Delhi High Court
Naresh Kumar Kapur vs Union Of India And Ors. on 25 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: October 25, 2017
+ W.P.(C) 2765/2014
NARESH KUMAR KAPUR
..... Petitioner
Through: Not present.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Rajat Arora, Adv. for R3.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. The present petition has been filed by the petitioner with the following prayers:
"Wherefore it is prayed that this Hon'ble Court may be pleased to issue:
(a) a writ or an order in the nature of Mandamus directing the
Respondent Bank to make payment of Dearness Allowance to the
petitioner on quarterly basis along with interest on delayed payment
of Dearness Allowance being made to the petitioner on half yearly
basis rather on quarterly basis in the light of Serial No. 2 of
Appendix - II of Regulation 37 of Syndicate Bank Employee's
Pension Regulations, 1995 as amended up to date and on the basis
of which Respondent Bank allowed pension benefits including to
those similarly placed officer employees who sought Voluntary
Retirement like the petitioner and also directing the Respondents to
provide the copy of Syndicate Bank (Employees') Pension
Regulation, 1995 as amended up to date to the petitioner.
(b) any other and further reliefs be allowed to the petitioner
against the Respondents which this Hon'ble High Court deems fit
and proper to grant under the circumstances of the case including
the cost of this Writ Petition."
2. It is the case of the petitioner that he joined the services of the respondent Bank
on April 1, 1980 as a Clerk. He got promotions from time to time and while working as
Sr. Manager in the respondent no. 3 / Bank in terms of Regulation 19 of the Syndicate
Bank (Officers') Regulations, 1979, he applied for voluntary retirement which was
accepted by the Bank on August 22, 2009. Suffice to state, the petitioner was not
granted pension under the Pension Regulations, which made the petitioner file a writ
petition before this Court which was allowed in his favour and pursuant thereto, he was
given the pensionary benefits.
3. The present petition has been filed by the petitioner on a limited ground, that
Dearness Relief on pension is being paid at half yearly interval to the petitioner and
similarly placed pensioners, whereas the employees working in the respondent Bank are
being paid on quarterly basis. The petitioner who appeared in person on October 24,
2017 was heard at length and concluded so also Mr. Rajat Arora, learned counsel for the
respondent Bank. The petitioner reiterated the averments made in the writ petition as
his submissions during the arguments. He had drawn our attention to the Pension
Regulations more specifically Regulation 37 and Appendix-II thereto to contend that
Dearness Relief is being paid at half yearly basis. He had also drawn our attention to
Page 112 of the paper book which depicts Dearness Allowance as being paid to the
workmen and the employees in the Bank. According to him they are being paid
Dearness Allowance computed in view of rise in price index in the months of February,
May, August and November whereas the pensioners are paid on computation made
twice a year in the month of February and August respectively. According to him, this
is discriminatory and violative of Article 14 of the Constitution of India as any rise in
Price Index, effects the pensioners also.
4. In order to appreciate his arguments, it is necessary for us to reproduce some of
the averments made in the writ petition in this regard. In Para 14 and 15, he has stated
as under:
"14. That even though the variation in Dearness Allowance is
being paid by Respondent Bank on Quarterly basis to Regular
Existing employees of the Bank, the petitioner including the similarly
placed retired pensioners employees are being paid variations in
Dearness Allowance on Half-Yearly basis which results in financial
loss to the petitioners on account of non-payment of variations in
Dearness Allowance for the intervening quarters.
15. That as a matter of fact the Respondent Bank has paid the
Pension and Dearness Allowance thereon for the quarter ended
August, 2013 in September, 2013 and subsequently for the quarter
ended February, 2014 in March, 2014 to the petitioner, but variation
in Dearness Allowance has been paid after a gap of six months
Whereas the regular existing employees of the Bank have been paid
the variation in Dearness Allowance on Quarterly basis that is for
the quarter ended April, 2013 in May, 2013, for the quarter ended
July, 2013 in August, 2013, for the quarter ended October, 2013 in
November, 2013 and for the quarter ended January, 2014 in
February, 2014. This is clear case of discrimination in the matter of
payment of Dearness Allowance to the Pensioners like the Petitioner
herein as compared to the regular existing employee of Respondent
Bank since the Dearness Allowance is paid to existing as well as to
retired employees to mitigate the variations in the cost of index over
the previous wages settlement.
Moreover, the Regulation 37 of Syndicate bank (Employees')
Pension Regulations, 1995 also provide that the Dearness relief on
basic pension shall be payable on quarterly average basis."
5. On the other hand, Mr. Rajat Arora, learned counsel appearing for the respondent
Bank would submit that the respondents are strictly adhering to the Regulation 37 read
with Appendix-II of the Pension Regulations, which according to him, stipulates, the
Dearness Relief shall be payable half yearly commencing from the 1st day of February
and ending on the 31st day of July on the computation made on the basis of the quarterly
average of index figures published for the months of October, November and December
of the previous year and commencing from 1st day of August and ending on the 31st day
of January, on the basis of quarterly average of index figures published in the months of
April, May and June of the same year. He states, criterion to pay Dearness Relief is
inbuilt in the Regulation read with the Appendix-II. The action of the respondent No.3
Bank paying Dearness Relief on half yearly basis cannot be contested. He states,
petitioner being a pensioner cannot seek parity with the working employees in the Bank.
They stand on a different footing. He would rely on the following judgments in support
of his contentions:
1. Action Committee South Eastern Railway Pensioners v. Union of
India 1992 SCC (L&S) 222
2. Hari Ram Gupta v. Thro' LR Kasturi Devi AIR 1998 SC 2483
3. Tamil Nadu Electricity Board v. R. Veeraswamy AIR 1999 SC 1768
4. Sudhir Kumar Consul v. Allahabad Bank (2011) 3 SCC 486.
5. State of West Bengal and Anr. V. West Bengal Government
Pensioners Association and Ors.
6. We may, state here as noted above, we have heard the petitioner and Mr. Arora
on October 24, 2017. The matter was adjourned for today only to enable the petitioner
and the learned counsel for the respondent No. 3 Bank produce judgments in support of
their respective contentions. Today when the matter was called, on the first round,
petitioner was not present. The matter was passed over, but even at 4.25 PM, the
petitioner is not present. Mr. Arora has handed over copies of judgments he wish to rely
upon.
7. Having heard the petitioner (yesterday, i.e., October 24, 2017) and Mr. Rajat
Arora, learned counsel for the respondent no.3 / Bank, we are of the view that the only
issue raised by the petitioner is that the pensioners are being paid Dearness Relief on
half yearly basis computed on quarterly average of the index figures published for three
months as against quarterly in the case of working employees. There is no dispute the
said stipulation is laid down in the Pension Regulations itself which governs the grant of
pensionery benefits to the employees who retired from the respondent no.3 / Bank. We
reproduce the relevant Regulation 37 and the relevant Para of Appendix - II as under:
"37. Dearness Relief -
(1) Dearness relief shall be granted on the basic pension or
family pension or invalid pension or on compassionate allowance in
accordance with the rates specified in Appendix - II
(2) Dearness relief shall be allowed on full basic pension even
after commutation.
Appendix II
1. xxxx xxxx xxxx xxxx
2. In respect of employees who retire on or after the 1 st day of
November, 1993, dearness relief shall be payable for every rise
or be recoverable for every fall; as the case may be, of every 4
points over 1148 points in the quarterly average of the All India
Average Consumer Price Index for Industrial Workers in the
series 1960 = 100. Such increase or decrease in dearness relief
for every said four points shall be calculated in the manner given
below: -
Scale of basic The rate of dearness
pension as per relief as a percentage
month of basic pension
(ii) Upto Rs.2400/- 0.35%
(ii)Rs.2401 to Rs.3850 0.35% of Rs.2400 plus
0.29% of basic pension
in excess of Rs.2400/-
(iii)Rs.3851to Rs.4100/- 0.35% of Rs.2400 plus
0.29% of the difference
between Rs. 3850 and
Rs.2400 plus 0.17% of
basic pension in excess
of Rs.3850/-
(iv) above Rs.4100/- 0.35% of Rs.2400 plus
0.29% of the difference
between Rs.3850 and
Rs.2400 plus 0.17% of
the difference between
Rs.4100 and Rs.3850
plus 0.09% of basic
pension in excess of
Rs.4100
(3) Dearness Relief shall be payable for the half year commencing
from the 1st day of February and ending with 31st day of July on
the quarterly average of index figures published for the months of
October, November and December of the previous year and for
the half year commencing from the 1st day of August and ending
with the 31st day of January on the quarterly average of index
figures for the months of April, May and June of the same year.
(4) In the case of family pension, invalid pension and
compassionate allowance, dearness relief shall be payable in
accordance with the rates mentioned above.
(5) Dearness relief will be allowed on full basic pension ever after
commutation.
(6) Dearness relief is not payable on additional pension.
Dearness relief on basic pension shall be as under:-
(1) In the case of employees who retired on or after the 1st day of
January, 1986, but before the 1st day of November, 1993,
dearness relief shall be payable for every rise or be
recoverable for every fall, as the case may be of every 4 points
over 600 points in the quarterly average of All India Average
Consumer Price Index for Industrial Workers in the series of
1960=100. Such increase or decrease in dearness relief for
every said four points shall be calculated in the manner given
below:-
Scale of basic The rate of dearness
pension per month relief as a percentage
of basic pension.
(i) upto Rs.1250/- 0.67 per cent
(ii) Rs.1251 to 0.67 percent of
Rs.2000 Rs.1250 plus 0.55 per
cent of basic pension
in excess of Rs.1250/
(iii)Rs.2001 to 0.67 per cent Rs.1250
Rs.2130 plus 0.55 per cent of
the difference
between Rs.2000 and
Rs.1250 plus 0.33 per
cent of basic pension
in excess of Rs.2000.
(iv) above Rs.2130 0.67 per cent of
Rs.1250 plus 0.55 per
cent of the difference
between Rs.2000 and
Rs.1250 plus 0.33 per
cent of the difference
between Rs.2130 and
Rs.2000 plus 0.17 per
cent of basic pension
in excess of Rs.2130.
8. Further there is no dispute that the payment of Dearness Allowance to the
working employees is not regulated by the Pension Regulations but under some other
Regulations. So, a pensioner cannot seek parity with the working employees. In the
affidavit filed by the respondent Bank, the stand is in Para (C) and Para (H) which we
reproduced as under:
"C. That the deponent states that in terms of the settlement signed
at the Industry level, the member Banks had brought the Pension
Regulations, 1995. The respondent No.3 had also brought out the
Syndicate Bank (Employees) Pension Regulations, 1995, the same
were notified on 29-9-1995. The provisions of the Regulations are
matter on record. The petitioner is seeking relief which is against the
provision of Regulation 37 of the Syndicate Bank (Employees)
Pension Regulations, 1995 which are statutory in nature. It is stated
that such Regulations had been framed in almost in all the
Nationalized Banks after various discussions / settlements with the
employees Unions and under the provision of Banking Companies
(Acquisition and Transfer of Undertaking) Act, such statutory
regulations so long as they are in existence and the petitioner is
getting pension under the same, i.e., enjoying the benefits under such
Regulation after his voluntary retirement would not be entitled to
question the same under the present proceedings. The petition may
thus be rejected on this ground also.
H. The class of existing employees and retired employees to
which the petitioner belongs are in two different classes and a
reasonable nexus has been established to calculate the DA on the
payments made to them. There is no contradiction to the principle of
equality / a reasonable classification between the retirees employees
and the regular existing employees of the Respondent Bank. The
rules / regulations governing the payment of DA to retired employees
and regular existing employees are different and the basic of DA to
such employees is different and the basic of DA to such employees is
different and, therefore, it cannot be alleged that there is
discrimination between the two sets of employees. Equality can only
be claimed among equals."
9. That apart, the Dearness Allowance / Dearness Relief are paid to compensate for
the rise in price index. It is not the case of the petitioner, Dearness Relief is not being
paid / granted at all to him. It is a decision taken after due consultations, which surely
suggests, the Dearness Relief computed half yearly would suffice the rise in Price Index
as far as pensioners are concerned, who are drawing pension on retirement.
10. It is a settled position of law that a pensioner and a working employee are class
apart, and no parity exists, as held by the Supreme Court in the case of Confederation
of Ex-Servicemen of India and Ors. v. Union of India and Ors. AIR 2006 SC 2945. In
this case, the Supreme Court was concerned with the claim of the petitioners seeking a
direction against the respondent to recognize the right of full and free medicare of ex-
serviceman, their families and dependents treating such right as fundamental right. It is
the contention of the petitioners that such facilities are provided to serving personnel
and as such must be extended to ex-serviceman on account of reasonable explanation
and considering the services rendered. The respondent had opposed the petition on the
ground that the serving employees constitute a different class altogether and comparison
with retired employees is not well-founded. The Supreme Court in Para 20 of the said
judgment has held as under:
"In our considered opinion, classification between in-service
employees and retirees is legal, valid and reasonable classification
and if certain benefits are provided to in-service employees and
those benefits have not been extended to retired employees, it cannot
be successfully contended that there is discrimination which is hit by
Article 14 of the Constitution. To us, two categories of employees
are different. They form different classes and cannot be said to be
similarly situated. There is, therefore, no violation of Article 14 if
they are treated differently."
11. In so far as the judgments relied upon by Mr. Arora are concerned, the Supreme
Court in Para in Para 12 of Action Committee South Eastern Railway Pensioners
(supra) was concerned with two sets of pensioners inasmuch as those who retired before
March 31, 1985 and those, thereafter. The Supreme Court held that both the classes of
pensioners are separate class. Suffice to state the judgment has no relevance in the facts
of this case.
12. In Hari Ram Gupta (supra), similar is the conclusion of the Supreme Court. In
other words, the Supreme Court was concerned with two classes of retirees, which is not
case herein. Hence the Judgment has no relevance. Similar is the position in the case of
Tamil Nadu Electricity Board (supra). The said judgment also has no relevance in the
facts of this case. In so far as the Sudhir Kumar Consul (supra) is concerned, the
Supreme Court held that differential treatment of two sets of officers appointed prior to
notified date would not offend Article 14 of the Constitution of India. In the said case,
the Supreme Court was concerned with certain employees were given the benefits of
pension on retirement after a particular date, which the Supreme Court held is justified.
The said judgment has no relevance.
13. In any case, noting the judgment in the case of Confederation of Ex-Servicemen
of India and Ors. (supra), and the Pension Regulations, we do not see any merit in the
petition. The petition is dismissed.
V. KAMESWAR RAO, J
G.S.SISTANI, J
OCTOBER 25, 2017/jg
