Dr Mohan R Bolla Law Lectures -Family pension scheme 1971

Pinaki Chandra Ghose, J.
T.M.Sampath & Ors vs
Sec.Min.Of Water Resources 2015
judis.nic.in/supremecourt/imgs1.aspx?filename=42310
Appellants herein are the employees of National Water Development Agency ("NWDA") which was established as a
Society in July 1982 and was registered under the Societies Registration Act, 1860. The Society NWDA, which
falls under the aegis and control, both administrative and financial, of the Ministry of Water Resources, is fully
funded by the Government of India, headed by the Union Minister for Water Resources as the President.
The NWDA framed Rules and Regulations for its smooth functioning. Whatever emoluments have been prescribed
for the Government servants by the Central Government Office Memorandum ("O.M.", for short) the same
apply mutatis mutandis to the employees of NWDA.
By-law 28 of the NWDA also mandates that the rules and orders applicable to the Central Government employees
shall apply mutatis mutandis to the employees of the NWDA subject to modification by the Governing Body
concerning service conditions and only in case of any doubt, the matter has to be referred to the Governing
Body for a decision. Bye-law 26(a) provides for the emoluments structure for all employees that will be
adopted by NWDA, with the approval of Ministry of Finance (Department of Expenditure).
Bye-law 28 provides that till such time the NWDA frames its rules governing service conditions of the employees,
rules and orders applicable to Central Government Employees shall apply mutatis mutandis, subject to such
modifications as made by NWDA from time to time. As per the appellants, NWDA had implemented all the
recommendations of the Fourth Central Pay Commission from 22.10.1986. The pay scales of the employees of
NWDA were revised as made applicable to Central Government employees.
Pursuant to the recommendation of the Fourth Central Pay Commission, Office Memorandum dated 01-05-1987
was issued by the Ministry of Personnel, Public Grievance and Pension, Department of Pensions and
Pensioners' Welfare, for switch-over of employees from Contributory Provident Scheme to Pension Scheme,
according to which all Contributory Provident Fund (CPF) Scheme beneficiaries, who were in service of the
Central Government on 1.1.1986, were deemed to have come over to the Pension Scheme unless they
specifically opted out to continue under CPF Scheme. This Pension Scheme was formulated by the Government
under the 1972 Pension Rules.

Pinaki Chandra Ghose, J.
T.M.Sampath & Ors vs
Sec.Min.Of Water Resources 2015
judis.nic.in/supremecourt/imgs1.aspx?filename=42310
The appellants filed O.A. No.2037 of 2008 before the Central Administrative Tribunal assailing
the decision of the Governing Body dated 30.03.2000 rejecting their request to switch-over
to the Pension Scheme and letter dated 16.3.2000 issued by the Finance Ministry whereby
the request of the appellants to switch-over to the Pension Scheme pursuant to the O.M.
dated 1.5.1987, had been turned down.
Before the Central Administrative Tribunal (hereinafter referred to as "the Tribunal"), when the
case came up for hearing, the respondents took a preliminary objection as to the cause of
action being barred by limitation on the ground that though the O.M. is dated 01.05.1987,
yet few members were associated in the 30th meeting of the Governing Body having
knowledge of the resolution passed by the respondents on 30.03.2000 and that they cannot
resort to a cause of action on the basis of RTI after 8 years, to file the above OA. The Tribunal
overruled the objection raised by the respondents and after referring to various authorities,
observed that fundamental right of grant of pension does not attract limitation. Moreover,
on inaction the Government is precluded from raising the hyper technical plea to defeat the
rightful claim of applicants. The order passed in 2000 was reiterated to the applicants in
2007 thus the case of the applicants was good on merits. The Tribunal after referring to the
O.M., the bye-laws 26(a) & 28 and the decision of this Court in Union of India v. S.L.Verma,
(2006) 14 SCALE 56, held that there was nothing in the language of clause 6.1 of the O.M.
dated 01.05.1987, to suggest that the said O.M. does not apply to the employees of
autonomous bodies controlled by Central Government and the said view finds no support
from clause 7.2 of the O.M. The advice dated 16.03.2000 of the Ministry of Finance to the
Ministry of Water Resources, at best, can be treated as an executive order and as the same
does not have retrospective effect, it has no application to overrule the O.M.

T.S. Thakur, J.,
National Insurance Co.Ltd. & Anr vs
Kirpal Singh on 10 January, 2014
The SVRS of 2004 does not obviously rest the claim for payment of pension on any one
of the above two provisions. That is because what is claimed by the employees-
respondents before us is not superannuation pension nor is it pension on
voluntary retirement within the meaning of para 30 (supra).
As a matter of fact, para 6 (1)(c) of the SVRS of 2004 specifically provides that the
notional benefit of additional five years to be added to the service of the retiring
employee as stipulated in para 30 of the pension scheme shall not be admissible
for purposes of determining the quantum of pension and commutation of pension.
It follows that the SVRS of 2004 did not for the purposes of grant of pension adopt the
scheme underlying para 30 of the Pension Scheme 1995. Such being the case, the
question is whether the provisions of para 6 of the SVRS of 2004 read with para 14
of the Pension Scheme 1995 which stipulates only ten years qualifying service for
an employee who retires from service to entitle him to claim pension would entitle
those retiring pursuant to the SVRS of 2004 also to claim pension. Our answer is in
the affirmative.

3. Employees' Pension Fund.
(1) From and out of the contributions payable by the employer in each
month under S. 6 of the Act or under the rules of the Provident
Fund of the establishment which is exempted either under clauses
(a) and (b) of S. 17(1) of the Act or whose employees are exempted
under either para. 27 or para. 27-A of the Employees' Provident
Fund Scheme, 1952, a part of contribution representing 8.33 % of
the Employee's pay shall be remitted by the employer to the
Employees' Pension fund within 15 days of the close of every
month by a separate bank draft or cheque on account of the
Employees' Pension Fund contribution in such manner as may be
specified in this behalf by the Commissioner. The cost of the
remittance, if any, shall be borne by the employer.
(2) The Central Government shall also contribute @ 1.16 per cent of
the pay of the members of the Employees‘ Pension Scheme and
credit the contribution to the Employees‘ Pension Fund:

3. Employees' Pension Fund-proviso
Provided that where the pay of the member exceeds
1[rupees six thousand and five hundred] per month the
contribution payable by the employer and the Central
Government be limited to the amount payable on his
pay of [rupees six thousand and five hundred] only 9.
Subs. by G.S.R.383 (E) dated the 24.5.2001 (w.e.f.
1.6.2001). (3) Each contribution payable under sub-
paragraphs (1) and (2) shall be calculated to the
nearest rupee, fifty paise or more to be counted as the
next higher rupee and fraction of a rupee less than fifty
paise to be ignored. (4) The net assets of the Family
Pension Scheme, 1971 shall vest in and stand
transferred to the Employees' Pension Fund.

Altamas Kabir, J
Regional Provident Fund Commissioner v.
Bhavani, AIR 2008 SC 2957
the issue as to whether Dr. Padia's submissions
regarding the non-applicability of the Act to the
case of the Regional Provident Fund Commissioner -
the person responsible for the working of a Pension
Scheme, could be held to be a 'service giver' within
the meaning of Section 2(1)(o) of the Act, as it was
neither a case of rendering of free service nor
rendering of service under a contract of personal
service so as to bring the relationship between the
parties within the concept of 'master and servant'.

Altamas Kabir, J
Regional Provident Fund Commissioner v.
Bhavani, AIR 2008 SC 2957
“In our view, the respondent comes squarely within
the definition of 'consumer' within the meaning of
Section 2(1)(d)(ii), inasmuch as, by becoming a
member of the Employees' Family Pension Scheme,
1971, and contributing to the same, she was
availing of the services rendered by the appellant
for implementation of the Scheme. The same is the
case in the other appeals as well.”

Under the CPF Scheme a retiring employee receives a handsome and lump
sum amount. Apparently, it looks much more attractive than the deferred
payment of retiral benefits by way of pension every month. A lump sum
amount can be invested prudently to generate substantial returns.
Further, sometimes an employee may feel that because of the uncertain
nature of life it would be better to receive a lump sum amount rather than
a comparatively trivial amount every month by way of pension. It appears
to me that prompted by these factors the members of the petitioner
association had switched over from the pension scheme to the CPF
scheme and received all benefits thereunder. However, with time the
pension scheme became more and more attractive, on account of various
factors like dearness allowance being included in the pay for computing
pension, ceiling of pension being removed and liberalization of family
pension, etc.. Hence, the members of the petitioner association are now
seeking to revert back to the pension scheme. This cannot be permitted.

Dr B.S. Chauhan, S.A. Bobde JJ.,
Dr. Jagmittar Sain Bhagat vs
Dir. Health Services,Haryana
(2013) 10 SCC 136
The appellant joined Health Department, of the respondent State, as
Medical Officer on 5.6.1953 and took voluntary retirement on
28.10.1985. During the period of service, he stood transferred to
another district but he retained the government accommodation,
i.e. Bungalow No. B-8 from 11.5.1980 to 8.7.1981.
Appellant claimed that he had not been paid all his retiral benefits,
and penal rent for the said period had also been deducted from his
dues of retiral benefits without giving any show cause notice to
him. Appellant made various representations. He was not granted
any relief by the State authorities. Aggrieved, the appellant
preferred a complaint before the District Consumer Disputes
Redressal Forum, Faridabad on 5.1.1995. The Forum dismissed the
complaint on merits observing that his outstanding dues i.e.
pension, gratuity and provident fund etc. had correctly been
calculated and paid to the appellant by the State authorities.

(2013) 10 SCC 136
The appellant approached the State Commission. The State
Commission dismissed the appeal observing that though the
complaint was not maintainable as the District Forum did not
have jurisdiction to entertain the complaint of the appellant
as he was not a “consumer” and the dispute between the
parties could not be redressed by the said Forum, but in view
of the fact that the opposite party (State) neither raised the
issue of jurisdiction before the District Forum nor preferred
any appeal, order of the District Forum on the jurisdictional
issue attained finality. However, there was no merit in the
appeal. Aggrieved, the appellant filed Revision Petition
before the Commission. The said revision stood dismissed and
the review filed by the appellant has also been dismissed.
Hence, this appeal.

(2013) 10 SCC 136
Indisputably, it is a settled legal proposition that conferment of
jurisdiction is a legislative function and it can neither be conferred
with the consent of the parties nor by a superior Court, and if the
Court passes a decree having no jurisdiction over the matter, it
would amount to nullity as the matter goes to the roots of the
cause.
Such an issue can be raised at any stage of the proceedings. The
finding of a Court or Tribunal becomes irrelevant and
unenforceable/ inexecutable once the forum is found to have no
jurisdiction.
Similarly, if a Court/Tribunal inherently lacks jurisdiction,
acquiescence of party equally should not be permitted to
perpetuate and perpetrate, defeating the legislative animation.
The Court cannot derive jurisdiction apart from the Statute. In such
eventuality the doctrine of waiver also does not apply.

(2013) 10 SCC 136
Law does not permit any court/tribunal/authority/forum
to usurp jurisdiction on any ground whatsoever, in case,
such a authority does not have jurisdiction on the
subject matter. For the reason that it is not an objection
as to the place of suing;, “it is an objection going to the
nullity of the order on the ground of want of
jurisdiction”. Thus, for assumption of jurisdiction by a
court or a tribunal, existence of jurisdictional fact is a
condition precedent. But once such jurisdictional fact is
found to exist, the court or tribunal has power to
decide on the adjudicatory facts or facts in issue.

(2013) 10 SCC 136
The Consumer Protection Act was enacted to provide
for the better protection of interest of consumers,
such as the right to be protected against marketing
of goods which are hazardous to life and property;
the right to be informed about the quality, quantity,
potency, purity, standard and price of goods, to
protect the consumer against unfair trade practices;
and right to seek redressal against an unscrupulous
exploitation of consumers, and further to provide
right to consumer education etc. as is evident from
the statement of objects and reasons of the Act.

(2013) 10 SCC 136
by no stretch of imagination a government servant can raise any dispute
regarding his service conditions or for payment of gratuity or GPF or any of
his retiral benefits before any of the Forum under the Act. The government
servant does not fall under the definition of a “consumer” as defined under
Section 2(1)(d)(ii) of the Act. Such government servant is entitled to claim
his retiral benefits strictly in accordance with his service conditions and
regulations or statutory rules framed for that purpose. The appropriate
forum, for redressal of any his grievance, may be the State Administrative
Tribunal, if any, or Civil Court but certainly not a Forum under the Act.
the government servant cannot approach any of the Forum under the Act for
any of the retiral benefits. Mr. Hooda (AAG)has made a statement that all
the dues for which the appellant had been entitled to had already been
paid and the penal rent has also been dispensed with and the State is not
going to charge any penal rent. If the State has already charged the penal
rent, it will be refunded to the appellant within a period of two months. In
view thereof, we do not want to pass any further order.

B.N. Srikrishna, J
Central Org. of T N Electrical Employees vs
Tamil Nadu Electricity Board 2005
These appeals have been filed by a registered Trade Union, which represents
nearly 30,000 employees of the Tamil Nadu Electricity Board ("the Board").
Prior to 1.7.57, the State of Tamil Nadu was departmentally carrying on the
work of distribution and supply of electric energy. On 1.7.57, the Board was
constituted by the State Government under Chapter III of the Electricity
(Supply) Act, 1948 ("the 1948 Act"). The employees of the Board consisted
of two different classes: (i) Employees who were already employed by the
State Government and were taken over into the service of the Board upon
its constitution; and (ii) Employees directly recruited by the Board after its
constitution. In exercise of its powers under Section 79(c) of the 1948 Act,
the Board brought into force a set of regulations styled as the "Tamil Nadu
Electricity Board Liberalised Pension Regulations, 1960" ("1960
Regulations") with effect from 1.7.60. These Regulations dealt with the
conditions of service specifically pension and death-cum-retirement
gratuity. Under Regulation 3 of the 1960 Regulations, the qualifying service
for earning pension was a period of thirty years.

R.M. Lodha,J.,
G. M. Sri Siddeshwara Cooperative Bank Ltd.,
vs.Ikbal (2013) 10 SCC 83
on 08.02.1996, the respondent no.1, Ikbal (hereinafter referred to as “borrower”), took a housing loan of Rs.
5,00,000/- from Sri Siddeshwara Co-operative Bank Ltd. (for short, “the Bank”). He mortgaged his immovable
property being RS No.872, Plot No.29, Mahalbagayat situate at Bijapur. The borrower committed default in
repayment of the said housing loan. Despite several reminders when the borrower failed to make payment of
the loan amount, the Bank issued a notice on 16.02.2005 calling upon him to repay the outstanding loan
amount of Rs.10,43,000/- with interest and costs failing which it was stated in the notice that the mortgaged
property will be sold according to law.
4. The borrower failed to make payment of the outstanding loan amount as demanded in the notice dated
16.02.2005. The Bank then issued a notice to him on 30.06.2005 under Section 13(2) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, “SARFAESI Act”). In
that notice borrower was informed that if he failed to discharge the outstanding dues within 60 days, the Bank
may exercise action under Section 13(4) of the SARFAESI Act and the mortgaged property shall be sold.
5. On 09.12.2005, the Bank got the mortgaged property valued which was fixed at Rs.9,00,000/-.
6. On 18.12.2005, the Bank published the auction notice in the local newspapers. The conditions of the public
notice were also mentioned in the auction notice.
7. Bashir Ahmed (appellant in two appeals and respondent no.3 in the appeals of the Bank), who we shall refer to
hereafter as “auction purchaser” made the payment of Rs.90,000/- towards earnest money deposit on
18.12.2005 itself. The public auction was conducted on 11.01.2006. The auction purchaser gave the bid of
Rs.8,50,000/- which was accepted being the highest bid. The auction purchaser made payment of Rs.1,45,000/-
towards 25% of the sale consideration. However, he did not make the payment of remaining 75% within 15
days of the confirmation of sale in his favour. He made the payment towards balance sale price in installments
on various dates and the final payment was made on 13.11.2006. On 16.11.2006, the Bank issued the sale
certificate in favour of the auction purchaser.

R.M. Lodha,J.,
• The proceeds from the sale of the mortgaged property fell short of the total outstanding
amount against the borrower. As on 09.02.2007, Rs.2,27,000/- remained outstanding against
him. The Bank moved the Joint Registrar of Co-operative Societies for recovery of the
outstanding amount. In those proceedings, on 26.02.2007 an ex parte award for a sum of
Rs.2,37,038/- including the interest and miscellaneous expenses was passed against the
borrower. The Bank levied execution of the ex parte award somewhere in 2011. It was then
that the borrower challenged the sale certificate issued in favour of the auction purchaser
and the notice dated 09.02.2007 in two writ petitions before the Karnataka High Court,
Circuit Bench at Gulbarga.
The Single Judge of that Court, after hearing the parties, by his order of 12.12.2011 quashed
the sale certificate issued in favour of the auction purchaser and the demand notice dated
09.02.2007. In that order the Bank was granted liberty to conduct fresh sale in accordance
with the law. The Single Judge made certain observations against the authorised officer and
directed the Additional Registrar of the High Court to send a copy of the order to the
Superintendent of Lokayukta Police at Bijapur for further action in accordance with law.
The Bank as well as the auction purchaser challenged the order of the Single Judge in intra-
court appeals but without any success. Both Single Judge as well as the Division Bench held
that mandatory requirements of Rule 9 were not followed and, therefore, despite the
remedy of appeal to the borrower provided under Section 17 of the SARFAESI Act, a case
was made out for interference.

R.M. Lodha,J.,
SARFAESI Act lays down the detailed and comprehensive procedure for
enforcement of security interest created in favour of a secured creditor
without intervention of the court or tribunal. S. 13(2) requires the secured
creditor to issue notice to the borrower in writing to discharge his liabilities
within 60 days from the date of the notice. Such notice must indicate that if
the borrower fails to discharge his liabilities, the secured creditor shall be
entitled to exercise its rights in terms of S.13(4).
There is no dispute that a notice in terms of S. 13(2) was given by the Bank to
the borrower on 30.06.2005. That the Bank proceeded for the enforcement
of security interest in one of the modes provided under S. 13(4) is also not
in dispute. The borrower in the writ petitions filed before the Karnataka
High Court set up the plea that there was non- compliance of Rule 9 and
that had rendered the sale in favour of the auction purchaser bad in law.
The Single Judge and the Division Bench were convinced by the borrower’s
contention. We are required to see the correctness of that view.

R.M. Lodha,J.,
2002 Rules have been framed by the Central Government in exercise of the powers conferred on it by sub-section
(1) and clause (b) of sub-section (2) of Section 38 read with sub-sections (4), (10) and (12) of Section 13 of the
SARFAESI Act.
17. Rule 9* provides for the detailed procedure with regard to sale of immovable property including issuance of sale
certificate and delivery of possession. Sub-rule (1) of Rule 9 states that no sale of immovable property shall take
place before the expiry of 30 days from the date on which the public notice of sale is published in newspapers
as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower. Sub-rule (2)
provides that sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his
bid. This is subject to confirmation by the secured creditor. There is a proviso appended to sub-rule (2) which
provides that no sale under this rule shall be confirmed if the amount offered by sale price is less than the
reserve price but this is relaxable in view of the second proviso appended to sub-rule (2). Sub-rule (3) lays down
that on every sale of immovable property, the purchaser shall immediately make the deposit of 25% of the
amount of the sale price. In default of such deposit, the property shall forthwith be sold again. Sub-rule (4)
provides that the balance amount of purchase price payable shall be paid by the purchaser on or before the
fifteenth day of confirmation of sale of the immovable property or such extended period as may be agreed
upon in writing between the parties. Sub-rule (5) makes a provision that if the balance amount of purchase
price is not paid as required under sub-rule (4), then the deposit shall be forfeited and the property shall be
resold and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it
may be subsequently sold. According to sub-rule (6), on confirmation of sale by the secured creditor and if the
terms of payment have been complied with, the authorised officer exercising power of sale shall issue a
certificate of sale of the immoveable property in favour of the purchaser in the form given in Appendix V to the
2002 Rules.

R.M. Lodha,J.,
A reading of sub-rule (1) of Rule 9 makes it manifest that the provision is
mandatory. The plain language of Rule 9(1) suggests this. Similarly, Rule 9(3)
which provides that the purchaser shall pay a deposit of 25% of the amount
of the sale price on the sale of immovable property also indicates that the
said provision is mandatory in nature. As regards balance amount of
purchase price, sub-rule (4) provides that the said amount shall be paid by
the purchaser on or before the fifteenth day of confirmation of sale of
immovable property or such extended period as may be agreed upon in
writing between the parties. The period of fifteen days in Rule 9(4) is not
that sacrosanct and it is extendable if there is a written agreement between
the parties for such extension. What is the meaning of the expression
‘written agreement between the parties’ in Rule 9(4)? 2002 Rules do not
prescribe any particular form for such agreement except that it must be in
writing. The use of term ‘written agreement’ means a mutual
understanding or an arrangement about relative rights and duties by the
parties. For the purposes of Rule 9(4), the expression “written agreement”
means nothing more than a manifestation of mutual assent in writing. The
word ‘parties’ for the purposes of Rule 9(4) we think must mean the
secured creditor, borrower and auction purchaser.

R.M. Lodha,J.,
A reading of sub-rule (1) of Rule 9 makes it manifest that the provision is mandatory. The plain language of Rule 9(1)
suggests this. Similarly, Rule 9(3) which provides that the purchaser shall pay a deposit of 25% of the amount of
the sale price on the sale of immovable property also indicates that the said provision is mandatory in nature.
As regards balance amount of purchase price, sub-rule (4) provides that the said amount shall be paid by the
puThere is no doubt that Rule 9(1) is mandatory but this provision is definitely for the benefit of the borrower.
Similarly, Rule 9(3) and Rule 9(4) are for the benefit of the secured creditor (or in any case for the benefit of the
borrower). It is settled position in law that even if a provision is mandatory, it can always be waived by a party
(or parties) for whose benefit such provision has been made.
The provision in Rule 9(1) being for the benefit of the borrower and the provisions contained in Rule 9(3) and Rule
9(4) being for the benefit of the secured creditor (or for that matter for the benefit of the borrower), the
secured creditor and the borrower can lawfully waive their right. These provisions neither expressly nor
contextually indicate otherwise. Obviously, the question whether there is waiver or not depends on facts of
each case and no hard and fast rule can be laid down in this regard. rchaser on or before the fifteenth day of
confirmation of sale of immovable property or such extended period as may be agreed upon in writing
between the parties.
The period of fifteen days in Rule 9(4) is not that sacrosanct and it is extendable if there is a written agreement
between the parties for such extension. What is the meaning of the expression ‘written agreement between
the parties’ in Rule 9(4)? 2002 Rules do not prescribe any particular form for such agreement except that it
must be in writing. The use of term ‘written agreement’ means a mutual understanding or an arrangement
about relative rights and duties by the parties.
For the purposes of Rule 9(4), the expression “written agreement” means nothing more than a manifestation of
mutual assent in writing. The word ‘parties’ for the purposes of Rule 9(4) we think must mean the secured
creditor, borrower and auction purchaser.

Dr Mohan R Bolla Law Lectures -Family pension scheme 1971

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