L.D. Madan vs Union Of India & Ors
2016 Latest Caselaw 993 Del

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 7070/2015
                                  Date of decision: 9th February, 2016

       L.D. MADAN                                       ..... Petitioner
                Through    Ms. Harvinder Oberoi and Ms. Gunjan
                Bansal, Advocates with petitioner in person.

                         versus

       UNION OF INDIA & ORS                     ..... Respondent
                Through   Mr. Bhagvan Swarup Shukla, Advocates.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J. (ORAL)

1. The petitioner, L.D. Madan joined government service as a Lower

Division Clerk in May, 1942 and with effect from 22nd May, 1952 was

appointed in Grade-IV of the Central Secretariat Service.

2. On 25th June, 1971, the petitioner opted and went on deputation to

work in the Central Warehousing Corporation, for a period of six months

with a stipulation that he would not to draw any deputation allowance or

pay of more than Rs.950/- without prior concurrence of the parent

employer i.e. Department of Community Development and Cooperation.

There was also a stipulation that pending confirmation by the Accountant

General of Central Revenue, leave salary @ 11% and pension

contribution @ 11% of Rs.950/- would be paid to the Central

Government.

3. The petitioner was absorbed permanently in the Central

Warehousing Corporation and became their employee on 4th February,

1972. On the same date, the petitioner technically resigned from the post

of the Section Officer in the Department of Community Development

and Cooperation. The letter dated 4th February, 1972, written by the

Government of India to the Central Warehousing Corporation and the

petitioner, specifically sets down that on permanent absorption, the

petitioner was entitled to pro-rata pension and death-cum-retirement

gratuity based on the length of his qualifying services under the

Government of India till the date of his absorption. For the period of

service, post permanent absorption in the Central Warehousing

Corporation, the petitioner would be entitled to all benefits as admissible

to the employees of the said organisation and would be governed by the

Central Warehousing Corporation Rules in all respects. There were

certain other stipulations, which we need not elaborate in view of the

limited controversy involved.

4. The petitioner has not given the date on which he had retired from

the Central Warehousing Corporation. The said date is not stated in the

order passed by the Tribunal or in the original application filed him in the

year 2013. In the year 2012, the petitioner raised two-fold grievance.

Firstly, he should be given benefit of five years' of additional service as

he had voluntarily retired in 1971 and was thereafter absorbed and

became an employee of Central Warehousing Corporation in public

interest. Secondly, his pension had not been correctly computed as while

on deputation till 3rd February, 1972, he was drawing salary of Rs.950/-

per month. The petitioner's pension contribution was 11% of Rs. 950/-

per month. The petitioner's pension has been erroneously calculated as if

he was drawing a salary of Rs.900/- per month before he became an

employee of the Central Warehousing Corporation w.e.f. dated 4th

February, 1972.

5. Pressing the said reliefs, the petitioner filed the OA No. 4573/2013

that his last pay drawn should be recorded as Rs.950/- per month and he

should be paid consequential arrears with interest and, secondly, he

should be given weightage of five years treating his resignation as

voluntary retirement.

6. We have heard the learned counsel for the petitioner and had also

given hearing to the petitioner, who was present in person.

Unfortunately, we cannot agree with the petitioner in view of the legal

position. This is not a case of voluntary retirement but a case in which

the petitioner had tendered technical resignation, which was accepted and

consequent to which the petitioner had got permanently absorbed in the

Central Warehousing Corporation. The belated plea that the petitioner

had taken voluntary retirement under Fundamental Rule 56 (K) has been

rightly rejected by the Tribunal after making reference to the letter dated

4th February, 1972, which clearly stipulated the terms and conditions on

which the petitioner was relieved by the Government of India upon

permanent absorption in the Central Warehousing Corporation. We do

not think that the petitioner is entitled to challenge and question the said

terms and conditions incorporated in the letter dated 4 th February, 1972

and make out altogether a new case. The plea is clearly an afterthought

and untenable.

7. The petitioner as a Section Officer in the Department of

Community Development and Cooperation was drawing a salary of

Rs.900/- per month before he was sent on deputation and thereafter had

opted for permanent absorption in the Central Warehousing Corporation.

Employment in Central Warehousing Corporation was certainly a

"foreign service" within the meaning of Note 7 to Rule 33 of the CCS

(Pension) Rules, 1972. Central Warehousing Corporation established

under Section 3 of the Warehousing Corporations Act, 1962, is a body

corporate having perpetual succession and a common seal with power to

acquire, hold and dispose of property and enter into contracts and may

sue and may be sued in its own name.

8. The respondents have pointed out that the maximum pay of a

Section Officer at the relevant time in 1971 was Rs.900/- per month and

the pension had been paid at the highest pay scale. It is correct that the

letter dated 24th June, 1971 did stipulate that pending confirmation by

Accountant General of Central Revenue, the petitioner shall pay pension

contribution @ 11% of Rs.950/- per month, but this would not be

determinative, for pension has to be calculated in terms of the statutory

rule regarding computation of emoluments being drawn at the relevant

time. The pay of Rs.950/- per month was paid by the Central

Warehousing Corporation, a foreign service and, therefore, were not

"emoluments" for the purpose of calculating pension. At best, grievance

of the petitioner could be that he was wrongly asked and made to pay

pension contribution @ 11% of Rs.950/- (and not on Rs.900/-) between

the period 25th June, 1971 till his permanent absorption in the Central

Warehousing Corporation on 4th February, 1972.

9. The last drawn pay of the petitioner at the post of Section Officer

was in the pay scale of Rs.900/- and not in the pay scale of Rs.950/-,

which he was drawing in the foreign service with the Central

Warehousing Corporation. Emoluments paid in foreign service cannot be

taken into consideration for the purpose of computing pension (see V.S.

Murthy Vs. Union of India and Others, 1992 Supp (3) SCC 115).

10. In view of the above, we do not find any merit in the present writ

petition and the same is dismissed. In the facts of the present case, there

will be no order as to costs.

SANJIV KHANNA, J.

NAJMI WAZIRI, J.

FEBRUARY 09, 2016 NA