Shri Deo Prakash vs Union Of India (Uoi) And Ors.
2008 Latest Caselaw 303 Del

ORDER

A.K. Sikri, J.

1. The petitioner, Sh. Deo Prakash, had filed this writ petition claiming pro- rata retirement benefits, pension and gratuity on the basis of his service in the Air Force and thereafter consequent absorption in Rourkela Steel Plant, a Public Sector Undertaking (hereinafter referred to as PSU). The petitioner died during the pendency of these proceedings and his widow Smt. Ramkali Devi was substituted in his place by this Court vide orders dated 24.2.2004 She has pursued the petition thereafter.

2. The case of the petitioner is based on the following facts, which may first be recapitulated:

3. Sh. Deo Prakash (hereinafter referred to as the deceased) was appointed as Temporary Routine Grade Clerk by the Controller of Accounts, Air Force, on 19.6.1942. In 1944 he was promoted as typing clerk and on 1.7.1949 an order was passed absorbing him as quasi permanent. Thereafter, he was promoted as Assistant Accountant with effect from 17.7.1953. When he was working in this capacity with the Air Force, he was sent on deputation in public interest to Rourkela Steel Plant (a unit of Steel Authority of India Limited) on 23.11.1957. While working on deputation there, he was permanently absorbed in the said Steel Plant with effect from 15.12.1961 after he resigned from the Controller defense Account, Air Force. In the said Steel Plant he worked up to March 1976 where after he left that job as well exercising his option for retirement under the Voluntary Retirement Scheme.

4. Vide OM dated 16.6.1967, the Government of India, Ministry of Finance, Department of Expenditure, came out with a scheme as per which permanent government servants were entitled to payment of pro-rata retirement benefits on absorption in PSUs in public interest. This scheme was, however, made applicable in respect of those government servants who were absorbed in PSUs on or after the date of said office memo i.e. 16.6.1967. This cut off date was challenged by some employees and the matter went up to Supreme Court. The Supreme Court declared the fixation of date of 16.6.1967 as arbitrary and directed the Government of India to grant pro-rata pension and other benefits to even those government servants who were absorbed in the PSUs prior to 16.6.1967. After this judgment was rendered on 17.2.1993 by the Apex Court which is reported as T.S. Thiruvengadam v. Secretary to Government of India , accepting the mandate of that judgment, office memo dated 3.1.1995 was issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Pension and Pensioners' Welfare, Government of India, extending the benefit of OM dated 16.6.1967 to all the Central Government employees who were absorbed in the Central PSUs prior to 16.6.1967 as well, subject to fulfillment of certain conditions specified therein.

5. The deceased in the writ petition alleged that he came to know of this circular some time in November, 1997 from a colleague of his and thereafter made representation on 21.11.1997 to the respondents (CDA) as well as Managing Director for payment of pro-rata pension. It was followed by reminder dated 15.1.1998. The deceased was asked to supply certain documents and information from Rourkela Steel Plant. Deceased, thus, requested the Assistant Manager, Rourkela Steel Plant to supply the Service Book P. II Office Order absorbing the deceased permanently and other relevant record to the office of Chief Controller of Accounts so that pro-rata retirement benefits could be released to him. Various reminders were also sent. Ultimately, on 27.11.1998 Rourkela Steel Plant sent the requisite information to Chief Controller of Accounts (Factories). However, thereafter, on 18.12.1998 the deceased received a letter from the office of the CDA stating that at this belated stage it was not possible for the office to furnish any document pertaining to service period of the deceased with CDA (A.F.) Dehradun from 13.6.1942 to August 1954. The deceased again pursued the matter with the respondents unsuccessfully.

Ultimately on 16.8.1999 Delhi office of CDA informed that the service record of the deceased could not be traced. At that point of time this writ petition was filed by the deceased with the following prayers:

A) Issue a writ of mandamus or any other appropriate writ directing the respondents to grant pro-rata retirement benefits, pension and gratuity consequent on permanent absorption in PSU/Rourkela Steel Plant.

B) Direct the respondents to release all the consequential benefits as per the Notification issued by the Govt. of India, Ministry of Public Grievances and Pension, Deptt. of Pension and Pensioners' welfare O.M. No. 4(6)/85-P and PW(D) dated 3.1.95 circulated by C.G.D.A. New Delhi under their No. AT/V/DAD/Pen/15001/Vol.IVL dated 6.2.95.

C) Further issue an appropriate writ or direction directing the respondents to comply with the Notification dated 3rd January 1995 on the basis of documents submitted by the petitioner and in view of the Supreme Court Judgment release the benefits and all arrears of pension with 18% interest there-upon till the date of realization

AND

pass such other and further order as this Honourable Court may deem fit and proper in the circumstances of the present case.

6. It is clear from the aforesaid factual matrix, the main reason for denial of the pro-rata pension to the deceased is that his service record is not available with CDA (A.F.) Dehradun and in the absence of said record case of the deceased could not be processed. Otherwise, if the deceased had worked with the CDA during the aforesaid period, it cannot be denied that as per OM dated 16.6.1967 read with OM dated 3.1.1995 the deceased would be entitled to pro-rata pension. Reading of OM dated 16.6.1967 read with OM dated 3.1.1995 would indicate that following conditions are to be fulfillled for grant of pro-rata pension:

a) The officer had rendered not less than 10 years service under Government and was not entitled to pension.

b) He was absorbed to a Central PSU in public interest.

c) The absorbee should have received the retirement benefits as per Ministry of Finance, Department of Expenditure, O.M. Dated 10.11.1960 namely an amount equal to what Government would have contributed had the officer been on Contributory Provident Fund terms under Government, together with simple interest thereon at 2% for the period of his pensionable service under the Government, should have been credited to his Contributory Provident Fund Account with the PSU as an opening balance within one year from the date of his/her permanent absorption.

7. In so far as last condition is concerned, it could not have been fulfillled at the relevant time as the OM was initially made applicable only to those employees who got absorbed on or after 16.6.1967. It is only in the year 1995 that after the judgment of the Supreme Court, the scheme of grant of pro-rata pension was made applicable to the employees who left the Government job in Central PSU in public interest even before 16.6.1967.

8. We may also note at this stage that in the counter affidavit filed on behalf of the respondents 1, 2, 3 and 5, these respondents have primarily taken the ground that the record of the deceased is not available with the CDA (A.F.) Dehradun and in the absence of record the Government could not verify the claim of the deceased and further that he was fulfillling the conditions laid in OM dated 16.6.1967. It is also stated that the deceased had not been able to intimate the quantum of terminal benefits received by him from defense Accounts Department on his permanent absorption.

9. The respondents have also annexed extract from office manual Part-II, Vo. I and para 61 read with Annexure A which relates to preservation and destruction or disposal of records mentions that in so far as service books are concerned that would be retained for a period of 10 years after death or 5 years after retirement or 5 years from the date of final settlement of terminal benefits for those individuals who resign or are retrenched, removed or are dismissed. Thus, if the records were destroyed, the service book of the deceased was destroyed under the aforesaid provision, it cannot be said that there was any wrong by the respondents. No doubt in matter of pensions ordinarily the claims cannot be denied on the ground of delay. That may only restrict the actual payment of arrears by denying the payment of arrears for past period. However, the position would be different in case the claim cannot be entertained at all in the absence of necessary documents.

10. In a recent judgment pronounced on 28.1.2008 in WP(C) No. 1595/2007 entitled 'Shashi Bala v. Union of India and Anr.', this Court had the occasion to discuss the aspect in some detail and the relevant discussion is in the following passages:

4. The question that falls for consideration is as to what should be the approach of the Court in cases where pension is claimed even when such a claim is preferred belatedly. No doubt, claim of pension is a continuing cause of action and if an individual is found entitled to the said claim, it should not be denied merely because he approached the Court belatedly. If the claim is found to be legitimately proved, the relief can be moulded by depriving the petitioner from getting arrears of past period and limit it from the date three years prior to the filing of the petition.

5. A Division Bench of this Court in the case of Ajaib Kaur and Ors. v. Union of India and Ors. 2002 (64) DRJ 132, while holding that normally plea of laches in such pension matters is not to be entertained, but in the fact situation of a particular case such plea can be accepted and on that ground prayer for claiming pension would be rejected.

6. A recent judgment of the Supreme Court, in fact, enlightens us on this issue as it lays down the principle of law on the question of delay and laches in a claim for disability pension in lucid terms. The judgment in question is Shiv Dass v. Union of India and Ors. 2007 (2) SCT 72. The Apex Court in that case restated the approach which the High Court is to adopt in case of belated petitions. Para 5 of the said judgment may be quoted in this behalf:

5. Normally, in case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the 'Constitution'). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports and Ors. AIR 1970 SC 769. Of course, the discretion has to be exercised judicially and reasonably.

In para 6 and 7, reference is made to various other judgments in support of the aforesaid proposition. It is also observed that such belated petitions are not to be entertained as it is likely to cause confusion and public inconvenience and bring in its train new injustices and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. The Court also pointed out that mere making of representations would not be adequate explanation to take care of delay. After stating the law in these general terms, in respect of pension cases the Supreme Court laid down the following approach:

9. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.

It is clear from the above that each case has to be dealt with on its own merits. No doubt, if the claim is well founded it is not to be rejected merely on the ground of delay. However, if delay prejudices the other side, it becomes relevant factor to dismiss the petition.

11. In the present case, no doubt, the deceased has filed along with his petition typed copy of his recruitment letter dated 19.6.1942. He has also filed photostat copy of intersectional transfer order dated 23.7.1954 whereby he was transferred from Stores to C(Pay). This would show that deceased was in service from 1942 to 1954. However that by itself was not sufficient to enable the deceased to get the pro-rata pension as other conditions mentioned above are also to be satisfied. In the absence of record, one is not in a position to find out whether those conditions are satisfied namely whether the deceased was absorbed in Central PSU in public interest and what quantum of terminal benefits were received from defense Accounts Department on his permanent absorption as in the absence of this information his case could not have been finalised.

12. We, therefore, are unable to grant any relief to the petitioner. This petition is accordingly dismissed.