(i) of DCRB
Regulations, 1985, since adopted by WBSETCL.
The Director (HR), WBSETCL by an Office Order no. 162/2011
dated 16th March, 2011 ordered that the past service of the petitioner be
allowed to be reckoned as qualifying service towards pensionary benefits
under DCRB Regulations, 1985 as well as balance of earned leave of 216
days lying in the credit on 30th September, 2007 recorded in the service
book of the petitioner as on 1st October, 2007. The said Office Order was
issued with approval of the Chairman of WBSETCL.
5
By the impugned communication dated 2nd January, 2015 the
General Manager (HR&A)/(Offtg.) intimated the petitioner that his
pension in terms of DCRB Regulation, 1985 shall be released
considering the revised initial pay in terms of Revision of Pay and
Allowances Rules, 2009, herein after referred to as 'ROPA, 2009' for the
sake of brevity.
By the impugned Office Order no. 205/2015 dated 28th April,
2015 the Director (HR), WBSETCL intimated the petitioner that his
initial revised basic pay as on the date of joining WBSETCL in terms of
Revision of Pay and Allowances Rules, 2009 shall be Rs.37,400/- in the
pay band of Rs.37,400/-to 67,000/- with grade pay of Rs.8,900 being
the corresponding pay to the unrevised initial basic pay of Rs.16,400/-.
It was further intimated that there will be waiver on recovery of
Rs.8,09,440/- on account of excess payment of salary and leave
encashment made to him. Payment of gratuity will be made in terms of
DCRB Regulations, 1985 after revision of pay fixation. He will be eligible
for payment of retirement benefits pertaining to his service in WBSETCL
in terms of Contributory Provident Fund only based on the assessment
of the actuary, taking into account the benefit of indexation from his
date of joining in WBSETCL, as his ex-employer WBSSCL has provided
the pro rata share of CPF and also in view of the fact that he had not
completed the qualifying service in the Company for being eligible for
pension under DCRB Regulations, 1985. The said order was issued in
partial modification of the earlier Office Order no. 162/2011 dated 16th
March, 2011.
6
By a further Office Order no. 264/2015 dated 27th May, 2015 it
was resolved that the payment of gratuity to the petitioner shall be made
in terms of the provisions of the Payment of Gratuity Act, 1972 after
revision of pay fixation in terms of Office Order no. 205/2015 dated 28th
April, 2015.
The petitioner is aggrieved by the issuance of the aforesaid two
Office Orders.
By the aforesaid Office Order the petitioner was paid a sum of
Rs.4,46,815.38/- on account of gratuity under the Payment of Gratuity
Act, 1972. The petitioner accepted the aforesaid payment with objection.
The primary contention of the petitioner is that he is eligible to
receive his retiral benefits, including pension and gratuity, in terms of
DCRB Regulations, 1985.
The petitioner is also aggrieved by the fixation of his pay which
was made by the impugned Office Order dated 28th April, 2015.
The reason attributed for not granting the retirement benefits to
the petitioner in terms of the DCRB Regulations, 1985 is that he had not
completed ten years qualifying service in the Company for being eligible
for pension under the said Regulations. Admittedly, the petitioner joined
service in WBSETCL on 1st October, 2007 and he retired from service on
30th April, 2014. According to the petitioner the period of service that he
rendered in WBSSCL ought to have been taken into consideration for
the purpose of calculating his duration of service.
7
In support of his aforesaid submission the petitioner has relied
upon Regulation 7(1) of the DCRB Regulations, 1985 wherein there is a
provision for counting the previous continuous service rendered by an
employee in a post in regular establishment under State
Government/autonomous body/statutory body/undertaking etc. The
petitioner submits that as he was serving in a Company of the
Government of West Bengal for the period 25th January, 1999 to 30th
September, 2007 and he joined WBSETCL on 1st October, 2007 without
any break and served in the said Company till his retirement on 30th
April, 2014, accordingly his entire service period starting from his date
of initial appointment in WBSSCL i.e., 25th January, 1999 till his date of
retirement on 30th April, 2014 ought to be taken into consideration for
the purpose of calculating his qualifying period of service.
He further submits that if he comes within the purview of the
DCRB Regulations, 1985 then he will automatically be entitled to receive
the gratuity in terms of the said Regulation and not in terms of the
provisions of the Payment of Gratuity Act, 1972.
The further contention of the petitioner is that he is entitled to the
benefits of ROPA, 2009 applicable in respect of the employees of
WBSETCL. Stress has been laid on the applicability clause of ROPA,
2009 wherein it has been mentioned that every employee of the
Company shall be entitled to fixation of pay in the corresponding revised
scale of pay as per Schedule-I with effect from 1st April, 2007 or if he
enters the Company's service on or after 1st April, 2007, from the date of
his joining the Company. In the instant case, the petitioner joined the
8
service of the Company on 1st October, 2007 and accordingly he claims
to be covered under the provisions of ROPA, 2009.
By an Office Order dated 25th February, 2009 WBSETCL
enunciated and published the WBSETCL Revision of Pay and Allowances
Rule, 2009, effective from 1st April, 2007.
In Rule 5(ii) of ROPA, 2009 'existing scale' in relation to all
employees is defined as, the present scale applicable to the post held by
the employee as on 1st May, 2007 or as on the date of joining, whichever
is later.
The criteria for fixation of initial pay in the revised pay structure
have also been clearly mentioned in ROPA, 2009. It mentions that the
initial pay of an employee, to be governed by the revised pay structure,
shall be fixed on and from 1st April, 2007 or from the date of joining,
whichever is later. New recruits will be allowed pay at the initial of the
concerned pay band with respective grade pay.
Rule 7 of ROPA, 2009 deals with fixation of pay. It mentions that
where the pay of an employee drawing pay at two or more consecutive
stages in the existing scale gets bunched in the revised pay structure at
the same stage in the pay band, then, for every two stages so bunched,
benefit of one increment shall be given so as to avoid bunching of more
than two stages in the revised running pay band. The petitioner submits
that in view of his revision of pay his scale got bunched and as such he
is entitled to extra increment for protection of pay and he ought to get
the benefit of fitment in accordance with the fitment table applied
uniformly in WBSETCL.
9
Rule 35 of ROPA, 2009 specifically mentions that employees
retiring on or after 1st April, 2009 will be allowed payment of gratuity up
to a maximum sum of Rs. 3,50,000/-. It has however been submitted in
Court that presently the maximum limit of gratuity has since been
enhanced from Rs.3,50,000/- to Rs.10,00,000/- only.
The petitioner refers and relies upon a Circular of WBSEDCL
being Memo No. WBSEDCL/BC/Rev.P&A-2009/51/139(35) dated 26th
February, 2009 issued by the Director (HR) WBSEDCL wherein Rule 22
of ROPA, 2009 has been clarified. It has been clearly mentioned therein
that Contributory Provident Fund Scheme will be applicable to all future
recruits after the issue of the Office Order dated 16th February, 2009.
The petitioner prays for re-fixation of his salary in terms of ROPA,
2009 with the fitment benefit and for payment of his pension and
gratuity in terms of DCRB Regulations, 1985.
The petitioner relies upon the following decisions in support of his
prayers:-
On the proposition that the expression "issuance of the order" and
the phrase "giving effect to the rules" have to be read in plain and
unambiguous manner the petitioner relied upon
1) Union of India & Anr. -vs- Hansoli Devi & Ors.; (2002) 7
SCC 273 paragraph 9 wherein the Court was of the opinion that it is a
cardinal principle of construction of a statute that when the language of
the statute is plain and unambiguous, then the court must give effect to
the words used in the statute and it would not be upon to the courts to
10
adopt a hypothetical construction on the ground that such construction
is more consistent with the alleged object and policy of the Act.
2) Ansal Properties and Industries Limited -vs- State of
Haryana & Anr. ; (2009) 3 SCC 553 paragraph 39 wherein the Court
held that it is well settled principle of law that the court cannot read
anything into a statutory provision which is plain and unambiguous.
The language employed in a statute is the determinative factor of
legislative intent. If the language of the enactment is clear and
unambiguous, it would not be proper for the courts to add any words
thereto and evolve some legislative intent, not found in the statute.
To counter the plea of legal fiction adopted by the respondents,
the petitioner relies upon:
3) Gajraj Singh & Ors. -vs- State Transport Appellate
Tribunal & Ors.; (1997) 1 SCC 650 paragraph 22 where the court held
that legal fiction is nothing but a presumption of the existence of the
state of affairs which in actuality is non-existent. The effect being that a
position which otherwise would not obtain is deemed to obtain under
the circumstances. In case of legal fiction the Court believes something
to exist, which in reality does not exist. It is the presumption of the
existence of the state of affairs which in actuality is non-existent.
4) Nandkishore Ganesh Joshi -vs- Commissioner,
Municipal Corporation of Kalyan and Dombivali & Ors.; (2004) 11
SCC 417 paragraph 19 wherein the court held that a legal fiction
created cannot be given effect to in vacuum. It is to be applied having
regard to the legislative intent and a restricted meaning is to be
attributed thereto.
5) The petitioner relies upon the decision delivered by the Full
Bench of the Hon'ble Punjab and Haryana High Court in the matter of
Kartar Singh & Ors. -vs- State of Punjab & Ors. reported in 1989 (2)
ILR 252 paragraph 40 to emphasise the issue of absorption, wherein
the court held that on absorption an employee becomes part and parcel
of the department absorbing him and per-takes the same colour and
character of the existing employees of the department. According to the
petitioner as he was absorbed in the service of WBSETCL accordingly he
is entitled to get all the benefits which the other similarly placed
employees of WBSETCL are entitled to.
On the issue of purposive construction the petitioner relied upon:
6) Andhra Bank -vs- B. Satyanarayana & Ors.; (2004) 2
SCC 657 paragraph 14 wherein the court held that a machinery
provision, must be construed in such a manner so as to make it
workable having regard to the doctrine 'ut res magis valeat quam pereat'.
7) A.N. Sachdeva (dead) by legal representatives & Ors. -
vs- Maharshi Dayanand University, Rohtak & Anr. ; (2015) 10 SCC
117 paragraphs 1, 10, 11, 14, 15, 30 and 32 wherein the court held
that considering the principles enunciated under Articles 14 and 16 of
the Constitution and that the benefit is not an ex gratia payment but a
payment in recognition of past service, discrimination could not have
been made between those employees who have been absorbed/allocated
and are entitled to count their services as qualifying service for the
purpose of pension and not those who have been appointed directly. The
court was of the opinion that the appellants were entitled for the benefit
of counting the services rendered in Punjab University/Kurukshetra
University as qualifying service for the purpose of pension and in case
the amount payable towards Contributory Provident Fund is less than
the amount payable as pension, it would be adjusted by the respondent
without insisting for its refund from the amount payable to the
appellants.
On the issue of counting of past service for the purpose of
pensionary benefit the petitioner relied upon:
8) P. Ramakrishnam Raju -vs- Union of India & Ors.;
(2014) 12 SCC 1 paragraphs 19, 21, 22 and 23
9) State of West Bengal -vs- Haresh C. Banerjee & Ors. ;
(2006) 7 SCC 651 paragraph 4 wherein the court held that pension is
not a bounty payable on the sweet will and the pleasure of the
government. To receive pension is a valuable right of a government
servant.
8) Pepsu Road Transport Corporation Patiala -vs- Mangal
Singh & Ors.; (2011) 11 SCC 702 paragraph 49 wherein the court
held that pension is earned for rendering long and satisfactory service. It
is in the nature of deferred payment for the past service. It is a social
security plan consistent with the socio-economic requirement of the
Constitution when the employer is State within the meaning of Article
12 of the Constitution, rendering social justice to a superannuated
government servant. It is a right attached to the office and it cannot be
arbitrarily denied.
On the issue that the right to receive pension is recognized as a
right in "property", the petitioner relied upon:
9) State of Jharkhand & Ors. -vs- Jitendra Kumar
Srivastava & Anr. (2013) 12 SCC 210 paragraphs 16 and 17 and
10) State of Himachal Pradesh & Ors. -vs- Rajesh Chander
Sood & Ors. (2016) 10 SCC 77 paragraphs 70, 80 and 95.
11) High Court Employees' Welfare Association, Calcutta &
Ors. -vs- State of West Bengal & Ors.; (2007) 3 SCC 637 paragraph
26 wherein the court held that a revision of pay scale has to be followed
by fitment in the revised pay scale, in the case of employees who have
received pay under the old pay scales.
The respondents oppose the prayers of the petitioner.
It has been submitted that as the petitioner did not render
qualifying service of ten years in WBSETCL he will not be entitled to
receive his retirement benefits in terms of DCRB Regulations, 1985. It
has further been submitted that the petitioner is entitled to receive
gratuity in terms of Section 14 of the Payment of Gratuity Act, 1972 and
not otherwise.
Reliance has been placed on Regulation 7 of the aforesaid
Regulations. Rule 22 of ROPA, 2009 has also been relied upon, wherein
it has been mentioned that the existing system of maintaining pension
fund for those who opted for pension scheme under DCRB Regulations,
1985 will continue. In case of future recruits after issuance of the order,
Contributory Provident Fund Scheme will be made applicable. An option
for transfer from existing pension scheme under DCRB Regulations,
1985 to Contributory Provident Fund Scheme will be invited from the
employees of the Company after examining all legal issues and on
obtaining permission from statutory authorities, if required.
It has been submitted that the "existing system" indicated in Rule
22 of ROPA, 2009 relates to the employees who were in service prior to
1st April, 2007 i.e., the date from which ROPA was made effective. The
expression "future recruits", "after issuance of the order" implies the
employees who joined the Company after 1st April, 2007. As the
petitioner joined service in the Company on 1st October, 2007 the
petitioner will fall under the category of future recruits and will be
covered by the Contributory Provident Fund Scheme.
It has been contended that though ROPA, 2009 was enunciated
on 25th February, 2009 and the petitioner was appointed prior to the
said date, even then, in view of the fact that ROPA, 2009 was made
applicable with retrospective effect from 1st April, 2007, accordingly the
petitioner will not get the benefit of obtaining his retirement benefits in
accordance with the DCRB Regulations, 1985 but will come under
purview of the Contributory Provident Fund Scheme.
According to the respondents a legal fiction has been created in
ROPA, 2009. As retrospective effect has been given from 1st April, 2007
the expression after 'issuance of the order' will relate back to the said
date and not when ROPA, 2009 was published, unless of course, it is
specifically mentioned that the same will be applicable on and from the
date of its publication.
The respondents have relied upon the judgment delivered by the
Hon'ble Supreme Court in the matter of Ashok Leyland Ltd. -vs- State
of Tamil Nadu and Anr.; 2004(1) SCR 306 on the issue of legal
fiction.
The respondents pray for dismissal of the writ petition.
I have heard and considered the submissions made on behalf of
both the parties.
The petitioner claims that he is entitled to receive his retirement
dues including pension and gratuity in terms of the DCRB Regulations,
1985. The DCRB Regulations, 1985 was applicable to all the employees
of the West Bengal State Electricity Board with effect from 1st April,
1981. A scheme was introduced by the West Bengal State Electricity
Board and was approved by the Finance Department, Government of
West Bengal whereby the employees, irrespective of their date of
appointment, were required to exercise option, in writing, in a
prescribed form, within a period of six months, either for pension
including family pension cum gratuity or for Contributory Provident
fund cum gratuity. Option once exercised was final.
The service qualifying for pension as enumerated in Regulation 7B
of the DCRB Regulations, 1985 mentions that temporary whole time
employees rendering service for ten years or more will be granted
pension and gratuity as admissible to permanent employees under the
Regulations.
Regulation 7(1) lays down that for the purpose of the Regulations,
previous continuous service rendered by an employee in a post in
regular establishment under State followed with or without break by
absorption in a post in regular establishment in the Board shall be
treated as qualifying service subject to fulfilment of certain conditions.
Regulation 7(i) mentions that previous employment will be
counted for pensionary benefit only when the incumbent concerned
apply through proper channel and with permission from the Competent
Authority of the previous employer.
Regulation 7(ii) mentions that the pensionary liability shall be
shared on service share basis between the ex-employer and the Board,
i.e., the liability shall be shared on the basis of length of qualifying
service rendered under each of the employers (the ex-employer and the
Board).
Regulation 7(iii) mentions that the liability of the ex-employer shall
have to be shared in the manner as prescribed.
Regulation 7(iii)(a) mentions that where the ex-employer is
governed by Contributory Provident Fund/Gratuity scheme, the amount
of the employer's share of CPF contribution (together with interest
accrued thereon up to the date of eventual deposit to the Board) and
gratuity, becoming due payable to the concerned employee in
accordance with the Rules in force of the ex-employer by virtue of the
qualifying service for the purpose rendered there, shall have to be
deposited by the ex-employer to the Board provided, however, that
where the due amounts as mentioned herein above have already been
paid to the concerned employee by the ex-employer, the related amounts
shall have to be refunded by the employee to the Board, together with
simple interest at the rate of 6% p.a., calculated from the date of receipt
of the same, up to the end of the month preceding the same in which
the amount is deposited with the Board.
Regulation 7(1)(iv) mentions that the Regulations shall apply to (d)
those who will join the service under the Board from time to time
hereafter, provided, however, that the employees shall have to exercise
option in order to avail themselves of the benefit awarded under the said
regulation at their convenient time but before the respective date of
retirement. Option once exercised shall be final.
Note - 1(b) appended to Regulation 7 of the DCRB Regulations,
1985 mentions that pensionary liability as referred to in sub-regulation
iii(b) shall be borne by the ex-employer for a period till absorption in
Board's service and the same be deposited with the Board in due course.
Note - 2 of Regulation 7 mentions that in all cases covered by
these Regulations the pensionary liability shall have to be borne by the
concerned ex-employer in accordance with the rules in force there. The
benefit may, however, be allowed where the ex-employer is unwilling to
pay or is not in a position to pay up the dues in this regard, provided
that pensionary contribution for the period of service in question is paid
by the employee concerned.
The DCRB Regulations, 1985 further lays down that in addition to
pension an employee shall also be entitled to retiring gratuity.
The Government of West Bengal published the Notification no.
315-PO/O/C-IV/2E-01/2007 dated 2nd June, 2008 in the Kolkata
Gazette, Extraordinary on 14th July, 2008 notifying that the Governor
has been pleased to accord approval to the provisions of the DCRB
Regulations, 1985 which shall apply mutatis mutandis to the employees
and pensioners of WBSETCL for pension including family pension and
gratuity benefits.
WBSETCL by Office Order no. 28/2009 dated 25th February, 2009
published the revision of pay and allowances of employees of WBSETCL.
The aforesaid ROPA, 2009 was deemed to have come into force on 1st
April, 2007, unless otherwise specifically provided under the rules. The
said ROPA was applicable to all the employees of the WBSETCL with
effect from 1st April, 2007 or from the date of joining the Company.
The petitioner was serving WBSSCL since 29th January, 1999.
Pursuant to an advertisement published by WBSETCL inviting
applications for appointment in the post of Company Secretary the
petitioner applied and was selected. The required 'no objection
certificate' was submitted by the petitioner prior to his appointment. A
formal letter of appointment was issued in favour of the petitioner by
WBSETCL on 25th August, 2007 wherein the terms and conditions of his
service was clearly enumerated. It mentioned that the appointment shall
be governed by the prevailing practice and policy of the Company in
force or put in force from time to time and by the provisions of the
WBSEB Employees' Service Regulations as adopted by WBSETCL.
The petitioner accepted the terms and conditions as mentioned in
his letter of appointment and he joined the service of WBSETCL on 1st
October, 2007. Immediately upon joining service in WBSETCL the
petitioner clearly informed the Company that he was a member of the
Employees' Provident Fund Scheme under his previous employer and he
intended to continue with his membership under the said Scheme. By a
further communication dated 12th March, 2008 the petitioner intimated
the Director that though he had opted for continuing with the Provident
Fund Scheme but he has been made to understand that the same was
not possible without modification as the Employees' DCRB Regulations,
1985 of the Company was being applied to the employees of the
Company. The petitioner accordingly exercised his option for being
covered by the DCRB Regulations, 1985.
The petitioner thereafter made a formal application, as required,
in the specified format for availing the benefit under the DCRB
Regulations, 1985 for the purpose of calculating his previous service
rendered under WBSSCL as qualifying period of service for the purpose
of pensionary benefits. The petitioner worked for a total period of eight
years, eight months and five days with WBSSCL. The said form for
counting of previous service rendered under the ex-employer was
countersigned by the Managing Director of WBSSCL.
WBSETCL accepted the prayer of the petitioner and by an Office
Order dated 4th November, 2008 issued by the Director (HR) ordered
that the past service of the petitioner for the period 25th January, 1999
to 30th September, 2007 followed by absorption in regular establishment
in WBSETCL with effect from 1st October, 2007 will be counted as
qualifying service period towards his pensionary benefits under
Regulation 7(i) of DCRB Regulations, 1985 since adopted by WBSETCL,
subject to deposition of terminal benefits i.e., employer's share of CPF
contribution and gratuity from the previous employer together with
interest at the rate of 6% p.a. from the date of receipt of such terminal
benefits to the date preceding the date of deposit.
The petitioner in terms of the aforesaid Office Order deposited the
terminal benefits received by him on account of CPF contribution and
gratuity from his ex-employer amounting to Rs.3,63,348/- only.
On receipt of the aforesaid amount the General Manager (F & A)
intimated the Director (HR), WBSETCL that the past service of the
petitioner shall be counted towards the pensionary benefits under
Regulation 7(1) of the DCRB Regulations, 1985 since adopted by
WBSETCL.
Office Order no. 162/2011 dated 16th March, 2011 of the Director
(HR) mentions that the past service rendered by the petitioner will be
allowed to be reckoned as qualifying service towards the pensionary
benefits under DCRB Regulations, 1985 as well as the balance of earned
leave of 216 days lying in his credit on 30th September, 2007 (last date
of service in WBSSCL) be recorded in the service book of the petitioner.
It was mentioned that the said Order had the approval of the Chairman
of the Company.
The petitioner retied from service on attaining his normal age of
superannuation on 30th April, 2014. After eight months of his retirement
the General Manager (HR & A/Offtg.) by a communication dated 2nd
January, 2015 sought to re-fix the pay scale of the petitioner. By a
further Office Order no. 205/2015 dated 28th April, 2015 the Director
(HR) intimates the petitioner that in view of detection of discrepancies in
the pay fixation of the petitioner on account of ROPA, 2009 a proposal
for settlement of outstanding dues was placed before the Board of
Directors and the Board of Directors in the meeting held on 2nd April,
2015 after due consideration in line with the opinion dated 23rd March,
2015 of the Additional Chief Secretary, Department of Power and NES,
Government of West Bengal has accorded approval for settlement of his
outstanding dues in the manner as indicated in the said Office Order.
The initial revised basic pay of the petitioner has been revised. It
was ordered that the gratuity would be paid to him in terms of the
DCRB Regulations, 1985 after revision of pay fixation and it was further
ordered that the petitioner would be eligible for payment of retirement
benefits in terms of the CPF only based on assessment of the actuary
taking into account the benefit indexation as his ex-employer provided
the pro rata share of CPF only and also because the petitioner did not
complete the qualifying service in the Company for being eligible for
pension under the DCRB Regulations, 1985. It was mentioned that the
said Office Order was issued in partial modification of the earlier Office
Order no. 162/2011 dated 16th March, 2011.
By a further Office Order no. 264/2015 dated 27th May, 2015 it
was ordered that the payment of gratuity to the petitioner shall be made
in terms of the provisions of the Payment of Gratuity Act, 1972 after
revision of his pay fixation. The petitioner being aggrieved filed the
instant writ petition.
A plain reading of the Office Orders and the communications
made between the parties reveals that when the petitioner joined service
of WBSETCL way back in the year 2007 the terms and conditions of his
appointment were different. From the date of joining in the Company on
1st October, 2007 till his date of retirement on 30th April, 2014 the
petitioner knew and was made to understand that he would be covered
and he would come within the purview of the DCRB Regulations, 1985.
The communications and the Office Orders made prior to the date of
retirement univocally make it clear that the petitioner was covered by
the provisions of the DCRB Regulations, 1985. The same implies that
the petitioner would be entitled to receive his gratuity and pension in
terms of the said Regulations. The Office Orders and the communicating
letters of the Company in no uncertain terms make it clear that the past
service of the petitioner has been taken into account for the purpose of
calculation of his terminal benefits.
All on a sudden, eight months after the petitioner retired from
service, he is being intimated that his past service will not be counted
for the purpose of assessment of his terminal dues. More than a year
after his retirement he is being intimated that he will not be entitled to
receive gratuity in terms of the DCRB Regulations, 1985 but would
receive the same in terms of the provisions of the Payment of Gratuity
Act, 1972. The Office Order dated 28th April, 2015 mentions that there
has been partial modification of the earlier Office Order dated 16th
March, 2011.
On careful reading it appears that there is a sea of change in
between the Office Orders dated 16th March, 2011 and 28th April, 2015
read with Office Order dated 27th May, 2015. The same cannot be
termed as a 'partial modification'. When the petitioner joined the
Company he was made aware of the terms and conditions of his service.
The same cannot be changed unilaterally, without any notice, long after
his retirement from service, after putting in more than eight years and
eight months of service in the Company.
The Company has a dedicated cell to look into HR and
remuneration of the employees of the Company headed by a Director.
The Company in its Board Meeting held on 28th June, 2008 resolved
that till formation of HRD and Remuneration Committee separately for
WBSETCL, recommendation of HRD and Remuneration Committee of
WBSETCL, when implemented, on policies relating to HR matters and
remuneration in respect of WBSEDCL employees, will be extended,
wherever applicable, mutatis mutandis, to the regular employees
including functional directors of WBSETCL with approval of Chairman of
the Company.
In the instant case the Director (HR) by Office Order no. 162/
2011 dated 16th March, 2011 ordered that the past service of the
petitioner will be allowed to be reckoned as qualifying service towards
pensionary benefits under the DCRB Regulations, 1985 and the same
had the approval of the Chairman of the Company. When a decision is
taken at the highest level of the Company the same ought not to be
changed by the successor in interest, without a just and valid reason,
long after the employee retired from service.
The respondents have submitted that the said Office Order was
issued wrongly. It cannot be accepted that such a wrong decision was
taken by the officers at the highest echelons of the Company. That too,
the error is detected long after the petitioner retired from service. It
seems that the successor in office, in the year 2015, has simply undone
the work which was done by the predecessor in office, in the year 2011.
The same can never be a mistake of only one officer. Several officers
were involved, starting from the Cash Officer, General Manager (F & A),
General Manager (HR & A), Director (HR) and right up to the Chairman.
The Office Order No. 162/2011 was issued by the Director (HR) wherein
it was clearly mentioned that the same had the approval of the
Chairman.
The respondents at such a late stage have fallen back on legal
fiction to justify the decision passed in the subsequent Office Order in
the year 2015. The respondents have strenuously tried to convince the
Court that ROPA, 2009 though published on 25th February, 2009, was
given retrospective effect from 1st April, 2007. As the petitioner joined
service on 1st October, 2007 accordingly the petitioner will not be
entitled to the benefit of receiving pension. The petitioner will be entitled
to receive provident fund in terms of Rule 22 of the ROPA, 2009. Stress
has been laid on Rule 22 of ROPA, 2009 wherein it has been mentioned
that in case of future recruits, after issuance of the order, Contributory
Provident Fund Scheme will be made applicable. It has been submitted
that the date of issuance of the order has to be taken as 1st April, 2007
and not 25th February, 2009 as ROPA has been made effect from 1st
April, 2007.
For better appreciation of the case, Rule 22 of ROPA, 2009 is
extracted herein below:
Rule 22. PROVIDENT FUND: Existing system of maintaining
pension fund for those who opted for pension scheme under WBSEB
Death Cum Retirement Benefit (DCRB) Regulations, 1985 will continue.
In case of future recruits, after issuance of the order, Contributory
Provident Fund Scheme will be made applicable. An option for transfer
from existing pension scheme under DCRB Regulations, 1985 to
Contributory Provident Fund Scheme will be invited from the employees
of the Company after examining all legal issues and on obtaining
permission from statutory authorities, if required.
The 'existing system' has been defined in the aforesaid Rule as,
the system which was existing on the date the ROPA was published i.e.
on 25th February, 2009. Admittedly, the petitioner had opted for coming
within the purview of DCRB Regulations, 1985 prior to the publication
of ROPA, 2009. The petitioner filed the application under Regulation 7(1)
of DCRB Regulations, 1985 in April, 2008. The Office Order dated 4th
November, 2008 followed by a communication of the General Manager (F
& A) dated 14th February, 2009 clearly mentioned that the past service
rendered by the petitioner shall be taken into consideration for the
purpose of calculating his pensionary benefits in terms of the Regulation
7(i) of DCRB Regulations, 1985.
'In case of future recruits, after issuance of the order' in my
opinion, means any recruitment after the publication of ROPA, 2009 on
25th February, 2009. The term 'future' and 'after issuance' read
conjunctively implies prospective conduct. The same certainly does not
relate back to 1st April, 2007. Had that been so, then the Rule would
have mentioned that in case of recruits on and after the date of coming
into effect of ROPA, 2009, CPF scheme will be applicable, but it is not
so. Instead it mentions that in case of future recruits, after issuance of
the order, Contributory Provident Fund Scheme will be made applicable.
The Rule goes on to mention that an option for transfer would be
invited from employees after examining all legal issues and on obtaining
permission from the statutory authorities. No document has been put
forth to show that the option for transfer of option was invited from the
petitioner. In fact, there was no scope for inviting option as the
petitioner was all along considered to have come within the purview of
the DCRB Regulations, 1985. It is only after the petitioner retired from
service, the impugned Office Order has been passed unilaterally
transferring the petitioner from the DCRB Regulations, 1985 to the
Contributory Provident Fund Scheme. It does not appear that any
permission from any statutory authority was sought prior to unilateral
transfer of the petitioner from the pension scheme to the Provident Fund
Scheme. The legal issues relating to such transfer was also not taken
into consideration by the Company.
The fact that the petitioner was covered under the CPF Scheme
prior to joining the Company and expressed his intention to continue in
the said scheme after joining WBSETCL was overlooked at the time of
passing the impugned Office Orders. It is only after the Company did not
permit the petitioner to continue with the CPF scheme was he directed
to deposit the terminal benefits i.e., employer's share of CPF
contribution and gratuity from the previous employer together with
interest at the rate of 6% p.a. from the date of receipt of such terminal
benefits to the date preceding the date of deposit, which he did, to come
under the purview of the DCRB Regulations, 1985. It is too late in the
day to retract from the same and forcefully impose the CPF scheme
upon him.
Moreover, when the petitioner as per the direction of the Company
exercised his option to come under the purview of the DCRB
Regulations, 1985 and the same was accepted by the Company by
issuing a formal Office Order, the same takes the flavour of a contract,
there being an offer by the employee and acceptance thereof by the
employer. The contract thereafter could not be unilaterally
altered/modified/changed.
The circular dated 26th February, 2009 sets the issue at rest. Rule
22 has been clarified and it has been specifically mentioned that CPF
scheme will be applicable to future recruits after 16th February, 2009.
There is hardly any fiction in the said Rule.
Applying the ratio laid down by the Hon'ble Supreme Court in the
matter of Hansoli Devi (supra) and Ansal Properties (supra) no other
interpretation of the above expressions can be accepted.
This is not a case of rectification of erroneous fixation of pay but is
a clear case of re-fixation of pay long after retirement. The same will not
be permissible as the petitioner has acted in terms of the conditions laid
down in the DCRB Regulations, 1985 and have deposited the entire CPF
money along with interest from his previous employer with the present
employer and being satisfied the Company accepted the petitioner to be
covered under the DCRB Regulations, 1985. The previous service period
was also taken to be counted for the purpose of calculation of
pensionary benefit. After retirement of the employee the Company ought
not to show a volte face and refuse the benefits which the petitioner is
entitled to as per law. The Company is estopped from taking an absolute
contrary stand as the petitioner has accepted and acted in terms of the
directions put forth by the Company to come under the DCRB
Regulations, 1985. If the same is permitted, then the employer will get a
chance to alter or vary the service condition(s) after retirement, to the
disadvantage of the employee. After the end of the service career the
employee will feel cheated, as during the service tenure the employee
was made to understand that he was covered under a particular scheme
and will be entitled to certain benefits, but after retirement he is
informed that he would not be entitled to the benefit as promised, but
would be guided by some other scheme. The subsequent scheme may
not be as per the choice of the employee. It is akin to changing the rules
of the game after the game is over.
The expression 'rectification of erroneous fixation of pay' used by
the Company may be limited to correction of minor arithmetical
mistakes, but in the garb of rectification, the formula adopted for
making the said calculation cannot be changed. The same amounts to
're-fixation' and not 'rectification'.
Accordingly, the decision of the Company to pay gratuity to the
petitioner in terms of the Payment of Gratuity Act, 1972 and for
payment of Contributory Provident Fund to the petitioner cannot be
accepted by the Court. The impugned Office Orders are accordingly set
aside.
The respondent authorities are directed to release the terminal
benefits including pension and gratuity of the petitioner in accordance
with the DCRB Regulations, 1985 after fixation of his pay within a
period of eight weeks from the date of communication of a copy of this
order. As the petitioner was entitled to receive his terminal benefits
immediately after his retirement from service in the year 2014 but the
same has been illegally and arbitrarily held up by the respondent
authorities, accordingly the petitioner will be entitled to receive his dues
along with simple interest at the rate of 6% p.a. calculated on and from
1st May, 2014 till the date of actual payment. In the event the dues of
the petitioner are not cleared within the time as specified herein above,
the respondent authorities shall pay additional interest @ 2% p.a.
(6%+2%) on and from 1st May, 2014 till the date of actual payment.
As regards the revision of basic pay of the petitioner the concerned
respondent authority shall calculate and fix the same after giving the
fitment benefit, which the petitioner is entitled to, in terms of the fitment
table framed by WBSEDCL applicable to the employees of WBSETCL,
within the time as specified herein above. An opportunity of hearing
shall be provided to the petitioner at the time of fixation of his scale of
pay.
WPA 14280 of 2015 is disposed of.
Urgent photostat certified copy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
Later:
The prayer for stay made by the respondents is considered and in
view of the fact that the matter relates to non-payment of retiral dues of
a retired employee the same is rejected, more so because enough time
has been granted for compliance of the order.
(Amrita Sinha, J.)
