Delhi High Court
See (Dsidc) vs Union Of India & Ors. on 29 August, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 4974/2011
% 29th August , 2013
SEE (DSIDC) ......Petitioner
Through: Mr. S.C.Kalra, Adv.
VERSUS
UNION OF INDIA & ORS. ...... Respondents
Through: Mr. M.P.Singh, Adv. for R-1.
Ms. Anjana Gosain, Adv. for R-2 to 4.
Mr. Anand Prakash, Adv. for R-5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. Petitioner is an association of retired and serving employees of Delhi
State Industrial and Infrastructure Development Corporation (DSIDC). By
this writ petition, relief is sought for introduction of a pension scheme for
employees of DSIDC.
2. Originally, recommendation was made by DSIDC and approval of the
Government was sought, however, the Government vide its letter dated
16.3.2000 said that benefit of pension scheme cannot be given to
WPC 4974/2011 Page 1 of 5
autonomous bodies by the government making contribution. The said letter
reads as under:-
"16th March, 2000
New Delhi
Dear Shri Ray
The Department of Expenditure has been receiving a number of proposals
regarding introduction of pension scheme on GOI pattern for the employees of
autonomous bodies under various Ministries/Departments of the Government of
India. Such proposals have not been approved mainly for the reasons given
below.
(i) The cost of introduction of pension scheme is much higher than the CPF
Scheme. The cost on pension scheme keeps on increasing with every
increase/revision in the scales of pay/pensionary benefits recommended by the
successive Pay Commissions set up by the Government.
(ii) While the CPF is a one-time payment, pension is a life-long commitment on
the part of the Government.
(iii)For servicing a pension scheme, a Pension Fund has to be set up to be
managed by a Trust. Difficulties may be experienced in judicial administration
of the Fund.
(iv) In case of winding up of the organization, the Government may have to take
over the entire liability of the Pension Fund.
(v) Any cut-off date fixed by the Government is not likely to be accepted by the
employees who retired prior to the cut-off date.
2. Apart from the above, the recurring financial implications of introduction of
pension scheme in autonomous bodies are likely to be very substantial,
particularly after acceptance of the recommendations of the Fifth Central Pay
Commission, involving a significant liberalization of the provisions relating to
pension, gratuity, commutation of pension, family pension, etc.
3. We have, however, come across a number of cases where pension scheme
on GOI pattern has been allowed for the employees of autonomous bodies either
with the approval of the Internal Finance Division or with the approval of the
Financial Adviser of the Ministry/Department concerned without obtaining this
Department's concurrence. In one such case, the Department concerned is now
faced with a situation where the Pension Fund set up for the employees of an
autonomous body has become unviable, there being no possibility of disbursing
WPC 4974/2011 Page 2 of 5
pension to the pensioners without seeking Government's support in the form of
grants-in aid.
4. In view of the above, we have been advising autonomous bodies under
various Ministries/Departments of the Government of India to continue to
follow the CPF Scheme or the autonomous bodies, if they so desire may work
out an annuity scheme through the Life Insurance Corporation of India based on
voluntary contributions by the employees and without any contribution from the
Government or the employees may join the pension scheme introduced by the
Ministry of Labour for the PF subscribers. It may please be noted that
introduction of pension scheme on GOI pattern to the employees of autonomous
bodies should not be agreed to as a rule any exception in this regard should be
referred to this Department.
With regards.
Yours sincerely,
Sd/-"
3. In view of the above, it is clear that Government has refused to grant
financial aid for the pension scheme.
4. There also cannot be direction against an unwilling employee because
the Supreme Court has in a number of cases held that Courts cannot decide
pay packages which are to be given to employees of an organization. It is
settled law that the employer-organization knows best of the availability of
finances with it to decide various schemes of seeking of regularization or
fixing of pay-scales or giving other monetary benefits to its employees. It
has been held that Courts should not step in and direct payment of a
particular monetary emolument to the employees. A recent judgment of the
Supreme Court in this regard is in the case of Indian Drugs and
WPC 4974/2011 Page 3 of 5
Pharmaceuticals Ltd. vs. Workman, Indian Drugs and Pharmaceuticals
Ltd. (2007) 1 SCC 408. The relevant observations of Supreme Court in the
case of I.D.P.L (supra) read as under:-
"16. We are afraid that the Labour Court and the High Court have passed
their orders on the basis of emotions and sympathies, but cases in court have to
be decided on legal principles and not on the basis of emotions and sympathies.
18. In State of M.P. v. Yogesh Chandra Dubey this Court held that a post
must be created and/or sanctioned before filling it up. If an employee is not
appointed against a sanctioned post he is not entitled to any scale of pay. In our
opinion, the ratio of the aforesaid decision squarely applies to the facts of the
present case also.
37. Creation and abolition of posts and regularisation are purely executive
functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create
a post where none exists. Also, we cannot issue any direction to absorb the
respondents or continue them in service, or pay them salaries of regular
employees, as these are purely executive functions. This Court cannot arrogate
to itself the powers of the executive or legislature. There is broad separation of
powers under the Constitution, and the judiciary, to, must know its limits.
40. The Courts must, therefore, exercise judicial restraint, and not encroach
into the executive or legislative domain. Orders for creation of posts, appointment
on these posts, regularisation, fixing pay scales, continuation in service,
promotions, etc. are all executive or legislative functions, and it is highly improver
for Judges to step into this sphere, except in a rare and exceptional cases. The
relevant case-law and philosophy of judicial restraint has been laid down by the
Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. Of
Police and we fully agree with the views expressed therein."
(underlining added)
5. Therefore, this Court cannot direct introduction of a pension scheme
for the employees of DSIDC because this would amount to putting a
WPC 4974/2011 Page 4 of 5
financial burden on an employer-organization, and which burden the
employer-organization has decided not to take up. This Court cannot
impose financial burden on an unwilling employer-organization.
6. Counsel appearing for DSIDC states that DSIDC is an autonomous
body and which is a corporate entity under the Companies Act, 1956.
7. In view of the above, there is no merit in the petition, which is
accordingly dismissed, leaving the parties to bear their own costs.
AUGUST 29, 2013 VALMIKI J. MEHTA, J.
ib
