Sh. Om Braham v. Food Corporation of India and Ors.

1. This writ petition is filed by one Sh. Om Braham who was an employee of the respondent No.1-Food Corporation of India (FCI) seeking the relief that the petitioner be given retirement and terminal benefits which would be admissible to the employees of the Central Government, Ministry of Agriculture, Food Department and not of the employer/respondent No.1.

2. The facts of the case are that the respondent No.1 came into existence by virtue of Food Corporations Act, 1964 (hereinafter referred to as ‘the Act’). In the Act there was a provision of Section 12A which 2013:DHC:1607 provided for transfer of government employees who were doing the work which the respondent No.1-corporation was to do, to the respondent No.1. On the services being transferred to the respondent No.1, an employee was required to exercise option for his scale of pay as also for retirement or other terminal benefits. This is as per sub Section 4 of Section 12A of the Act. The option was to be exercised within six months of the employee joining the respondent No.1-corporation. One another opportunity came to all the employees of the respondent No.1 when sub Section 4A to Section 12A was brought into the Act by virtue of Act No.12 of 1977 (w.e.f. 31.12.1976), and the employee was to exercise his option within six months from 1.1.1977.

3. Therefore it was necessary for an employee to take a specific type of benefits, and which in this case are the terminal benefits applicable to Central Government employees, option had to be exercised either within six months from the date of joining or from six months from 1.1.1977, whichever is later.

4. The petitioner in the present case claims to have exercised the option firstly on 5.12.1974. This option was exercised in terms of Section 12A(4) of the Act. The second option is said to have been exercised by the petitioner on 31.1.1978.

5. So far as the first option having been exercised is concerned, the respondent No.1 strongly and emphatically disputes this position. Admittedly, there is no seal of receipt on the option form dated 5.12.1974 which is filed by the petitioner in this Court. In fact, and has so rightly been pointed out to me by the counsel for the respondent No.1, that, the name of the petitioner is also conspicuous by absence in this option form which is filed as Annexure-A to the writ petition. Counsel for the respondent No.1 also brought the original file pertaining to the petitioner in the Court at the time of hearing and in this file there are no notings of taking the form dated 5.12.1974 of the petitioner to be accepted or further notings or action thereon which could have shown that the petitioner had in fact submitted his option form. Therefore, it is quite clear that the petitioner did not submit the option form of 5.12.1974 as claimed by him, and which is filed as Annexure-A to the writ petition. Once no option is exercised, then, the petitioner cannot claim rights in terms of Section 12A(4)(b) of the Act of the terminal benefits being the same as Central Government employees.

6. It may be noted that the counsel for the petitioner argued that the petitioner was given a new GPF number after his joining with respondent No.1. This argument however cannot help the petitioner because admittedly even if the petitioner would have exercised the option in terms of Section 12A(4)(b) even in that case the petitioner would have got a new GPF number inasmuch as the petitioner’s services with the Central Government had come to an end and he had become the employee of the respondent No.1 and therefore a new GPF number was necessitated.

7. So far as the second option dated 31.1.1978 is concerned, admittedly it is beyond the time inasmuch as the last date for exercising the option was 30.6.1977. There is no provision in the Act for extension of time. Also, there is no policy of the respondent No.1 to accept belated options. Accordingly, even the second option dated 31.1.1978 is not a valid option, the same having been exercised well beyond the last date which was 30.6.1977.

8. In view of the above, since the petitioner failed to exercise the option for the first time in terms of Section 12A(4)(b) within six months of first date of joining the respondent No.1 or for the second time within six months from 1.1.1977, the petitioner cannot be granted the reliefs as claimed in the writ petition inasmuch as before the reliefs can be granted option had to be validly exercised by the petitioner, and which the petitioner failed to exercise.

9. In my opinion, the writ petition is also grossly barred by delay and laches by as many as 15 years. The petitioner was communicated the refusal to be given the benefit of Central Government terminal benefits by the memorandum dated 26.5.1981 of the respondent No.1. Petitioner himself has filed this memorandum as Annexure-D to the writ petition. This writ petition has been filed in the year 1995 although the petitioner was informed way back in the year 1981 that he would not be entitled to terminal benefits as a Central Government employee. Petition is quite clearly barred by gross delay and laches.

10. In view of the above, there is no merit in the petition which is accordingly dismissed, leaving the parties to bear their own costs. It is clarified that if taking the option as not having been exercised by the petitioner, yet, the petitioner has any balance amount payable as an employee of the respondent No.1 (and which aspect is denied by the respondent No.1), the petitioner will be entitled to take such appropriate measures as permissible to him in accordance with law. Writ petition is dismissed with the aforesaid observations.

VALMIKI J. MEHTA, J APRIL 01, 2013