National Insurance Special Voluntary Retired/ Retired Employees Association vs New India Insurance Company Limited

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10775 of 2018 [Arising out of SLP(C) No.31906/2017]

NATIONAL INSURANCE SPECIAL VOLUNTARY RETIRED/RETIRED EMPLOYEES ASSOCIATION & ANR. ….APPELLANTS

versus

UNITED INDIA INSURANCE CO. LTD. & ANR. ….RESPONDENTS

WITH CIVIL APPEAL NO. 10778 OF 2018 [@ SLP(C) No. 28823 OF 2018 @ DIARY NO. 34106/2017] CIVIL APPEAL NO. 10776 OF 2018 [@ SLP(C) No. 28821 OF 2018 @ DIARY NO. 34261/2017] CIVIL APPEAL NO. 10777 OF 2018 [@ SLP(C) No. 28822 OF 2018 @ DIARY NO. 34359/2017]

JUDGMENT

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The appellants are ex-employees of the respondent Insurance

Companies, who initially joined as Assistants, between 1972 to 1980,and Signature Not Verified Digitally signed by DEEPAK GUGLANI Date: 2019.01.12 12:19:04 IST Reason: 1 went out of service taking advantage of the General Insurance

Employees’ Special Voluntary Retirement Scheme, 2004 (for short

‘SVRS-2004 Scheme’). The bone of contention is the plea of these

appellants, that they are also entitled to certain benefits arising under the

earlier scheme known as The General Insurance (Employees) Pension

Scheme, 1995 (for short ‘1995 Scheme’), which inter alia provided that

the qualifying service of an employee, retiring under that1995Scheme,

would be increased by a period not exceeding five (5) years, subject to

certain conditions.

3. The concept of providing pension to the employees of the

respondent Insurance Companies was introduced for the first time by the

1995 Scheme, which was notified in the Gazette of India on 28.6.1995,

but was brought into force from 1.11.1993. The relevant para 30 of the

1995Scheme, which is of concern to the present dispute, is as under:

“30. Pension on voluntary retirement -

(1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days, in writing to the appointing authority, retire from service:

…………”

xxxx xxxx xxxx xxxx xxxx

2 “(5) The qualifying service of an employee retiring voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee shall not in any case exceed thirty three years and it does not take him beyond the date of retirement.”

4. The aforesaid 1995 Scheme, thus, envisaged an additional notional

benefit of five (5) years’ service for employees retiring voluntarily under

it, with the limitation that the qualifying service rendered by such

employees: (i) shall not, in any case, exceed 33 years; and (ii) does not

take them beyond the date of retirement.

5. The insurance companies were faced with excess manpower, and,

thus, to prune the manpower size, a special scheme, being the SVRS-

2004 Scheme, was introduced for a limited period of sixty (60) days from

the date of its notification, that is 1.1.2004. The Scheme was made

applicable to permanent, full-time employees eligible to seek special

voluntary retirement, provided that they had attained the age of 40 years

and had completed the minimum qualifying service of ten (10) years, as

on the date of notification. The relevant clauses 5 & 6 read as under:

“5. Amount of ex-gratia:-

(1) An employee seeking Special Voluntary Retirement under this

3 Scheme shall been (sic.)1 entitled to lower of the ex-gratia amount as given below, namely: sixty days salary for each completed year of service, OR, salary for the number of months of remaining service.

(2) The ex-gratia shall be computed on the basis of his/her salary as on the date of relieving. In case, wage revision is effected from a date prior to the date of this notification in the Official Gazette, the benefit of revised pay for the purpose of payment of ex-gratia will be allowed.

6. Other Benefits (1) An employee opting for the Scheme shall also be eligible for the following benefits in addition to the ex-gratia amount mentioned in para5, namely:

(a) Provident Fund;

(b) Gratuity as per Payment of Gratuity Act, 1972 (39 of 1972) or gratuity; payable under the Rationalisation scheme, as the case may be;

(c) Pension (including commuted value of pension) as per General Insurance (Employees’) Pension Scheme, 1995, if eligible. However, the additional notional benefit of five years of added service as stipulated in para 30 of the said pension scheme shall not be admissible for the purpose of determining the quantum of pension and commutation of pension;

(d) Leave encashment.

(2) An employee who is opting for the scheme shall not be entitled to avail Leave Travel Subsidy and also encashment of leave while in service during the period of sixty days from the date of notification of this scheme.”

(emphasis supplied)

1 To be read as ‘be’.

4 6. It is, thus, quite apparent that clause (c),as part of the overall

package, clearly stated that the notional benefit of five (5) years of added

service, as stipulated in para 30 of the 1995 Scheme, would not be

admissible for purposes of determining the quantum of pension and

commutation of pension to such employees who availed retirement under

the SVRS-2004 Scheme. Suffice to say that the SVRS-2004 Scheme

provided for additional benefits beyond the 1995 Scheme, while

simultaneously curtailing this aforesaid aspect, specifically. Despite this

clear stipulation, the appellants sought the benefit of these very five (5)

added notional years of service, for calculation of their pension, under

the SVRS-2004 Scheme, in addition to the other benefits offered. This

demand was declined by the respondent Insurance Company.

7. There is a background to this lis inter se the parties. On an earlier

occasion, the employees availing of the SVRS-2004 Scheme, sought to

take advantage of the revision of pay-scales, as provided for under the

notification dated 21.12.2005, which had retrospective effect from

1.8.2002. This benefit was denied on the ground that such of the persons

who had availed voluntary retirement under the SVRS-2004 Scheme had

ceased to be employees of the respondent Insurance Company and were,

5 thus, not entitled to the benefit of revision of pay-scales, retrospectively. 2

In coming to the conclusion, various clauses of the benefits given under

the SVRS-2004 Scheme were taken note of, including sub-clause (c) of

clause 6(1) reproduced hereinabove. However, what was sought to be

taken advantage of was sub-clause (2) of Clause 5 of the SVRS-2004

Scheme, providing for ex-gratia to be computed on the basis of salary

received as on the date of retirement, but also providing that in case of

wage revision being effected from a date prior to the date of notification

of the SVRS-2004 Scheme in the Official Gazette, the benefit of revised

pay for purposes of payment of ex-gratia would be allowed. It appears

that in the course of justifying their actions, an argument was sought to

be advanced on behalf of the insurance company, that apart from the

objective of reduction of man-force, the employees were given ex-gratia

payment which they were otherwise not entitled to, and were also given

an additional amount of pension because a notional period of five (5)

years had been added to the number of years served by them (It may be

noted, however, that this is contrary to the clear stipulation in the SVRS-

2004Scheme). This Court opined in favour of the insurance companies,

specifically noticing that retrospective rise in salary is only given to those

2See Manojbhai N. Shah &Ors. v. Union of India &Ors.(2015) 4 SCC 482. 6 employees who are in service at the relevant point in time or to those

who retired in normal circumstances, and not to those employees opting

under such special schemes, like the SVRS 2004 Scheme. No doubt the

plea of five (5) years addition for calculation of pension was noticed in

the judgement, however, no further discussion of the same formed part of

the reasoning.

8. The beneficiaries of the SVRS-2004 Scheme sought a review of

the judgment predicated on a plea that this Court had incorrectly

recorded that persons retiring under the SVRS-2004 Scheme would be

given the benefit of five (5) years of extra service for calculation of

pension, while actually the same had been specifically excluded.

However, such endeavour proved to be fruitless and the review

application was dismissed on 7.4.2015.

9. That ought to have put the issue at rest, but the insurance

companies in their wisdom made a belated attempt to once again urge

that issue, by seeking to plead that those observations were only obiter in

nature and were factually contrary to the scheme. This application for

modification/clarification was, however, refused to be listed by the

7 Registrar as it was found to be a belated endeavour at review. The

beneficiaries then filed a Miscellaneous Application which was listed

before the Court, but was later withdrawn.

10. We have set out the aforesaid controversy because the real

substantive ground forming the basis of the plea of the appellants before

us is that what was recorded in the judgment in the Manojbhai N. Shah

&Ors case3 amounted to a concession on the part of the insurance

companies, which concession in turn resulted in a finding against them to

the effect that, the, insurance companies are bound to give the benefit of

additional five (5) years’ service, as per the 1995 Scheme, even to those

persons who have opted for voluntary retirement under the SVRS- 2004

Scheme.

11. The aforesaid controversy, after an initial direction to the insurance

companies to examine the demands of the retired employees

substantively, was examined by the learned Single Judge, when the

former came to be rejected by the insurance companies, by the judgment

in WP(MD) No.19431/2015 and connected matters dated 8.6.2016.In this

judgement, it was opined that in view of the judgment of the Supreme

3Supra.

8 Court in Manojbhai N. Shah &Ors.,4 this benefit of additional five (5)

years’ service, as per the 1995 Scheme was admissible despite the clear

terms of clause 6(1)(c) of the SVRS-2004 Scheme. The learned Single

Judge also opined that since clause 6(1)(c) of the SVRS-2004 Scheme

did not specifically exclude the benefits under para 30(5) of the 1995

Scheme, there was no reason to deny the same to the beneficiaries of the

SVRS-2004 Scheme.

12. The aforesaid judgment was assailed before the learned Division

Bench, which, however, opined to the contrary and dismissed the original

writ petition filed by the appellants vide judgment dated 17.7.2017 in WA

(MD) Nos.1228-1231/2016. It is this judgment which has been assailed

before us.

13. We have examined the impassioned plea made on behalf of the

employees by Mr. Guru Krishna Kumar, learned Senior Advocate and the

defence put up by the insurance companies through Mr. Rakesh Dwivedi,

Senior Advocate and Mr. Jaideep Gupta, Senior Advocate.

14. One of the aspects emphasised by learned counsel for the

4Supra.

9 appellants was that the financial impact would not be huge, as was

sought to be contended by the insurance companies, as it would be in the

range of Rs.388 to Rs.1477, per beneficiary, per month. We, however,

find that this would neither be here nor there, as that cannot be the basis

for grant or refusal of the relief. The question for consideration is

whether the beneficiaries under theSVRS-2004 Scheme, which

specifically excludes the benefit of additional five (5) years’ service of

the 1995 Scheme, would still be entitled to claim the said amount

contrary to the explicit terms. We are of the view that the answer to this

question must be in the negative.

15. It has to be appreciated that the SVRS-2004 Scheme is statutory in

character, being a Scheme under Section 17-A of the General Insurance

Business (Nationalisation) Act, 1972. It would not be appropriate to add

or subtract terms from the Scheme, which has a statutory flavour. There

could not have been any concession contrary to the terms of the Scheme,

and if such a concession was to enure for the benefit of the retirees, then

it had to go through the process of a formal notification. In fact, post the

decision in Manojbhai N. Shah &Ors.,5both the parties also understood

5Supra.

10 that there was really no question of availing the benefit, contrary to

clause 6(1)(c) of the SVRS-2004 Scheme. This is what resulted in the

review application, the clarification and modification application, etc.

The rejection of the review application filed by the beneficiaries itself

shows that post the judgment, clause 6(1)(c) was once again highlighted

before the Bench. Despite this, the review application was dismissed,

which clearly shows that this fact was not important for finally coming to

the conclusion that the salary revision was not applicable to those who

had already retired. Learned senior counsel for the appellant himself

acknowledged that in the absence of any specific direction in this behalf,

they could not have even filed a contempt petition and thus the fresh

round of litigation began.

16. Learned senior counsel for the appellants, however, sought to

persuade us by referring to the judgment of this Court in State of

Maharashtra v. Ramdas Shrinivas Nayak & Anr. 6 where, in para 4, a

question arose qua a concession made in the High Court, while

contending the matter before this Court. It is in that context that it was

observed that this Court would not launch into an inquiry as to what

6 (1982) 2 SCC 463 11 transpired in the High Court:

“4. .........It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation" (Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC

136). We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice;

but, he may not call in question the very fact of making the concession as recorded in the judgment.”

17. The aforesaid paragraph was, once again, extracted with approval

in Y. Sleebachen & Ors. v. State of Tamil Nadu through

12 Superintending Engineer Water Resources Organisation/Public Works

Department &Anr.7

18. On the other hand, it was canvassed by the insurance companies

that there could be no concession against law [Tripura Goods Transport

Association & Anr. v. Commissioner of Taxes &Ors.8].Learned counsel

also referred to New India Assurance Company Limited v. Raghuvir

Singh Narang & Anr.9 to buttress the plea that if there is a scheme which

has a statutory character, then there could not be any contention which

could be permissibly raised, contrary to the Scheme. Even qua

contractual schemes, if one has availed of the benefits, it would not be

open to raise pleas and seek benefits beyond what is stipulated in the

Scheme.

19. The earlier judgments in Bank of India & Ors. v. O.P. Swarnakar

& Ors.10 And HEC Voluntary Retired Employees Welfare Society &

Anr. v. Heavy Engineering Corporation Ltd. &Ors., 11 dealing with

voluntary retirement schemes have been taken note of in the impugned

7 (2015) 5 SCC 747 8 (1998) 2 SCC 264 para 9 9 (2010) 5 SCC 335 10 (2003) 2 SCC 721 11 (2006) 3 SCC 708 13 judgment, to come to the conclusion that the terms of such schemes must

be strictly followed, and the contract cannot be varied. We may add here

that apparently there are certain observations in paras 33 and 34 of the

impugned order, which may also run contrary to clause 5(1) of the

SVRS-2004 Scheme, insofar as the Division Bench has opined that the

words “whichever is less” have been excluded from clause 5 of the

SVRS-2004 Scheme. It may be noted that such is not the case, for clause

5 of the SVRS-2004 Scheme, as extracted above, explicitly provides, in

clause 5(1), that an employee seeking special voluntary retirement, under

the Scheme shall be entitled to the lower of the ex-gratia amounts as

mentioned thereunder. We feel it suffice to clarify that what is binding

between the parties is the statutory scheme itself, as per its terms.

20. We have, thus, no hesitation in coming to the conclusion that

statutory or contractual, such voluntary retirement schemes as the SVRS-

2004 Scheme have to be strictly adhered to, and the very objective of

having such Schemes would be defeated, if parts of other Schemes are

sought to be imported into such voluntary retirement schemes. What is

offered by the employer is a package as contained in the Schemes of

voluntary retirement, and that alone would be admissible.

14

21. The issue which arose in Manojbhai N. Shah &Ors.12 Was qua the

revision of pay, with retrospective effect. That was the only issue. That

issue was decided against the beneficiaries of the SVRS-2004 Scheme.

If there are certain observations made by that Bench while deciding so,

qua aspects which are not forming the subject matter of that dispute, the

same cannot be read to amount to grant of relief/benefits, contrary to the

terms of the Scheme, and that too, in the absence of any specific

directions.

22. The intent of the SVRS-2004 Scheme was made even more

explicitly clear by clause 8 specifying the general conditions in sub-

clause(xiv), which reads as under:

“8. General conditions:

xxxx xxxx xxxx xxxx xxxx

(xiv) Save as provided in para 5(2) the benefits payable under this scheme shall be in full and final settlement of all claims of whatsoever nature, whether arising under the regulation or otherwise to the employee (or to the nominee in case of death).

An employee who voluntarily retires under this Scheme shall not have any claims against the Company for re-employment or compensation or employment of any of his or her relative on compassionate grounds in the service of the company or for any other like benefits.”

12Supra.

15

23. It is, thus, abundantly clear that nothing more would be given than

what is stated in the Scheme, and for that matter, nothing less. If the

employees avail of the benefit of such a Scheme with their eyes open,

they cannot look here and there, under different schemes, to see what

other benefits can be achieved by them, by seeking to take advantage of

the more beneficial schemes, while simultaneously enjoying the more

beneficial aspects of the SVRS-2004 Scheme.

24. We, thus, find no reason to interfere with the impugned order,

except with regards to observations made in paras 33and 34 of the

impugned order, and consequently, the appeals are dismissed leaving the

parties to bear their own costs.

..….….…………………….J. [Kurian Joseph]

...……………………………J. [Sanjay Kishan Kaul] New Delhi.

October 26, 2018.

16