FRESH WRIT PETITION FILED BY ME

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(special original jurisdiction)

W.P. No. 10442 of 2008

M.Venkatesan

Son of Late K.Muthukrishnan,

No.16, Raja Apartments,

5-A, Balakrishna Naicken St.,

West Mambalam,

Chennai – 600 033. ….Petitioner

Vs

1. Union of India,

represented by the Secretary,

Ministry of Commerce & Industry

Department of Commerce

Udyog Bhawan,

New Delhi.

2. The Director,

Export Inspection Council,

(Ministry of Commerce),

No.26, Pragati Towers,

11^th Floor, Rajendra Place,

New Delhi 110 008.

3. The Additional Director,

Export Inspection Agency (Chennai),

(Ministry of Commerce),

No.213, Royapettah High Road,

Chennai – 600 014. ….Respondents

AFFIDAVIT OF M.VENKATESAN

I, M. Venkatesan, Son of Late K. Muthukrishnan, Hindu, aged about 63 years, residing at Flat No.16, Raja Apartments, 5-A, Balakrishna Naicken Street, West Mambalam, Chennai – 600 033, do hereby solemnly affirm and sincerely state as follows:-

1. I am the Petitioner herein and I am as such well acquainted with the facts and circumstances of the case.

2. I respectfully submit that I entered into service in the year 1973 by joining the Export Inspection Agency (Bombay), Ministry of Commerce, Government of India as a Technical Officer, with effect from 08-03-1973. In the year 1978, I was promoted to the next higher post of Assistant Director in the pre-revised scale of pay of Rs.700-1,300. When revised scale of pay was introduced to the Employees of the Central Government based on the recommendation of the IVth Pay Commission with effect from 01.01.1986, the revised scale of Pay of Rs.2,200-4,000 was prescribed by the Government for the post of Assistant Director, Export Inspection Agency, Ministry of Commerce, Government of India, in which I was working.

3. I respectfully submit that the Export (Quality Control and Inspection) Act, 1963 empowers the Government of India to prescribe systems for quality control and inspection of commodities being exported from India, so as to prevent export of sub-standard goods and to satisfy the needs of the foreign buyers in terms of quality requirements demanded by them. The Export Inspection Council (EIC) was established under the provisions of the above said Act, to advise the Government about the measures to be taken for quality control and pre-shipment inspection of various commodities being exported from India. In order to enforce the quality control and to ensure proper pre-shipment inspection of various commodities being exported from India, the Export Inspection Agencies, (EIA’S) have been established by the Government of India at Mumbai, Calcutta, Delhi, Cochin, and Chennai with many Sub-Offices spread all over the country. These Agencies are the arms of the Export Inspection Council (EIC). Which play a vital role through quality assurance programs in boosting the country’s exports.

4. I respectfully submit that the various rules and regulations of service applicable to the employees of the central government service from time to time are also applicable to the employees of the export inspection council/export inspection agency. This is as per the export inspection council Pension and General Provident Fund Rules 1981which stipulate that the Central Civil Services (Pension Rules) and General Provident Fund (Central Services) Rules as amended from time to time are applicable to the employees of the council.

5. BY the year 1984 I had completed twenty one years and four months of service and at that point in time I was working as Assistant Director in Export Inspection Agency, Chennai in the revised scale of pay of Rs.2,200-4,000.

6. The then Additional Director, holding charge of Director (I & QC) Export Inspection Council, (Ministry of Commerce, Government of India) vide its communication No. EIC/D(Q/C)/VRS/121/94/548 dated 21.05.1994 addressed to the Additional Director, Export Inspection Agency, Calcutta/Mumbai/Cochin/Delhi/Chennai informed that the Government of India had approved Voluntary Retirement Scheme (VRS) applicable to the Employees of Export Inspection Council (EIC)/Export Inspection Agencies (EIA’s) as a special one time offer on the following terms:-

(i) Half a month’s gratuity per year of service subject to a ceiling

of Rs.1,00,000/ as admissible under the gratuity Rules of EIC/EIA;

(ii) Ex-gratia payment equivalent to 1 ½ months emoluments (Pay + DA) for each completed year of service or the monthly emoluments at the time of retirement multiplied by the balance months of service left before normal date of retirement, which ever is less;

(iii) One or 3 month’s pay in lieu of notice, where admissible, in terms of the conditions of service/appointment of the employees;

(iv) Encashment of earned leave at the credit of employees as per Ministry of Commerce O.M. No. 15/5/93 – MDA, dated January 3, 1994 up to a maximum of 240 days

(v) Full matching CPF contribution from the Export Inspection Council/Agency side irrespective of whether such employees have completed 5 years of service.

(Applicable to such employees if any who have not opted for the pension Scheme)

(vi) Full commutation of pension

(vii) Travel expense for the employee’s and family for proceeding to home town or to the place where he/she intends to settle in India as per his/her entitlement under the TA Rules of Council/Agency;

(viii) This offer will remain valid for a period of 60 days only from the date of issue of this letter, and

(ix) The EIC would, however, have the right to refuse, the request for voluntary retirement in case of any employee without assigning any reason”.

7. I had raised many queries with regard to the scheme, the benefits flowing from it. Instead of clarifying the queries raised, I was informed by letter dated 31.5.1994 that in the absence of any option for Voluntary retirement form service and its acceptance by the competent authority, it may not be possible to take any action as desired by me. In other words, I was told to accept the VRS and only thereafter my queries would be answered. Assuming that the scheme introduced by the Respondents was a valid one, I had submitted my formal application in the prescribed pro-forma opting for voluntary retirement service under the above said V.R.S.Scheme on 08.07.1994. But to my shock and surprise, I along with other optees were immediately relieved from service. It was clear that the respondents were waiting for an opportunity to relieve me and other employees.

8. While calculating the retirement benefits payable under the above scale, the competent authority decided on 16.07.1994 to grant weightage of five years of service to those optees who has put in 20 years of Government service for determining the quantum of commutation pension, gratuity, dearness allowance and other retirement benefits. This benefit was denied to me virtually for which I filed W.P. No. 16155 of 1997 for a direction to the Respondents for disbursement of the retirement benefits by taking into account the five years weightage for the purpose of calculating retirement benefits. The above Writ Petition is pending as on date.

9. In the meanwhile I came to understand that the scheme dated 21.5.1994 had not been approved by the competent authority and in fact was in violation of the relevant rules. In those circumstances I made repeated representations to the Respondents seeking clarification on the above but there was no reply. However upon coming into force of the Right Information Act 2005, I reiterated my earlier request for information as to the status of the scheme. By a letter dated 06.12.2005, the public information officer under the said act furnished a copy of the letter dated 21.05.1994 issued by the Ministry of Commerce conveying the approval of the Government for V.R.S.1994, the perusal of this letter showed that though the Government was not obliged to formulate for approval in such scheme, the same has been done as a special gesture to the EIC/EIA. It is relevant to point out that as per the allocation of business rules 1961 read with Article 77(3) of the Constitution of India, the Ministry of Commerce is not empowered to frame schemes but it is the duty of the Department of Personnel and Training. In these circumstances I sought information from the Ministry of Personnel, Public grievances and pensions as to where they had approved the V.R.S. of 1994 extended to the EIC/EIA. The department replied by a letter dated 17.08.2005 that they had not issued any special voluntary retirement scheme to central government employees besides the special voluntary retirement scheme introduced for surplus central government employees on. 28.2.2002.

10. It is also pertinent to state that the EIC being as statutory body created under the Export (quality control and inspection) Act 1963, its functions, powers, duties and responsibilities are laid down by the said Act. As per Rule 17 of the said Act, the central government is empowered by notification in the official gazette to make rules to carry out the purposes of the Act. As regards the conditions of the service more specifically pension and retirement benefits for employees of the council the central government had issued the Export inspection council (pension and general provident fund) rules 1981. These rules clearly adopt the Central Civil Services Pension Rules, 1972. As per the CCS Pension Rules the retirement benefits of a person going on voluntary retirement has to be determined with respect to Rule 48, 48A & 54 of said rules. Therefore I should have been permitted to avail the provision of Rule 48A of the above said rule which is applicable and should not have been forced to go under V.R.S. 1994 issued by the Ministry of Commerce which is without jurisdiction.

11. In these circumstances I made detailed representations on 6^th May 2006, 16^th May 2006 & 23^rd Nov.2006 to the Respondents including the 1^st respondent calling upon them to grant me normal voluntary retirement pension as admissible under the CCS pension rules 1972. I undertook to refund all the amounts received under the illegal V.R.S. 1994 dated 21.05.1994 with interest provided my request for grant of retirement benefits as admissible under Rule 48A of the CCS pension rules is accepted. The Ministry of Commerce has till date not replied to the representations made but instead forwarded a reply dated 1.12.2006 issued by the 2^nd respondent Council. I have also made subsequent representations but to no avail. Thereafter, the petitioner has made representations to the second respondent to consider his request but to no avail.

12. In the aforesaid circumstances, the Petitioner is aggrieved by the letter dated 1.12.2006 issued by the 3^rd respondent and is constrained to approach this Hon’ble Court under Article 226 of the Constitution of India for issue of WRIT OF CERTIORARIFIED MANDAMUS on the following among other

GROUNDS

A) It is submitted that the impugned order is arbitrary, irrational, unreasonable thus illegal and therefore liable to be setaside.

B) It is also submitted that the VRS of 1994 introduced by the 1^st respondent was not framed by the competent authority. Under the Government of India (Allocation of Business Rules), 1961 which are framed under Article 77(3) of the Constitution of India. The Department of Personnel and Training is the competent authority to regulate the service matters as can be seen from the first schedule to the rules read with rule 2. Therefore, introduction of a Voluntary retirement scheme comes under the purview of the DOPT. However, in the instant case, the VRS of 1994 was introduced by the Ministry of Commerce which is not competent to do so. As a result, the petitioner is entitled for payment of his retirement benefits under rule 48 A of the CCS (Pension) Rules, 1972.

(C) It is also submitted that had the entire order dated 21.5.1994 passed by the Ministry of Commerce been made available to the petitioner and other similarly situated employees, the decision to opt for that scheme would not have arisen as in para 2 of the said order, it was made clear that the Government was not obliged to formulate or approve any such scheme but the same was done only as a special gesture to the EIC/EIAs. Had the lack of competency been known at that point in time, the petitioner would not have been forced to opt to that scheme.

D) It is also submitted that the option submitted by the petitioner to the VRS 1994 was not voluntary as can be seen from the letter dated 31.5.1994. This letter clearly shows that the petitioner was first told to accept the scheme and only then the queries which he had raised regarding the scheme can be answered. Once the option was exercised the respondents chose not to entertain correspondence in that regard and that option is now put against the petitioner.

13. For all the aforesaid reasons it is prayed that this Honourable Court may be pleased to issue a WRIT OF CERTIORARIFIED MANDAMUS or any other appropriate Writ, order or direction, calling for the records of the 3rd respondent’s letter VRS/121/2006/5958 dated 1.12.2006, quash the same and consequently direct the respondents to pay the petitioner the retirement benefits payable to him upon his deemed voluntary retirement under rule 48A of the CCS (Pension) Rules, 1972 and pass such further order or other orders as may be deemed fit and proper in the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai , this

the day of April 2008 and

signed his name in my presence.

BEFORE ME

KARTHIK RAJAN

ADVOCATE, CHENNAI