SURENDRA DAS Vs. STATE OF ODISHA AND OTHERS

JUDGEMENT

(1.) This petition challenges the letter dated 10.9.2015 issued by the Secretary, Cuttack Development Authority, vide Annexure-1 whereby the petitioner was requested to submit E.P.F. Pension form for payment of retiral benefits. An ancillary prayer has been made for a direction to the opposite parties to grant pension to the petitioner under the Orissa Civil Services (Pension) Rules, 1992 (in short, 'OCSP Rules, 1992') since he has retired prior to commencement of Odisha Development Authorities (Retirement Benefit of the Employees) Rules, 2015 (in short, 'Rules, 2015').

(2.) The case of the petitioner is that he was working as a Driver in Cuttack Development Authority (in short, 'C.D.A.'). He joined in service on 24.10.1980 under the Greater Cuttack Improvement Trust (in short, 'G.C.I.T.'), which was later merged with the C.D.A. by virtue of Sec.128 of the Orissa Development Authorities Act, 1982 (in short, 'Act, 1982'). The G.C.I.T. constituted under the Town Planning and Improvement Trust Act, 1956 had adopted Orissa Service Code. The C.D.A. had adopted the same. The petitioner had retired from services on attaining the age of superannuation on 31.08.2012. He received pension in terms of OCSP Rules, 1992 at par with the employees working under the State Government. His leave salary and commutation of pension were sanctioned in terms of the Rules applicable to the employees of the State Government. While the matter stood thus, Rules, 2015 came into force. After promulgation of Rules, 2015, the C.D.A. is covered under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (in short, 'E.P.F. and M.P. Act, 1952') so far the employees working under it, who have joined prior to 01.01.2005. The E.P.F. and M.P. Act, 1952 is not applicable to the employees of C.D.A. in view of the Sec.16(c) of the E.P.F. and M.P. Act, 1952. Pursuant to the order of this Court in W.P.(C) No.552 of 2010, a meeting was convened under the Chairmanship of the Chief Secretary to the Government of Odisha, wherein the Principal Secretaries of the other Departments were present. In the said meeting, it was decided to initiate steps for formulation of Rules for payment of pensionary benefits to the employees of the Development Authorities constituted under the O.D.A. Act, 1982 within a period of six months. An affidavit was filed in the said writ application. Subsequently a meeting was held on 31.10.2013. The Financial Advisor-cum-Additional Secretary to the Government, Housing and Urban Development Department presided over the same. It was decided that the employees of Development Authorities shall get the pension at par with the State Government employees. The Govt. of Orissa in Housing and Urban Development Department instead of approving the draft rules framed under Sec.83 of the O.D.A. Act, 1982 issued another draft rules vide Notification dated 14.07.2015 inviting objections/suggestions from the person or authority within fifteen days. The petitioner along with other retired employees submitted their objections on 22.7.2015 seeking withdrawal of the said draft rules and requested to take steps for approval of the Development Authority Employees' Pension Rules, which was pending with the Government since 1991 for approval. Without considering the objections submitted by the employees, a notification was issued on 11.8.2015 by the Government of Odisha, Housing and Urban Development Department in exercise of the powers conferred under Sec.123 read with sub-sec.(1) of Sec.83 of the O.D.A. Act, 1982 promulgating the Rules, 2015 vide Annexure-8. Thereafter, the C.D.A. issued office order dated 26.08.2015 stating therein that the payment of pension to the retired and the retiring employees of C.D.A. shall be governed as per the Rules, 2015. By letter dated 10.9.2015, the Secretary, C.D.A. requested the petitioner to submit E.P.F. pension form for onward transmission of the same to the R.P.F. Commissioner, Bhubaneswar for payment of retiral dues of the petitioner. With this factual scenario, the present writ application has been filed.

(3.) Pursuant to issuance of notice, a counter affidavit has been filed by the opposite party nos.2 and 3. The sum and substance of the case of the opposite party nos.2 and 3 is that G.C.I.T. was created under Orissa Town Planning and Improvement Trust Act, 1956. Consequent upon creation of C.D.A. under O.D.A. Act, 1982 all assets and liabilities of G.C.I.T. were vested with the C.D.A. under Sec.128 of the O.D.A. Act., 1982. By means of separate notification, the employees of G.C.I.T. were taken as the employees of C.D.A. While the matter stood thus, one Krupasindhu Barik, a retired employee of C.D.A. had filed writ application being O.J.C. No.768 of 1990 claiming the statutory benefits such as Provident Fund and pension. The said writ application was allowed declaring him to be eligible of the benefits of Sec.83 of the O.D.A. Act, 1982. Accordingly, C.D.A. processed the file. On approval of Government, provisional pension was paid to him pending finalization the matter before the Government. Subsequently, number of employees of C.D.A. retired on different dates claimed the benefit. The C.D.A., relying upon the instances of Krupasindhu Barik and the decision of the Authority from time to time, disbursed provisional pension at par with the employees working under the Government, to those employees. The OCSP Rules, 1992 was not applicable to C.D.A. Provisional pension was granted to more than 45 employees of C.D.A. pending finalization of the Rule. As per the practice at the time of retirement, the employees were asked to deposit the employers contribution deducted by the EPF authority along with interest and on deposit of the said amount and/or deducting the said amount from the gratuity due the benefits of pension were extended to them provisionally. The C.D.A. was covered under the E.P.F. and M.P. Act, 1952 since 1980. Accordingly, C.D.A. complied with the requirement of E.P.F. contribution and pension contribution under the said Act. At a belated stage, the EPF authorities required that the employees/workmen engaged with the contractors executing the works on turnkey basis should be covered under the E.P.F. and C.D.A. being the principal employer issued notice to ensure payment of the employee and employer share to the tune of crores. No proceedings were initiated by the E.P.F. authorities against the contractors. Assailing the action of the E.P.F. authorities, C.D.A. filed writ application challenging the maintainability of the proceeding on the ground that it cannot be considered as the principal employer. It was contended that its employees are not covered under the E.P.F. as they have already been extended the pensionary benefits to their employees in view of the decision of this Court and the same is in better terms in comparison to the benefits given by the E.P.F. authorities. However, the E.P.F. did not extend the benefit of Sec.16 of the E.P.F. and M.P. Act, 1952. The writ application was allowed holding that C.D.A. is not covered under the E.P.F. and M.P. Act, 1952. While the matter stood thus, some of the employees of different authorities such as Bidyadhar Mishra, an employee of Rourkela Development Authority, Basanta Kumar Swain, Nanda Kishore Swain, employees of Bhubaneswar Development Authority had filed writ applications being W.P.(C) No.10038 of 2008 and W.P.(C) No.13211 of 2010. The writ application filed by Bidyadhar Mishra was allowed relying on the judgment of this Court passed in O.J.C. No.768 of 1990. In a contempt proceeding arising out of the said writ application filed by Bidyadhar Mishra, the Government was directed to frame rule in respect of the employees of different authorities. Thereafter discussions were made at different time. The Government took a decision to frame a set of rule governing the retiral benefits of the employees working in different authorities. Prior to enforcement of the said rule, objections and suggestions were invited. After consideration of the same, in exercise of power conferred Sec.128 read with sub-sec.(1) of Sec.83 of O.D.A. Act, 1982 on due consultation with the development authorities, the Government framed the rule. It is further stated that C.D.A. being a creature of the statute, bound by the provisions of law and rules framed time to time and comply the instructions of the Government issued from time to time. Rules have been framed in respect of all employees working under different authorities including C.D.A. So far as the petitioner is concerned, he is an employee appointed prior to 2005 and as such he is covered under the provision of the said Rule. He was covered under the E.P.F. and M.P. Act, 1952 and necessary contributions under the said Act were deducted and deposited with the E.P.F. authorities. Since the provisional pension at par with the Government employees was granted to Krupasindhu Barik, the same was granted to the petitioner on approval of the authority. The C.D.A. has also sent service condition and pension rules for approval of Government in 1997. The same is pending. But then, in view of the decision of the Government and implementation of the Rules, 2015, the said draft rule is of no consequence. Rules, 2015 shall override of such benefits extended provisionally. The benefits extended provisionally cannot confer any right upon the petitioner to claim such benefit consequent upon the operation of the rule. The petitioner being a pensioner under the E.P.F. and M.P. Act, 1952 shall be entitled to all benefits from E.P.F. authorities. It is further stated that Orissa Service Code is not applicable to the employees of the C.D.A. The same was adopted by the C.D.A. in the absence of any separate service conditions, which is pending approval of the Government. The Orissa Pension Rules, 1992 does not have any application to the employees of C.D.A. The specific case of the opposite party nos.2 and 3 is that the vires of Rules, 2015 has not been challenged. The Rule applies to the employees working till 2005. The petitioner was appointed before the cut-off date. Thus, he has covered under the Rule and entitled to the benefit of the E.P.F.