Indra Pal Singh vs Food Corporation Of India & Ors.
2013 Latest Caselaw 1527 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No. 2235/2004

%                      Judgment reserved on: 1st March, 2013
                      Judgment delivered on: 4th April, 2013

INDRA PAL SINGH                                        ..... Petitioner
              Through:           Mr. Gulab Chandra, Advocate.

                    Versus

FOOD CORPORATION OF INDIA & ORS.          ..... Respondents
            Through: Mr. Sanjiv Joshi, Advocate for
                      Respondent FCI.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J.

1. Vide the instant petition, the petitioner is seeking issuance of mandamus directing the respondents to release pension and GPF amount of Rs.1,44,319/- lying in the petitioner's GPF Account No.FCI/NZ/2197 with admissible interest upon both, i.e., pension and GPF as well.

2. Brief facts of the case are that on 19.09.1960, the petitioner was appointed as Godown Clerk with the erstwhile Department of Food, Ministry of Food and Agriculture, Government of India and worked at various places. The Management of Food Corporation of India (hereinafter referred to as 'FCI') came into being in 1966 under the Act of the Parliament, i.e., the Food Corporation Act, 1964. The

employees working with the Department of Food, Ministry of Food and Agriculture at its different godowns and offices were transferred from Department of Food bit by bit to the respondent FCI on as and where basis. Accordingly, the petitioner was transferred to the respondent FCI on 01.11.1966.

3. After his being transferred to FCI, the petitioner got promoted to Assistant Grade-I and Assistant Manager (Depot). During the year 1977, while, the petitioner was posted as Assistant Grade-I (Depot) at the A.R.D.C. Godown, Firozabad, under FCI District Office Agra, the respondent FCI sought option from him and other employees, who were transferred from Department of Food to FCI to exercise their individual option:-

(I) Whether to avail the terminal benefits as admissible to the Central Government employees, and

(II) The pay scale of Central Government, or

(III) The scale of FCI and its terminal benefits on retirement.

4. For the aforesaid purpose, each employee including the petitioner was served the option form individually by the Management in quadruplicate. On receipt of the said form, the petitioner exercised option of the terminal benefits as admissible to the Central Government employees after retirement, i.e., 'Pension', 'General Provident Fund (GPF)', 'Gratuity', 'Leave Encashment' and 'Group Insurance' governed by the Central Government Rules as amended

from time to time and also the pay scale of the Central Government employees, which the petitioner was availing previously.

5. The petitioner also put cross marks over the benefits of the FCI column wise to which he did not desire and submitted the option forms with the District Office of FCI at Firozabad on 19.05.1977. The forms were duly witnessed by the officers of the rank of Assistant Manager. The same are annexed as annexure P-1, wherein the petitioner availed the option as under:-

"(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 application 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."

6. The respondent after carrying out the necessary scrutiny of the option so exercised by the petitioner and finding the same valid, allotted the petitioner a fresh GPF account number as FCI/NZ/2197 accordingly. The deduction of certain GPF amounts had been made from the monthly salary of the petitioner towards the GPF and the same was credited to the aforesaid account.

7. Mr. Gulab Singh, ld. Counsel appearing on behalf of the petitioner submitted that the deduction of the GPF amount had been regularly made from the salary of the petitioner without any break and credited in the aforesaid GPF account throughout the service period of the petitioner till his retirement from the service of FCI. To this effect, annual GPF statements of the amount so deducted and credited to the petitioner's GPF account had been issued to him each year. The last GPF statement for the year 1997-98 provided to the petitioner is attached as annexure P-2 (Colly). The deductions so made have also been accounted for as has been shown in the control register, which is annexed as annexure P-3.

8. The learned counsel further submitted that in view of the above, it is clear that the petitioner remained the member of the GPF during his entire service period. He retired as an Assistant Manager (Depot) from FCI after attaining the age of superannuation on 28.08.1998.

9. Further submitted that the respondent FCI has admitted in Para 5 of its counter-affidavit that after submitting the option so exercised, the petitioner was transferred to Punjab Region and was relieved on 01.03.1978 from the District office, Agra to join the Punjab Region. After joining the above said Region, he was further allocated to FCI, District Office, Bhatinda.

10. The Gazette Notification issued by the Government of India, showing formal transfer of the petitioner with other employees from Central Government service to FCI appears to have been issued vide letter dated 11.08.1978 when the petitioner was relieved from Agra and

it was never brought to his notice either by serving the copy of the Gazette Notification to him individually or by way of providing the option form afresh in quadruplicate to the petitioner, which otherwise were not supposed to be available with anybody else except the Management. Although the forms were required to be served individually upon the petitioner for the purpose of exercising his option like other employees either at A.R.D.C., Firozabad, his previous working place or at Bhatinda District Office after his transfer as has been served to other employees.

11. He further submitted that when the petitioner got information from the near and dear colleagues at District Office, Bhatinda about issuance of the Gazette Notification by which the petitioner was to further exercise his option, then only he by way of letter dated 15.10.1978 submitted to the District Manager, Bhatinda, whereby expressing his desire for the same benefits which had already been opted by him in his previous option dated 19.05.1977. This fact has been mentioned in the additional affidavit dated 01.08.2008 filed by the petitioner.

12. Learned counsel submitted that the Gazette Notification was issued on 11.10.1978 and he exercised his option vide letter dated 15.10.1978, i.e., within the stipulated period of six months, as was the requirement of the Gazette Notification.

13. Learned counsel for the petitioner has asserted that during his entire service period, he has never been informed that his option was invalid or improper and he would not be entitled to avail government

benefits. Therefore, the earlier option dated 19.05.1977 containing the Central Government terminal benefits remained intact as there was no option to withhold the benefits in terms of the option dated 19.05.1977 payable to the petitioner immediately on his retirement.

14. Further submitted that the petitioner was neither member of the Contributory Provident Fund (CPF), nor has ever been opened any CPF account or allotted in his name, nor was any amount contributed by the petitioner towards the CPF. The amount equal to deduction as CPF was also not credited by the respondent towards CPF, if any, of the petitioner. So, at this stage, after retirement of the petitioner, CPF cannot forcibly be imposed upon the petitioner.

15. Learned counsel submitted that exactly on similar facts and circumstances, the Co-ordinate Bench of this Court vide judgment dated 19.12.2003 in C.W.No.2257/1988 titled as Shri Ramveer Singh Vs. Food Corporation of India & Ors., has allowed the pensionery benefits with GPF and other benefits to the aforesaid petitioner. Copy of the same has been annexed as annexure P-11. He submitted that the aforenoted judgment is fully applicable on the petitioner.

16. In another identical case being Civil Misc. Writ Petition No.12827 of 1996, titled as D.C. Kurell Vs. The Union of India & Anr., the learned Single Bench of Allahabad High Court vide its judgment dated 21.01.2000 allowed the petition of Sh. D.C. Kurell and granted him the pensionery benefits, GPF and other benefits as admissible to the Central Government employees.

17. Learned counsel for the petitioner has relied upon a case of Food Corporation of India Vs. S.S. Agarwal, Western Law Cases (Raj.) 1999 (3), 616, wherein the Division Bench of the Rajasthan High Court (Jaipur Bench) has observed as under:-

"3. With regard to the GPF, and leave encashment dues etc., the respondent raised objections notwithstanding communication dated 13.12.1996 (Ann.3) by the Deputy Manager (GPF) to the Deputy Zonal Manager (North), because while a sum of Rs.1,31,913/- towards GPF was released to the respondent employee on Central DA pattern, the pensionary benefits as admissible to similarly placed employees like the respondent employee were unlawfully withheld by the FCI notwithstanding repeated requests conveyed through relevant correspondence by the respondent without any justifiable cause or excuse, on the pretext that the petitioner was transferred by the respondents Corporation vide notification dated 20th September, 1979 wherein as per the said Notification he was required to submit his option latest by 19th March, 1980 i.e. within six months and since it was exercised beyond the period of six months on 11th April, 1980 as such he was not entitled to pensionary benefits. Hence the aforesaid pension was not treated as valid. As regards earlier option exercised by the petitioner, it has been contended that since during the relevant period there was no notification, it was for no significance in the light of circular dated 11.1.1977. As regards the respondent employee's entitlement for leave encashment, the appellant FCI has not disputed the same on the pretext that the said benefit is admissible to all sets of employees of the Corporation, irrespective of the fact whether those are covered under pensionary benefits of Central Government as terminal benefits of the appellant Corporation.

4. We have heard the learned counsel for the parties at length and examined rival contentions as well as relevant documents on the subject. Prima facie we are of the considered view that the appellants have failed to take juridical notice of the salutary provisions of section 12A of the Act which is special provision for transfer of Government employee to the FCI and sub-section (3) of Section 12A reads as under:

"12A. Special provisions for transfer of Government employees to the Corporation in certain cases: (3) An officer or other employee transferred by an order made under sub- section (1) shall, on and from the date of transfer, cease to be an employee of the Central Government and become an employee of the Corporation with such designation as the Corporation may determine and shall, 1[ subject to the provisions of sub- sections (4), (4A), (4B), (4C), (5) and (6)], be governed by the regulations made by the Corporation under this Act as respects remuneration and other conditions of service including pension, leave and provident fund, and shall continue to be an officer or employee of the Corporation unless and until his employment is terminated by the Corporation.

Sub-section (4A) to Section 12A which came into force by Act 12 of 1977 w.e.f. 31.12.1976 reads as under: "(4A) Notwithstanding anything contained in sub- section (4)-

(a) every officer or other employee in respect of whom an order of transfer under sub- section (1) had been made before the date of commencement of the Food Corporations (Amendment) Act, 1977 (hereafter in this section referred to as the appointed day) shall, whether or not he had exercised the option under sub- section (4) before the appointed day, exercise such option within six months from the appointed day; and

(b) every officer or other employee in respect of whom an order of transfer under sub- section (1) may be made after the appointed day shall, within six months from the date or such order, exercise his option under sub- section (4), and in each such case such option once exercised shall be final: Provided that where an officer or other employee having exercised an option under sub- section (4) before the appointed day-

(i) has died or retired before the appointed day, or dies or retires after the appointed day, before exercising the option as required by this sub- section, or

(ii) does not exercise the option as required by this sub- section, the option already exercised by him shall be deemed to have been validly exercised by him under sub- section (4)."

5. In para 6 of the reply filed by the FCI to the writ petition they have admitted in unequivocal terms that the respondent employee had exercised his option earlier within stipulated six months but it could not be taken into consideration since no notification was in existence at the relevant time and hence option of the respondent was of no significance. The contention of the respondent employee is that he had exercised his option within six months as per the provisions contained in Section 12 of the Act of 1964 with a further assertion that the benefit of pay scale and GPF on Central DA pattern was extended to him in view of the option exercised by him earlier on 25.6.1977. Hence, in our considered view, it is not open to the department appellant to take a contrary view of the matter with a view to deprive the respondent of his pensionary benefits as admissible to other similarly placed employees of central Government which would serve as a deterrent to those employees of the Corporation, who on transfer from erstwhile food department were absorbed in the FCI and all the service benefits admissible to other similarly placed employees on Central DA pattern should have been equally

extended to the respondent employee. In or considered view the findings arrived at by the learned Single Judge are not open to challenge. Thus, we are further of the view that the FCI has raised hypertechnical objection on technical grounds with a view to defeat the benevolent and legitimate claims of the respondent employee as regards his entitlement to pecuniary benefits while PF and leave encashment as has already been permitted to him on parity with other similarly placed employees of the FCI. This would obviously result in gross discrimination which is neither permissible nor warranted by the statute, itself viz. the Act of 1964. The learned Single Judge has recorded well reasoned findings that the options earlier exercised by the respondent employee could not be ignored on the ground that it was premature since the benefit of GPF and pay scale on Central DA pattern had already been extended to the respondent employee on the basis of the option earlier exercised on 25.6.1977. In our considered view, he is also entitled to get the benefits on Central DA pattern as admissible to similarly placed employees and consequently there was no justification for the FCI to have directed the respondent employee to exercise his option afresh as regards pensionary benefits."

18. To sum up his arguments, learned counsel has submitted that the respondent FCI has acted arbitrarily, unconstitutionally, discriminatory and without jurisdiction. Hence, the petitioner is entitled to all the benefits with interest thereon as per the Central Government Rules.

19. As the respondent FCI has raised the objection regarding jurisdiction, learned counsel for the petitioner has submitted that at the time of submitting the option form dated 19.05.1977, the petitioner was posted at A.R.D.C.(hired) Godown, Firozabad under FCI District, Agra headed by the Zonal Office (North) at that time situated at New Delhi.

The Head Quarter of FCI was and is presently situating at New Delhi. The option forms on its submission routed through the District Office, Agra to the Regional Office, Lucknow then to the Zonal Office (North) at New Delhi then to its Residuary Cell at New Delhi for its scrutiny and lastly the option was maintained at the Head Quarters, which is still exists at New Delhi. Moreover, the annual GPF statements (including the last statement of the year 1997-98) had also been issued from the Head Quarters at New Delhi. Merely, shifting of the Zonal Office (N) recently from New Delhi to Noida, UP cannot take away the jurisdiction of this Court.

20. On the other hand, Mr. Sanjiv Joshi learned counsel for the respondent FCI has taken a preliminary objection that the cause of action for the prayer made by the petitioner arose in Punjab in view of the action taken by FCI, Gurdaspur and the Zonal Office of the FCI is also located in Noida, UP and as such no part of cause of action has arisen in Delhi, i.e., within the territorial jurisdiction of this Court.

21. On jurisdiction, I find force in the submission of the ld. Counsel for the petitioner noted in Para 19 above. Moreover, the petitioner now has been retired and the benefit sought by the petitioner in the instant petition, has to be processed from the respondent's Headquarter, which is situated at New Delhi. Therefore, this court has jurisdiction to adjudicate the instant petition.

22. The case of the respondent here is that in terms of Section 12A(4) of Food Corporation Act, 1964, every officer or other

employee transferred by an order made under sub-section (1), shall within six months from the date of transfer, exercise his option in writing to the Government. The leave, provident fund, retirement or other terminal benefits admissible to the 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 this Act, and such option once exercise shall be final.

23. In the present case, the petitioner vide order dated 11.08.1978 in exercise of power conferred by Section 12A of the Food Corporation Act, 1964 was transferred from the Central Government to FCI. Accordingly, the petitioner was required to exercise his option within the stipulated period of six months from 11.08.1978; however, he did not do so. Hence, order dated 25.03.1981 was passed to the effect that the petitioner failed to exercise option within the stipulated period of six months from the issue of Gazette Notification. Relevant provisions of Food Corporation Act, copy of letter dated 11.08.1978 and copy of order dated 25.03.1981 are already part of the record.

24. In view of non-exercise of option by him within the stipulated period, he was advised that he would be governed by the terminal benefits of Food Corporation of India. The petitioner superannuated on 28.02.1998. He was paid his retiral benefits vide order dated 11.02.1999.

25. Learned counsel for the respondent FCI submitted that the petitioner has wrongly contended that he had exercised his option on 19.05.1977. Though he had accepted his benefits towards gratuity, leave encashment from the respondent, but refused to accept the payment made towards CPF, which was tendered to him vide Demand Draft dated 07.04.2005. The petitioner returned the said DD vide his letter dated 16.02.2005.

26. He further submitted that the alleged exercise of option prior to the Gazette Notification dated 11.08.1978 is definitely invalid as the option was to be exercised within six months from the date of the said Notification. The petitioner in order to cover up his lapse has filed a fictitious document showing exercise of his option on 15.10.1978. He has not shown the receipt of any such document by the office of the respondent. Letter dated 15.10.1978 only shows attested by some officer of FCI, it neither show any receipt nor it bear any receipt number or despatch number. Moreover, this letter has been brought up by an additional affidavit filed by the petitioner on 01.10.2008.

27. Learned counsel also submitted that the petitioner has wrongly relied upon the judgment of this Court in the matter of Ramveer Singh ( supra) as there was a valid option exercised, which was gathered by the Court from the documents available on record. While in the present case, there is no valid exercise of option to be governed by GPF after the Gazette Notification dated 11.08.1978 delivered to the respondent is available on file. Therefore, the petitioner is entitled to the CPF payment, which has already been tendered by DD dated

07.04.2005. Since, FCI has already incurred the amount by preparing the aforesaid DD, therefore, no further interest liability accrues as the same has not been encashed by the petitioner for reasons best known to him.

28. I have heard learned counsel for the parties.

29. After being transferred to FCI on 01.11.1996, FCI sought option from the petitioner and other employees, who were transferred from Department of Food to FCI to exercise their individual option; whether to avail the terminal benefits as admissible to the Central Government Employees and the pay scale of Central or Scale of FCI and its terminal benefits on retirement.

30. In reply thereto, petitioner had exercised option of the terminal benefits as admissible to the Central Government employees after retirement i.e., Pension, Provident Fund (GPF), Gratuity, Leave Encashment and Group Insurance governed by the Central Government. The said option was submitted by the petitioner at District Office of FCI, Firozabad on 19.05.1997.

31. Accordingly, petitioner was allotted a fresh GPF Account no. Vide FCI/NZ/2197 and certain amounts had been deducted from the monthly salary of the petitioner towards GPF and same was credited to the aforesaid account.

32. Respondent FCI had deducted the GPF amount regularly from the salary of the petitioner without any break and credited the same in

the aforesaid GPF account throughout the service till his superannuation from FCI on 28.08.1998.

33. Respondent FCI has admitted in Para 5 of the counter-affidavit that after submitting the option so exercised by the petitioner, he was transferred to Punjab Region. It is further admitted that after joining the aforesaid region, he was further allocated to FCI District Office, Bhatinda. Thereafter respondent FCI never sought any option from the petitioner.

34. However, petitioner came to know from his colleagues at District office, Bhatinda about issuance of Gazette Notification by which he was to further exercise his option, then only he by way of letter dated 15.10.1978 expressed his desire for the same benefit which had already been adopted by him in previous option dated 19.05.1977.

35. The case of the respondent FCI herein is that they never received the option of the petitioner vide letter dated 15.10.1978 by which he allegedly adopted his previous option dated 19.05.1977.

36. Admittedly, the petitioner has never been the member of Contributory Provident Fund (CPF) nor has ever been opened any CPF account or allotted in his name, nor was any amount contributed by the petitioner towards CPF.

37. The stand of the respondent FCI is patently incorrect for the reasons that respondent FCI had not been depositing the employer's share in the CPF account as for the employees covered under CPF

Scheme, FCI had to credit employer's contribution each month.

38. Moreover, the case of the respondent is not that it had been depositing the amount which were being deducted from the salary of the petitioner with a matching contribution in CPF account. The stand taken by the respondent is that petitioner had not filled up the requisite form which was required to be filled up and that is why the CPF account could not be opened in respect of the petitioner

39. Admittedly, the petitioner had accepted his benefits towards gratuity, leave encashment from the respondent, however, refused to accept the payment made towards CPF, which was tendered to him vide Demand Draft dated 07.04.2005 and the same was returned vide his letter dated 16.02.2005.

40. Respondents never issued any letter to the petitioner for challenging his option nor made him aware that his earlier option has become invalid.

41. In such a situation, it was the duty of the employer to make aware of the petitioner about suo moto changing from his earlier option. They failed to produce any of the communication thereto.

42. Moreover, on similar facts and circumstances, Coordinate Bench of this Court in a case of Ramveer Singh (Supra) granted the same relief to the petitioner therein.

43. In view of the above discussion, the issue involved in the instant petition has no res-integra as already been decided in the case of

Ramveer Singh (Supra) and D.C. Kurell (Supra).

44. Therefore, I direct the respondent FCI to release the pension and GPF amount lying in the petitioner's account no. FCI/NZ/2197 with interest @ 9% per annum upon both pension and GPF.

45. Instant petition is allowed on the above terms.

46. No order as to costs.

47. Copy of this order be sent to respondent no. 1 / FCI and they are directed to comply the order passed by this court within six weeks from the date of receipt of this order.

SURESH KAIT, J.

APRIL 04, 2013 Sb/jg