Hon''ble Justice Debasish Kar Gupta
1. This writ application is filed by the petitioner assailing an order dated January 13, 2012 passed by the respondent No. 4. By virtue of the impugned order the respondent No. 4 came to a conclusion that the petitioner was not entitled to enjoy pensionary benefit under the West Bengal Power Development Corporation Limited employees'' (Death-cum-Retirement) Benefit Regulations, 1992. The back drop of the case in a nutshell is as under:
The respondent corporation published an advertisement in "The Sunday Statesman" dated March 9, 1986 inviting applications from the eligible candidates for appointment in the post of Finance Director at a monthly scale of pay of Rs. 3,750(fixed). In addition he would be entitled to a special pay of Rs. 250/- per month and other allowances, i.e. Medical Allowance, Electricity Allowance, House Rent Allowance, variable dearness allowance, leave travel concession etc. as per rules of the corporation. The petitioner submitted application for participating in the selection process for the above post disclosing his date of birth as January 23, 1936, amongst other information. By a notification dated July 5, 1986 the Governor of West Bengal was pleased to appoint the petitioner as whole time Finance Director of the respondent corporation with effect from the dated he took over charge and until further orders. The petitioner assumed charges attached to his above office on August 11, 1986.
By a notification dated January 13, 1994 issued in exercise of power conferred by Article 70(a) read with Article 85(a)(b) of the Articles of Association of the West Bengal Power Development Corportion Limited (hereinafter referred to as the said Articles of Association), the Governor of West Bengal was pleased to appoint the petitioner as Executive Director of the respondent corporation on existing terms and conditions for a further period of three years with effect from January 22, 1994. By virtue of subsequent notifications dated January 22, 1997, January 14, 1998, January 20, 1919, January 19, 2000 and June 8, 2000 issued in exercise of power conferred by Articles 70(a) read with Article 85(a) and (b) of the said Articles of Association the tenure of services of the petitioner as Executive Director of the respondent corporation was extended up to June 30, 2000.
By an order dated June 28, 2000 passed by the respondent No. 2, the petitioner was released from the services of the respondent corporation with effect from June 30, 2000. By virtue of the above order the petitioner was further informed that he would get leave salary of earned leave due to his credit, provident fund settlement, pension and gratuity as per norms of the responded corporation. By an order dated June 30, 2000 passed by the respondent No. 2, the petitioner was appointed as advisor of the respondent company at a consolidated remuneration of Rs. 15,000/- per month initially for a period of six months with effect from July 3, 2000. The tenure of the above engagement was extended for a further period of six months with effect from January 2001 by an order dated January 1, 2001 passed by the respondent No. 2.
By another order dated June 28, 2001 passed by the respondent No. 2 the petitioner was further informed that the petitioner would be entitled to leave salary equivalent to 300 days earned leave in terms of the regulation 86 of the West Bengal Power Development Corporation Ltd.(Employees Service) Regulations, 1990 (hereinafter referred to as the said Regulations, 1990). The respondent No. 2 further issued a "no demand certificate" dated June 28, 2000 certifying that the petitioner would be released from the services of the respondent corporation with effect from June 30, 2000 owing no obligation so far as his services under the respondent corporation was concerned. Payment towards leave salary, provident fund accumulation, gratuity and commuted value of 40% pension amount were paid to the petitioner in the month of July 2000. Monthly pension of Rs. 4,402/- was also granted to the petitioner.
By a communication dated October 31, 2011 the respondent No. 4 informed the petitioner that his pension had been withheld with effect from September 11, 2011 since his terminal benefit order was under investigation. In respondent to a number of representations submitted by the petitioner, he was informed by the respondent No. 3 under a communication dated November 14/15, 2011 that an investigation regarding alleged unlawful gain was in progress against the petitioner and final decision would be taken after affording adequate and reasonable opportunity of being heard to the petitioner. In response to a "demand justice notice" issued by the learned advocate of the petitioner the respondent No. 3 informed that appropriate steps were being taken for extending the benefit of pension to the petitioner under the West Bengal Power Development Corporation Limited Employees'' (Death-cum-Retirement) Benefit Regulations, 1992 (hereinafter referred to as the said DCRB Regulations of 1992) without satisfying "qualifying service.
2. The petitioner filed an application under article 226 of the constitution of India in the matter of Amalundu Bhattacharjee Vs. West Bengal Development Corporation Ltd., and ors. (in re. W. P. No. 21488(W) of 2011) and it was disposed of on December 22, 2011 with the following orders.
This writ application is taken up for final disposal with the consent of the parties without giving them opportunity to exchange affidavits.
Leave is granted to the respondent No. 1 to take a final decision within January 31, 2012 with regard to releasing the monthly pension to the petitioner under the West Bengal Development Corporation Limited Employees'' (Death-cum-Retirement) Benefit Regulations, 1992 from the month of September, 2011 by passing a reasoned order in accordance with law after giving opportunity of hearing to the petitioner. The respondent No. 1 shall authorize the Director, Finance of the West Bengal Power Development Corporation Limited to take the above decision on its behalf and the retirement of the above Director from the service of the respondent No. 1 on attaining the age of retirement on superannuation before January 31, 2012 will have no effect on such authorization for the purpose of arriving at the decision. The aforesaid reasoned order shall be communicated to the petitioner within February 7, 2012.
Needless to point out that the petitioner shall get the opportunity of inspecting as also producing all relevant documents to support his case.
In the event the decision goes in favour of the petitioner then the respondent No. 1 shall release the monthly pension including arrears together with interest at the highest prevailing rate payable by a nationalized bank on fixed deposit to him immediately after that decision.
It is made clear that I have not interfered with the merits of this case so far as the claim of the petitioner is concerned and all points are kept open for adjudication in accordance with the directions given hereinabove.
This writ application is, thus, disposed of.
There will be, however, no order as to costs.
Let a plain copy of this order duly countersigned by the Assistant Registrar(Court) be given to the appearing parties on usual undertakings.
3. In compliance of the above order dated December 22, 2011 passed in W.P. No. 21448(W) of 2011, an opportunity of hearing was given to the petitioner on January 12, 2012 the petitioner submitted a written submission to the respondent authority on January 12, 2012 apart from availing of the opportunity of being heard. A true copy of the option exercised by the petitioner on March 27, 1996 under the provisions of Regulation 5 of the said DCRB Regulations, 1992 was enclosed to the above written submissions, amongst other papers and documents. Ultimately, the respondent No. 4 passed the impugned order dated January 30, 2012. Hence this writ application.
4. It is submitted by Mr. L.K. Gupta, learned advocate appearing on behalf of the petitioner that the petitioner was appointed in the post of Finance Director under the respondent corporation by the Government of West Bengal under powers conferred by Article 70(a) read with article 85(a)(b) of the said Articles Association which was contractual in nature. According to Mr. Gupta, the tenure of the services of the petitioner was depending upon the pleasure of the Governor, West Bengal in according with the provisions of the above articles. According to Mr. Gupta, the provisions the said Regulations, 1990 were not applicable to the services of the petitioner under the respondent corporation simply because it was a subordinate legislation framed in exercise of the provisions of article 84(q) of the said articles of association. Drawing the attention of this court towards the provisions of Regulations 8(XV), 24 and 28 of the said Regulations, 1990, it is submitted by Mr. Gupta that those provisions were not applicable to the services of the petitioner of the respondent corporation for the aforesaid reason. Drawing the attention of this court towards the provisions of Regulation 6(c) read with Regulation 10(i) of the said DCRB Regulations, 1992 it is submitted by Mr. Gupta that the tenure of service of the petitioner under the respondent corporation for period starting from his initial date of joining up to June 30, 2000 should be counted towards "qualifying service" for granting pensionary benefit to him under the said DCRB, 1992. Drawing the attention of this court towards article 163 of the constitution it is submitted by Mr. Gupta that the petitioner was not an employee of the respondent company, rather he was appointed by the Governor, West Bengal on the advice of the Council of Ministers. It is further submitted by Mr. Gupta that the respondent corporation did not submit form No. 32 to the Registrar Companies for the purpose of complying with the provisions of sub-section(2) of Section 303 of the Companies Act, for giving information with regard to retirement of the petitioner from services of the respondent corporation after the alleged date of retirement of the petitioner from the respondent corporation and as such the respondent corporation was wrong in treating January 23, 1994 as the date of retirement of the petitioner from the services of the respondent corporation on attaining the age of retirement on superannuation.
5. Reliance is placed upon the decisions of
6. On the other hand, it is submitted by Mr. Samaraditya Pal, learned Senior Advocate appearing on behalf of the respondent corporation that the petitioner submitted an application to the respondent corporation in response to the advertisement dated March 9, 1986 for consideration of his candidature for the post of Finance Director. After considering the candidature of the petitioner, he was appointed to the above post from the date he took over charge and until further orders at a fixed monthly pay plus a special pay apart from enjoying variable Dearness Allowance, House Rent Allowance, Electricity Allowance, Medical Allowance, LTC, Travelling Allowance, Daily Allowance etc. at the same rate as admissible to officers of equivalent rank of the West Bengal State Electricity Board until the corporation adopted its own rules. According to Mr. Pal, the said Regulation, 1990 as also the said DCRB Regulations, 1992 had been framed before the petitioner attained the age of retirement on superannuation on January 22, 1994. According to Mr. Pal the petitioner retired on January 22, 1994 from the services of the respondent corporation by operation of law and thereafter, he was appointed to the post of Executive Director of the respondent corporation for a further period of three years by notification dated January 13, 1994. According to Mr. Pal it was a case of re-employment after the retirement of the petitioner from the service of the respondent corporation. It is further submitted by Mr. Pal that the petitioner was not entitled to get the pensionary benefit under the provisions of Regulations 7(i), 9 and 10 of the said Death-cum-Retirement Regulations, 1992. Drawing the attention of this court towards the order dated June 25, 2000, it is submitted by Mr. Pal that the aforesaid release order was issued by the respondent No. 2 with specific observation that the petitioner would get leave salary, provident fund, settlement pension and gratuity as per norms of the corporation. According to Mr. Pal the Governor, West Bengal, issued the notification for appointment of the petitioner in the respondent corporation in accordance with the provisions of the said Articles of Association and as a result, the provisions of article 163 of the constitution of India could not improve the case of the petitioner for continuation of the tenure of his services beyond the date of retirement on attaining the age of retirement of superannuation in accordance with law. According to Mr. Pal, sub-section(2) of Section 303 Companies Act, 1956 cannot held the petitioner for continuation of his services beyond the aforesaid period for the same reason.
7. Mr. Pal relies upon the decisions of
8. I have heard the learned counsels appearing for the respective parties at length and I have given my anxious considerations to the facts the circumstances of this case.
9. It is not in dispute that the petitioner submitted his candidature for the post of Finance Director of the respondent corporation in response to an advertisement published by the respondent corporation for appointment of a Finance Director. Admittedly, the Governor of West Bengal was pleased to appoint the petitioner as a whole time Finance Director of the said corporation with effect from the date he took over charge and until further orders. According to the service jurisprudence there was an offer which was accepted. Thereafter, the petitioner acquired a status and his rights and obligations were guided statute or statutory rules which might be framed or altered unilaterally.
10. It is the settled principles of law that the origin of government service is contractual. There is an offer and acceptance. But once appointed to his post or office the government servant acquires a status and his rights and obligations are determined by statute or statutory rules which may be framed and or altered unilaterally by the Government. Therefore the legal position of a government servant is more than one or status than of contract. Reference may be made to the decision of Roshanlal Tandon Vs. Union of India, reported in 1967 SCC 1889 and the relevant portions of the above decision are quoted below:
6......It is ''true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public ''law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee.
11. Needless to point out that the respondent corporation was an instrumentality of the state.
12. In view of the above settled principles of law were applicable in this case.
13. It is also not in dispute that during the tenure of the above services of the petitioner, the respondent corporation framed the said Regulations, 1990 in exercise of power conferred by article 84(q) of the said Articles of Association. For proper adjudication of the issues involved in this case the provisions of regulations 2, 24 and 28 are quoted below:
2. Subject to any law or laws for the time being in force and specifically applicable to any section or class of employees, these regulations shall apply to all categories of employees of the Corporation(except those borne on the Workcharged or Muster Roll establishments).
The regulations shall also apply to employees appointed on contract in so far as they are not inconsistent with any provision of the contract and in respect of any matter not covered by the contract.
24. A Corporation employee, other than a member of Group D staff, shall ordinarily retire from the Corporation''s service on attaining the age of 58 years. Similarly, a member of Group D staff shall ordinarily retire from the Corporation''s service on attaining the age of 60 years.
Extension of service of an employee of the Corporation beyond the date of retirement are not generally be recommended or sanctioned. However, in special circumstances, the Corporation may consider re-employment of an employee after his retirement on such terms & conditions as may be determined by the competent authority.
28. An employee of the Corporation other than any Group D service shall retire from Corporations''s service compunsorily with effect from the afternoon of the last day of the month in which he attains the age of 58 years provided that an employee whose date of birth is the first day of the month shall retire with effect from the afternoon of the last day of the preceding month on attaining the age of 58 years.
A member in Group D services shall retire from Corporation''s service compulsorily with effect from the afternoon of the last day of the month in which he attains the age of 60 years provided that an employee whose date of birth is the first day of a month shall retire with effect from the afternoon of the last day of the preceding month on attaining the age of 60 years.
But, however, if a ''D'' grade employee gets promotion to ''C'' grade, all provisions of retirement for ''C'' grade employee will apply in his case mutatia-mutandis.
In no case extension of service of an employee of the Corporation beyond the date of compulsory retirement should be recommended or sanctioned. But in a very special case, exceptions may, however, be made with the approval of the Corporation.
An employee my be permitted to retire voluntarily from services of the Corporation after completing 25 years of service or an attaining the age of 50 years in respect of Group A & Group B employees and in respect of Group C & Group D employees on attaining the age of 55 years.
14. Regulations 24 and 28 of the said Regulation 1990 supplemented the provisions of the said Articles of Association prescribing the age of retirement on attaining the age of 58 years so far as the employees of the said corporation other than member of Group D staff were concerned. Further, considering the provisions of Regulation 2 of the said regulations I find that the aforesaid provisions of Regulations 24 and 28 were applicable to the petitioner because neither there was any provision anywhere prescribing the age of retirement of the petitioner prior to framing of the said Regulations, 1992 nor the age of retirement of the petitioner had been prescribed in the notification relating to the appointment of the petitioner. After considering the date of birth of the petitioner as disclosed in his application for participating in the selection process for the post of Finance Director of the said corporation I find that he attained the age of retirement on superannuation on January 22, 1994 by operation of the provisions of Regulations 24 and 28 read with Regulation 2 of the said Regulations, 1990.
15. During the tenure of the services of the petitioner the said DCRB Regulations, 1992 were framed for the purpose of extending the benefit of pension to the whole time employees of the respondent corporation. For examining the claim of the petitioner to get the pensionary benefit under the said Regulations, 1992, the provisions of Regulation 6(c), 6(f), 7(a), 7(b), 7(c), 7((h)(I), 9 and 10 are quoted below:-
6. (c) ''Pension Sanctioning Authority'' means the authority competent to make appointment to the post held by the retiring employee and shall sanction pension and gratuity on receipt of the admissibility report from the Officer of the Finance and Accounts Department authorized by the Corporation on this behalf.
(f) ''Employee'' means a person appointed by the Corporation as whole-time employee both permanent and temporary.
7. (a) Continious temporary or officiating service of a whole-time employee shall count as qualifying service provided it is followed without interruption, by confirmation in the same or another post in the Corporation.
(b) Temporary whole-time employees rendering continuous service for ten years or more will be granted pension and gratuity as admissible to permanent employees under the Regulations.
(c) All periods of authorized leave including extra-ordinary leave without pay on Medical Certificate shall count as qualifying service.
(h) The period of bread in service of an employee between the date of dismissal or removal and the date of re-instatement shall not count as qualifying service unless such period is treated as duty or leave by a specific order of the authority which passed the order of re-instatement.
(i) Qualifying service for pension shall be counted up to the date of superannuation or the date preceding the date of voluntary retirement. The period of service rendered on re-employed period after attainment of age of superannuation shall not be considered as qualifying service (for the purpose of this Regulation the date of Superannuation shall be reckoned from the date of birth).
9. When an employee is required to retire on attaining a specified age, the date on which he attains that age shall be reckoned as a non-working day and the employee shall retire with effect from and including that day.
10. Subject to satisfactory service, an employee shall be entitled to pension provided that in case of (i)(ii) & (iv) below the employee concerned has completed at least ten years of qualifying service.
(i) On attaining the age of superannuation, or
(ii) On voluntary retirement after completing 25 years of qualifying service or attaining the age of 50 years in respect of Class-I and Class-II employees and in respect of Class-III and IV employees on attaining the age of 55 years.
(iii) On being declared permanently incapacitated for further service by the Chief Medical Supdt. Of the Corporation or any Medical Officer of equivalent status authorized or nominated by the Pension Sanctioning Authority, or
(iv) On termination of service due to abolition of the post.
16. Considering the date of joining in the post of Finance Director of the said corporation and the date of attaining the age of retirement of superannuation I find that the tenure of the services of the petitioner from August 11, 1996 to January 22, 1994. After perusing the provisions of Regulation 7(b) read with those of 7(a)(i), I find that admittedly the petitioner did not fulfil the eligibility criteria for getting pension in accordance with the provisions of Regulations 10 of the said DCRB Regulations, 1992.
17. I find no substance in the submissions made on behalf of the petitioner that services rendered by the petitioner subsequent to the date of attaining the age of retirement on superannuation could be taken into account as "qualifying service" under the provisions of said DCRB Regulations, 1992 for the purpose of examining his claim for pensionary benefit under the said DCRB Regulations, 1992. Because he attained the age of retirement of superannuation by operation of the provisions of the said Regulations, 1990 and he did not render qualifying service in accordance with the provisions of Regulation 10(i) of the said DCRB Regulations, 1992. The services of the petitioner beyond the date of attaining the date of superannuation could be treated as a case of re-employment but the same could not be added for counting his "qualifying service" for enjoying pensionary benefit under the said DCRB Regulations, 1992.
18. I do not find any substance in the submissions made on behalf of the petitioner that article 163 of the constitution of India had any manner of application in the instance case because the Governor of West Bengal exercised the power conferred upon him by the provisions of Article 70(a) read with Article 85(a)(b) of the said Articles of Association and did not exercise of any provisions of the constitution of India. Similarly, the provisions of sub-section(2) of Section 303 cast an obligation upon the employer for furnishing information regarding retirement of its employees but non-furnishing of such function did not entitle the petitioner for claiming pensionary benefit from the respondent corporation to which he was not otherwise entitled. Reference may be made to the decision of Ramswaroop Masawan(supra) and the relevant portions of the above decision are quoted below:
3. In our view, the High Court was right. At the relevant time the age of superannuation was 55 years. The appellant stood superannuated on reaching that age and, in law, his continuance in service thereafter can only be treated as re-employment. In the Municipal Council in question no retiral benefits were available to Overseers who retired on 26-1-1970. Therefore, the appellant could not legitimately make a claim thereto.
19. In view of the distinguishable facts and circumstances of this case the ratio laid down in the matter of Shivnandan (Supra) dealing with the issue of master and servant relationship has no manner of application in this case for the same reason the decision of A. N. Singh(supra) dealing with the issue of protection under article 311 of the constitution of India has no manner of application in this case.
20. As a consequence the petitioner is not entitled to get any relief for enjoying the pensionary benefit.
21. Before parting with I find that the benefit under the said DCRB Scheme, 1992 was extended to the petitioner for the period from July 1, 2000 to September 10, 2011. No material was brought before this court to show that the petitioner had any role to play in getting above benefit. Therefore, the petitioner was not guilty of enjoying such benefit on the basis of any role played by him or due to any fault and or laches on his part. Therefore, the money which had already been paid to him towards pensionary benefit under the above scheme cannot be recovered at this stage.
22. The writ application is therefore, disposed of without giving any relief to the petitioner for enjoying pensionary benefit from September 11, 2011 arising out of his services under the respondent corporation. But the respondent corporation is restrained from recovering the pensionary benefit or any part thereof which has already been paid the petitioner.
23. There will be, however, no order as to costs. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard
