Sh. Brij Raj Singh vs Union Of India (Uoi), Through Its ...
2006 Latest Caselaw 2224 Del

JUDGMENT

J.M. Malik, J.

1. The burning point of discussion in this writ petition is whether the petitioner is entitled to contributory provident fund and matching provident fund, or to the benefit of pension. The petitioner's case is this. The petitioner was appointed to the post of Weighment Clerk on 11.11.1954 in the Ministry of Food and Agriculture at Rampur, U.P. Region. Thereafter, he was promoted on various stages. On 13.02.1968, he was promoted to the post of Quality Inspector Grade I for the U.P. Region. The Department of Food vide its order dated 02.08.1979, transferred the services of the petitioner, Along with other employees to the Food Corporation of India(in short FCI) w.e.f. 02.08.1979. On 18.09.1979 the petitioner was asked to give option for leave, provident fund or other terminal benefits. The said option furnished by the petitioner is reproduced as follows:

I Shri Brij Raj Singh employed to the Northern (Region) of the Regional Directorate of Food/Pay and Accounts office have since been transferred to the services of Food Corporation of India vide Government of India, Ministry of Agriculture(Deptt. of Food) Notification No. 02/1/79-FC II(vol III) dated 4.08.79 hereby opt in pursuance of Sub-Section 4(A) of Section 12A of Food Corporations Act, 1964 to be governed:

(a) by the scale of pay applicable to the post held by me under the Government immediately before the date of transfer. OR by the scale of pay applicable to the post under the Corporation to which I am transferred.

(b) by the leave, provident fund, retirement or other terminal benefits admissible to employees of the Central Government in accordance with the rules and orders of the Central Government as amended from time to time.

OR

the leave, provident fund or other terminal benefits admissible to the employees of the Corporation under the Regulations made by the Corporation under the Food Corporation Act.

THIS OPTION IS FINAL

It is alleged that although, the petitioner had opted for the rules and regulations pertaining to leave, GPF, gratuity of Food Corporation of India, yet the respondent continued deducting the amount from the salary of the petitioner monthly and deposited to his GPF account (GPF No. FCI/NZ/1631), which was allotted to him, whereas the petitioner as per FCI rules and regulations was entitled to the CPF and not GPF.

2. Vide letter dated 30.01.1993 / 09.02.1993 the respondent asked the petitioner to furnish in triplicate his bio data form to enable it to process his case for pension and DCRG well in time. The petitioner requested the respondent to commute one third of his pension on 7th January, 1994. On 18.04.1994, he was informed that he would stand relieved from the duties w.e.f. 30.04.1994 consequent upon his attaining the age of superannuation and the petitioner stood retired from the service of FCI w.e.f. 30.04.1994. The petitioner was informed that as per record, an amount of Rs. 13,134/- on account of excess HRA in the sum of Rs. 3,114/- and balance vigilance recoveries till 30.04.1994 in the sum of Rs. 10,020/- were recoverable from him. Thereafter, the petitioner sent representation to settle the matter and. In this writ petitioner has prayed that the respondent be directed to release the pensionary retiring benefits to the petitioner forthwith.

3. Respondent have contested the present case.

4. Record shows that during the pendency of this writ petition, on 05.09.1995, a cheque in the sum of Rs. 2,97,693.30 was handed over to the counsel for the petitioner which he had accepted without prejudice to the rights of the petitioner in the writ petition. This cheque pertains to his Contributory Provident Fund.

4. I have heard the counsel for the parties. The learned Counsel for the petitioner vehemently argued that it is true that vide option dated 18.09.1979, the accused had given final option for contributory provident fund and matching provident fund, but in case he is estopped from giving the second option so is the respondent because the respondent vide his letter dated 30.01.1993 (Annexure III) had itself written:

You are due to retire on attaining the age of superannuation on 30.04.1994. A blank bia-data form is enclosed which may please be filled in and furnished in triplicate to enable us to process your case for pension and DCRG well in time. For the FCI period complete details of posts held and offices of posting may please be indicated.

6. Her arguments go wide of the mark. The letter dated 30th January, 1993 appears to be a bonafide mistake. Moreover, the respondent clarified its position vide letter dated 20.12.1994. Its relevant portion reads:

Sub : Finalisation of Terminal Benefits.

Sir,

Please refer to the legal notice served by Sh. Om Parkash Advocate on your behalf for finalisation of your gratuity etc. In this respect, it is to inform that as per the option form submitted by you on 18.09.1979, you have exercised the terminal benefits admissible to the employees of the Corporation under the regulations made by the Corporation under the FCI Act. As such you are not entitled for Central Govt. Terminal Benefits but shall be governed by FCI Rules.

Since the competent authority to grant FCI Gratuity is SRM, FCI, Punjab, your case for the same is being returned to Regional Office, Chandigarh (Pb.) and you will be paid FCI Gratuity after finalisation of the vig. cases which are still pending against you.

7. Again, in the instant case, the petitioner has accepted a huge amount of Rs. 2,97,693.30 i.e. almost Rs. 3 lacs in the year 1995. He must have earned a huge amount of interest.

8. The above said estoppel applies to the petitioner and not to the respondent. I also came across the following authorities which go to fortify the respondent's case. In R.S. Maddanappa v. Chandramma and Anr. , it was held:

The law of estoppel by representation is confined to the provisions of S. 115 and apart from the provisions of this section there is nothing like what is called 'equitable estoppel' evolved by the English Judges. The provisions of S. 115 are in a sense a rule of evidence. They are founded upon the well known doctrine laid in (1837) Ad and EI 469. The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith. Consequently where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel if that other person knew the true state of facts and must consequently not have been misled by the misrepresentation.

Further, the person setting up an estoppel against another must show that his position was altered by reason of the representation or conduct of the latter, otherwise even the general principle of estoppel cannot be invoked by him. (160) 3 HLC 29 and (1875) 10 CP 307 and 19 Ind App 203 (PC) Rel. on.

9. In Sukumar Chatterjee v. Kiran Chandra Mitter AIR 1964 Calcutta 439 it was held:

No person can be estopped either by attornment, pleading or other conduct where the conduct constituting the estoppel was founded on a mistake of facts.

10. In Jai Prakash Sinha v. The Chairman, Bihar School Examination Board , it was held:

The second argument of learned Counsel with regard to the Examination Board is equally untenable. It is said that the Board had allowed the petitioner to appear at the re-examination of advance mathematics. A telegram has been produced in support thereof. On behalf of the Board, it is said that the telegram was sent by mistake to the petitioner. It is said that only those persons who had not been caught red-handed and expelled on that ground had been allowed to appear at the re-examination in the same subject but those who were expelled were naturally not allowed to sit at any re-examination in the same paper or examination in other papers. It has also been alleged by the petitioner that he paid the examination fee and thereafter appeared at the re- examination. This fact is controverter by the Examination Board and it is said that he had never deposited the fee and had some how managed to sit at the examination. If the petitioner knew the fact, as he did, that he had been expelled from the examination along with several others, he is only trying to take advantage of a telegram sent to him by mistake.

Consequently, in view of the above said discussion, the petitioner's attempt to kick against the pricks fails. The writ petition is dismissed. This is a fit case where heavy costs of the case should be imposed upon the petitioner.

However, since the petitioner is a senior citizen, therefore, I refrain from imposing costs.