IN THE HIGH COURT OF KERALA AT ERNAKULAM WA.No. 1878 of 2008() 1. V.S.RAVINDRANATHAN, VALATH HOUSE, ... Petitioner Vs 1. FOOD CORPORATION OF INDIA, ... Respondent 2. THE ZONAL MANAGER (NORTH) 3. THE SENIOR REGINAL MANAGER, FOOD 4. THE ASSISTANT MANAGER (PENSION) For Petitioner :SRI.N.P.SAMUEL For Respondent :SMT.S.KARTHIKA The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice THOMAS P.JOSEPH Dated :17/11/2008 O R D E R J.B. KOSHY & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = W.A. No.1878 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of November, 2008 J U D G M E N T
Appellant-petitioner started service in the Food Department of the Government of India on 26.3.1959. When Food Corporation of India was formed, he was absorbed in the FCI and he retired as Assistant Manager(QC) from FCI. Being a native of Kerala State he settled at Thrissur. Even though he retired on 30.6.1993 his retiral benefits were not paid. He approached this Court by filing W.P(C) No.28329 of 1999. By Exhibit P1 judgment this Court directed the FCI to pay the retirement benefits that were due as there was no valid reason for denying the same. But when Exhibit P1 was implemented, appellant was paid the benefits on the basis of the FCI Rules. He wanted the pensionary benefits as per the Central Government Rules with effect from 1.7.1993 with interest at 18%. It is the contention of FCI that he did not make any option within six months of joining the FCI and therefore in the absence of option made in time, he will not be entitled to pensionary benefits as per the Central Government Rules. Matter was considered in detail by the learned Single Jude. Central Government had issued a Circular calling upon the officers and W.A. No.1878 of 2008 -: 2 :- employees transferred to the FCI to indicate their intention in becoming employees of the FCI. Option was also called for as per sub- section (4) of Section 12A of the Food Corporation Act. Exhibit P8 judgment shows that the appellant had already opted to be governed by the Central Government Rules. Exhibit P9 also disclosed that appellant and similarly placed persons were given new PF account number in the FCI. Sub-section 4 of Section 12A provides that every officer or other employee transferred by an order under sub-section (1) shall within six months from the date of transfer exercise his option in writing to be governed by the leave, provident fund, retirement or other terminal benefits admissible to employees of the Central Government in accordance with the rules and orders of the Central Government as amended from time to time or the leave, provident fund or other terminal benefits admissible to the employees of the FCI under the regularisation made by the FCI. Sub-section (b) of Section 12A(4) states that such option shall be final. It is clear from Exhibit P9 that the appellant had in fact opted to the Central Government Rules. Under Section 4A of Section 12A every officer or other employee in respect of whom an order of transfer under sub-section (1) had been made before 31.12.1976, the appointed day, whether he had or not exercised the option can make fresh option within six W.A. No.1878 of 2008 -: 3 :- months from the appointed day and such option shall be final. The proviso further states that if such an option is not exercised, option already exercised shall be deemed to have been exercised by him under sub-section (4) of Section 4A of Section 12A of the Act. Hence, since the appellant had already exercised the option to be governed by the Central Government Rules that will be deemed to be an option for the purpose of sub-section (4)(a) Section 12A(4A). Learned Single Judge considered the matter and found as follows:
"I shall now consider the effect of Ext.R1
(a) and Ext.R1(b). By Ext.R1(a), the Regional Manager of the Corporation in the State of Punjab requested the District Manager of the Corporation at various Districts including Ferozepur where the petitioner was stationed, to verify whether the petitioner and other had exercised their option. Ext.R1(a) refers to Ext.R1(g) circular dated 13.1.1977. By Ext.R1
(b), the Senior Regional Manager ordered that since the petitioner did not exercise the option within six months from 31.12.1976 the terms of Ext.R1(g) circular dated 13.1.1977, he will be governed by the terminal benefits of the Corporation. As noticed earlier, the petitioner had once opted to be governed by the Central W.A. No.1878 of 2008 -: 4 :- Government Rules. As held by the High Court of Punjab and Haryana in Ext.P8 judgment and as noticed by me earlier, if an employee of the Corporation fails to exercise a revised option in terms of sub-section (4-A) of Section 12A of the Act, the option earlier exercised by him under sub-section (4) of Section 12A of the Act will not be rendered invalid or inoperative. On the other hand, the proviso to Section (4-A) of Section 12A of the Act stipulates that if an officer or an employee fails to exercise a fresh option, the option exercised earlier under sub- section (4) of Section 12A of the Act will be deemed to have been validly exercised. Even if one were to assume as a contended by the respondents that the petitioner did not exercise a fresh option within six months from 31.12.1976 in terms of sub-section (4-A) of Section 12A of the Act, it will not efface the option already exercised by him to be governed by the Central Government Rules. The respondents have no case that the recitals in Ext.P9 are in any way incorrect. I am therefore inclined to hold that the stand taken by the respondents in Ext.P3 and in Ext.r1(b) that the petitioner will be governed by the terminal benefits admissible to employees of the Corporation is not sustainable in law".
W.A. No.1878 of 2008 -: 5 :-
2. But even after finding by the learned Single Judge that the appellant is entitled to the terminal benefits as per the Central Government Rules, that was denied because of delay and lack of territorial jurisdiction. As far as the question of res judicata is concerned, when no terminal benefits were given appellant approached this Court and that was granted as per Exhibit P1. Present question is whether such terminal benefits should have been granted as per the FCI Rules or Central Government Rules. That question was not decided earlier. Therefore there is no question res judicata applicable. It is true that after transfer action was taken against the appellant against which he approached this Court. This Court directed the respondents to grant pensionary benefits. What is questioned here is only the amount of pensionary benefits. He is entitled to get the benefits through post or bank at the place where he resides. After retirement he is residing at Thrissur. Exhibit P1 direction was issued by this Court to grant him pension and DCRG. Exhibit P1 was implemented by the FCI. But the implementation was not in accordance with the Central Government Rules. Therefore it cannot be said that there is complete lack of jurisdiction with regard to the terminal benefits as terminal benefits have to be received at the place W.A. No.1878 of 2008 -: 6 :- where he is residing. In this connection we shall refer to the decision in Pillai K.D. v. Chairman, ONGC (2008(3) ILR Ker. 591). It is true that the appellant was informed while in service that he should exercise the option within the time allowed to come under the Central Government Rules. But he has not exercised the option. However, he exercised option to get pensionary benefits under the Central Government Rules. He was continuing representations for getting pensionary benefits. Even as per Exhibit P3 dated 18.5.2001 he was informed that he did not exercise the option within the time, he cannot get the terminal benefits as per the Central Government Rules. However, no pensionary benefits including DCRG, P.F., etc., were given to the petitioner till he approached this Court. Only when the terminal benefits received he actually knew that he was not paid the said benefits in accordance with the Central Government Rules and he again approached this Court. Exhibit P1 judgment was passed on 2.11.2000. On the basis of the wrong implementation again representations were filed. In any event after finding that he has exercised option and after amendment if he did not submit fresh option, the earlier option will continue and he ought to have been given the terminal benefits in accordance with the Central Government Rules, due pension cannot be denied. The FCI being a W.A. No.1878 of 2008 -: 7 :- Public Sector Undertaking and an instrumentality of the State cannot deny the benefits on technicalities to a Senior Citizen and former employee who served the institution from the inception. We are of the view that appellant is entitled to the pensionary benefits in accordance with the Central Government Rules. However, in view of the delay, we are of the opinion that the respondents cannot be directed to pay interest on the pensionary benefits provided arrears are paid within three months from the date of receipt of a copy of this judgment. If the amount as stated above is not paid within that time, respondents shall pay interest at the rate of 9% per annum from the date it became due till actual payment.
Writ Appeal is allowed as above.
J.B. KOSHY, JUDGE.
THOMAS P.JOSEPH, JUDGE.