2007 (9) TMI 600 - SC - Indian Laws

Whether past service rendered by the respondent K.S. Misra in Benaras Hindu University shall be counted for the purpose of payment of pension and other retiral benefits?

Summary

Issues Involved:

1. Counting past service for pension and retiral benefits.
2. Interpretation of Statute 61(6)(iv) and (v) and Rule 6A.
3. Validity and timing of exercising the option for counting past service.
4. Application of precedent and distinguishing facts from previous cases.
5. Conditions for transfer and consent from previous employer.

Detailed Analysis:

1. Counting Past Service for Pension and Retiral Benefits:

The respondent sought to have his past service at Benaras Hindu University (BHU) counted for pension and other retiral benefits after joining Aligarh Muslim University (AMU). The High Court had directed that the past service should be counted, provided the respondent deposited the gratuity received from BHU along with interest.

2. Interpretation of Statute 61(6)(iv) and (v) and Rule 6A:

Statute 61(6)(iv) provides two options for an employee who has received retirement benefits from a previous employer:
- Retain the benefits and forfeit the past service for pension purposes at AMU.
- Deposit the retirement benefits along with interest within one year to count the past service for pension at AMU.

Statute 61(6)(v) specifies that these provisions apply only if the transfer is with the consent of the previous employer or if the employee applied through proper channels.

Rule 6A states that interruptions between two spells of service are automatically condoned unless caused by dismissal, removal, or resignation, and the period of interruption does not count as qualifying service.

3. Validity and Timing of Exercising the Option for Counting Past Service:

The respondent claimed to have exercised his option on 21.8.1989, but this was first mentioned in the rejoinder affidavit, giving the appellant no chance to rebut. The option form dated 28.1.1989 submitted by the respondent was for the Liberalized Pension Scheme and not for counting past service. The respondent had also resigned from BHU and worked abroad for nearly seven years before joining AMU, and he did not apply through proper channels or with the consent of BHU.

The High Court's view that the time limit in Statute 61(6)(iv) is directory was held to be erroneous. The Supreme Court emphasized that the one-year period for exercising the option is mandatory, and failure to do so results in the employee being deemed to have retained the benefits already received.

4. Application of Precedent and Distinguishing Facts from Previous Cases:

The High Court relied on a previous decision involving Dr. Rameshwar Tandon, where the delay in exercising the option was excused due to specific circumstances. However, the Supreme Court distinguished this case, noting that Dr. Tandon had promptly taken steps to comply with the statute, unlike the respondent who never exercised his option or deposited the required amount.

5. Conditions for Transfer and Consent from Previous Employer:

Statute 61(6)(v) requires the transfer to be with the consent of the previous employer or that the employee applied through proper channels. The respondent had resigned from BHU and did not fulfill these conditions, making the statute inapplicable in his case.

Conclusion:

The Supreme Court allowed the appeal, setting aside the High Court's judgment and dismissing the writ petition. The respondent was not entitled to have his past service at BHU counted for pension and retiral benefits at AMU due to non-compliance with the mandatory provisions of Statute 61(6)(iv) and (v). The timing of exercising the option and the lack of proper application through channels were crucial factors in the decision.