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Tuesday, September 30, 2008
Tuesday, September 23, 2008
Monday, September 22, 2008
Saturday, September 06, 2008
Saturday, August 09, 2008
It is not an ex gratia payment. It is a payment for the past services rendered. (Reference may be made to Deokinandan Prasad vs_ State ofBihar (1971) 2 SCC 330 and Subrata Sen vs. Union of India (2001) 8 SCC 71.)In the said case, this Court held that the right
to receive pension was wrongly withheld by an executive order.
A full bench of Supreme Court has declared in their historical judgment that PENSION is to live from want in one’s fall of life, with decency, independence and self respect and at a standard equivalent at the pre-retirement level.
Pension is not only compensation for loyal service rendered in the past but it has a broader significance in that it is a measure of socio-economic justice which inherits economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economics security by way of periodical payment is assured. The term ‘pension’ has been judicially defined as stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service.
Pension is not a bounty payable on the sweet will and pleasure of the Government. Right to superannuation including its amount is a valuable right vesting in a government servant. (D.S. Nakara Vs UOI 1983 1 SLJ)
The Fourth Central Pay Commission declared that Pension stands on a high pedestal
The Fifth Central Pay Commission stated that Pension is statutory, inalienable, legally enforceable right to retired employees and it has been earned by the sweat of their brow.
Monday, July 21, 2008
The Judgement Information System
CASE NO.:
Appeal (civil) 4461 of 2005
PETITIONER:
The State of Andhra Pradesh & Anr.
RESPONDENT:
T. Suryachandra Rao
DATE OF JUDGMENT: 25/07/2005
BENCH:
ARIJIT PASAYAT & C.K. THAKKER
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 7944 of 2004)
ARIJIT PASAYAT, J.
Leave granted.
The State of Andhra Pradesh and the Mandal Revenue
Officer (in short the 'Revenue Officer') Peddapuram, East
Godavari call in question legality of the judgment rendered
by a learned Single Judge of the Andhra Pradesh High Court.
By the impugned order the High Court held that the Land
Reforms Appellate Tribunal, East Godavari, Kakinada (in
short "the Appellate Tribunal") and the Land Reforms
Tribunal, Kakinada (in short the "Tribunal") were not
justified in holding that the respondents had fraudulently
taken advantage by suppression of facts; thereby taking
benefit under the Andhra Pradesh Land Reforms (Ceiling on
Agricultural Holdings) Act, 1973, (in short 'the Act').
Basic features of the case which need to be noted are
as under:
The respondent as declarant submitted a declaration as
regards determination of his ceiling limit of land under the
Act. The Appellate Tribunal passed an order dated 16.11.1978
determining the ceiling limit of the declarant to be surplus
and declared 0.4388 S.H. land to be in excess of the ceiling
limit on the notified date. Thereafter, certain lands were
surrendered and surrender was accepted by order dated
8.5.1991 by the Additional Revenue Divisional Officer, Land
Reforms Kakinada. Subsequently, it was noticed that the land
which was surrendered had already been acquired in
proceedings under the Land Acquisition Act, 1898 (in short
the 'L.A. Act'). Therefore, a notice was issued on 8.2.1995
proposing to consider declaration of alternative lands as
surplus in lieu of the lands which were earlier surrendered.
The Tribunal passed order in this regard after verifying the
records of the land acquisition proceedings. An appeal was
carried to the Appellate Tribunal and the same was
dismissed. A revision was carried under Section 21 of the
Act before the High Court, which by the impugned order held
that it was for the Tribunal to have considered the
correctness of the declaration made by the declarant. After
having accepted the land to be surrendered, it was not to
open to the Tribunal to vary the order. It was held that
even though power was available to the Tribunal to reopen
the matter and pass necessary orders when fraud was
practiced, in the instant case the Tribunal having accepted
the matter after enquiry, it was not open to take a
different view.
Though the High Court accepted on principle that the
Tribunal has ample power to reopen the matter when the error
is apparent on the face of record, it held that once the
enquiry had been conducted question of reopening the matter
did not arise. It was held that under Section 10(3) of the
Act the Tribunal has to make an enquiry after statement
relating to surrender is filed. Merely because in the
statement it was indicated that some land was proposed to be
surrendered there was no scope for reopening the matter even
though the land was not available to be surrendered.
Learned counsel for the appellants submitted that the
approach of the Tribunal is clearly erroneous. There is no
dispute that the land which was offered for surrender had
already been acquired under the L.A. Act and there was no
scope for the respondent to again offer the said land. This
was clearly fraudulent act and, therefore, the High Court
was not justified in its view.
In response, learned counsel appearing for the
respondent submitted that having accepted the land offered
for surrender after enquiry, it was not open to the Tribunal
to take note of any acquisition earlier.
The order of the High Court is clearly erroneous. There
is no dispute that the land which was offered for surrender
by the respondent had already been acquired by the State and
the same had vested in it. This was clearly a case of fraud.
Merely because an enquiry was made, Tribunal was not
divested of the power to correct the error when the
respondent had clearly committed a fraud.
By "fraud" is meant an intention to deceive; whether
it is from any expectation of advantage to the party
himself or from the ill will towards the other is
immaterial. The expression "fraud" involves two elements,
deceit and injury to the person deceived. Injury is
something other than economic loss, that is, deprivation of
property, whether movable or immovable or of money and it
will include and any harm whatever caused to any person in
body, mind, reputation or such others. In short, it is a
non-economic or non-pecuniary loss. A benefit or advantage
to the deceiver, will almost always call loss or detriment
to the deceived. Even in those rare cases where there is a
benefit or advantage to the deceiver, but no corresponding
loss to the deceived, the second condition is satisfied.
(See Dr. Vimla v. Delhi Administration (1963 Supp. 2 SCR
585) and Indian Bank v. Satyam Febres (India) Pvt. Ltd.
(1996 (5) SCC 550).
A "fraud" is an act of deliberate deception with the
design of securing something by taking unfair advantage of
another. It is a deception in order to gain by another's
loss. It is a cheating intended to get an advantage. (See
S.P. Changalvaraya Naidu v. Jagannath (1994 (1) SCC 1).
"Fraud" as is well known vitiates every solemn act.
Fraud and justice never dwell together. Fraud is a conduct
either by letter or words, which includes the other person
or authority to take a definite determinative stand as a
response to the conduct of the former either by words or
letter. It is also well settled that misrepresentation
itself amounts to fraud. Indeed, innocent misrepresentation
may also give reason to claim relief against fraud. A
fraudulent misrepresentation is called deceit and consists
in leading a man into damage by willfully or recklessly
causing him to believe and act on falsehood. It is a fraud
in law if a party makes representations, which he knows to
be false, and injury enures therefrom although the motive
from which the representations proceeded may not have been
bad. An act of fraud on court is always viewed seriously.
A collusion or conspiracy with a view to deprive the rights
of the others in relation to a property would render the
transaction void ab initio. Fraud and deception are
synonymous. Although in a given case a deception may not
amount to fraud, fraud is anathema to all equitable
principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable
doctrine including res judicata. (See Ram Chandra Singh v.
Savitri Devi and Ors. (2003 (8) SCC 319).
"Fraud" and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence. It
is a concept descriptive of human conduct. Michael Levi
likens a fraudster to Milton's sorcerer, Comus, who exulted
in his ability to, 'wing me into the easy hearted man and
trap him into snares'. It has been defined as an act of
trickery or deceit. In Webster's Third New International
Dictionary "fraud" in equity has been defined as an act or
omission to act or concealment by which one person obtains
an advantage against conscience over another or which
equity or public policy forbids as being prejudicial to
another. In Black's Legal Dictionary, "fraud" is defined
as an intentional perversion of truth for the purpose of
inducing another in reliance upon it to part with some
valuable thing belonging to him or surrender a legal right;
a false representation of a matter of fact whether by words
or by conduct, by false or misleading allegations, or by
concealment of that which should have been disclosed, which
deceives and is intended to deceive another so that he
shall act upon it to his legal injury. In Concise Oxford
Dictionary, it has been defined as criminal deception, use
of false representation to gain unjust advantage; dishonest
artifice or trick. According to Halsbury's Laws of England,
a representation is deemed to have been false, and
therefore a misrepresentation, if it was at the material
date false in substance and in fact. Section 17 of the
Indian Contract Act, 1872 defines "fraud" as act committed
by a party to a contract with intent to deceive another.
From dictionary meaning or even otherwise fraud arises out
of deliberate active role of representator about a fact,
which he knows to be untrue yet he succeeds in misleading
the representee by making him believe it to be true. The
representation to become fraudulent must be of fact with
knowledge that it was false. In a leading English case i.e.
Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes
"fraud" was described thus: (All ER p. 22 B-C) "fraud"
is proved when it is shown that a false representation has
been made (i) knowingly, or (ii) without belief in its
truth, or (iii) recklessly, careless whether it be true or
false". But "fraud" in public law is not the same as
"fraud" in private law. Nor can the ingredients, which
establish "fraud" in commercial transaction, be of
assistance in determining fraud in Administrative Law. It
has been aptly observed by Lord Bridge in Khawaja v.
Secretary of State for Home Deptt. (1983) 1 All ER 765,
that it is dangerous to introduce maxims of common law as
to effect of fraud while determining fraud in relation of
statutory law. "Fraud" in relation to statute must be a
colourable transaction to evade the provisions of a
statute. "If a statute has been passed for some one
particular purpose, a court of law will not countenance any
attempt which may be made to extend the operation of the
Act to something else which is quite foreign to its object
and beyond its scope. Present day concept of fraud on
statute has veered round abuse of power or mala fide
exercise of power. It may arise due to overstepping the
limits of power or defeating the provision of statute by
adopting subterfuge or the power may be exercised for
extraneous or irrelevant considerations. The colour of
fraud in public law or administration law, as it is
developing, is assuming different shades. It arises from a
deception committed by disclosure of incorrect facts
knowingly and deliberately to invoke exercise of power and
procure an order from an authority or tribunal. It must
result in exercise of jurisdiction which otherwise would
not have been exercised. The misrepresentation must be in
relation to the conditions provided in a section on
existence or non-existence of which the power can be
exercised. But non-disclosure of a fact not required by a
statute to be disclosed may not amount to fraud. Even in
commercial transactions non-disclosure of every fact does
not vitiate the agreement. "In a contract every person
must look for himself and ensures that he acquires the
information necessary to avoid bad bargain. In public law
the duty is not to deceive. (See Shrisht Dhawan (Smt.) v.
M/s. Shaw Brothers, (1992 (1) SCC 534).
In that case it was observed as follows:
"Fraud and collusion vitiate even the most solemn
proceedings in any civilized system of jurisprudence. It is
a concept descriptive of human conduct. Michael levi likens
a fraudster to Milton's sorcerer, Comus, who exulted in his
ability to, 'wing me into the easy-hearted man and trap him
into snares'". It has been defined as an act of trickery or
deceit. In Webster's Third New International Dictionary
fraud in equity has been defined as an act or omission to
act or concealment by which one person obtains an advantage
against conscience over another or which equity or public
policy forbids as being prejudicial to another. In Black's
Legal Dictionary, fraud is defined as an intentional
perversion of truth for the purpose of inducing another in
reliance upon it to part with some valuable thing belonging
to him or surrender a legal right; a false representation of
a matter of fact whether by words or by conduct, by false or
misleading allegations, or by concealment of that which
should have been disclosed, which deceives and is intended
to deceive another so that he shall act upon it to his legal
injury. In Concise Oxford Dictionary, it has been defined
as criminal deception, use of false representation to gain
unjust advantage; dishonest artifice or trick. According to
Halsbury's Laws of England, a representation is deemed to
have been false, and therefore a misrepresentation, if it
was at the material date false in substance and in fact.
Section 17 of the Contract Act defines fraud as act
committed by a party to a contract with intent to deceive
another. From dictionary meaning or even otherwise fraud
arises out of deliberate active role of representator about
a fact which he knows to be untrue yet he succeeds in
misleading the representee by making him believe it to be
true. The representation to become fraudulent must be of
the fact with knowledge that it was false. In a leading
English case Derry v. Peek [(1886-90) ALL ER Rep 1: (1889)
14 AC 337 (HL)] what constitutes fraud was described thus :
(All Er p. 22 B-C)
'Fraud is proved when it is shown that a false
representation has been made (i) knowingly, or (ii) without
belief in its truth, or (iii) recklessly, careless whether
it be true or false'."
This aspect of the matter has been considered recently
by this Court in Roshan Deen v. Preeti Lal (2002 (1) SCC
100) Ram Preeti Yadav v. U.P. Board of High School and
Intermediate Education (2003 (8) SCC 311), Ram Chandra
Singh's case (supra) and Ashok Leyland Ltd. v. State of T.N.
and Another (2004 (3) SCC 1).
Suppression of a material document would also amount to
a fraud on the court. (see Gowrishankar v. Joshi Amba
Shankar Family Trust (1996 (3) SCC 310) and S.P.
Chengalvaraya Naidu's case (supra).
"Fraud" is a conduct either by letter or words, which
induces the other person or authority to take a definite
determinative stand as a response to the conduct of the
former either by words or letter. Although negligence is
not fraud but it can be evidence on fraud; as observed in
Ram Preeti Yadav's case (supra).
In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702,
Lord Denning observed at pages 712 & 713, "No judgment of
a Court, no order of a Minister can be allowed to stand if
it has been obtained by fraud. Fraud unravels everything."
In the same judgment Lord Parker LJ observed that fraud
vitiates all transactions known to the law of however high
a degree of solemnity.
Considering the aforesaid principles of law and the
background facts, the Tribunal was justified in modifying
the earlier order and varying it. The Appellate Tribunal did
not commit any error in upholding it. The High court's order
is clearly unsustainable and is set aside.
Monday, July 14, 2008
Monday, June 16, 2008
Thursday, May 01, 2008
The Media has, of late, been doing a great job in exposing graft, politician- bureaucratic nexus, and failure of officialdom. Even the judiciary, while exercising restraint in not interfering with the executive, should take up a proactive role as they have been doing recently. But it has been largely restricted to higher judiciary, Even the lower judiciary should be given some power in this regard.
Certiorari also lies against judicial and quasi-judicial authorities - courts and tribunals -
and means 'to be informed'. When, for example, a tribunal acts without jurisdiction or in
excess of it and issues an illegal order, that order can be quashed by a writ of certiorari.
Such a writ may lie even against an administrative body affecting individual rights.
(Union of India v. Nambudri (1991) 2 VJSC 302).
------------------------------------------
Equality of opportunity in matters of public employment.
The Right to Constitutional Remedies has been granted under article (a) 30 (b) 31 (c) 32 (d) 35
Article 32: Remedies for enforcement of rights conferred by this part have been included in the Article
----------------------------
While a circular of the Board will be binding upon an Assessing Officer in matters relating to the general interpretation of any provisions of the statute, the circulars cannot override judicial decisions rendered on the statute. Gee Industrial Syndicate Ltd., vs. CBDT, 166 ITR 88(Del). The executive instructions may supplement but not suppliant the rules-State of Maharashtra Vs. Jagannath Achyut Karandikar, AIR 1989, 1133 (SC). A circular does not bind an appellate authority, the Tribunal or Courts. However, circular can be used by courts as an external aid to interpret a provision of law-K.P. Varghese Vs. ITO 131 ITR 597 (Sc).
-----------------------SCJ-300--------------
PALURU RAMKRISHNAIAH & ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT28/03/1989
Act:
Administrative Law: Executive instructions---cannot
override any provision of the Statutory Rules.
Civil Services: Indian Ordnance Factories (Recruitment
and Conditions of Service of Class III Personnel) Rules,
HELD: (1) An executive instruction could make a provi-
sion only with regard to a matter which was not covered by
the Rules and such executive instruction could not override
any provision of the Rule.
BENCH:
OJHA, N.D. (J)
BENCH:
OJHA, N.D. (J)
PATHAK, R.S. (CJ)
SHARMA, L.M. (J)
CITATION:
1990 AIR 166 1989 SCR (2) 92
1989 SCC (2) 541 JT 1989 (1) 595
1989 SCALE (1)830
----------------------------------------------SCJ-318--------------
PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
JAGANNATH ACHYUT KARANDIKAR
DATE OF JUDGMENT08/03/1989
BENCH:
SHETTY, K.J. (J)
BENCH:
SHETTY, K.J. (J)
SINGH, K.N. (J)
CITATION:
1989 AIR 1133 1989 SCR (1) 947
1989 SCC Supl. (1) 393 JT 1989 (1) 520
1989 SCALE (1)566
Act:
Circular dated Jan. 15,1962--Effect of--Vis-a-Vis--Statutory Rules.
The Circular dated January 15, 1962 is an executive
instruction whereas the 1955 Rules are statutory since
framed under the proviso to Art. 309 of the Constitution.
The Government could not have restricted the operation of
the Statutory Rules by issuing the executive instruction.
The executive instruction may supplement but cannot supplant
the statutory rules.
It would be unjust, unreasonable and
arbitrary to penalise a person for the default of the Government.
The Court need not have to reflect upon the Rules of
interpretation since they are well settled. They are now
like the habits of driving which have become ingrained. They
come for assistance by instinct. The different rules have to
be used meticulously to give effect to the scheme as the
clutch, brake and accelerator are used for smooth driving.
These rules are to be harmoniously construed.
Friday, April 25, 2008
PENSIONS' ACT 1871
THE PENSIONS' ACT, 1871ACT NO. 23 OF 1871
[8th August, 1871.]
An Act to consolidate and amend the law relating to Pensions and Grants by Government of money or land-revenue. Preamble.-WHEREAS it is expedient to consolidate and amend the law relating to pensions and grants by Government of money or land- revenue; it is hereby enacted as follows:- I.-PRELIMINARYShort title. 1. Short title.-This Act may be called the 'Pensions' Act, 1871. Extent of Act.-2[In so far as it relates to Union pensions, it extends to the whole of India and in so far as it relates to other pensions, it extends] to 3[the whole of India except 4[the territories which, immediately before the 1st November, 1956, were comprised in Part B States]]. 5* * * * * * 6* * * * * *
[Enactments repealed. Saving of Rules] Rep. 2. [Enactments repealed. Saving of Rules] Rep. by the Repealing Act, 1938(1 of 1938), s. 2 and Sch.
Interpretation-section. 3.Interpretation-section.-In this Act, the expression "grant of money or land-revenue" includes anything payable on the part of Government in respect of any right, privilege, perquisite or office. 7[3A. Definition.-The expression "the appropriate Government" means, in relation to 8[Union] pensions, the Central Government, and in relation to other pensions, the State Government.] II.-RIGHTS TO PENSIONS
Bar of suits relating to pensions. 4. Bar of suits relating to pensions.-Except as hereinafter provided no Civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the
[Government or by] any former Government, whatever may have been the
consideration for any such pension or grant and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.Claims to be made to collector or other authorized officer. 5. Claims to be made to collector or other authorized officer.- Any person having a claim relating to any such pension or grant may prefer such claim to the Collector of the District or Deputy Commissioner or other officer authorized in this behalf by the 10[appropriate Government] and such Collector, Deputy Commissioner or other officer shall dispose of such claim in accordance with such rules as the Chief Revenue authority may, subject to the general control of the 10[appropriate Government], from time to time prescribe in this behalf. --------------------------------------------------------------------- 1.It has been ended in its application to U. P. by U. P. Act 12 of 1922. Rep. in part in West Bengal by West Bengal Act 7 of 1948. The Act has been extended to and brought into force in Dadra and Nagar Haveli by Reg. 6 of 1963, s. 2 and Sch. 1 (w.e.f. 1-7-1265) and extended to the whole of the Union Territory of Lakshadweep by Reg. 8 of 1965, s.3 and Sch. (w.e.f. 1-10-1967). The Act has been repealed in its application to Bellary District by Mysore Act 14 of 1955. 2.Subs. by Act 20 of 1982, s. 2, for "it extends". 3.subs. by the A.O. 1950. for "all the Provinces of India" which had been subs. by the A.O. 1948, for "the whole of British India". 4. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for "Part B States". 5.The words "And it shall come into force on the date of the passing thereof " rep. by Act 10 of 1914, s. 3. and Sch. 11. 6. The words "but not so as to affect any suit in respect of a pension or grant of money or land-revenue which may have men instituted before such date" rep. by Act 12 of 1891, S. 2 and Sch. 1. 7. Ins. by the A. O. 1937. 8. Sub. by the A.O. 1950. for "federal'. 9. Subs. by the A.O. 1950, as amended by C.O. 29, for "British or". 10. Subs. by the A.O. 1937, for "L.G.". 130 (II.-Rights to Pensions. III. Mode of Payment. IV.-Miscellaneous)
Civil Court empowered to take cognizance of such claims. 6.Civil Court empowered to take cognizance of such claims.-A Civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorized in that behalf that the case may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.
Pensions for lands held under grants in perpetuity. 7. Pensions for lands held under grants in perpetuity.-Nothing in sections 4 and 6 applies to-
(1) any inam of the class referred to in section 1 of Madras Act No. IV of 18621;
(2)pensions heretofore granted by Government in the territories respectively subject to the Lieutenant-Governors of Bengal and the North-Western Provinces, either wholly or in part as an indemnity for loss sustained by the resumption by a Native Government of lands held under sanads purporting to confer a right in perpetuity. Such pensions shall not be liable to resumption on the death of the recipient, but every such pension shall be capable of alienation and descent, and may be sued for and recovered in the same manner as any other property. III.-MODE OF PAYMENT
Payment to be made by Collector or other authorized officer. 8.Payment to be made by Collector or other authorized officer.-All pensions or grants by Government of money or land-revenue shall be paid by the Collector or the Deputy Commissioner or other authorized officer, subject to such rules as may, from time to time, be prescribed by the Chief Controlling Revenue-authority.
Saving of rights of grantees of land-revenue. 9.Saving of rights of grantees of land-revenue.-Nothing in sections 4 and 8 shall affect the right of a grantee of land-revenue, whose claim to such grant is admitted by Government, to recover such revenue from the persons liable to pay the same under any law for the time being in force for the recovery of the rent of land.
Commutation of pensions. 10.Commutation of pensions.-The 2[appropriate Government] may, with the consent of the holder, order the whole or any part of his pension or grant of money or land-revenue to be commuted for a lump sum on such terms as may seem fit. IV.-MISCELLANEOUS
Exemption of pension from attachment. 3-11. Exemption of pension from attachment.-No pension granted or continued by Government on political considerations, or on account of past services or present infirmities or as a compassionate allowance, and no money due or to become due on account of any such pension or allowance, shall be liable to seizure, attachment or sequestration by process of any Court at the instance of a creditor, for any demand against the pensioner, or in satisfaction of a decree or order of any such Court. 5[This section applies 4* also to pensions granted or continued", after the separation of Burma from India, by the Government of Burma.]
Assignments, etc., in anticipation of pension, to be void. 12.Assignments, etc., in anticipation of pension, to be void. All assignments, agreements' orders, sales, and securities of every kind made by the person entitled to any pension, Pay or allowance mentioned in section 11, in respect of any money not payable at or before the making thereof, on account of any such pension, Pay or allowance, or for giving or assigning any future interest therein, are null and void. ---------------------------------------------------------------------- 1. I.e., "inams of the classes described in cl. 1, s. 2, [Mad.] Regulation 4 of 1831, which have been, or shall be, enfranchised by the Inam Commissioner and converted into freeholds in perpetuity, or into absolute freeholds in perpetuity". The classes so described are "hereditary or personal grants of money or of land-revenue, however, denominated, conferred by the authority of the Governor in Council [or which, having been made by any Native Govt. have been confirmed or continued by the British Govt.-Act 31 of 1836] in consideration of services rendered to the State or in lieu of resumed offices or privileges, or of zamindars or paleiyams forfeited or held under attachment or management by the officers of Govt., or as a yaumia or charitable allowance, or as a pension". 2. Subs. by the A.O. 1937 for 'L. G." 3. See also s. 60, cl (g) of the Code of Civil Procedure 1908 (Act 5 of 1908). 4.The words "in Part A States and Part C States" omitted by the Adaptation of Laws (No. 2) Order, 1956. The words "Part A States and Part C States" were subs. by the A.O. 1950, for "the Provinces" which had been subs. by the A.O. 1948, for "British India". 5.Ins. by the A.O. 1937. 6.I.e., on or after the 1st April, 1937. ----------------------------------------------------------------------- 131 (IV.-Miscellaneous.) 1-12A. Nomination by Pensioner to receive moneys outstanding on account of pension.-.-. Notwithstanding anything contained in section 12 or in any other law for the time being in force,- (a)any person to whom any pension mentioned in section 11 is payable by the Government of India or out of the Consolidated Fund of India (such person being hereinafter referred to as the pensioner) may nominate any other person (hereinafter referred to as the nominee), in such manner and in such form as may be prescribed by the Central Government by rules, to receive after the death of the pensioner, all moneys payable to the pensioner on account of such pension at, before or after the date of such nomination and which remain unpaid immediately before the death of the pensioner; and (b)the nominee shall be entitled, on the death of the pensioner, to receive, to the exclusion of all other persons, all such moneys which have so remained unpaid: provided that if the nominee predeceases the pensioner, the nomination shall, so far as it relates to the right conferred upon the said nominee, become void and of no effect: provided further that where provision has been duly made in the nomination, in accordance with the rules made by the Central Government, conferring upon some other person the right to receive all such moneys, which have so remained unpaid, in the event of the nominee predeceasing the pensioner, such right shall, upon the decease as aforesaid of the nominee, pass to such other person.]
Reward to informers. 13. Reward to informers.-Whoever proves to the satisfaction of the. 2[appropriate Government] that any pension is fraudulently or unduly received by the person enjoying the benefit thereof shall be entitled to a reward equivalent to the amount of such pension for the period of six months.
Power to make rules.- 14.Power to make rules.-"[In each State] the Chief Controlling Revenue Authority may, with the consent of the [appropriate Government], from time to time make rules consistent with this Act respecting all or any of the following matters :-
(1) the place and times at which, and the person to whom, any pension shall be paid;
(2) inquiries into the identity of claimants;
(3) records to be kept on the subject of pensions;
(4) transmission of such records;
(5) correction of such records;
(6) delivery of certificates to pensioners;
(7) registers of such certificates;
(8) reference to the Civil Court, under section 6, of persons claiming a right of succession to, or participation in, pensions or grants of money or land-revenue payable by Government; and generally for the guidance of officers under this Act. All such rules shall be published in the Official Gazette, and shall thereupon have the force of law.
Power of Central Government to make rules. 5[15. Power of Central Government to make rules.-The Central Government may, by notification in the official Gazette, make rules to provide for all or any of the following matters, namely :- (a)the manner and form in which any nomination may be made under section 12A and the manner and form in which such nomination may be cancelled or varied by another nomination; (b)the manner in which provision may be made, for the purposes of the second proviso to section 12A, in any such nomination for conferring on some person other than the nominee the right to receive moneys payable to the nominee if such nominee predeceases the pensioner, ---------------------------------------------------------------------- 1. Ibs. by Act 20 of 1982, s. 3. 2. Subs, by the A.O. 1937, for "L. G". 3. Ins., ibid. 4. Subs. ibid., for "L. G.". 5. Ins. by Act 20 of 1982, s. 4. ----------------------------------------------------------------------- 132 (IV-Miscellaneos. Schedule) 16.Laying of rules.-Every rule made by the Central Government under this Act and every rule made under section 14 by a Chief Controlling Revenue Authority with the consent of the Central Government, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
[SCHEDULE.] Rep. by the repealing Act, 1938 (1 of 1938), s. 2 and Sch.
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Thursday, April 17, 2008
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,
Chennai – 600 033. ….Petitioner
Vs
1. Union of
represented by the Secretary,
Ministry of Commerce & Industry
Department of Commerce
Udyog Bhawan,
2. The Director,
Export Inspection Council,
(Ministry of Commerce),
No.26,
11th Floor,
3. The Additional Director,
Export Inspection Agency (Chennai),
(Ministry of Commerce),
No.213,
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 (
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
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
(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
(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
12. In the aforesaid circumstances, the Petitioner is aggrieved by the letter dated 1.12.2006 issued by the 3rd 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 1st 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 RAJANADVOCATE, CHENNAI
