Punjab-Haryana High Court
Satinder Kumar Jindal vs State Of Punjab And Anr on 12 March, 2024
Neutral Citation No:=2024:PHHC:035553
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CWP-6538 of 2018
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-6538 of 2018
Reserved on: 09.02.2024
Pronounced on: 12.03.2024
Satinder Kumar Jindal
......Petitioner
Versus
State of Punjab and another
......Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Argued by: Mr. Vijay Kumar Jindal, Advocate,
for the petitioner.
Mr. T.P.S. Walia, AAG, Punjab.
Mr. Anil Kumar Sharma, Advocate,
for respondent No.2.
NAMIT KUMAR, J.
1. Instant writ petition has been filed under Article 226 of the
Constitution of India for issuance of a writ in the nature of certiorari
quashing the order dated 05.12.2017 (Annexure P-8) passed by
respondent No.2, vide which the option of the petitioner for pension has
been declined and further for issuance of writ of mandamus directing
the respondent-Corporation to release the pension of the petitioner
instead of employee's share of CPF, after accepting the change of
option so submitted by the petitioner in terms of Pension and Gratuity
Scheme.
2. Brief facts as pleaded in the writ petition are that petitioner
joined the services of respondent No.2 - Punjab State Warehousing
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Corporation (hereinafter referred to as 'respondent-Corporation') on
04.07.1973 as Accounts Clerk. He has retired from the service on
31.01.2015 after getting extension in service for two years, in view of
the instructions of the Government of Punjab. The employees of the
respondent-Corporation were governed by the Employee's Provident
Fund Regulations, 1974, according to which employees at the time of
their retirement were given employee's and employer's share of
provident fund. In the year 1996, Pension and Gratuity Scheme was
introduced for the employees of the respondent-Corporation w.e.f.
01.01.1986. Office order dated 24.04.1996, whereby aforesaid pension
scheme was floated reads as under: -
"PUNJAB STATE WAREHOUSING CORPORATION
CHANDIGARH
OFFICE ORDER
With the approval of State Govt. vide their memo No.
3/71/92- Agri. XI(IX)/10258 dated 13.11.95 and the
Punjab State Warehousing Corporation vide resolution
No. 74.19 and Supplementary Resolution No. 74.1 in their
meeting held on 2.1.96 and as stand notified in Punjab
Govt. gazette of date 29th March, 1996, 'PENSION &
GRATUITY SCHEME' is, hereby, introduced for the
employees of the Corporation w.e.f 1.1.86 on the following
terms & conditions:-
1. Pension scheme for the retired/retiring employees of the
PSWC will be at par with that of State Government
employees alongwith allied benefits like gratuity, LTC,
medical facilities etc. as existing as may be amended from
time to time with effect from 1.1.86. However, where
benefits of gratuity under the payment of Gratuity Act are
more favourable, the provisions of the Act will prevail;
2. The admissibility of pension and other allied benefits
under the scheme will be subject to the option to be
exercised by the employees within 3 months from the
circulation of the scheme. The employees who opt for the
scheme will have to forego the benefits of CPF Employer's
Share, which they were getting from the date of joining the
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provident funds scheme under the PSWC Employees
Provident Fund Regulation, 1974. Option once exercised
will be final;
3. The employees, who have already retired, may opt for
the scheme subject to the condition that the employer's
share drawn by them at the time of their retirement will be
deposited by them in lumpsum with the Corporation
together with upto date interest at the rate of 12% with
half yearly compounding. The interest on payment of
arrears of pension to such employees will be paid @12%
with half yearly compounding.
4. The procedure for sanction and disbursement of pension
will be followed by the Corporation as in the case of State
Govt. with regard to the eligibility, qualifying service,
commutation, dearness allowances etc. with due
alterations, where deemed necessary.
5. The appointing authority will be authorized to sanction
the payment of pension in accordance with State Govt.
instructions to all categories of employees of the PSWC.
However, Chief Manager (Finance & Accounts) is
authorized to disburse the amount of pension, after the
approval of the appointing authority.
6. The 'Pension Fund' will be administered by the
Managing Director as per directions of the EC/BODS
from time to time and will be utilised BODs from time to
time and will be utilised only for discharging liability of
pension and other relevant retiring benefits.
All liabilities of pension account of employees shall be met
with from pension funds only and not from the revenue
and any other source the Corporation.
CHANDIGARH, DATED D.S. JASPAL, IAS,
THE April, 24, 96 Managing Director."
3. In pursuance of aforesaid office order, petitioner did not
opt for said Pension and Gratuity Scheme but opted to continue with
Punjab State Warehouse Corporation Employees Provident Fund
Regulations, 1974. Respondent-Corporation vide communication dated
27.06.1997 again called for exercise of options. The said
communication reads as under: -
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"PUNJAB STATE WAREHOUSING CORPORATION
CHANDIGARH
NO. PWC/ADMN./E-5/21947-22086/97:
DATED: 27.6.97
From
The Managing Director,
PSWC, Head Office.
To
1. All the Distt. Managers, PSWC.
2. Chief Port Manager, CFS, Ludhiana.
3. Port Manager, CFS, Jalandhar/Chhehratta.
4. All the Warehouse Managers, PSWC.
SUBJECT:- INTRODUCTION OF PENSION &
GRATUITY SCHEME FOR
EMPLOYEES OF PSWC- OPTION FOR
ADDITION REGARDING.
In accordance with circular issued under
endst. No. PWC/Admn./E-5/6959-7124/96, dated 15.5.96,
all the employees were required to give their option for
adopting of the pension & Gratuity Scheme within three
months from the circulation of the scheme. It has been
observed that a number of employees intended to exercise
their option but for one or the other reason could not opt
within the prescribed/stipulated period. Keeping in view
persistent demand of employees, it has been decided to
afford another opportunity to all such employees. All of
you are requested to bring these instructions in notice of
staff working under you to submit option on the prescribed
proforma (in case not sent earlier within stipulated
period) within 15 days from receipt of this communication.
It is made clear that this is LAST OPPORTUNITY.
Sd/-
CHIEF MANAGER (ESTT.)
For MANAGING DIRECTOR.
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NO. PWC/ADMN./E-5/22087-098/97, DATED: 27.6.97
A copy of the above is forwarded for similar action to All
the Branch Officers, PSWC at Head Office.
Sd/-27.6.97
CHIEF MANAGER (ESTT.)
For MANAGING DIRECTOR."
4. At the relevant time, petitioner was working as Godown
Assistant at Punjab State Warehouse, Sangrur. On coming to know
about the said communication, through his Warehouse Manager,
petitioner opted for pension scheme, through the District Manager,
PSWC, Sangrur, on 10.07.1997 (Annexure P-4). After submission of
aforesaid option petitioner remained under bona fide impression that
his request for pension scheme has been accepted. However, at the
time of his retirement, when petitioner requested for release of his
pensionary benefits as per said Scheme, he came to know that he was
not taken under the Pension and Gratuity Scheme by the respondent-
Corporation, despite his request whereby he opted for pension scheme
through proper channel. Petitioner approached this Court by way of
filing CWP No.15008 of 2017, for acceptance of his option submitted
by him in terms of Pension and Gratuity Scheme. The said writ
petition was disposed of vide order dated 14.07.2017, by directing the
respondents to treat the petition as representation, look into the
grievances of the petitioner and take appropriate action in accordance
with law, within a period of three months, from the date of receipt of
certified copy of the order. On 20.12.2017, petitioner was
communicated the impugned order dated 05.12.2017, passed by
respondent No.2, whereby claim of the petitioner has been declined
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observing that last opportunity was only for those employees who
could not opt earlier. Hence this petition.
5. Learned counsel for the petitioner contended that
respondent-Corporation has wrongly declined the option exercised by
the petitioner for switching over to Pension and Gratuity Scheme. The
process of taking options was continuing and had not become final. He
further contended that petitioner as well as other employees, who did
not exercise option, were continuing under the CPF Scheme. He
contended that action of the respondent-Corporation to call options
from the left over employees and not allowing the petitioner, who had
earlier exercised his option, to shift to Gratuity and Pension Scheme is
discriminatory. He further contended that no prejudice would be
caused to the respondent-Corporation, if the subsequent option of the
petitioner is approved. In support of his contentions, learned counsel
placed reliance on the judgments of the Hon'ble Supreme Court in
Indian Ex-Servicemen Movement & others v. Union of India and
others, 2022(2) S.C.T. 244; Calcutta State Transport Corporation and
others v. Ashit Chakraborty and others, 2023 AIR (Supreme Court)
2270 and order of this Court in LPA-221 of 2010 - Chaudhary Charan
Singh Haryana Agricultural University and another v. Dharampal -
passed on 22.02.2010. He also submitted that a sum of Rs.16,21,697/-
(employer's share of CPF) is lying with the Corporation and the same
has not been paid to the petitioner till date for one reason or the other.
6. Per contra, learned counsel for respondent No.2
contended that petitioner had already exercised his option of continuing
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under the earlier Scheme of Provident Fund. He further contended that
vide Circular dated 27.06.1997, opportunity to exercise option was
given to only those employees who could not give their option earlier,
however, petitioner had already given his option to continue with the
CPF Scheme. Therefore, subsequent option of the petitioner has rightly
been rejected by the respondent-Corporation vide impugned order. In
support of his contentions, learned counsel for respondent No.2 placed
reliance upon the judgment of this Court in CWP-4085 of 2009 -
Sohan Lal v. Pepsu Road Transport Corporation Limited, Patiala and
others and other connected cases - decided on 13.05.2019.
7. I have heard learned counsel for the parties and perused
the record.
8. Admittedly, respondent-Corporation introduced Pension
and Gratuity Scheme w.e.f. 01.01.1986 and vide office order dated
24.04.1996, invited options from the employees either to continue with
the old scheme or to opt for the Pension and Gratuity Scheme.
Undisputedly, petitioner opted to continue with the CPF Scheme.
Thereafter, vide communication dated 27.06.1997, respondent-
Corporation once again called for exercise of option, within 15 days
from the employees who could not opt earlier.
9. The question for consideration in the present petition
before this Court is as to whether the petitioner can be allowed to shift
to Pension and Gratuity Scheme in view of his second option, once he
had already opted for CPF Scheme, pursuant to the earlier circular and
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subsequent option was called only from those employees who could not
give their option for one reason or the other.
10. Hon'ble Supreme Court in Col. B.J Akkara (Retd.) v.
Government of India, (2006) 11 SCC 709, summarised the principles
relating to pension and observed as under: -
"20. The principles relating to pension relevant to the
issue are well settled. They are:
(a) In regard to pensioners forming a class, computation
of pension cannot be by different formula thereby applying
an unequal treatment solely on the ground that some
retired earlier and some retired later. If the retiree is
eligible for pension at the time of his retirement and the
relevant pension scheme is subsequently amended, he
would become eligible to get enhanced pension as per the
new formula of computation of pension from the date when
the amendment takes effect. In such a situation, the
additional benefit under the amendment, made available
to the same class of pensioners cannot be denied to him on
the ground that he had retired prior to the date on which
the aforesaid additional benefit was conferred.
(b) But all retirees retiring with a particular rank do not
form a single class for all purposes. Where the reckonable
emoluments as on the date of retirement (for the purpose
of computation of pension) are different in respect of two
groups of pensioners, who retired with the same rank, the
group getting lesser pension cannot contend that their
pension should be identical with or equal to the pension
received by the group whose reckonable emolument was
higher. In other words, pensioners who retire with the
same rank need not be given identical pension, where their
average reckonable emoluments at the time of their
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retirement were different, in view of the difference in pay,
or in view of different pay scales being in force.
[...]
One set cannot claim the benefit extended to the other set
on the ground that they are similarly situated. Though they
retired with the same rank, they are not of the "same
class" or "homogeneous group". The employer can validly
fix a cut-off date for introducing any new
pension/retirement scheme or for discontinuance of any
existing scheme. What is discriminatory is introduction of
a benefit retrospectively (or prospectively) fixing a cut-off
date arbitrarily thereby dividing a single homogeneous
class of pensioners into two groups and subjecting them to
different treatment."
11. Hon'ble Supreme Court in Indian Ex-Servicemen
Movement v. Union of India, 2022 (2) SCT 244 laying down the
principles governing the pensions and cut-off dates has held that the
benefit of a new element in a pensionary scheme can be prospectively
applied. However, the scheme cannot bifurcate a homogenous group
based on a cut-off date.
12. Hon'ble Supreme Court in University of Delhi v. Smt.
Shashi Kiran and others, 2022(3) S.C.T. 93 has held as under: -
"22. The differential treatment afforded to those 2469
employees as against the employees in Shashi Kiran batch
of cases, was not founded on any rationale. No justifiable
reason was coming forth. If those 2469 employees could
be afforded chance to exercise an option of switchover to
GPF, even though they had consciously opted to be under
CPF, on principle of parity or equality, the case was
certainly made out.
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23. We may now consider the matter from the perspective
of financial impact if the decision of the Division Bench is
affirmed.
24. According to the notification dated 01.05.1987, the
employees joining the service after 01.01.1986 would
always be under GPF. With respect to those who were in
service on 01.01.1986, said employees would be deemed to
have "come over" to GPF unless an option to continue to
be under CPF was consciously exercised before the cut-off
date. Thus, when the Scheme was framed and was sought
to be implemented, the concerned authorities must have
taken into account the entire magnitude such as, the
number of employees and the likelihood of impact on the
management of the fund, so that reasonable returns can be
effected by way of pension upon retirement
of such persons. Going by the intent of the notification,
those who were to opt for CPF, were an exception and the
general rule was that everybody after 01.01.1986 would
normally be covered by GPF. It is in this context that the
number of original petitioners in Shashi Kiran batch of
cases has to be seen. We are concerned with only 75
persons. On the other hand, the bulk of people namely
2469 employees were granted the choice of reverse
switchover and they were allowed all the benefits under
GPF. It can reasonably be said that when the notification
dated 01.05.1987 was issued, the authorities were
conscious of the possibility that all the employees may
come over to GPF. With that possibility in mind, the fund
was constituted and the affairs were arranged. The shift of
those 75 employees would not in any way affect the
strength and the character of the fund if a direction that
the entire contribution made by the authorities be returned
with reasonable rate of interest is Issued. These 75
petitioners had approached the Court in the year 2010. At
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this length of time, it is not as if any floodgates are going
to open and there will be drain on the resources of the
State. A direction can, therefore, be issued, as was done by
the learned Single Judge in paragraph 20 of his Judgment
in R.N. Virmani batch of cases and which aspect was
mentioned in the letter dated 23.01.2017 referred to in
paragraph 8 hereinabove, for recouping the contribution
under CPF with 8% simple interest per annum.
25. Considering the circumstances on rècord, in our view,
the decision rendered by the Division Bench of the High
Court in Shashi Kiran batch of cases does not call for any
interference except to the extent of direction for recouping
of the contribution under CPF with 8% simple interest per
annum. It is possible that at this length of time, some of the
employees in Shashi Kiran batch of cases may not be
interested in switchover to GPF. But an option must be
afforded to them in such manner as the authorities deem
appropriate."
13. In the present case, before introduction of Pension and
Gratuity Scheme, all the employees of the respondent-Corporation were
under the CPF Scheme and the employees who opted for new scheme
within the stipulated time were eligible for pension scheme. The
employees who did not exercise any option due to one reason or other
and the employees, including petitioner, who opted for CPF Scheme
were kept under the Employees Provident Fund Regulations, 1974.
Subsequently, the respondent-Corporation invited option from those
employees who did not opt within the prescribed/stipulated period.
Thus, present case appears to be a case of discrimination and
arbitrariness particularly when similar benefit was granted to similarly
situated employees, one of them is Daljit Singh, who, though did not
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opt earlier. Apart from that, one Baldev Singh Khanna, who joined
respondent No.2-Corporation on 08.06.1977, resigned vide resignation
dated 08.04.1992, which was accepted by the respondent-Corporation
on 04.01.1993 and his CPF of Rs.37,551/- was released to him.
However, on his request dated 31.10.1996, he was appointed afresh by
respondent No.2 on 16.12.1996. He was given the benefit of earlier
service and seniority as well as change from CPF to pension scheme.
Further, the employer's share of CPF of Rs.16,21,000/- is still with the
respondent-Corporation. Respondent-Corporation cannot be permitted
to act in violation of Articles 14 and 16 of the Constitution of India.
Being a model employer, it is the duty of the Corporation to treat every
employee in the same manner.
14. The decision of the petitioner giving second option is fully
conscious decision. No prejudice would be caused to the respondent-
Corporation in accepting the change of option of the petitioner as the
Pension and Gratuity Scheme is in the nature of a beneficial legislation.
If the benefit on account of a beneficial legislation has been afforded to
one set of employees, the same cannot be withheld from the other set of
similarly situated employees even though they had exercised their
option earlier. The intention of the Corporation was, therefore, to
maximize the number of beneficiaries of the pension and gratuity
scheme. In the face of the subsequent office memorandum dated
27.06.1997 issued for affording another opportunity to the remaining
employees in order to benefit them, the objection raised in relation to
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giving the option after a stipulated period of three months in the case of
the petitioner was a misplaced one and has to be rejected.
15. No benefit of the judgment in Sohan Lal's case (supra)
can be given to the respondents as the facts of that case are
distinguishable from the facts of the present case. In the said case, loan
was pending against the employees, therefore, they were denied the
benefit of PEPSU Road Transport Corporation Employees
Pension/Gratuity and General Provident Fund Regulations, 1992.
16. In view of the foregoing reasons, the present petition is
allowed and impugned order dated 05.12.2017 (Annexure P-8) passed
by respondent No.2, is set aside. Respondent-Corporation is directed to
grant pensionary benefits to the petitioner under the Pension and
Gratuity Scheme and necessary calculations of the amount of
pensionary benefits, after adjusting the amount paid to him, if any,
under contributory provident fund and amount of Rs.16,21,697/- as
employer's share lying with the Corporation, be made and released,
within a period of 04 months from the date of receipt of certified copy
of this order.
(NAMIT KUMAR)
12.03.2024 JUDGE
R.S.
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
Neutral Citation No:=2024:PHHC:035553
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