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Judgment
Sujoy Paul, J.—By invoking jurisdiction of this Court under Article 226 of the Constitution, the petitioner has prayed for setting aside the order dated 29.06.2004 (Annexure P/1), whereby the respondents denied him benefit of pension scheme on the ground that petitioner has not rendered 20 years of service before voluntary retirement. It is prayed that the respondents be directed to grant pensionary benefits to the petitioner. The petitioner was born on 16.07.1963, he was appointed in the respondent department on 21.10.1986 as Assistant typist. He was promoted as Senior Assistant w.e.f. 08.09.1998. The respondents introduced the pension scheme for its employees which was called as General Insurance (Employees) Pension Scheme, 1995. The said scheme was introduced in exercise of power conferred by Section 17(A) of General Insurance Business (Nationalization) Act, 1972 by the Central Government by notification published in Gazette of India (Extraordinary) Part-II, Section 3, sub section (ii). This notification was published on 28.06.1995. The aforesaid scheme is hereinafter called as "Pension Scheme, 1995". The petitioner has filed this scheme as Annexure P/2.
After notification of Pension Scheme, 1995, employees of respondent department were asked to submit their option for benefit of pension under the said scheme. The petitioner opted for pensionary benefits as per Clause 3(1)(b) of the scheme. The retirement age of the petitioner was 58 years. The respondents introduce yet another scheme namely Special Voluntary Retirement Scheme, 2004, (for brevity "2004 scheme"). This scheme was brought into force by exercising power u/s 17(A) of the General Insurance Business (Nationalization) Act, 1972. This scheme was also published in the official Gazette by Govt. of India (Annexure P/3).
The petitioner on 23.02.2004 submitted an application seeking voluntary retirement under the 2004 Scheme. The respondents were kind enough in accepting the application of the petitioner on 25.03.2004. The acceptance letter dated 25.03.2004 is filed as Annexure P/4. The respondents paid him certain benefits on his retirement, which is reflected in the pay slip (Annexure P/5). Shri D.K. Agrawal, learned counsel for the petitioner submits that petitioner''s contribution to provident fund was continued till his retirement. After retirement, the petitioner preferred an application for grant of pensionary benefits. The said application was rejected by the impugned order dated 29.06.2004.
Shri D.K. Agrawal, learned counsel for the petitioner, relied on clauses 14, 29 and 30 of Pension Scheme, 1995. He drew attention of this Court on the definitions of "pension", "pensioner" and "qualifying service". By placing reliance on the definition of retirement, mentioned in Pension Scheme, 1995, it is contended that conjoint reading of these provisions with clauses 3 and 6 of 2004 Scheme makes it clear that the petitioner was eligible to get pension. In support of his contention, he relied on judgments of Supreme Court.
Per Contra, Shri Kunal Suryawanshi, learned counsel for the respondents, relied on certain paragraphs of the return by the respondents No. 1, 3 & 4. He submits that the singular reason for rejecting the petitioner''s application for pensionary benefits was as per paragraph 30 under Chapter-V of 1995 Scheme and as per para. 30(1), an employee should have completed 20 years of qualifying service to go on voluntarily retirement. Since petitioner has not completed 20 years of service, he was not eligible for pensionary benefits. He submits that as per Pension Scheme, 1995 and 2004 Scheme, the petitioner is not entitled for grant of pension.
I have heard learned counsel for the parties and perused the record.
Before dealing with rival contentions advanced by learned counsel, I deem it proper to reproduce the relevant clauses from the Pension Scheme, 1995. Clause 14 of the said scheme reads as under:--
Qualifying Service:--
Subject to the other condition contained in this scheme, an employee who has rendered a minimum ten years of service in the Corporation or a Company, on the date of retirement shall qualify for pension.
Clause 29 reads as under:--
Superannuation Pension:--
Superannuation pension shall be granted to an employee who has retired on his attaining the age specified in paragraphs 12 of General Insurance (Rationalization and Revision of Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 and in paragraph 4 of General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976.
Clause 30(1) on which reliance is placed in the rejection order is as under:--
Pension on voluntary retirement:--
(1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:
Provided that this sub-paragraph shall not apply to an employee who is on deputation unless after having been transferred or having returned to India he has resumed charge of the post in India and has served for a period of not less than one year.
Certain definitions under Clause 2 of Pension Scheme, 1995 are also relevant to mention, which are as under:--
(q) Pension:-- "Pension" includes the basic pension and the additional pension referred to in Chapter-VI of this Scheme;
(r) Pensioner:-- "Pensioner" means an employee eligible for pension under this Scheme.
(s) Qualifying service:-- "Qualifying service" means the service rendered which on duty otherwise which shall be taken into account for the purpose of pension under the scheme.
(t) Retirement:-- "Retirement" means--
(i) the retirement in accordance with the provisions contained in paragraph 12 of General Insurance (Rationalization and Revision of Pay Scales and Other Conditions of Service of Supervisory, Clerical and Subordinate Staff) Scheme, 1974 notified under the notification of Govt. of India, in the Ministry of Finance (Department of Revenue and Insurance) number S.O. 326 (E) dated 27th May, 1974.
(ii) the retirement in accordance with the provisions contained in paragraph 4 of the General Insurance (Termination, Superannuation and Retirement of Officers and Development Staff) Scheme, 1976 notified under notification Govt. of India, in the Ministry of Finance (Department of Economic Affairs) number S.O. 627 (E) dated 21st September, 1976.
(iii) voluntary retirement in accordance with the provisions in paragraph 30 of this scheme.
Clause 6(1) of 2004 Scheme reads as under:--
Other benefits:--
(1) An employee opting for the scheme shall also be eligible for the following benefits in addition to the ex gratia amount mentioned in para. 5, namely:--
(a) Provident Fund.
(b) gratuity as per payment of Gratuity Act, 1972 (39 of 1972) or gratuity payable under the Rationalization Scheme, as the case may be;
(c) Pension (including commuted value of pension) as per General Insurance (Employees'') Pension Scheme, 1995, if eligible. However, the additional notional benefit of five years of added service as stipulated in para. 30 of the said Pension Scheme shall not be admissible for the purpose of determining the quantum of pension and commutation of pension.
(d) leave encashment.
(Emphasize supplied)
Clause 3 of 2004 Scheme reads as under:--
Eligibility:--
(1) All permanent full time employees will be eligible to seek special voluntary retirement under this Scheme provided they have attained the age of 40 years and completed 10 years of qualifying service as on the date of notification.
(2) xxxxxxx
As per clause 14 of Pension Scheme, 1995 a person becomes eligible to get pension on completion of 10 years of service. As per clause 30(1) of 2004 Scheme the employee was required to complete 20 years of qualifying service for preferring a notice or application seeking voluntary retirement. However, as per clause 3 of 2004 Scheme, an employee became eligible to seek voluntary retirement, who have attained 40 years and completed 10 years of qualifying service. Admittedly, the petitioner had rendered 10 years of qualifying service and attained 40 years of age. Thus, as per 2004 scheme he was eligible to seek special voluntary retirement. Respondents, accordingly, granted him permission to retire voluntarily.
The singular question is whether the petitioner on such retirement is entitled for pension or not. The respondents have rejected the application of the petitioner by assigning following reasons, which are reproduced as under:--
We have perused your application for pension.
In this connection, reference is invited to "General Insurance Officers/Employees Special Voluntary Retirement Scheme 2004. Cl. 6(1)(c) in paragraph 6 "Other Benefits" refers to Pension (including commuted value of Pension) as per General Insurance Employees Pension Scheme, 1995, if eligible.
Paragraph 30 under Chapter V of General Insurance Employees'' Pension Scheme, 1995 refers to pension benefits on Voluntary Retirement. Cl. 3(1) under this Para stipulates that an employee should have completed 20 years of qualifying service to go on Voluntary Retirement. Inasmuch as you have put in service below 20 years, You are not eligible for pension benefits.
Hence, we have not processed your case and matter may be treated as closed. No further correspondence in this regard would be entertained.
The stand of respondents is that paragraph, 6 which defines "Other Benefits" refers to pension, but said benefit can be granted only if a person is eligible as per Pension Scheme, 1995. By relying on para. 30(1) of 2004 Scheme, it is the stand of the respondent that the petitioner has not completed 20 years of qualifying service and therefore, not eligible for pensionary benefits.
A microscopic reading of para. 6(1)(c) makes it clear that an employee must be eligible to get pension under the Pension Scheme, 1995. It shows that the additional notional benefit of five years of added service as stipulated in para. 30 of the said pension scheme shall not be admissible for the purpose of determining of quantum of pension and commutation of pension.
It cannot be disputed that as per Pension Scheme, 1995 qualifying service for grant of pension was 10 years. Petitioner has completed the qualifying service under the 1995 Scheme. Thus he became eligible to get the petition. Para. 6(1)(c) makes it clear that the employee who are eligible to get pension under the 1995 Scheme shall not get benefit of added service of five years stipulated in para. 30 of Pension Scheme, 1995.
Thus, in my opinion, paragraph 6(1)(c) of 2004 Scheme deprives the petitioner to the benefit of added service as stipulated in para. 30 of Pension Scheme, 1995 for the purpose of determining "quantum of pension" and "commutation of pension". In other words, said clause does not deprive the petitioner from getting pension it only deals with quantum of pension and commutation of pension. It is clear that five years added service benefits shall not be granted to the persons like petitioner under paragraph 6 of 2004 Scheme.
Thus, in my opinion, the petitioner is eligible under Pension Scheme, 1995 and 2004 Scheme to get pension. Respondents can deprive him only from the benefit of five years added service for the purpose of determining "quantum of pension" and "commutation of pension". Clause 30(5) of Pension Scheme 1995 is pari materia to the Employee Pension Regulation which became subject matter of interpretation by the Supreme Court in Bank of India and Another Vs. K. Mohandas and Others, . It is apt to quote both the provisions in juxtaposition:--
Before the Supreme Court in K. Mohan Das AIR 2009 SC (Supp.) 2783 (supra) the objection of the bank was that an employee although pension optee under VRS having not completed 20 years'' service was not entitled to any pension [page 327, para. 23 (v)]. The Apex Court in para. 36 opined as under:--
Any interpretation of the terms of VRS 2000, although contractual in nature, must meet the test of fairness. It has to be construed in a manner that avoids arbitrariness and unreasonableness on the part of the public sector banks who brought out VRS 2000 with an objective of rightsizing (sic) their manpower. The banks decided to shed surplus manpower. By formulation of the special scheme (VRS 2000), the banks intended to achieve their objective of rationalization their force as they were overstaffed. The special Scheme was, thus, oriented to lure the employees to go in for voluntary retirement. In this background, the consideration that was to pass between the parties assumes significance and a harmonious construction to the scheme and the Pension Regulations, therefore, has to be given.
It was further held as under:--
True construction of a contract must depend upon import of words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of contract affect the true effect of clear and unambiguous words used in contract. Intention of the parties must be ascertained from the language they have used, considered in the light of surrounding circumstances and the object of the contract. Nature and purpose of contract is an important guide in ascertaining intention of the parties. Contract must be read as a whole in order to ascertain true meaning of its several clauses and the words of each clause should be interpreted so as to bring them in harmony with other provisions, if that interpretation does no violence to the meaning of which they are naturally susceptible. It is the banks which were responsible for formulation of the terms in the contractual Scheme that the optees of voluntarily retirement under the Scheme will be eligible to pension under the Pension Regulations, 1995, and therefore, they bear the risk of lack of clarity, if any. If the terms applied by one party are unclear, an interpretation against that party is preferred. (Verba chartarum fortius accipiuntur contra proferentem.)
On the anvil of principle laid down aforesaid, if present claim of petitioner is tested, it will be clear, as analyzed above, that the petitioner is eligible and has rendered qualifying years of service for grant of pension as per Pension Scheme, 1995. Clause 6(1)(c) of 2004 Scheme only deprives him from getting benefit of adding service of five years, i.e. relatable or relevant for the purpose of determining "quantum of pension" and "commutation of pension" it does not and cannot deprive the petitioner from grant of pension as per Pension Scheme, 1995 read with 2004 Scheme.
Thus, it is clear that respondents have erred in rejecting the claim of the petitioner for grant of pension. Resultantly, the impugned order dated 29.06.2004 is set aside. Respondents are directed to determine the pension and commuted value within 60 days. Arrears from due date be paid to the petitioner within aforesaid time. If it is not paid within aforesaid time, it will carry interest of 12% till date of realization. Petition is allowed. No Costs.