Chogale V. Union of India

[BOMBAY HIGH COURT]

(1) Liladhar Vasant Chogale; (2) P.K. Vijayan
v
Union of India and Another

V. M. KANADE

19 Jun 2008
BENCH
Swantater Kumar & V. M. KANADE

CASES REFERRED TO
S.K. Mastan Bee v The General Manager, South Central Railway and another 2002 SC 1444
K.V.S. and Ors. v. Jaspal Kaur and Anr. []

ACTS REFERRED
Constitution Of India, 1950[art. 226]
CASE NO
Writ Petition No. 1982 of 2005 With Writ Petition No. 1925 of 2007

The Judgment was delivered by : HON'BLE JUSTICE V. M. KANADE

1. Both these petitions can be disposed of by a common judgment since the petitioners in both these petitions are seeking pensionary benefits. Both of them were working in the Indian Institute of Technology, Powai, Mumbai.

2. The petitioners are seeking an appropriate writ, order or direction under Article 226 of the Constitution Of India, 1950 directing the respondent to make a Pension Scheme applicable to the petitioners and for writ of certiorari for quashing the impugned order dated 18th April, 1995 in Writ Petition No.1982/2005 whereby the petitioner no.1 was informed by the said letter that the petitioner was not entitled to switch over from the Provident Fund to the Pension-cum-Gratuity Scheme. . Brief facts which are relevant for the purpose of deciding both these petitions are as under :-

3. The petitioner in Writ Petition No.1982/2005 joined respondent no.2 in August 1962 and he retired as Laboratory Superintendent, 'A' Group, with effect from 31.8.1994 in the Pay Scale of Rs.2650-4000. The petitioner in Writ Petition No.1925/2007 joined the service under respondent no.2 in 1960 and he retired after he attained the age of superannuation on 28.2.1992.

4. The respondent no.1 issued two office memorandums both dated 1st May, 1987. The first memorandum No.286 permitted change-over of employees from CPF Scheme to Pension Scheme as per Pay Commission recommendations being D.P.& P.W., O.M. No.4/1/87-P.I.C.-I dated 1st May, 1987 whereby option was given to the employee to switch over to the pension scheme and the recommendations made by the Fourth Central Pay Commission that the employees in service on 1st January, 1986, should be deemed to have come over to the pension scheme on that date unless they specifically opt out to continue under the CPF scheme, were accepted and the second office memorandum No.287 vide D.P. & P.W., O.M. No.4/1/87-P.I.C.-II, thus granted extension of Retirement/Death Gratuity benefits to employees governed by CPF Scheme.

5. The case of the petitioners is that by virtue of two office Memorandums, the benefits of pension scheme was deemed to have been granted to them though they had not specifically opted for pension scheme before the issuance of these two office memorandums. It is the case of the petitioners that though they were entitled to get the pensionary benefits, the respondents had refused to grant these pensions to them and therefore, they were constrained to file these writ petitions under Article 226 of the Constitution Of India, 1950.

6. Learned Counsel Mr.Pakale, appearing for the Union of India, however, submitted that there was gross delay in filing the writ petitions in this Court, the first petition was filed in 2005 after a lapse of eleven years and the second petition has been filed after a lapse of 15 years. It was submitted that the delay had not been explained in the petition and no ground had been made out for condonation of the delay caused in filing the present petitions. He relied on various judgments of the Apex Court, viz. 1) Gian Singh Mann, Petitioner v. High Court of Pubjab & Haryana and Another, Respondents, reported in 1980(SC2)-GJX-0357-SC, 2) Ashok Kumar Mishra and others v. Collector, Raipur and others, reported in 1979-(SC2)-GJX-0388-SC, 3) Rabindranath Bose and others, Petitioners v. The Union of India and others, Respondents, reported in 1969-(SC2)-GJX-0415-SC, and 4) K.V.S. and Ors. v. Jaspal Kaur and Anr. reported in 2007 SC 1411.

7. Learned Counsel Mr.Patel, appearing on behalf of respondent no.2 - IIT submitted that the petitioner in Writ Petition No.1925/2007 had specifically opted out of the pension scheme. He submitted that therefore, it was not open for the petitioner to claim the benefits of pension scheme after a lapse of 15 years.

8. Shri Gangal, learned Senior Counsel appearing on behalf of the petitioner in Writ Petition No.1925/2007, however, submitted that delay cannot be a ground for refusing the petition where the petitioner was seeking pensionary benefits. He relied on the judgment of the Apex Court in the Case of S.K. Mastan Bee V/s. General Manager, South Central Railway and Another, reported in 2002 SC 1444.

9. We have heard the learned Counsel for the petitioners and the learned Counsel for the respondents at length. We had directed the Counsel appearing on behalf of respondent no.2 - IIT to produce the record and to state whether the petitioner had specifically given option to continue with the Provident Fund Scheme.

10. Counsel appearing for the respondents IIT, however, submitted that the said record was not available and therefore, it was not possible to make a statement whether they could produce these documents which would disclose that the petitioner had specifically opted the Provident Fund Scheme.

11. In the present case, there is gross delay in filing these writ petitions. The petitioner in Writ Petition No.1982/2005 had retired on attaining the age of superannuation in 1994 and the application for grant of pensionary benefits specifically rejected by respondent no.1 by order dated 18th April, 1995. In the second petition being Writ Petition no.1925/2007, the petitioner had attained the age of superannuation on 28th February, 1992. No representation was made by the petitioner seeking pensionary benefits. The petitioner in Writ Petition No.1925/2007 had made a representation on 2nd March, 1992 requesting the authorities to grant him pensionary benefits. In both these petitions, there is no explanation given for the delay caused in filing the petition. Though in Writ Petition No.1982/2005 while granting Rule, the Division Bench observed that Rule was granted in spite of the delay caused in filing the petition. Delay was not condoned and it was merely noticed by the Division Bench. There is much substance in the submission made by the learned Counsel appearing for the Union of India. In view of inordinate delay, the petition is not entitled to seek a direction under Article 226 of the Constitution Of India, 1950. It is submitted that because of delay, original records are no longer available with the respondent no.2. It is true that entire case of the petitioners rests on two Office Memorandums which have been issued by the Union of India. Recommendations of the Fourth Pay Commission has been accepted. The crux of the issue is that pensionary scheme was made applicable to all the employees whether they exercised option which switch over to that scheme or not. However, the only exception was in cases where the petitioners who are employees specifically opted to continue to the Provident Fund Scheme. It is the case of the IIT - respondent no.2 herein that the petitioner had opted to continue with the Provident Fund Scheme and that there was sufficient material on record to indicate that they had exercised the option in favour of CPF scheme. The submission made by the Shri Pakale, learned Counsel for the Union of India, therefore, has to be accepted. The petitioners cannot be permitted to take advantage of their own wrong in filing these petitions after a lapse of 11-15 years, respectively, by which time, the record is no longer available with the respondent no.2. # In the case of Gian Singh Mann, Petitioner (supra), the petitioner had made a claim for promotion to the Selection Grade post in Punjab Civil Service (Judicial Branch) with effect from 1.11.66 and to the post in the Punjab Superior Judicial Service with effect from 1.5.1967. Writ Petition was filed in the year 1978. The Apex Court held that there was gross delay in filing the petition and there was no valid explanation for the delay. In the case of Ashok Kumar Mishra and others (Supra), the Apex Court has held that the power of the High Court under Article 226 to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition. In the case of Rabindranath Bose and others, Petitioners (supra), the similar view was taken by the Apex Court. Therefore, under these circumstances, the ratio of the judgment on which reliance is placed by Shri Pakale, learned Counsel appearing for Union of India, clearly applies to the facts of the present case. It is no doubt true that in the case of S.K. Mastan Bee (supra), the Apex Court has held that claim for pension was maintainable despite delay. Considering the peculiar facts and circumstances in the said case, the Apex Court observed that the appellant was an illiterate widow who did not know at the time of her husband's death about her legal right to family pension and the remedy to enforce her right and that there was statutory obligation on the part of Railway Authority to compute the family pension payable to the appellant and offer to her without her having to make a claim or without driving her to a litigation. The Apex Court, therefore, observed that the very denial of her right to family pension amounted to a violation of the guarantee assured to the appellant under Article 21. The Apex Court under these circumstances directed the Family pension to the widow though there was delay of almost 29 years in filing the petition.

12. The facts in the present case, however, are that the petitioners were required to exercise an option for either continuing with the provident fund scheme or pension scheme. The memorandum specifically stated that even no such option was exercised to switch over to pension scheme, they would be deemed to have switch over to pension scheme. The grant of pension, therefore, was subject to certain conditions of exercise of option by the petitioners. Owing to delay caused in filing the petition, the original record is not traceable by the respondent no.2. It is their case that the other material indicates that the petitioners had exercised their option to continue with the provident fund scheme. In view of these facts, the ratio of the judgment in the case of S.K. Mastan Bee (supra) will not apply to the facts of the present case. The submission made by the learned Counsel for the petitioners cannot be accepted.

13. Both these petitions, accordingly, are dismissed. Rule is discharged. Under the circumstances, there shall be no order as to costs.