TaxTMI 
TaxTMI 
2016 (9) TMI 1629
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....chal Pradesh Government framed another scheme on 29.10.1999 - the Himachal Pradesh Corporate Sector Employees Pension (Family Pension, Commutation of Pension and Gratuity) Scheme, 1999. In the present judgment, the instant scheme will be referred to as 'the 1999 Scheme'. A perusal of 'the 1999 Scheme' reveals that its application extended to employees of some of the corporate bodies (- specified in Annexure-I, appended to 'the 1999 Scheme') in Himachal Pradesh. There were in all 20 corporate entities, named in Annexure-I. These corporate bodies functioned as independent entities, under the Departments of Industries, Welfare, Horticulture, Forest, Food and Supplies, Tourism, Town and Country Planning, Housing and General Administration. 3. Paragraph 2 of 'the 1999 Scheme', provided for the zone of application of the said Scheme. It expressly provided, that the same would apply to only such of the employees, "who opted for the benefit under the scheme". It is necessary to expressly notice, that paragraph 2 of 'the 1999 Scheme' required, that the above option would be exercised by the employees in writing, in the format provided for the same. This option, was required to be submitt....
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....ged as the case may be subject to the following:- (a) The existing employees of the Corporation as on 1.4.99 shall have the option either to elect the pension scheme or to continue under existing Provident Fund scheme. (b) The existing employees who opt for Pension Scheme shall automatically forfeit their claim to employer's share of CPF including interest thereon to the State Government as well as other claims under CPF Schemes by whatsoever name called in respect of all past accumulations upto 31.3.1999. The amount of their subscriptions to the fund alongwith interest (excluding employer's share and interest thereon) shall be transferred to GPF account to be allotted and maintained by the concerned Corporate Sector Organisation as per Rules adopted by them". It is apparent from the above extract, that even though 'the 1999 Scheme' was to take effect from 1.4.1999 (- under paragraph 1(3) of 'the 1999 Scheme'), a claim for pension by an employee governed by the above scheme, would arise only at the time of the employee's retirement, on attaining the age of superannuation, or when he was retired from service by the employer, or in case of his death in harness. T....
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....the concerned corporate bodies were found to be eligible for the exemption, and were accordingly exempted from the applicability of the Provident Fund Act. It is apparent, that the communication dated 11.9.2001 clarified, that as the corporate bodies fell within the ambit of Section 16(1)(b) of the Provident Fund Act, it would not be applicable to the concerned establishments in the State of Himachal Pradesh, with effect from 1.4.1999. 9. The above communication dated 11.9.2001, came to be endorsed by the Union Minister of Labour, on 17.9.2001. The observations recorded in the order of the Union Minister are extracted hereunder: "I have had the matter examined. It has been, noted from the Notification of the State Government dated 29.10.1999 that all regular employees of these undertakings are entitled to pension, commutation of pension, gratuity as applicable to the State Govt. Employees of Himachal Pradesh. In such circumstances the EPF & MP Act, 1952 shall not apply. The Pension would be discharged by the Himachal Pradesh Government in terms of Section 16(1)(b). These establishments would be out of the purview of the Act from the date the Notification has come into f....
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....ightly more, as against the available pension fund of Rs.10.82 crores. In case the staff strength was maintained at the same level, the pension fund balance would be Rs.15.76 crores. Keeping in mind, the approximate pension liability of Rs.14.56 crores for the year 2015-16, it was inferred, that the financial liability towards pension for the following year, i.e., 2016-17 would not be met, out of the pension fund. It was therefore infrerred, that the payment of pension to regular employees of the concerned corporate bodies, could not be paid and sustained, out of the pension fund contemplated under 'the 1999 Scheme'. Accordingly, the high powered committee recorded its conclusions as under: "In view of the above "the committee" is of the view that the pension scheme for Corporate Sector employees based on contribution by the State Government will not be viable on a self sustaining basis mainly due to the following reasons:- i). Uncertainty in the rate of interest regime. ii). Declining recruitment in the Corporate Sector would deplete the size of the corpus to be created and it would be difficult to honour liabilities accruing after 10-12 years. iii). The....
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....otification dated 2.12.2004 was issued, repealing 'the 1999 Scheme'. A number of employees who had been deprived of the benefit of 'the 1999 Scheme' by the notification dated 2.12.2004, challenged the repeal notification, by filing a number of writ petitions, before the High Court of Himachal Pradesh, at Shimla (hereinafter referred to as the High Court). By the impugned common order dated 19.12.2013, the High Court allowed all the writ petitions. The final determination of the High Court, is apparent from the following conclusions recorded by it: "78. There is no merit in the contention of learned Advocate General that the scheme could not be implemented due to financial crunch. The State was aware of the financial implication at the time of issuance of notification dated 29.10.1999. It is the sovereign responsibility of the State to garner revenue to make welfare measures, including payment of pensionery/retiral benefits. 79. It cannot be gathered from the plain language that either expressly or by implication notification dated 2.12.2004 would apply retrospectively. 80. Accordingly, in view of the analysis and discussion made hereinabove, all the writ ....
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....nly question, which is relevant and needs consideration, is whether the decision of the Central and State Governments to restrict the revision of the quantum of gratuity as well as the increased ceiling of gratuity consequent upon merger of a portion of dearness allowance into dearness pay reckonable for the purpose of calculating gratuity, was irrational or arbitrary. 26. It is difficult to accede to the argument on behalf of the employees that a decision of the Central Government/State Governments to limit the benefits only to employees, who retire or die on or after 1.4.1995, after calculating the financial implications thereon, was either irrational or arbitrary. Financial and economic implications are very relevant and germane for any policy decision touching the administration of the Government, at the Centre or at the State level." On the same proposition, reliance was also placed on A.K. Bindal v. Union of India, 2003 (5) SCC 163, and our attention was drawn to the following observations recorded therein: "13. The change in policy effected by these memorandums was that the Government would not provide any budgetary support for the wage increase and the ....
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....g losses. After the change in economic policy introduced in early nineties, Government took a decision that the public sector undertakings will have to generate their own resources to meet the additional expenditure incurred on account of increase in wages and that the government will not provide any funds for the same. Such of the public sector enterprises (government companies) which had become sick and had been referred to BIFR, were obviously running on huge losses and did not have their own resources to meet the financial liability which would have been incurred by revision of pay scales. By the office memorandum dated 19- 7-1995 the Government merely reiterated its earlier stand and issued a caution that till a decision was taken to revive the undertakings, no revision in pay scale should be allowed. We, therefore, do not find any infirmity, legal or constitutional in the two office memorandums which have been challenged in the writ petitions. 18. We are unable to accept the contention of Shri Venkataramani that on account of non-revision of pay scales of the petitioners in the year 1992, there has been any violation of their fundamental rights guaranteed under Artic....
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....e, allowances and other benefits. The employees of nationalised commercial banks were getting their pay scales on the basis of the 5th bipartite settlement and by implementation of the award of the National Industrial Tribunal, the employees of the Regional Rural Banks were also given the benefits of the same settlement. Subsequently, the pay structures of the employees of the nationalised commercial banks were further revised by the 6th and 7th bipartite settlements but the same was not done for the employees of the Regional Rural Banks who then filed writ petitions. It was contended on behalf of the Union of India and also the Banks that financial condition of the Regional Rural Banks was not such that they may give their employees the pay structure of the employees of the nationalised commercial banks. It was in these circumstances that this Court observed that the decision of the National Industrial Tribunal in the form of an award having been implemented by the Central Government, it would not be permissible for the employer bank or the Union of India to take such a plea in the proceedings before the Court. The other case namely All India Regional Rural Bank Officers Federatio....
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....round, the question which arises for consideration is whether the employees of public sector enterprises have any legal right to claim revision of wages that though the industrial undertakings or the companies in which they are working did not have the financial capacity to grant revision in pay-scale, yet the Government should give financial support to meet the additional expenditure incurred in that regard. 8. We have carefully gone through the pleadings, the Annexures filed by both sides and the orders passed by the BIFR and the judgments cited by the counsel appearing on either side. Learned counsel for the contesting respondent drew our attention to a recent judgment of this Court in A.K. Bindal and Anr. v. Union of India, (2003) 5 SCC 163, in support of her contention. We have perused the said judgment. In our opinion, since the employees of Government companies are not Government servants, they have absolutely no legal right to claim that the Government should pay their salary or that the additional expenditure incurred on account of revision of their pay-scales should be met by the Government. Being employees of the companies, it is the responsibility of the compan....
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....ndertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution." 46. It is evident from the above that it is neither within the domain of the courts nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. 47. Process of disinvestment is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognised that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the Courts would decline to interfere. In matters relating to economic issues,....
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....of termination of service of a government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post. The abolition of post is not a personal penalty against the government servant. The abolition of post is an executive policy decision. Whether after abolition of the post the Government servant who was holding the post would be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post." Reliance was also placed on Excise Commissioner, U.P., Allahabad v. Ram Kumar, (1976) 3 SCC 540, and reference was made to the following observations recorded therein: "Appeals Nos. 399 to 404 of 1975 which raise another point as well viz. the validity of the appellants' demand from the respondents in respect of sales tax at the rate of ten paise per rupee on the retail sales of country spirit made by the latter with effect from April 2, 19....
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....resentation made by it. This aspect has been dealt with fully in Motilal Sugar Mills case and we find ourselves wholly in agreement with what has been said in that decision on this point." 18. In order to support the contention, that the respondent-employees had no vested right under 'the 1999 Scheme', reliance was placed on paragraph 4 of 'the 1999 Scheme' (already extracted above). It was the pointed assertion of learned counsel, based on paragraph 4 of 'the 1999 Scheme', that a claim towards pension could be raised by an employee under 'the 1999 Scheme' only "...when an employee retires or is retired or dies or is discharged as the case may be ...". It was submitted, that only such of the employees who could avail the benefit of pension, were protected from the effect of the repeal notification dated 2.12.2004. It was submitted, that such of the employees who had opted for 'the 1999 Scheme', but were not occasioned with the effect of the contingencies contemplated under paragraph 4 of 'the 1999 Scheme', were not entitled to claim a vested right. It was urged, that a vested right can only be established, when all the incidents which would entitle an employee to draw pensionary....
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....ondition of employment to apply to become a member of the Scheme from the date of his engagement by the Society and no member shall be entitled to relinquish his membership except on the termination of his employment with Society; the pension payable to a member shall be provided by means of a policy securing a deferred annuity upon the life of such member to be effected by the Trustees as agents for and on behalf of the Society and the members respectively with the Co-operative Insurance Society Limited securing the payment to the Trustees of an annuity equivalent to the pension to which such member shall be entitled under the Scheme and the Rules; the insurers shall agree that the Trustees shall be entitled to surrender such deferred annuity and that, on such deferred annuity being so surrendered, the insurers will pay to the Trustees the total amount of the premiums paid in respect thereof together with compound interest thereon; all moneys received by the Trustees from the insurers shall be held by them as Trustees for and on behalf of the person or persons entitled thereto under the Rules of the Scheme; any policy or policies issued by the insurers in connection with the Schem....
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....e stated thus: The object of the Scheme is to provide for pensions to its employees. It is achieved by creating a trust. The Trustees appointed thereunder are the agents of the employer as well as of the employees and hold the moneys received from the employer, the employee and the insurer in trust for and on behalf of the person or persons entitled thereto under the rules of the Scheme. The Trustees are enjoined to take out policies of insurance securing a deferred annuity upon the life of each member, and funds are provided by contributions from the employer as well as from the employees. The Trustees realise the annuities and pay the pensions to the employees. Under certain contingencies mentioned above, an employee would be entitled to the pension only after superannuation. If the employee leave the service of the Society or is dismissed from service or dies in the service of the Society, he will be entitled only to get back the total amount of the portion of the premium paid by him, though the trustees in their discretion under certain circumstances may give him a proportion of the premiums paid by the Society. The entire amount representing the contributions made by the Socie....
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....ent Fund and its contribution are entirely different from the rules governing pension. It would not, therefore, be reasonable to argue that what is applicable to the pension retirees must also equally be applicable to P.F. retirees. This being the legal position the rights of each individual P.F. retiree finally crystallized on his retirement whereafter no continuing obligation remained, while on the other hand, as regards Pension retirees, the obligation continued till their death....." Based on the legal position declared by this Court in the above judgments, it was urged, that in the absence of any vested right, a challenge to the notification dated 2.12.2004, was neither sustainable nor maintainable in law. 19. It would be relevant to notice, that 'the 1999 Scheme' became operational with effect from 1.4.1999. It remained operational till the issuance of notification dated 2.12.2004. While repealing 'the 1999 Scheme', the notification dated 2.12.2004, did not deprive such of the employees who had retired during subsistence of the Scheme, of the benefits that had accrued to them, under 'the 1999 Scheme'. Only such of the employees who were to retire on or after 2.12.2004, ....
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....ies and/or the pay-scales as also terminal benefits/pensionary benefits. The power to specify a date from which the revision of pay scales or terminal benefits/pensionary benefits, as the case may be, shall take effect is a concomitant of the said power. So long as such date is specified in a reasonable manner, i.e., without bringing about a discrimination between similarly situated persons, no interference is called for by the court in that behalf. It appears that in the Calcutta Corporation, a pension scheme was in force prior to 1914. Later, that scheme appears to have been given up and the Provident Fund Scheme introduced under the Provident Fund Scheme, a certain amount was deducted from the salary of the employees every month and credited to the Fund. An equal amount was contributed by the employer which too was credited to the Fund. The total amount to the credit of the employee in the Fund was paid to him on the date of his retirement. The employees, however, were demanding the introduction of a pension scheme. The demand fell on receptive years in the year 1977... maybe because in that-year the Left Front Government came to power in that State, as suggested by the writ pet....
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..... It has to prescribe the date in a reasonable manner, having regard to all the relevant facts and circumstances. Once this is done, question of discrimination does not arise. Reference in this behalf may also be had to the decision of this Court in Sushma Sharma v. State of Rajasthan, 1985 Supp. SCC 45, a decision of the Division Bench comprising E.S. Venkataramiah and Sabyasachi Mukharji, JJ." It was pointed out, that the determination rendered in the above two judgments has been reiterated by this Court in State of Rajasthan v. Amrit Lal Gandhi, (1997) 2 SCC 342. Last of all, learned counsel invited the Court's attention to R.R. Verma v. Union of India, (1980) 3 SCC 402, wherefrom reliance was placed on the following:- "5. The last point raised by Shri Garg was that the Central Government had no power to review its earlier orders as the rules do not vest the government with any such power. Shri Garg relied on certain decisions of this Court in support of his submission: Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844; D.N. Roy v. State of Bihar, (1970) 3 SCC 119, and State of Assam v. J.N. Roy Biswas, (1976) 1 SCC 234. All the cases cited by....
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....'the 1999 Scheme', and not from the option exercised by an employee, under the said scheme. 22. Insofar as the operation of 'the 1999 Scheme' is concerned, it was submitted, that the employer's contribution to the CPF account of the employee (including interest which had accrued thereon) upto 31.3.1999, was transferred to the State Government, so as to constitute the corpus fund, to be administered and maintained by the Finance Department of the State Government, which would make 'the 1999 Scheme', self-financing. The above submission, was drawn from a collective reading of paragraphs 4(b) and 5 of 'the 1999 Scheme'. It was further contended, that an employee's own contribution to the CPF, i.e. the subscription amount contributed by the employee to his own CPF account, was to be retained in his GPF account. The instant employee's contribution, was to be disbursed to him, at the time of his retirement, as GPF. As such, it was pointed out, that the contributions made by the employees, from out of their own funds, were unaffected by 'the 1999 Scheme'. 23. It was therefore highlighted by learned counsel, that the present controversy has nothing to do with an employee's contributi....
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...."vest" is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word "vest" has also acquired a meaning as "an absolute or indefeasible right" [see K.J. Aiyer's Judicial Dictionary (A Complete Law Lexicon), 13th Edn.]. The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to "ownership or possession of any property" for which the expression "vest" is generally used. What we can understand from the claim of a "vested right" set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a "legitimate" or "settled expectation" to obtain the sanction. In our considered opinion, such "settled expectation", if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be ....
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....al notification dated 2.12.2004, for the reason, that the same would deprive pensionary rights to those employees, who had opted for 'the 1999 Scheme', and had retired after 2.12.2004, as also, the employees who were already in service when 'the 1999 Scheme' was notified on 29.10.1999, and had become members of that scheme, and were due to retire after 2.12.2004. It was pointed out, that the above determination at the hands of the High Court, would have the effect of 'the 1999 Scheme' remaining in place, till such time as employees engaged in corporations upto 2.12.2004 eventually retired on attaining the age of superannuation. In the above view of the matter, it was asserted, that in the manner the legality of the issue has been determined by the High Court, 'the 1999 Scheme' which was repealed on 2.12.2004, would actually and factually continue to be operational, for a further period of approximately 20 years, by which time alone, employees engaged prior to the notification dated 2.12.2004, would retire from service. 27. It was also the contention of learned counsel, that the confinement of the pensionary benefits under 'the 1999 Scheme', to such of the employees, who had reti....
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.... the paying capacity is not a relevant or valid consideration while fixing the cut-off date. The University could, in 1991, validly frame Pension Regulations to be made applicable prospectively. It, however, chose to give them limited retrospectivity so as to cover a larger number of employees by taking into account the financial impact of giving retrospective operation to the Pension Regulations. It was decided that employees retiring on or after 1-1- 1990 would be able to exercise the option of getting either pension or provident fund. Financial impact of making the Regulations retrospective can be the sole consideration while fixing a cut-off date. In our opinion, it cannot be said that this cut-off date was fixed arbitrarily or without any reason. The High Court was clearly in error in allowing the writ petitions and substituting the date of 1-1-1986 for 1-1-1990." For the same proposition, reliance was also placed in Union of India v. R. Sarangapani, (2000) 4 SCC 335, and our attention was drawn to the following observations recorded therein:- "11. One more aspect which we want to emphasise is that the applicants who were appointed to the technical posts and the ot....
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.... with effect from 1-1-1986 as mentioned above, the date of commencement of the recommendations of the Fourth Pay Commission. It is, therefore, clear that the Government decided to extend the benefit in the abovesaid manner, even though parties had no right to the same either under Article 14 or under the Rules and the date was mainly based on the financial burden. It was open to the Government to decide, having regard to the budgetary provision, as to what extent it could go and whether it could fix a cut-off date which was co-terminus with the commencement of the recommendation of the Fourth Pay Commission, namely, 1-1-1986. On the peculiar facts of this case the said date was perfectly valid because the only consideration was the financial burden of the State and not any principle of equality." 28. In order to canvass the proposition noticed hereinabove, learned counsel also placed reliance on, 'A Treatise on the Constitutional Limitations', authored by Thomas M. Cooley (Indian Reprint of 2005, Hindustan Law Book Company, Calcutta), and invited our attention to following observations recorded in Chapter XI, bearing the heading - Of The Protection To Property By 'The Law Of The....
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....to arrive at now, is the meaning of the term "vested rights", when employed by way of indicating the interests of which one cannot be deprived by the mere force of legislative enactment, or by any other than the recognized modes of transferring title against the consent of the owner, to which we have alluded." Based on the submissions recorded hereinabove, it was sought to be concluded, that the respondent-employees had no vested right to claim pension under 'the 1999 Scheme', and that, it was not open to them to assail the partial repeal of 'the 1999 Scheme', vide notification dated 2.12.2004. 29. In the process of repudiating the submissions advanced at the hands of the appellants, Mr. Guru Krishna Kumar, learned senior counsel representing the respondent-employees, drew our attention to certain factual aspects of the matter, which according to him, needed to be kept in mind, while determining the veracity of the challenge raised by the State Government. It was pointed out, that all the respondent-employees, were already in the employment of corporate bodies, in the State of Himachal Pradesh, on the date 'the 1999 Scheme' was introduced - on 1.4.1999. Learned counsel assert....
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.... High Court was fully justified in reading down the repeal notification dated 2.12.2004, so as to extend the benefit of 'the 1999 Scheme' to all employees who either opted for, or were otherwise entitled to pensionary rights, under 'the 1999 Scheme'. 30. Learned counsel for the respondent-employees, contested the submission advanced by learned counsel for the appellants, that subscription to 'the 1999 Scheme' by employees engaged in corporations in the State of Himachal Pradesh, did not create a vested right in them. It was submitted, that a mere subscription to 'the 1999 Scheme', by exercising their option to be governed by the same, created a vested right in the respondent-employees. In this behalf it was pointed out, that retirement on attaining the age of the superannuation, was relevant, only for the purpose of the accrual of a cause of action, for raising a claim for pension (under 'the 1999 Scheme'). Learned counsel, while acknowledging, that a right to claim pension would arise only when the concerned employee attained the age of superannuation, yet submitted, that the moment a contribution earlier payable to the employees as CPF on their retirement, was diverted to the ....
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....on of pensionary benefits, which is to the following effect: "27-A. Revision of pensionary benefits.-(i) UGC scales as revised from 1-1- 1996 have been linked to the index level of 1510 points inasmuch as the revised pay scale structure includes the DA admissible as on 1-1-1996 to the extent of 138% of basic pay. As on 1-1-1996 the pensionary benefits under the State Government had not been revised. The revised pay scales of the State Government employees came into force from 1-4-1998 by merging the DA as on 1-1-1996. The pensionary benefits were also simultaneously revised w.e.f. 1-4-1998. Therefore, the revised pay drawn in the UGC pay scales for the period from 1-1-1996 up to 31-3-1998 shall not be taken as emoluments for the purpose of pensionary benefits. Accordingly,- (a) In respect of teachers drawing UGC pay scales who have retired during the period from 1-1-1996 to 31-3-1998, they shall be eligible for the benefit of the fixation of pay and arrears under the revised UGC scales of pay only. There shall not be any change in their pensionary benefits with reference to the revised UGC pay and the retirement benefits already sanctioned in the pre-revised UGC p....
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....uctions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules w.e.f. 1-1-1996, vested in the appellants in terms of government notification read with Rule 296 of the Rules." Based on the above judgment, it was pointed out, that the right to draw revised pension under the Karnataka Civil Service Rules, was held to be vested in the concerned employees, from the date of revision of the pay- scales. It was pointed out, that while calculating pensionary benefits, it was imperative for the employer to take into consideration, the actual pay drawn by the employees, at the time of their retirement. Accordingly it was held, that the action of the State Government in granting revised pay- scales with retrospective effect (with effect from 1.1.1996), but extending the benefit of revised pay for calculating pension, only with effect from 31.3.1998, was not sustainable in law. Inasmuch as, employees who had retired between 1.1.1996 and 31.3.1998 would be prejudicially affected. On the same proposition, learned counsel placed reliance on D.S. Nakara v. Union of India, (1983) 1 SCC 305, a....
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.... we are concerned with the pension payable to the employees after their retirement. The respondents were no longer in service on the date of issuance of the impugned notifications. The amendments in the rules are not restricted in their application in futuro. The amendments apply to employees who had already retired and were no longer in service on the date the impugned notifications were issued. 26. In Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330, decided by a Constitution Bench it has been laid down: (SCC p. 343, para 31) "31. ... pension is not to be treated as a bounty payable on the sweet will and pleasure of the Government and that the right to superannuation pension including its amount is a valuable right vesting in a government servant." [p. 152] (emphasis supplied) In that case the right to receive pension was treated as property under Articles 31(1) and 19(1)(f) of the Constitution. 27. In D.S. Nakara v. Union of India, (1983) 1 SCC 305, this Court, after taking note of the decision in Deokinandan Prasad (supra), has said: (SCC p. 323, paras 28 and 29) "28. Pension to civil employees of the Government and the defence personnel a....
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....d a writ petition in the High Court of Andhra Pradesh. During the pendency of the said writ petition the relevant rule was amended by notification dated 3-2-1971 with retrospective effect from 1-10-1954 and the expression "Rs.1000 a month" in clause (b) of sub-rule (1) of Rule 299 was substituted by the expression "Rs.857.15 a month". This amendment was made in exercise of the power conferred by the proviso to Article 309 read with Article 313 of the Constitution. The said amendment was struck down by this Court as invalid and inoperative on the ground that it was violative of Articles 31(1) and 19(1)(f) of the Constitution. Relying upon the decision in Deokinandan Prasad (supra), it was held: (SCC p. 406, para 6) "6. ... The fundamental right to receive pension according to the rules in force on the date of his retirement accrued to the appellant when he retired from service. By making a retrospective amendment to the said Rule 299(1)(b) more than fifteen years after that right had accrued to him, what was done was to take away the appellant's right to receive pension according to the rules in force on the date of his retirement or in any event to curtail and abridge ....
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....y crystalises for entitlement to pension, on attaining the age of superannuation. It was contended, that since past service rendered by an employee, constitutes the basis for grant of pension, every day of service rendered by an employee, has to be taken into consideration, for computing pension. It was accordingly urged, that every day of service rendered by an employee, furthers the right in the employee to earn and receive pension. For the aforesaid reasons, according to learned counsel, pension has always been considered as deferred-wages for services rendered. It was asserted, that with effect from the date of commencement of qualifying service, the concerned employee is treated to have an inherent vested right, for a claim to pension. In order to substantiate the instant contention, learned counsel placed reliance on the D.S. Nakara case (supra), and invited our attention to the following observations recorded therein:- "46. By our approach, are we making the scheme retroactive? The answer is emphatically in the negative. Take a government servant who retired on April 1, 1979. He would be governed by the liberalised pension scheme. By that time he had put in qualifyi....
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.... method adopted when pay-scales are revised. Revised pay-scales are introduced from a certain date. All existing employees are brought on to the revised scales by adopting a theory of fitments and increments for past service. In other words, benefit of revised scale is not limited to those who enter service subsequent to the date fixed for introducing revised scales but the benefit is extended to all those in service prior to that date. This is just and fair. Now if pension as we view it, is some kind of retirement wages for past service, can it be denied to those who retired earlier, revised retirement benefits being available to future retirees only. Therefore, there is no substance in the contention that the court by its approach would be making the scheme retroactive, because it is implicit in theory of wages." Based on the observations extracted above, it was submitted, that it was not open to the State to contend, that a vested right would be created under 'the 1999 Scheme', only on the date of retirement. Since pension has been recognized as deferred-wages for past services, payable on retirement, according to learned counsel, the moment an employee is enrolled on the pensio....
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....lant has approached this Court. 4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648, that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held: "7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected severa....
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....rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta v. Union of India, 1995 (5) SCC 628, and Union of India v. Tarsem Singh, 2008 (8) SCC 648]". It was, therefore, the contention of learned counsel for the respondents, that the foundation to claim pension, accrued in the employees of all corporate bodies in the State of Himachal Pradesh (including all the respondent-employees herein), the very moment they came to be enrolled in 'the 1999 Scheme'. It was submitted, that all existing employees who had opted f....
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....sion) Rules, 1972. At the cost of clarification, it was pointed out, that the repeal notification dated 15.5.2003, had the effect of not depriving pensionary rights to any of the existing employees. Based on the above contentions, it was submitted, that the action of the State Government, in depriving the respondent-employees of their pensionary rights, must be treated as based on an arbitrary exercise of power, and as such, was liable to be considered as violative of Article 14 of the Constitution of India. 34. It was also the contention of learned counsel for the respondent- employees, that pension was akin to the right of property, postulated under article 300A of the Constitution. For the instant proposition, learned counsel placed reliance on the decision rendered in State of Jharkhand v. Jitendra Kumar Srivastava, (2013) 12 SCC 210, and invited our attention to the following observations recorded therein:- "8. It is an accepted position that gratuity and pension are not bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. Conceptually it is so lucidly described in D.S. Nakara and Ors. v. Union of India, (19....
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....rtmental inquiry, it is permissible for the Government to withhold pension etc. only when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office. There is no provision in the rules for withholding of the pension/gratuity when such departmental proceedings or judicial proceedings are still pending. 14. The right to receive pension was recognized as a right to property by the Constitution Bench judgment of this Court in Deokinandan Prasad v. State of Bihar, (1971) 2 SCC 330, as is apparent from the following discussion: (SCC pp. 342-43, paras 27-33) "27. The last question to be considered, is, whether the right to receive pension by a Government servant is property, so as to attract Articles 19(1)(f) and 31(1) of the Constitution. This question falls to be decided in order to consider whether the writ petition is maintainable under Article 32. To this aspect, we have already adverted to earlier and we now proceed to consider the same. 28. According to the Petitioner the right to receive pension is property and the Respondents by an executi....
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....y be that under the Pension Act (23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of writ of mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law." 16. The fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in "property". Article 300-A of the Constitution of India reads as under: "300-A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law." Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300-A of the Constitution. It follows that attempt of the Appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced." Fo....
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....ther than the Consolidated Fund of the State,- xxx xxx xxx Note:- (a) Basic pay means the pay drawn in the time-scale of pay applicable to the post immediately before retirement or death." xxx xxx xxx 22. The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grants Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1-1-1996, thus, could not have been denied to the appellants. 23. The stand of the State of Karnataka....
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....nconsistent therewith. Such emoluments were to be reckoned only in terms of the statutory rules. If the State had taken a conscious decision to extend the benefit of the UGC pay scales w.e.f. 1-1-1996, to the appellants, allowing them to draw their pay and allowances in terms thereof, we fail to see any reason as to why the pensionary benefits would not be extended to them from the said date. xxx xxx xxx 28. The impugned order furthermore is opposed to the basic principles of law inasmuch as by reason of executive instructions an employee cannot be deprived of a vested or accrued right. Such a right to draw pension to the extent of 50% of the emoluments, computed in terms of the rules, w.e.f. 1-1- 1996, vested in the appellants in terms of government notification read with Rule 296 of the Rules." 36. It was also the contention of learned counsel for the respondent- employees, that the present controversy needs to be examined from the perspective, that the respondent-employees did not make any endeavour to claim pension as a matter of parity with Government employees, in the State of Himachal Pradesh. It was submitted, that legally such a claim would not b....
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.... therein:- "42. If it appears to be undisputable, as it does to us that the pensioners for the purpose of pension benefits form a class, would its upward revision permit a homogeneous class to be divided by arbitrarily fixing an eligibility criteria unrelated to purpose of revision, and would such classification be founded on some rational principle? The classification has to be based, as is well settled, on some rational principle and the rational principle must have nexus to the objects sought to be achieved. We have set out the objects underlying the payment of pension. If the State considered it necessary to liberalise the pension scheme, we find no rational principle behind it for granting these benefits only to those who retired subsequent to that date simultaneously denying the same to those who retired prior to that date. If the liberalisation was considered necessary for augmenting social security in old age to government servants then those who retired earlier cannot be worst off than those who retire later. Therefore, this division which classified pensioners into two classes is not based on any rational principle and if the rational principle is the one of divi....
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....the criterion those who retired by the end of the month will form a class by themselves. In the context of that case, which is similar to that of the instant case, it was held that Article 14 of the Constitution had been wholly violated, inasmuch as, the Pension Rules being statutory in character, the amended Rules, specifying a cut-off date resulted in differential and discriminatory treatment of equals in the matter of commutation of pension. It was further observed that it would have a traumatic effect on those who retired just before that date. The division which classified pensioners into two classes was held to be artificial and arbitrary and not based on any rational principle and whatever principle, if there was any, had not only no nexus to the objects sought to be achieved by amending the Pension Rules, but was counterproductive and ran counter to the very object of the pension scheme. It was ultimately held that the classification did not satisfy the test of Article 14 of the Constitution. 29. The Constitution Bench (in D.S. Nakara (supra)), has discussed in detail the objects of granting pension and we need not, therefore, dilate any further on the said subject....
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....g the same to such of the employees, who had retired on or before 2.12.2004, was discriminatory and unsustainable in law. It was also the contention of learned counsel for the respondent-employees, that the only situation where a claim for pension under 'the 1999 Scheme' could have been legally denied, is when a succeeding pension scheme introduced by the employer, postulated better retiral benefits. 39. Reliance was also placed on Pepsu Road Transport Corporation, Patiala v. Mangal Singh, (2011) 11 SCC 702, wherein it has been held as under:- "48. The concept of "pension" has also been considered in Corpus Juris Secundum, Vol. 70, at p. 423 as thus: "A pension is a periodical allowance of money granted by the government in consideration or recognition of meritorious past services, or of loss or injury sustained in the public service. A pension is mainly designed to assist the pensioner in providing for his daily wants, and it presupposes the continued life of the recipient." Based on the above, it was the contention of learned counsel, that the State Governments' inference, based on the report of the Committee, dated 15.11.2003, that 'the 1999 Scheme' was not viable....
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.... submitted, that the same has increased from 56 crores in 2003 to 253 crores in 2015. It was pointed out, that the aforesaid figures emerged, despite the withdrawal of provident fund amounts, by a number of employees. It was, therefore submitted, that payment of pensionary benefits to 6,730 employees, was well within the financial reach of the State Government, and that, the decision of the State Government to issue the repeal notification, on the ground that 'the 1999 Scheme' was not financially viable, was not acceptable. 41. It was also the contention of learned counsel for the respondent- employees, that all the State owned corporations were fully controlled by the Government. All shares in the corporations were held by the State Government. The management of all the corporations, was also under the direct control and supervision of the Government. Accordingly it was submitted, that the ultimate authority in determining the conditions of service of the concerned corporations, was vested with the Government. In this behalf, reliance was placed on Articles 51 and 52 of Articles of Association of the Himachal Pradesh State Forest Development Corporation Limited. It was highligh....
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....e Government, that 'the 1999 Scheme' was not financially viable. 44. In order to controvert the submissions advanced at the hands of learned counsel for the respondent-employees, Mr. P.P. Rao, learned senior counsel emphatically pointed out, that all the judgments relied upon by the respondents were inapplicable to the present controversy. It was submitted, that the judgments relied upon, did not deal with the rights of serving employees. It was pointed out, that a clear enunciation in this behalf was recorded by this Court, that the prayers raised at the hands of the respondent-employees, could only relate to superannuated personnel. For the above, learned counsel invited our attention to the Chairman, Railway Board case (supra), wherefrom the following observations were relied upon:- "20. It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g., promotion or pay scale, can be assailed as....
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.... that the impugned amendments cannot be regarded as arbitrary for the reason that by the reduction of the maximum limit in respect of Running Allowance from 75% to 45% for the period 1-1-1973 to 31-3-1974 and to 55% from 1-4-1979 onwards, the total amount of pension payable to the employees has not been reduced. The submission of the learned Additional Solicitor General is that since the pay scales had been revised under the 1973 Rules with effect from 1-1-1973, the maximum limit of 45% or 55% of the Running Allowance will have to be calculated on the basis of the revised pay scales while earlier the maximum limit of 75% of Running Allowance was being calculated on the basis of unrevised pay scales and, therefore, it cannot be said that there has been any reduction in the amount of pension payable to the respondents as a result of the impugned amendments in Rule 2544 and it cannot be said that their rights have been prejudicially affected in any manner. We are unable to agree. As indicated earlier, Rule 2301 of the Indian Railway Establishment Code prescribes in express terms that a pensionable railway servant's claim to pension is regulated by the rules in force at the time wh....
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....re being paid the same salary as was being paid to the teachers of the Government colleges. The appellants in Civil Appeal No. 1391/2006, have retired from the Karnataka Regional Engineering College, Surathkal, Karnataka, which was established by the Government of India at the request of the Government of Karnataka. It is a Centrally aided institution as envisaged under Entry 64 of List 1 of the Seventh Schedule to the Constitution of India. So far as the said institution is concerned, its expenditure used to be borne by the Government of India and the State of Karnataka. It, however, has been notified by the Government of India as a Deemed University with effect from 26.6.2002. xxx xxx xxx 31. The appellants had retired from service. The State therefore could not have amended the statutory rules adversely affecting their pension with retrospective effect." 45. A different projection was sought to be made by Mr. R. Venkataramani, learned senior counsel, who also represented the appellants. Learned counsel, placed reliance on State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha, (2009) 5 SCC 694, and drew our attention to the following:- "2. By that....
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....to bear the salaries of employees of CAMUL or any other similar societies; that CAMUL had to generate its own funds and resources to pay the salaries of its staff; and that as there was no relationship of employer and employee between the State Government and the employees of CAMUL, it was not responsible to bear or pay any amount towards the salaries of the employees of CAMUL. 7. The learned Single Judge allowed the writ petition. He held that the State Government through its Veterinary Department undertook the Integrated Cattle Development Projects (ICDP) in various districts of Assam; and as a part of the said project, an ICDP block was created at Ghungoor, Silchar in Cachar district; that 32 cooperative societies of Milk Producers were established and CAMUL was formed as an Apex Body of those co-operative societies; that the Dairy Development Department of the State Government had been providing grant-in-aid earmarked in the State budget every year to CAMUL; that the State Government failed to offer any explanation or reason for stopping the grant-in-aid from 1994; that the Dairy Development Project at Silchar was purely a State Government scheme and as that Project ha....
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.... 21 and 23 of the Constitution of India?" 16. Reference is also invited to the following observations of this Court in considering the said question (Kapila Hingorani (I), SCC, pp. 20-21, paras 30-31 & 33-34): "30. The government companies/public sector undertakings being 'State' would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the government companies; in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed. 31. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The ....
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....ns viz. the employees of the public sector undertakings who have not been paid salaries for years. 27. We also do not appreciate the submissions made on behalf of the State of Bihar that the directions issued were only one-time direction. In Clause 4 of the directions, it was clearly stated that the State for the present shall deposit a sum of Rs. 50 crores before the High Court for disbursement of salaries to the employees of the corporations. Furthermore, the matter had been directed to be placed again after six months." This Court also issued further interim directions to the State of Bihar to deposit a further sum of Rs.50 crores and the State of Jharkhand to deposit a sum of Rs.25 crores to meet the arrears of salaries of public sector undertakings. 18. We have carefully examined the said two decisions. The two decisions are interim orders made in a writ petition under Article 32 of the Constitution. The said orders have not finally decided the issues/questions raised, nor laid down by any principle of law. The observations extracted above as also other observations and directions are purely tentative as will be evident from the following observations in Kapi....
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.... 46. We shall now endeavour to consider the various legal parameters on the basis whereof, learned counsel for the rival parties have premised their respective submissions. 47. First and foremost, it is essential for us to determine whether or not a vested right came to be created in the employees of the corporate bodies, when they came to be governed by 'the 1999 Scheme'. The submission at the hands of learned counsel for the appellant-State was, that no such vested right was created, by the time the repeal notification was issued on 2.12.2004. The contention of learned counsel representing the State was, that under paragraph 4 of 'the 1999 Scheme', a right to draw pension would emerge, only when a concerned employee attained the age of superannuation, subject to the condition that he had rendered the postulated qualifying service. It was submitted, that prior to the fulfillment of the aforesaid condition, no employee under 'the 1999 Scheme', could be considered as being possessed of a vested right, to receive pension. 48. Having given our thoughtful consideration to the aforesaid submission, we are of the view, that such of the employees who had exercised their option to ....
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.... of the concerned corporate bodies, on the date when 'the 1999 Scheme' became operational (with effect from 1.4.1999), or to the direct entrants who entered service thereafter, cannot be accepted. In this behalf it would also be relevant to emphasize, that as soon as the concerned employees came to be governed by 'the 1999 Scheme', a contingent right came to be vested in them. The said contingent right created a right in the employees to claim pension, at the time of their retirement. Undoubtedly, the aforesaid contingent right would crystalise only upon the fulfillment of the postulated conditions, expressed on behalf of the appellants (on having rendered, the postulated qualifying service). However, once such a contingent right was created, every employee in whom the said right was created, could not be prevented or forestalled, from fulfilling the postulated conditions, to claim pension. Any action pre-empting the right to pension, emerging out of the conscious option exercised by the employees, to be governed by 'the 1999 Scheme' (or to the direct entrants after the introduction of 'the 1999 Scheme'), most definitely did vest a right in the respondent-employees. 50. We are a....
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....he 1999 Scheme', and all the new entrants after the introduction of 'the 1999 Scheme', constituted a homogenous class, and it was impermissible for the State Government, to have treated them differently. It was submitted, that the aforesaid classification was invidious, inasmuch as, there was no reasonable basis for such classification, nor was there any discernable object, for bifurcating the homogenous class of pensioners. It was submitted, that whilst those who had retired on the date of the repeal notification, would be entitled to pensionary benefits, those who retired on the following day, would be deprived of the same. Learned counsel for the rival parties have, relied on a series of judgments in support of the respective propositions canvassed by them. We have extracted the same, while recording their submissions. 54. Having given our thoughtful consideration to the issue canvassed, and having gone through the judgments cited, we are of the considered view, that this Court has repeatedly upheld a cut-off date, for extending better and higher pensionary benefits, based on the financial health of the employer. A cut-off date can therefore legitimately be prescribed for ext....
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....ve position is not available in the present case, inasmuch as, no contention has been advanced at the behest of the respondent-employees, that the action taken by the State Government (in issuing the repeal notification, dated 2.12.2004), violated any legal obligation or statutory right. So also, the judgment relied upon on behalf of the respondent- employees in the D.S. Nakara case (supra), wherein the employees' claim for pension, was based on existing rules. And even so, in the Chairman, Railway Board case (supra), wherein it was held, that vested rights under the rules, could not be taken away. It would also be relevant to mention, that in the last judgment referred to above, it was observed, that the employees who had retired from service, had been deprived of their pensionary rights, as the amended rule was not prospective, but was retrospective. In the instant case, the repeal notification does not adversely affect those employees who had retired prior to 2.12.2004, before the said notification was issued. The above referred judgment is also, therefore inapplicable to the present controversy. The conclusion recorded hereinabove, also emerges on a perusal of paragraphs 31 and....
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....ntage. All that was taken away, and given up by the respondent-employees by way of foregoing the employer's contribution upto 31.3.1999 (including, the accrued interest thereon), by way of transfer to the corpus fund, was restored to the respondent-employees. All the respondent-employees, who have been deprived of their pensionary claims by the repeal notification dated 2.12.2004, would be entitled to all the rights which had accrued to them, under the Employees' Provident Funds Scheme, 1995. It is therefore, not possible for us to accept, that the respondent-employees can be stated to have been made to irretrievably alter their position, to their detriment. Furthermore, all the corporate bodies (with which the respondent-employees, are engaged) are independent juristic entities, as held in State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha (supra). The mere fact, that the corporate bodies under reference, are fully controlled by the State Government, and the State Government is the ultimate authority to determine their conditions of service, under their Articles of Association, is inconsequential. Undoubtedly, the respondent- employees are not Government employees. The State....
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.... Colonial Mutual Fire Insurance Co. Ltd., 1920 28 C.L.R. 305. Dixon, J. in his judgment in Grundt v. The Great Boulder Pty. Gold Mines Pty. Ltd., 1938 59 C.L.R. 641, stated that: "In measuring the detriment, or demonstrating its existence, one does not compare the position of the representee, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representor wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the representee would be in if the representor were allowed to disavow the truth of the representation." (In this context see Spencer Bower and Turner: Estoppel by Representation, 3rd Ed.). Lord Denning also in the case of Central Newbury Car Auctions Ltd. v. Unity Finance Ltd., 1956 (3) All ER 905, appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of 'detriment' to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to....
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....ppears to have been reaffirmed, at least by implication, by the House of Lords comparatively recently (Moorgate Mercantile Co. Ltd. v. Twitchings, (1977) AC 890). The explanation is no doubt that this aspect of estoppel is properly to be considered a part of the law relating to negligent representations, rather than estoppel properly so-called. If two people with the same source of information assert the same truth or agree to assert the same falsehood at the same time, neither can be estopped as against the other from asserting differently at another time (Square v. Square, 1935 P. 120)." 22. A bare perusal of the same would go to show that the issue of an estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status. The contextual facts however, depict otherwise. Annexure 2 to the application form for benefit of price protection contains an undertaking to the following effect:- "We hereby undertake to refund to EEPC Rs... the amount paid to us in full or part ....
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.... governed by 'the 1999 Scheme') can be restored. For the instant proposition, reference may be made to the judgment in Pratima Chowdhury v. Kalpana Mukherjee, (2014) 4 SCC 196, wherein it was held as under:- "We shall, however, endeavour to deal with the principle of estoppel, so as to figure whether, the rule contained in Section 115 of the Indian Evidence Act could have been invoked, in the facts and circumstances of the present case. Section 115 of the Indian Evidence Act is being extracted hereinabove:- "115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. Illustration A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to pr....
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....tted a report dated 28.10.2003, returning a finding, that 'the 1999 Scheme' was not financially viable, and would not be self-sustaining. It is therefore, that a tentative decision was taken by the State Government, to withdraw 'the 1999 Scheme'. 61. To determine the modalities for withdrawing 'the 1999 Scheme', on the basis of the above report, the matter was jointly examined by the Finance Department and the Law Department of the State Government, wherein, in consonance with the advice tendered by the Law Department it was decided, that 'the 1999 Scheme' should not be withdrawn retrospectively. Based on the advice of the Law Department, it was finally decided, that those who had commenced to draw pensionary benefits under 'the 1999 Scheme', would not be deprived of the same. And that, 'the 1999 Scheme' should be withdrawn prospectively, for those whose right to receive pensionary benefits had not arisen, as they had not yet retired from service. In the above view of the matter, it was contended on behalf of the State Government, that the action of the State Government, in issuing the repeal notification dated 2.12.2004, was certainly not an arbitrary exercise of the power of a....
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.... views, contested the fact, that the pension scheme was not self-financing. Those who expressed their views, affirmed that the pension scheme could be salvaged only with Government support. Those who did not express their views, obviously had no comments to offer. The position projected by the State Government, therefore, cannot be considered to have been effectively rebutted. Certain facts and figures, have indeed been projected, on behalf of the respondent-employees. These have been recorded by us in paragraphs 39 and 40. Financial calculations can not be made casually, on a generalized basis. In the absence of any authenticity, and that too with reference to all the 20 corporate entities specified in Schedule I of 'the 1999 Scheme', the projections made on behalf of the respondent-employees, cannot be accepted, as constituting a legitimate basis, for a favourable legal determination. Since the respondent-employees have not been able to demonstrate, that the foundational basis for withdrawing 'the 1999 Scheme', was not premised on any arbitrary consideration, or alternatively, was not founded on any irrelevant consideration, it is not possible for us to accept the contention, tha....
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....minatory. And as such, violative of Article 16 of the Constitution of India. In this behalf, the submission advanced on behalf of the respondent-employees was, that the State Government extended similar benefits to Government employees under the Central Civil Services (Pension) Rules, 1972. The said pensionary benefits extended to Government servants, were also sought to be withdrawn. It was however pointed out, that while withdrawing the pensionary benefits from the Government employees, the State Government had taken a decision to protect all existing employees, who had entered into Government service, till the revocation of the pension scheme. It was submitted, that the High Court had, by the impugned order, similarly protected only the existing employees, who were in service, as on the date of issuance of the repeal notification, dated 2.12.2004. It was contended, that the State Government's action, in not treating the employees of corporate bodies, governed by 'the 1999 Scheme', similarly as it had treated employees in Government service, was clearly discriminatory. It was submitted, that two sets of employees similarly situated, were treated differently. It was pointed out, t....
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....imilar fashion as had been attempted by the State Government, through 'the 1999 Scheme'. In the instant view of the matter also, we are of the opinion, that the action of the State Government cannot be assailed, on the ground of discrimination. 68. We shall now consider, whether the State Government which had introduced 'the 1999 Scheme', had the right to repeal the same. In answering the above issue, it needs to be consciously kept in mind, that the employees of corporate bodies, who were extended the benefits of 'the 1999 Scheme', as already noticed above, were not employees of the State Government. 'The 1999 Scheme' was, therefore, just a welfare scheme introduced by the State Government, with the object of ameliorating the financial condition of employees, who had rendered valuable service in State owned corporations. In order to logically appreciate the query posed, we may illustratively take into consideration a situation, wherein an organization similar to the one in which the respondent-employees were engaged, suffered such financial losses, as would make the sustenance of the organization itself, unviable. Can the employees of such an organization, raise a claim in law,....
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....ast for such of the employees, who were engaged on or before the date of issuance of the repeal notification (- 4.12.2004). We would like to conclude the instant submission by recording, that the respondent-employees have not been able to make out a case, that the notification dated 2.12.2004, repealing 'the 1999 Scheme', was in any manner, capricious, arbitrary, illegal or uninformed, and as such, we would further conclude, that the respondent-employees cannot be considered as being entitled, to any relief, through judicial process. 69. Having recorded our aforesaid conclusion, it is not necessary for us to examine the submissions advanced at the hands of the respondent- employees, that the action of the State Government, in issuing the repeal notification dated 2.12.2004, would violate Article 21 of the Constitution of India. All the same, since the contention was raised, we consider it just and appropriate, to examine and deal with the same. The contention advanced on behalf of the respondent-employees was, that the fundamental rights enshrined in the Constitution, do not extend to merely, providing for survival or animal existence. Article 21, it was pointed out, has been in....
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....mployees, that the impugned notification dated 2.12.2004, was unconstitutional, irrational, arbitrary or unreasonable. It is accordingly not possible for us to accept, the challenge raised by the respondent- employees, that they had been deprived of their right to pensionary benefits, without the authority in law. We are therefore of the view, that the claim raised on behalf of the respondent-employees, by placing reliance on Article 300A of the Constitution of India, is misconceived. 71. Our determination, with reference to all the issues canvassed above, would also answer the question left open in paragraph 52 above. Namely, whether or not the contingent right, as was vested in the respondent- employees, was binding or irrevocable. We may now sum up the position determined by us, in the foregoing paragraphs. It is no doubt true that we have concluded, that 'the 1999 Scheme', created a contingent right in the respondent-employees. The respondent-employees comprise of all those employees of corporate bodies, who had opted for 'the 1999 Scheme', immediately on its having been introduced; all those, who were deemed to have opted for 'the 1999 Scheme' by not having exercised any op....