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Judgment
J.H. Bhatia, J.—In both these petitions, the award passed by the Central Industrial Tribunal in reference No. I.D.A. No. 28/2000 has been challenged by the opposite parties. Therefore, both these petitions may be disposed by this common judgment.
To state in brief, the petitioner in Writ Petition No. 687/2001 is the Reserve Bank of 1 India and may be referred as employer and respondent No. 2 widow of deceased employee Vinayak Sawarkar and respondent No. 3 is the Reserve Bank Employees Association. The said Association has filed Writ Petition No. 1006/2001. Admitted facts are that Vinayak Savarkar was an employee of the Reserve Bank of India in Cash Department, and while in service he died on June 21, 1987. After his death, his widow Smt. Suvasini Savarkar was appointed as a Clerk cum Cash examiner w.e.f. September, 1987 on compassionate ground. She received the amount of provident fund with interest which was due to her husband. In 1987 when Vinayak Savarkar had died, pension scheme was not in operation and therefore, neither the person who retired during that period could be entitled to get any pension nor his family members were entitled to get pension at that time. The pension scheme came into force from November 1, 1990 and consequently widow and children of the deceased employees, who had died on or after November 1, 1990 became eligible for family pension. Later on, the same benefit was also extended to the dependents of the employees, who had died between 1986 to November 1,1990. In view of extension of this benefit, the widow of Vinayak Savarkar was given an option to opt for family pension and she did opt for family pension and deposited the amount of provident fund to the extent of Bank''s contribution which she had received on death of her husband with interest at the rate of 6% per annum on the same. On March 14, 1992, an order was issued by the Management sanctioning the basic pension of Rs. 1,116/- per month from November 1,1990 to January 22, 1994 when the period of seven years after death of Vinayak would have been completed and the order clearly says that from February 22, 1994 she would be entitled to basic pension of Rs. 558/- with dearness relief as admissible from time to time. As per the said order, she received the benefits of pension for the period from November 1, 1990 to June 21, 1994.
As the family pension was reduced from June 22, 1994, she made a representation and claimed that she is entitled to higher rate of family pension i.e. at the rate of Rs. 1116/- per month for the period of seven years beginning from 1st November 1990 and therefore, she is entitled to received that such pension till October 31, 1997. That representation was not accepted by the management. The matter was referred to the Ministry of Labour, Central Government. Ministry of Labour referred the dispute for adjudication to the Tribunal. The reference is given in the schedule, which reads as follows.
Whether the action of the management of RBI, Nagpur (represented through its CGM) in reducing w.e.f. June 22, 1994 the family pension, being received by Smt. S.V. Savarkar, (widow of late Shri V.S. Savarkar, Ex-Asstt. Treasurer), a Clerk-cum-coin/Note Examiner, GR.II, (represented through RBIA, NGPR) since November 1, 1990 from Rs. 1116/- p.m. to Rs. 558/- p.m, is legal, proper and just? If not, to what relief, Smt. Savarkar is entitled?
After hearing the parties, the learned Presiding Officer of the Tribunal passed the impugned award on August 9, 2000. The Tribunal came to conclusion that as Vinayak himself had expired prior to November 1,1990, when the pension scheme came into force, he himself would not be entitled to get the pension and therefore, his widow is also not entitled to get the family pension w.e.f. November 1,1990. According to the Tribunal, the benefit given by the management to her as family pension from November 1,1990 itself was illegal and against the statutory provisions of the pension scheme. As a result, she was directed to refund the amount of pension which she had received and the management was also required to refund the amount of provident fund which was deposited by her with interest.
In view of this award, both the parties are dissatisfied and therefore, the employer and -employees Association have filed two writ petitions challenging that order. Common challenge in both the petitions is that the Tribunal exceeded its jurisdiction by declaring that benefit of family pension which was given to the widow of Vinayak w.e.f. November 1, 1990 onwards was illegal. It is contended that the Tribunal was expected to decide the matter on the basis of the reference made by the Government and he could not exceed that limit. It is contended that in the said reference there was no mention of any dispute about the legality of benefits given to her from November 1,1990 to June 21, 1994. The dispute was only about the reduction in pension w.e.f. June 22, 1994. According to the employer, the direction given by the Tribunal in the said award for refund of the benefits, which are taken by the widow of Vinayak is wrong. It maintains that she would not be entitled to the higher rate of pension w.e.f. June 22,1994 because as per the rules, the period of seven years has to be counted from the date next after the death of the employee and that period of seven years would come to an end on June 21, 1994 and thereafter, she would be entitled to normal family pension and not more than that. On the other hand, in the petition filed by the employees'' Association, it is contended that the pension scheme itself came into force on November 1, 1990 and as per the pension scheme, the higher rate of family pension was to be given for the period of seven years and therefore, that period has to be counted from November 1, 1990 till October 31, 1997 and this pension could not be reduced before that date.
Heard the learned Counsel for the parties. Perused the record and proceedings.
The learned Counsel for both the parties rightly contended that the Tribunal went beyond the scope of the reference made to it u/s 10 of the Industrial Dispute Act, 1947. Section 10(4) reads as follows:
Where in an order referring an industrial dispute to a Labour Court, Tribunal or National Tribunal under this Section or in a subsequent order, the appropriate Government has specified the points of 5 dispute for adjudication, the Labour Court or the Tribunal or the National Tribunal, as the case may be, shall confine its adjudication to those points and matters incidental thereto.
In view of the above provisions, it is clear that the Tribunal has to confine the adjudication only to those points which are raised in the reference by the appropriate government and is not expected to go beyond those points.
In Pottery Mazdoor Panchayat Vs. Perfect Pottery Co. Ltd. and Another, , the Supreme Court held that the jurisdiction of the Tribunal is limited by the terms of the reference. Their Lordships observed in para No. 11 as follows at p. 234 of LLJ:
Having heard a closely thought out argument made by Mr. Gupta on behalf of the appellant, we are of the opinion that the High Court is right in its view on the first question. The very terms of the references show that the point of dispute between the parties was not the fact of the closure of its business by the respondent but the property and justification of the respondent''s decision to close down the business. That is why the references were expressed to say whether the proposed closure of the business was proper and justified. In other words, by the references the Tribunal were not called upon by the Government to adjudicate upon the question as to whether there was in fact a closure of business or whether under the pretence of closing the business the workers were locked out by the management. The references being limited to the narrow question as to whether the closure was proper and justified, the Tribunals by the very terms of the references, had no jurisdiction to go behind the fact of closure and inquire into the question whether the business was in fact closed down by the management....
In Firestone Tyre and Rubber Company of India (P) Ltd. Vs. Workmen Employed, represented by Firestone Tyre Employees'' Union, , the Supreme Court again reiterated that the; Tribunal is required to confine adjudication to those points of dispute and matters that were incidental to them as per reference. Same view has been taken by the Supreme Court in the The Workmen and Others Vs. Hindustan Lever Ltd., and in National Council for Cement and Building Materials Vs. State of Haryana and Others, . In view of this settled position of law it is clear that the Tribunal was expected to, confine itself to the issues and the points raised in the reference and to the matters which would be required to be decided incidentally and not to go beyond the same. The Tribunal gets jurisdiction from the reference and the jurisdiction is limited to the points in dispute and the matters incidental to them. A jurisdiction of any point which is not referred, is beyond the scope of reference and thus beyond jurisdiction.
From the reference made by the Government as quoted above, it is clear that the grant of family pension to the widow of Vinayak Savarkar from November 1, 1990 to June 22,1994 was not in dispute and legality of the sanction of that benefit was not subject matter of the reference. The subject matter of reference was reduction of the rate of family pension w.e.f. June 22,1994. The Tribunal was expected and was required only to decide that question. However, it appears that in the present matter, while passing the award the Tribunal went beyond the terms of the reference and entered into the question of policy pertaining to grant of pension to the widow and dependents of the employees, who had expired before November 1, 1990 when the pension scheme came into force. The observations of the Tribunal that she was not entitled to that benefit and the direction to refund the amount received by her towards the family pension and also the direction to refund the provident fund amount to her are also beyond scope of the said reference. In view of this, the impugned award to that extent is liable to be set aside.
Coming to the dispute between the parties, it is admitted fact that pension benefit was not given to the employees of the Reserve Bank of India prior to November 1, 1990 and the pension Regulations 1990 came into force on November 1,1990 only. Regulation No. 3 of the said scheme reads as follows:
Application.
There Regulations shall apply to:
(1) Employees who join the Bank''s service on or after November 1,1990.
(2) Employees who are in the service of the Bank as on November 1,1990, except those employees who, within the period prescribed by the Bank, exercise an option in writing not to be governed by these Regulations.
(3) Employees who were in service as on January 1, 1986 (excluding those on leave preparatory to retirement) and had retired before November 1, 1990, provided they exercise option to be governed by these Regulations and refund, within such period as may be specified, the Bank''s contribution of Provident Fund including interest received by them from the Bank together with simple interest at six per cent per annum from the date of withdrawal till the date of repayment. Pension shall be payable to them in accordance with the Regulation 31.
In view of this regulations, it is clear that the employee who has joined the service on or after November 1, 1990 would be immediately entitled to benefits of this scheme. Those who were in service on November 1, 1990 would also be entitled unless they opted not to accept that scheme. The employees who were in service on November 1, 1986 but had retired before November 1, 1990 would be entitled to this benefit provided they opted to be governed by this scheme and agreed to refund the bank''s contribution to provident fund including interest received by them from the bank together with simple interest at the rate of six per cent from the date of withdrawal till the date of payment. So this would be applicable to the employees who were retired before November 1,1990.
Regulation 32 deals with the family pension in respect of the employee who died after one year of completion of service and who died before one year of completion of service, provided he was medically examined and declared fit for employment prior to his appointment, and also where after retirement from the service and on the date of death the employee was in receipt of pension, or compassionate allowance. Clause 3 and 4 of Regulation 32 are relevant for decision of this matter. They read as follows:
(3) Where at the time of death the employee has completed seven years of continuous service, family pension may be paid at 50% of pay last drawn or twice the ordinary rate of family pension whichever is less provided the employee was not covered by the Workmen''s Compensation Act, 1923. In case the employee was covered by the Workmen''s Compensation Act, 1923, the family pension should be 50% of the pay last drawn or 1 1/2 times of their rate of family pension whichever is less. The pension at this higher rate is payable for a period of seven years or till the deceased employee would have attained the age of 65 years had he survived, whichever his less.
(4) In the event of death after retirement, the family pension at twice the ordinary rate of family pension or @50% of the pay last drawn, whichever is less, shall be payable from the date following the date of death for a period of seven years or till the deceased employee would have attained the age of 65 years, whichever is less, provided that the amount of enhanced family pension as above shall not exceed the normal pension admissible on retirement.
Admittedly, deceased Vinayakrao had completed seven years of continuous service and he was not covered by the Workmen''s Compensation Act. Therefore, his case would be covered by Clause 3. The bone of contentions between the parties is that as per this clause the widow of the deceased was entitled to 50% of the last drawn salary or twice the ordinary rate of family pension whichever is less and this higher rate is payable for a period of seven years or till the deceased employee would have attained the age of 65 years had he survived. According to the employer, the period of seven years has to be counted from the date of death of the employee while according to the employees Association, this period, in the given circumstances, could not be counted from the date of death of the deceased but only from November 1,1990 since when this benefit was actually sanctioned. On behalf of the employer, the learned Counsel has pressed into service regulation 5 which reads as follows:
In the matter of the application of these Regulations regard may be had to the corresponding provisions of the Civil Service Regulations or the Liberalised Pension Rules or the Civil Pensions (Commutation) Rules or the Family Pension Scheme for Central Government employees, as the case may be, of the Government of India insofar as they can be adapted to the service in the Bank but subject to such exceptions and modifications as the Bank may, from time to time, determine.
He contends that in view of this, in the matter of application and implementation of this regulation regard has to be had to the. corresponding provisions of Civil Services Regulations etc. which are applicable to the Central Government employees. It is contended that the period of seven years has to be counted from the date following the date of death of the employee as per Rule 54(3)(a) of the Central Civil Services Pensions Rules (CCS (Pension) Rules). The said Rule reads as follows.
Where a Government servant, who is not governed by the Workmen''s Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years continuous service, the rate of family pension payable to the family shall be equal to 50 per cent of the pay last drawn or twice the family pension admissible under Sub-rule (2), whichever is less, and the amount so admissible shall be payable from the date following the date of death of the government servant for a period of seven years, or for a period up to the date on which the deceased Government servant would have attained the age of 65 years had he survived, whichever is less.
It appears that under the Central Civil Services (Pension) Rules under Rule 54(3)(a), the similar benefit is given to the dependents of the deceased government employee and under that rule this period of seven years has to be counted from the date following the date of death of the government servant. It is material to note that in Regulations 32(4) of the Pension Regulations of Reserve Bank of India also similar provisions is made and in the event of death after retirement, the family pension at twice the ordinary rate of family pension or @50 per cent of the pay last drawn, whichever is less, shall be payable from the date following the date of death for a period of seven years or till the deceased employee would have attained the age of 65 years. In view of the provisions of Rule 54(3)(a) of Central Civil Services Pensions Rules and Regulation 32(4), the learned Counsel for the employer vehemently contended that even though it is not specifically mentioned in Regulation 32(3), the period of seven years has to be counted from the day next after the date of death and that is only the reasonable and proper interpretation. On the other hand, the learned Counsel for the employees Association vehemently contended that in Regulation 32(3) simply it is stated that the pension at the higher rate is payable for a period of seven years or till the deceased employee would attain age of 65 years. There is no mention that the period of seven years has to be counted from the day next to the date of death of the deceased. According to him, this was deliberate because the benefit was to be given from November 1, 1990 and not from earlier date. When the rules are framed, an individual case is not before the authority framing the rules. The rules are framed broadly for the purpose of application for all the employees and general principles are borne in mind. Naturally, these schemes are for the benefit of employees and their dependents after death. The Reserve Bank has specifically provided in Regulation 5 of the Scheme that in the matter of application of the regulations regard shall be had to the corresponding provisions of Civil Services Regulation or Civil Pension Commutation Rules and Family Pension Scheme of the Central Government employees so far as they can be adapted to the service of the bank Subject to such regulation and modification as the bank may time to time determine. Admittedly, under the Central Civil Services Pensions Rules, there is no provision where the period of seven years for the higher rate of pension could be counted from any date other than the date immediately next after the date of death of employee in respect of the family pension of the employees who are retired. That is also specifically mentioned in Regulation 4(4). It is difficult to imagine that the Reserve Bank of India would have taken different stand in case of the employee who had expired before retirement and who expired after retirement. The benefit under Clause (3) is to be given to the dependents of the employees who had died prior to retirement while the benefit under Clause 4 was to be given to the dependents of the employees who had died after retirement. In view of this, even though in Clause 3, it is not specifically mentioned that the higher rate is payable for the period of 7 years following the date of death, as I find similar provision in Clause 4 as well as in Rule 54(3)(a) of the Central Civil Services Pensions Rules, in my considered opinion, while framing this pension regulations and after extending the benefits of the family pension to the dependents of the deceased employees, the Reserve Bank of India must not have adopted two different policies in case of employees who had retired or who had died before retirement. Taking into consideration the Regulation 5, is application of Clause 3 of Regulation 32, the help may be taken from Rule 54(3)(a) of Central Civil Services Pensions Rules for proper interpretation. If all these provisions are read together, the benefit of the higher pension for the period of seven years could be given beginning with the day next after the death of deceased and not from any other date. In view of this interpretation of the Rules and Regulations, I find that the period of seven years was to be counted from the date of death of the deceased employee and that period of seven years would come to an end on June 21, 1994. Till that date his widow was entitled to higher rate of pension and thereafter she was entitled to normal rate of* family pension. This fact was made clear by the Reserve Bank while sanctioning this benefits to the petitioner by its letter dated March 14,1992. Admittedly, she accepted that and has taken the benefits of the same. It was urged on behalf of the employees Association that if the interpretation made by the Reserve Bank is accepted, she would be prejudiced and would be deprived of the benefit to which she was entitled. I am unable to accept this contention. After the scheme was extended by the Reserve Bank of India to the dependents of the employees who had died prior to November 1, 1990, she made an application in the prescribed form on December 20,1991 and also deposited the amount of Rs. 71,498.73 towards the bank''s contribution towards the provident fund, which she had received with interest at the rate of six per cent thereon. Under this pension Scheme she received total amount of Rs. 1,71,720.20 towards the family pension. Thus, practically after refund of Bank''s contribution to provident fund which she had previously received, she got amount of Rs. 1,00,000/- more. Thus, financially she has not been put to any loss by opting this scheme. Admittedly, she herself has also retired from the service and as per the rules she is getting the pension on account of her own retirement and also family pension on account of death of her husband, who was previously employee of the bank.
Taking into consideration all the facts and circumstances, I do not find that any prejudice has been caused to her by opting for the scheme or by giving benefit of higher rate of pension only up to June 22,1994 when period of seven years was completed after death of her husband. I do not find any fault with the decision taken by the Reserve Bank of India.
Therefore, in view of the above, Writ Petition No. 687/2001 is allowed and Writ Petition No. 1006/2001 is partly allowed and impugned award is set aside. It is hereby declared that action of the management reducing the pension from Rs. 1116/- per month to Rs. 558/- per month w.e.f. June 22, 1994 is legal, proper and just.