L.D. Madan v. Union of India & Ors.

1. The petitioner, L.D. Madan joined government service as a Lower Division Clerk in May, 1942 and with effect from 22nd May, 1952 was appointed in Grade-IV of the Central Secretariat Service.

2. On 25th June, 1971, the petitioner opted and went on deputation to work in the Central Warehousing Corporation, for a period of six months with a stipulation that he would not to draw any deputation allowance or pay of more than Rs.950/- without prior concurrence of the parent employer i.e. Department of Community Development and Cooperation. There was also a stipulation that pending confirmation by the Accountant 2016:DHC:1071-DB General of Central Revenue, leave salary @ 11% and pension contribution @ 11% of Rs.950/- would be paid to the Central Government.

3. The petitioner was absorbed permanently in the Central Warehousing Corporation and became their employee on 4th February,

1972. On the same date, the petitioner technically resigned from the post of the Section Officer in the Department of Community Development and Cooperation. The letter dated 4th February, 1972, written by the Government of India to the Central Warehousing Corporation and the petitioner, specifically sets down that on permanent absorption, the petitioner was entitled to pro-rata pension and death-cum-retirement gratuity based on the length of his qualifying services under the Government of India till the date of his absorption. For the period of service, post permanent absorption in the Central Warehousing Corporation, the petitioner would be entitled to all benefits as admissible to the employees of the said organisation and would be governed by the Central Warehousing Corporation Rules in all respects. There were certain other stipulations, which we need not elaborate in view of the limited controversy involved.

4. The petitioner has not given the date on which he had retired from the Central Warehousing Corporation. The said date is not stated in the order passed by the Tribunal or in the original application filed him in the year 2013. In the year 2012, the petitioner raised two-fold grievance. Firstly, he should be given benefit of five years’ of additional service as he had voluntarily retired in 1971 and was thereafter absorbed and became an employee of Central Warehousing Corporation in public interest. Secondly, his pension had not been correctly computed as while on deputation till 3rd February, 1972, he was drawing salary of Rs.950/per month. The petitioner’s pension contribution was 11% of Rs. 950/per month. The petitioner’s pension has been erroneously calculated as if he was drawing a salary of Rs.900/- per month before he became an employee of the Central Warehousing Corporation w.e.f. dated 4th February, 1972.

5. Pressing the said reliefs, the petitioner filed the OA No. 4573/2013 that his last pay drawn should be recorded as Rs.950/- per month and he should be paid consequential arrears with interest and, secondly, he should be given weightage of five years treating his resignation as voluntary retirement.

6. We have heard the learned counsel for the petitioner and had also given hearing to the petitioner, who was present in person. Unfortunately, we cannot agree with the petitioner in view of the legal position. This is not a case of voluntary retirement but a case in which the petitioner had tendered technical resignation, which was accepted and consequent to which the petitioner had got permanently absorbed in the Central Warehousing Corporation. The belated plea that the petitioner had taken voluntary retirement under Fundamental Rule 56 (K) has been rightly rejected by the Tribunal after making reference to the letter dated 4th February, 1972, which clearly stipulated the terms and conditions on which the petitioner was relieved by the Government of India upon permanent absorption in the Central Warehousing Corporation. We do not think that the petitioner is entitled to challenge and question the said terms and conditions incorporated in the letter dated 4th February, 1972 and make out altogether a new case. The plea is clearly an afterthought and untenable.

7. The petitioner as a Section Officer in the Department of Community Development and Cooperation was drawing a salary of Rs.900/- per month before he was sent on deputation and thereafter had opted for permanent absorption in the Central Warehousing Corporation. Employment in Central Warehousing Corporation was certainly a “foreign service” within the meaning of Note 7 to Rule 33 of the CCS (Pension) Rules, 1972. Central Warehousing Corporation established under Section 3 of the Warehousing Corporations Act, 1962, is a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and enter into contracts and may sue and may be sued in its own name.

8. The respondents have pointed out that the maximum pay of a Section Officer at the relevant time in 1971 was Rs.900/- per month and the pension had been paid at the highest pay scale. It is correct that the letter dated 24th June, 1971 did stipulate that pending confirmation by Accountant General of Central Revenue, the petitioner shall pay pension contribution @ 11% of Rs.950/- per month, but this would not be determinative, for pension has to be calculated in terms of the statutory rule regarding computation of emoluments being drawn at the relevant time. The pay of Rs.950/- per month was paid by the Central Warehousing Corporation, a foreign service and, therefore, were not “emoluments” for the purpose of calculating pension. At best, grievance of the petitioner could be that he was wrongly asked and made to pay pension contribution @ 11% of Rs.950/- (and not on Rs.900/-) between the period 25th June, 1971 till his permanent absorption in the Central Warehousing Corporation on 4th February, 1972.

9. The last drawn pay of the petitioner at the post of Section Officer was in the pay scale of Rs.900/- and not in the pay scale of Rs.950/-, which he was drawing in the foreign service with the Central Warehousing Corporation. Emoluments paid in foreign service cannot be taken into consideration for the purpose of computing pension (see V.S. Murthy Vs. Union of India and Others, 1992 Supp (3) SCC 115).

10. In view of the above, we do not find any merit in the present writ petition and the same is dismissed. In the facts of the present case, there will be no order as to costs.

SANJIV KHANNA, J. NAJMI WAZIRI, J. FEBRUARY 09, 2016 NA