Anil Debbarma And Ors vs State Of Tripura

Akil Kureshi, CJ

These Writ Appeals arise in common background, out of the common judgment of the learned Single Judge. They have been heard together and would be disposed of by this common order. For convenience, we may record facts from W.A. No.67 of 2020.

Appellant is the original petitioner. He was initially appointed on the post of Field Supervisor in the Tripura Rehabilitation Plantation Corporation Limited (hereinafter to be referred to as the „said Corporation‟). In due course of time he was promoted to higher posts and eventually retired on superannuation with effect from 30.11.2017 on the post of Accountant. He had filed the W.P. (C) No.950 of 2018 in which he had prayed for payment of gratuity with interest, for payment of leave encashment and also for payment of pension under the Pension Scheme stated to have been framed by the employer. In the writ petition, he pointed out that the employer- Corporation had created a Trust under a trust deed executed between the Corporation and LIC for the purpose of payment of gratuity to the employees. In the 117th meeting of the Board of Directors of the Corporation held on 15.09.2015, a Resolution was passed introducing New Group Superannuation Cash Accumulation Scheme under LIC for the payment of retiral benefits to the employees of the Corporation. Pursuant to the said Resolution, a Notification was issued by the Corporation on 19.09.2015 providing that the Corporation had framed a new pension scheme for its regular employees.

Despite these decisions by the employer, upon the retirement of the petitioner he received neither the gratuity nor leave encashment nor the pension. He therefore, filed the said petition for the above noted prayers.

The Corporation appeared before the learned Single Judge in response to the notice issued and filed a detailed reply in which stand taken was that the Board of Directors had taken a decision to frame a new pension scheme without consulting the Government. The Corporation thereafter approached the Government for ex-post-facto permission for framing the pension scheme and also for financial assistance to meet the financial requirements to sustain the pension scheme. However, the Government refused to grant any financial assistance. At that stage, the Board of Directors decided to reconsider the situation and to frame a uniform policy for the employees. Along the reply, the Corporation also produced certain documents in the nature of the Board Resolutions and the correspondence between the Corporation and the Government.

The learned Single Judge by the impugned judgment directed the Corporation to pay gratuity as per the payment of Gratuity Act with interest. The Corporation was also required to release leave encashment for which, however, no interest was made payable. With respect to the claim of the petitioner for pension, the learned Single Judge found no reason to give the directions.

Facts in connected appeals are similar and are, therefore, not separately recorded.

Appearing for the appellants, learned counsel Mr. P. Roy Barman strenuously urged that the Corporation had framed the pension scheme for which a Trust was created. Such scheme was not withdrawn or wound up. Several employees, who had retired earlier were granted pension. The Corporation has the financial resources to sustain the scheme. The learned Single Judge committed an error in rejecting the request of the petitioners for grant of pension. He further submitted that interest on delay payment of leave encashment should also have been ordered.

On the other hand, learned counsel for the Corporation and the Government submitted that the Corporation could not have sustained the pension scheme without the financial assistance from the Government. Since the Government refused to fund the pension scheme, the Corporation had no choice but to drop it.

Learned counsel, Mr. P. Roy Barman argued that there is no formal decision of the Corporation to wind up the pension scheme as is apparent from the record.

The learned Single Judge considered the prayers of the petitioner in following manner:

"[7] This court cannot not direct the state-respondent to release the fund and hence, the matter is left for consideration by the respondent No.1 afresh whether with their collaboration such pension fund can run for the employees of the respondent No.2 or not. An unqualified statement has been made by Mr. Sarkar, learned counsel appearing for the respondents No.2 to 5 that the gratuity and the leave encashment can be availed by the petitioners on any day. Hence, it is directed that the leave encashment and the gratuity, as available under Section 4 of the Gratuity Act be released to the petitioners with interest @6% per annum from the date when the gratuity was due in terms of Section 7(3) of the Gratuity Act, 1972 read with Rule 7 of the Payment of Gratuity (Central) Rules, 1972. Even the leave encashment shall be released. The benefits that accrued in terms of the above, to the petitioners shall be paid within a period of 2[two] months from the day when the petitioners shall furnish a copy of this order.

Before parting with the records, it is made absolutely clear that if in future the pension scheme as stated above is restored or restituted, the petitioners shall get the benefit out of it despite their retirement on the days as stated above.

In terms of the above, these writ petitions stand allowed.

There shall be no order as to costs.

A copy of this order be supplied to the learned counsel appearing for the parties."

Thus, insofar as the prayer for payment of pension is concerned, learned Single Judge refused to grant the directions, however, made it clear that if in future the Corporation frames or implements such a scheme, the petitioner would receive the benefits under the same.

We do not think that learned Single Judge has committed any error. As noted, at one stage, the Corporation toyed with idea of framing a new pension scheme and implement the same for its regular employees. Somewhat hurriedly, it was also partially implemented. Out of its own coffers, the Corporation deposited a sum in excess of Rs.10 crores with LIC for the purpose of the Scheme. However, this was not sufficient to sustain the scheme for all employees. The Corporation also realized that it would require not only the Government approval, also financial assistance to sustain the scheme. In its 127th meeting of the Board of Directors held on 07.12.2017, following Resolution was, therefore, adopted:

"Resolution No.4 Misc.5: Appraisal of the Board regarding various scheme introduced in TRPC Ltd. for the retirement benefit of the employees, like payment of Gratuity, leave encashment and pension.

Managing Director informed the Board that 3(three) retirement benefits like pension, Gratuity and leave salary are being enjoyed by the employees of this Corporation were introduced with the approval of the Board from time to time without the approval of the Government and presently TRPC has no fund to continue the existing schemes.

The Board after thorough discussion resolved to send a comprehensive proposal to the Government through TRP & PTG for getting Ex-post Facto concurrence of the finance department as these 3(three) schemes had already been implemented in this Corporation and also to provide fund to continue these 3(three) schemes."

While forwarding the request for sanction to the Government, with respect to pension, following note was appended:

"3. LICI pension scheme: The Corporation made a scheme namely, New Group Superannuation Cash Accumulated (NGSCA) under defined pension benefit master policy with LICI since 22/09/2015 as pension payable in 50 per cent of last basic pay of the employees. This scheme is exist in the Corporation with approval of the Board of Directors on its 117th meeting held on 15/09/2015. The access amount is required about Rs.16.36 Cr. Out of these required amount for the 170 employees, the Corporation has already deposited Rs.11.17 Cr. to LICI from own sources. There are 7 employees have already been got benefits on pension from the scheme.

Accordingly, these three schemes, like Payment of Retirement/Death Gratuity, Leave encashment and defined pension under LICI have introduced in TRPC Ltd. with the approval of Board of Directors only, now it needs to get concurrence of the Govt. to avoid subsequent impasse, if any to follow the financial discipline, the Corporation can be ran smoothly for providing benefits to the employees of this Corporation who are covered under these rules. The Board resolved on the 127th meeting held on 07/12/2017 for sending to the Govt. for getting Ex-post facto concurrence of the Finance Department.

Therefore, ex-post facto concurrence of the finance department is solicited to the proposals contained in the above, para 1, 2 & 3 regarding retirement benefits of the employees, like payment of gratuity, encashment of leave and..."

After some further correspondence between the Corporation and the Government, the Government conveyed to the Corporation on or around 26.04.2018 as under:

"The proposal of the Department has been examined in Finance Department. It reveals from office records of the departmental file that TRPC has introduced the LIC Schemes on pension, leave encashment and gratuity etc. without the concurrence of Finance Department. On principle, each corporation should take in depth study over the issue first and only considering its past, present and future prospect take appropriate decision accordingly. Therefore, Finance Department refrains itself from offering any comments on the instant proposal of the Department.

It is further informed that the State Government is only a shareholder in the corporation. It is not obligatory for the State Government to continue its funding to the TRPC. In fact, TRPC being a Corporation has to decide on its own on how to manage its finances, workers, working capital and profitability etc. so that the welfare of its own workers can be looked into.

It is made clear that Finance Department shall not provide any financial assistance to TRPC for implementation of any scheme that is in violation of the rules of financial discipline. It is upon the concerned Corporation to decide the next course of action on whether to continue the scheme or wind up the same."

Subsequently, in its 129th meeting of the Board of Directors held on 10.10.2018, following Resolutions were adopted:

"Resolution No.4 : Continuation/discontinuation of pension scheme adopted for TRPC employees

The Board after thorough discussion resolved to review the Pension Scheme tie-up with the LICI in consultation with the Chief Secretary, Secretary Law department and Secretary TW (TRP & PTG) department, so that all the employees may get rational benefits from the balance fund lying with the LICI under the pension scheme.

Resolution No.5 : Approval for release of terminal benefits to the retired Employees.

The Board after thorough discussion resolved to formulate suitable rational policy and review the present pension scheme tie-up with the LICI in such way that every employee may get rational benefits under the scheme."

It can thus be seen that the Corporation though envisaged a new pension scheme for its employees and also took the certain concrete steps in furtherance of this proposal, the pension scheme could not be formalized for want of Government sanction. More importantly, the Corporation needed financial assistance from the Government to sustain any such scheme for payment of pension, which the Government flatly refused. As noted, the decision that the government conveyed to the Corporation was that it is not obligatory for the State Government to continue to fund to the Corporation and the Corporation has to decide how to manage its finances. It was made clear that the Finance Department shall not provide any financial assistance to Corporation for implementation of any such scheme. It was, therefore, left to the Corporation to decide whether to continue the scheme or to wind it up.

If under such circumstances, it was not possible for the Corporation to proceed further with the implementation of the new pension scheme, no directions can be issued from the Court to the contrary. It is not as if a Corporation was winding up an existing long standing pension scheme to the detriment of its existing employees. Here is the case where out of benevolence the Corporation thought of framing a new pension scheme but which required Government sanction and financial assistance. The Government made it clear that it is under no mood to fund any such pension scheme. It was for the Corporation either to raise funds from its own resources to sustain in the scheme or to wind up the same. Under such circumstances, the petitioners cannot insist that the pension must be paid to them even though the scheme may not be functional. Merely because the Corporation has not yet taken a final decision how to rationalize these conflicting interests, would not mean the petitioners in the interim period should be paid pension. It is in this context that the learned Single Judge provided that if in future such pension scheme is implemented the petitioners would receive benefit on the same. Contrary to what was argued before us by the counsel for the petitioners, we do not see this as a case where an existing pension scheme is being bound up. Instead this is a case where an attempt on part of the Corporation to frame a new pension scheme failed on account of the Government assistance.

Only question remains of interest on delayed payment of leave encashment. There has been considerable delay in payment of leave encashment though the Corporation had no ground to resist the payment. Learned counsel for the Corporation, however, submitted that since the present litigation was pending, the Corporation had stayed its hands off. Pendency of the petition by a litigant to claim a benefit which is not released by the employer can hardly be a ground to justify non-payment and to avoid the liability to pay interest on the delayed payment.

Under the circumstances, these appeals are allowed only to the limited extent of directing the Corporation to pay simple interest @ 7% per annum on the amount of leave encashment payable to each petitioner for the period between 3 (three) months after retirement till actual payment.

All appeals disposed of accordingly. Pending application(s) if any, also stands disposed of.