Gulshan Satija v. New India Assurance Co. Ltd. & Anr

IN T

(216) Gulshan Sat New India A CORAM:

Present:

ALOK JAI

¶1226 of the C quash the re petitioner fo Further, the respondents for calculati service for payment of THE HIGH COURT OF PUNJA CHANDIGAR tija Versus

Assurance Co. Ltd. and another HON'BLE MR. JUSTICEAL

**** Mr. Aalok Jagga, Advocate wit Mr. Harkirat Jagdev, Advocate for the petitioners. Mr. Ashish Aggarwal, Advocat for the respondents.

**** IN, J. (Oral) The present Civil Writ Petitio Constitution of India, praying for eply dated 14.12.2016 (Annexur or counting past military service e petitioner seeks issuance of w s to include his military service ing his length of service required pension and consequently re-f arrears with 12% interest per an AB AND HARYANA AT RH CWP-3038-2017 Date of Decision:- 04.09.2024 ……Petitioner ……Respondents LOK JAIN th

te on has been filed under Article r issuance of writ of certiorari to re P-8), vide which the claim of e towards pension was rejected. writ of mandamus directing the from 16.10.1978 to 30.04.1985 d for determining the qualifying fix the pension, and direct the nnum from the date of retirement

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until payme

¶2the petitione Commission

30.04.1985 advertiseme selected th Throughout to the post ultimately S

2.1. of the Gene employees t the petitione service from qualifying condition, b contribution rejecting or

2.2. discovered calculating h made and petitioner, t nt. That factual narrative of the ca er is that the Petitioner served n on 16.10.1978 and discharg (afternoon). Subsequently, the R ent for the post of Assistant Adm he petitioner joined the serv his tenure, the petitioner receiv of Branch Manager in 1989, Senior Divisional Manager in 201 That the counsel for the petition eral Insurance (Employees') Pen to opt for pensionary benefits. er exercised that option, with exp m 16.10.1978 to 30.04.1985 w service for pension. The resp by transferring the petitioner's ns into the pension scheme bu objecting to the conditional opti However, upon retirement that his prior military service his pensionable service, to whic requisite supporting document to which the respondents, vide se as outlined by the counsel for Indian Army on Short Service ged his duties as Captain till Respondent Company issued an ministrative Officer, and on being vice on 01.05.1995(forenoon). ed multiple promotions, notably Deputy Manager in 2005, and

¶12ner submits that the introduction nsion Scheme in 1995, allowed On 20.10.1995 (Annexure P-1) press stipulation that his military would be counted towards his pondents tacitly accepted this CPF (Central Provident Fund) ut without any communication ion. on

31.08.2015, petitioner had not been included while ch multiple representations were s were also submitted by the their impugned communication

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dated 14.12 Pension Sch service for military pen applicable in

¶3arguments s General In asserts that employee fr the respond drawing a m calculations such a pen respondents annexed as confirming counsel for benefits to e such emplo fixation with servicemen complied w certificate;

2.2016, rejected petitioner's c heme that excludes military ser the calculation of pension, if nsion. However, the petitioner a n his case. The learned counsel for pet submits that the respondents have nsurance (Employees') Pension t the accurate interpretation of rom receiving both military pen dent department. Instead, it all military pension while excluding s only in such cases where the nsion. This interpretation was s when they requested, through Annexure P-6, that the petition that he was not drawing any petitioner maintains that Clause ex-servicemen who are already oyees cannot get their past serv h the respondents. However, thi who are not receiving any m with the respondents' reques however, even then his claim laim, citing clause 24 of the rvice while counting qualifying the employee already draws a asserts that the same was never titioner in the opening of his e misconstrued Clause 24 of the n Scheme, 1995. The counsel f this clause does not bar an nsion and pension benefits from lows an employee to continue g military service from pension employee is already receiving implicitly recognized by the h their reply dated 28.10.2016 ner should provide a certificate military pension. Further, the e 24 is designed to prevent dual receiving military pensions and vice counted again for pension s clause is not applicable on ex-military pension. The petitioner t by providing the requisite was unjustly rejected vide the

e g a r s e l n m e n g e e e l d n - r e e

respondents

¶4submitting military serv of the same is to say tha at that time, as articulate the responde

¶5petitioner re time and aga a) b) c) d) e)

¶6of the Pens service" un s' communication dated 14.12.20 The counsel for petitioner ve his pension option form he s vices shall be counted for pensi by the respondents created a bin at respondents' acceptance of th , constituted a contractual obliga ed in Section 115 of the Indian ents from contradicting this acce To support his arguments and elied upon the settled prepositio ain in the following judgments: Vijay Laxmi versus State of P Shadi Lal Malik versus State Puran Singh versus State of H Karam Singh versus Union of Mohinder Singh Ahalawa Development Authority 2012 once the pay protection of the the length of service rendered employer has to be considered service for pensionary reliefs.

Furthermore, the counsel has p sion Scheme, and contends tha nder the Pension Scheme should

¶016ehemently highlights that while specifically mentioned that his ion scheme, and the acceptance nding effect between them. That his form, without any objections ation. The principle of estoppel, Evidence Act, thereby prevents eptance later on. d the claim the counsel for the on of law as laid by this Court Punjab, 1994 (6) SLR 83 P&H of Haryana, 2012(4) RSJ 31 Haryana & Ors., 2016(1) SLR f India 2002 (3) SLR 214 at versus Haryana Urban 2 (5) SLR 746, to contend that e earlier service is granted then by the employee with the past d for calculating the qualifying placed reliance on the provisions at the definition of "qualifying d reasonably include the service

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rendered in department. ensures equ permits add this the learn

¶7very outset (Employees petitioner. T

14.12.2016 claim categ (Employees clearly stipu to joining th a military p count as a scheme. Ho Indian Arm now seeks t Insurance C respondents the writ peti already been with the New n the military, and not solely th The broader interpretation align uitable treatment. Moreover, ev dition to the qualifying service ned counsel for the petitioner co The learned counsel for respon refutes the interpretation of Clau s') Pension Scheme, 1995, as pr The respondents maintain that the to the legal notice served by gorically explained that Clause s') Pension Scheme, 1995, is dis ulates that an employee who has he Corporation or the relevant C pension, where applicable, but qualifying service for the purp owever, in the present case the my for a duration insufficient to to have his military service coun Company, a request that is un s argue that the petitioner's claim ition is liable to be dismissed on n granted all pensionary benefi w India Assurance Company. he service with the respondent ns with the scheme's intent and ven Clause 26 of the scheme, in certain circumstances. With ncludes his arguments. ndents on the other hand, at the use 24 of the General Insurance resented by the Counsel for the e reply by the respondents dated the petitioner raising the same e 24 of the General Insurance spositive of the issue. Clause 24 s rendered military service prior ompany may continue receiving such military service will not pose of the pension under this petitioner, having served in the qualify for a military pension, nted toward his service with the ntenable under the rules. The ms are entirely misconceived, and n this ground. The petitioner has its due in respect of his service

t d , h e e e d e e r g t s e , e e d s e

¶8petitioner w Assistant A including h dated 27.03 military serv Indian Arm examination Pension Sch no such prov

¶9petitioner ha of time, ther

¶10the General contained l validity. Wi claim entitl arguments b during a no calculation pensionary Moreso, the contribution The counsel for the respon was treated as a fresh appointee Administrative Officer on 01.0 his military service in retiral be

3.1985 (Annexure R-1), contai vice. Furthermore, even though my, he was required to underg n before joining the Insurance C heme, 1995, does not provide fo vision existed in the petitioner's Further the counsel for the resp ad not challenged the said action refore he cannot be permitted to That respondent raised argume l Insurance (Employees') Pens legal framework, and the peti ithout questioning the scheme's ements that contravene its expr by maintaining that the petition on-emergency period, does not of the length of service req benefits under the rules unl e petitioner has already been rel n which should have been deduc ndents further argues that the e upon his direct recruitment as

5.1985, with no provision for enefits. His appointment letter, ins no reference to count his the petitioner had served in the go a pre-employment medical ompany. The General Insurance or counting military service, and appointment. pondent contended that since the n of the respondents at that point raise the same issue now. ent with regards to the fact that sion Scheme, 1995, is a self-itioner has not challenged its s legality, the petitioner cannot ress terms and summarized his ner's military service, rendered qualify for adding them in the quired for the entitled to any less specifically provided for. leased all his dues including his cted at the relevant point of time

e s r , s e l e d e t t - s t s d e y . s e

if the petiti Therefore, h present petit

10.1 petitioner re amount so r notional int service rend

¶11determinatio

¶12parties wha qualifying s Employees' are reproduc ioner would have been entitled his claims are baseless and dev tion should be dismissed in view De hors the above, at this s easserts that even today the pet received from the respondent at t terest so that his pension is re dered by him in the Indian Army Heard the counsel for the part on boils down in the following q Whether, under the provisio (Employees') Pension Scheme, to have his prior military qualifying service for the c attaining superannuation from Especially in the light of the applying under the scheme clea service will be counted for his e Considering the above argumen at comes out is that the relevan service, which are dealt in Chap ' Pension Scheme 1995, are Cla ced as follows: Clause 14: Qualifying condition contained in has rendered a minimu d but the same was not done. void of any legitimacy and the w of the objections so raised. stage, learned Counsel for the titioner is willing to deposit the the time of retirement with some e-fixed after counting his total . ties at length, the core issue for question: - ons of the General Insurance , 1995, the petitioner is entitled service recognized/counted as calculation of his pension on m the respondent department. e fact that the petitioner while arly mentioned that his length of eligibility under the scheme? nts raised by the counsel for the nt clauses for calculation of the pter 4 of the General Insurance ause 14 15, 24, 26 and 28, which Service - Subject to the other this scheme, an employee who um ten years of service in the

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Corporation or a Compa shall qualify for pension. Clause 15:Commencem provisions contained in of an employee shall co charge of the post to w regular basis. Clause 24: Military Se rendered military servi Corporation or the conc to draw the military pe service rendered by the qualifying service for pen Clause 26: Addition to circumstances - An emp his service qualifying fo not for any other clas not exceeding one-fourth the actual period by recruitment exceeded tw five years, whichever is which the employee is ap

(a) for which post-gra qualification or experi or professional fields, is

(b) to which candidates of age are normally recr

(c) for which the candi over and above the ma any, on the date of retirement . ment of - Subject to the this Scheme, qualifying service ommence from the date he takes which he is first appointed on ervice - An employee who has ice before appointment in the cerned Company shall continue ension, if any, and the military e employee shall not count as nsion. o qualifying service in special ployee shall be eligible to add to or superannuation pension (but ss of pension) the actual period h of the length of his service or which his age at the time of wenty-eight years, or a period of less, if the service or post to ppointed is one - aduate research, or specialist ience in scientific, technological essential; and

of more than twenty-eight years ruited, and idate was given age relaxation aximum age limit fixed by the

t e e s n s e e y s l o t d r f f o t l s n e

¶13comes up th Indian Army petitioner's department. representatio Corporation or the C possessing higher qualifi Provided that th admissible to an employ service at the time he qui a Company, as the cas years: Provided further admissible only if the re of the said service or po that the service or post of this paragraph. Clause 28: Counting of part time basis in certain employee, who immediat a whole-time basis was time basis in the serv Company and was contr such service rendered b basis shall be counted as

(2) The length of qual referred to in sub-parag calculating the amount in accordance with Appe In light of the submissions ma hat the authorities do not dispute y from 16.08.1978 to 30.04.198 pay was duly protected w Throughout his service tenu ons to the authorities sought c Company on account of his fication or experience: his concession shall not be yee unless his actual qualifying its the service in Corporation or se may be is not less than ten that this concession shall be ecruitment procedure in respect ost contains a specific provision is one which carries the benefit f service rendered on permanent in cases- (1) In the case of an tely prior to his appointment on employed on a permanent part-vice of the Corporation or a ributing to the Provident Fund, by him on permanent part-time s qualifying service; ifying service of the employee graph (1) for the purpose of of pension shall be determined endix II. ade by counsel for the parties, it e the petitioner's service with the

¶85It is also undisputed that the while joining the respondent ure petitioner made numerous clarification, with regard to the

s e g r n e t n t t n n - a

e e f d t e e t s e

transfer of h the option f condition o acceptance company ne impliedly m Therefore, t against the p

¶141995 Rule, the true inte and further Rule, where permanent p to the Prov shall be rec qualifying s be calculate observed th transfer of demonstrate the compan

01.05.1985 however it w his provident fund from his prev for the same pursuant to the 19 f acknowledging his past serv of the option form coupled either raised any objection nor mean the unconditional acc the subsequent denial of permis petitioner. It has also been observed by th should not be read in isolation a erpretation of the clauses that ali that the respondents did not ad ein Clause 28 clearly stipulates part-time basis by an employee, p vident Fund and subsequently t cognized as qualifying service. service is crucial for determining ed in accordance with the pro at the petitioner repeatedly appr his provident fund account, es that the petitioner was contrib ny had transferred his provident onwards when the petitioner jo was only on account of non-acc vious employer, after exercising 995 Rules explicitly stating the vice with the Indian Army and with the fact that respondent clarified the status on it, shall eptance by the respondents. ssion cannot justifiably be held his Court, that the provisions of and rather be read co-jointly for igns with the object of the same dhere to the provisions of 1995 that any service rendered on a provided they were contributing transitioned to a full-time role, . The specific duration of this g pension entitlements and shall ovisions laid out. It has been roached the Authorities seeking with his condition, which buting to the provident fund and t fund only for the period from oined the respondent company, eptance of his previous services

g e d t l . d f r e a g , s l n g h d m , s

rendered in qualifying s amount of p

¶15position the over to ano service is to petitioner f distinguishin protected w applying un should be c demonstrate in Army wa petitioner w said fact b expectation authorities c of the petitio

¶16in nature an to the retired their service n Indian Army to be counted service by the Authorities at th provident fund was not transferre The judgments relied upon by ereby a person serving in a go other government department th o be protected for considering for other reliefs too. Howev ng factors are that not only when he joined the service but nder the scheme that his length o counted for calculating the qu e that the petitioner was aware o as not to be counted, he would n was honest and the respondents r but never objected to the sa to the petitioner that his claim h cannot now be permitted to turn oner. It is imperative to hold that th nd the objective of such schemes d employees for which the emplo e. The scope and the interpretat for determining the length of hat point of time that the said ed by the respondent company. the petitioner relate to a factual overnment department switches en his pay as well as length of them for the eligibility of the ver, in the present case the the pay of the petitioner was he specifically clarified while of service with the Indian Army ualifying service which clearly f the fact that in case his service not qualify for the scheme. The right from 1995 knew about the ame which caused reasonable has been accepted. Therefore, the around and dislodged the claim e pension scheme is benevolent s is to provide economic support oyees have contributed although tion of such piece of legislature

f d l s f e e s e y y e e e e e m t t h e

has to be w the person restrictions to be misuse

¶17appointmen R-1) clearly

17.1. lien/bond to authorities d during his te

¶18the case and respondents petitioner b Indian Arm period as p would be tak wide, however subject to such ch should not be withdrawing d which are required to be put in e or make it fail and fall by rende Moreso, another aspect of the m t letter issued by the responden y states as follows: "You shall submit the from your employer, on case you have executed substantive post wi company/corporation s Pension or leave salary However, in the present case th o retain his substantive post duly contributed towards his Pe enure with the respondents. Be that as it may, considering d in the interest of justice, the pre s are directed to re-fix and re y adding the length of the prev my, however, subject to the cond rovided in the Rule 26 or othe ken into consideration. heck and balances, such as that double pensions or any other place so as to avoid the scheme ering it redundant. matter is that, in clause 9 of the nts dated 27.03.1985 (Annexure e discharge certificate secured n the date of your reporting. In d any lien/bond to retain your ith the present employer, shall not contribute towards since you are a direct recruit." he petitioner did not execute any and therefore the respondent ension and Leave salary etc. all g the facts and circumstances of esent petition is allowed and the e-calculate the pension of the vious service rendered with the dition that the maximum service er rule which shall be in force,

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¶19the petitione the contribu for all this total calcul petitioner w

¶20with the law the concerne

04.09.2024 Parul

Subsequent to the re-calculatio er would be found entitled to sha utory fund, he received from his period @6% per annum. The s lation and the remaining amo with interest @6% per annum. Needful be done within four m w, however, in case, this order i ed official shall remain stayed im

Whether speaking/reasone Whether Reportable:- on, the additional amount which all be released after deduction of previous employer with interest same will be deducted from the ount shall be released to the months from today, in accordance is not complied with, the pay of mmediately thereafter.

(ALOK JAIN)

JUDGE ed:-

h f t e e e f