Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10775 of 2018 [Arising out of SLP(C) No.31906/2017]

NATIONAL INSURANCE SPECIAL VOLUNTARY  RETIRED/RETIRED EMPLOYEES ASSOCIATION & ANR. ….APPELLANTS

versus

UNITED INDIA INSURANCE CO. LTD. & ANR. ….RESPONDENTS

WITH CIVIL APPEAL NO. 10778 OF 2018 [@ SLP(C) No. 28823 OF 2018 @ DIARY NO. 34106/2017] CIVIL APPEAL NO. 10776 OF 2018 [@ SLP(C) No. 28821 OF 2018 @ DIARY NO. 34261/2017] CIVIL APPEAL NO. 10777 OF 2018 [@ SLP(C) No. 28822 OF 2018 @ DIARY NO. 34359/2017]

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The  appellants  are  ex-employees  of  the  respondent  Insurance

Companies, who initially joined as Assistants, between 1972 to 1980,and

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went  out  of  service  taking  advantage  of  the  General  Insurance

Employees’  Special  Voluntary  Retirement  Scheme,  2004  (for  short

‘SVRS-2004  Scheme’).   The  bone  of  contention  is  the  plea  of  these

appellants, that they are also entitled to certain benefits arising under the

earlier  scheme known as The General  Insurance (Employees)  Pension

Scheme, 1995 (for short ‘1995 Scheme’), which inter alia provided that

the qualifying service of an employee, retiring under that1995Scheme,

would be increased by a period not exceeding five (5) years, subject to

certain conditions.

3. The  concept  of  providing  pension  to  the  employees  of  the

respondent Insurance Companies was introduced for the first time by the

1995 Scheme, which was notified in the Gazette of India on 28.6.1995,

but was brought into force from 1.11.1993.  The relevant para 30 of the

1995Scheme, which is of concern to the present dispute, is as under:

“30. Pension on voluntary retirement -

(1) At any time after an employee has completed twenty years of qualifying service, he may, by giving notice of not less than ninety days,  in writing to the appointing authority,  retire from service: …………”

xxxx xxxx xxxx xxxx xxxx

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“(5)  The  qualifying  service  of  an  employee  retiring  voluntarily under this paragraph shall be increased by a period not exceeding five years, subject to the condition that the total qualifying service rendered by such employee  shall  not  in  any case  exceed  thirty three years and it does not take him beyond the date of retirement.”

4. The aforesaid 1995 Scheme, thus, envisaged an additional notional

benefit of five (5) years’ service for employees retiring voluntarily under

it,  with  the  limitation  that  the  qualifying  service  rendered  by  such

employees: (i) shall not, in any case, exceed 33 years; and (ii) does not

take them beyond the date of retirement.

5. The insurance companies were faced with excess manpower, and,

thus, to prune the manpower size, a special scheme, being the SVRS-

2004 Scheme, was introduced for a limited period of sixty (60) days from

the  date  of  its  notification,  that  is  1.1.2004.   The  Scheme was  made

applicable  to  permanent,  full-time  employees  eligible  to  seek  special

voluntary retirement, provided that they had attained the age of 40 years

and had completed the minimum qualifying service of ten (10) years, as

on the date of notification.  The relevant clauses 5 & 6 read as under:

“5. Amount of ex-gratia:-

(1) An employee seeking Special Voluntary Retirement under this

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Scheme shall been (sic.)1 entitled to lower of the ex-gratia amount as given below, namely: sixty days salary for each completed year of  service,  OR,  salary  for  the  number  of  months  of  remaining service.

(2) The ex-gratia shall be computed on the basis of his/her salary as on the date of relieving.  In case, wage revision is effected from a date prior to the date of this notification in the Official Gazette, the benefit of revised pay for the purpose of payment of ex-gratia will be allowed.

6. Other Benefits  

(1) An employee opting for the Scheme shall also be eligible for the  following  benefits  in  addition  to  the  ex-gratia  amount mentioned in para5, namely:

(a) Provident Fund;

(b)Gratuity as per Payment of Gratuity Act, 1972 (39 of 1972) or gratuity; payable under the Rationalisation scheme, as the case may be;

(c) Pension  (including  commuted  value  of  pension)  as  per General  Insurance  (Employees’)  Pension  Scheme,  1995,  if eligible.   However,  the  additional  notional  benefit  of  five years of  added service as stipulated in para 30 of  the said pension scheme shall  not  be admissible  for  the purpose  of determining  the  quantum  of  pension  and  commutation  of pension;

(d)Leave encashment.

(2)An employee who is opting for the scheme shall not be entitled to avail  Leave Travel  Subsidy and also encashment  of  leave while in service during the period of sixty days from the date of notification of this scheme.”

(emphasis supplied)

1 To be read as ‘be’.

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6. It  is,  thus,  quite  apparent  that  clause  (c),as  part  of  the  overall

package, clearly stated that the notional benefit of five (5) years of added

service,  as  stipulated  in  para  30  of  the  1995  Scheme,  would  not  be

admissible  for  purposes  of  determining  the  quantum  of  pension  and

commutation of pension to such employees who availed retirement under

the SVRS-2004 Scheme.  Suffice to say that the SVRS-2004 Scheme

provided  for  additional  benefits  beyond  the  1995  Scheme,  while

simultaneously curtailing this aforesaid aspect, specifically.  Despite this

clear stipulation, the appellants sought the benefit of these very five (5)

added notional years of service, for calculation of their pension, under

the SVRS-2004 Scheme, in addition to the other benefits offered.  This

demand was declined by the respondent Insurance Company.

7. There is a background to this lis inter se the parties.  On an earlier

occasion, the employees availing of the SVRS-2004 Scheme, sought to

take advantage of the revision of pay-scales, as provided for under the

notification  dated  21.12.2005,  which  had  retrospective  effect  from

1.8.2002.  This benefit was denied on the ground that such of the persons

who had availed voluntary retirement under the SVRS-2004 Scheme had

ceased to be employees of the respondent Insurance Company and were,

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thus, not entitled to the benefit of revision of pay-scales, retrospectively.2

In coming to the conclusion, various clauses of the benefits given under

the SVRS-2004 Scheme were taken note of, including sub-clause (c) of

clause 6(1) reproduced hereinabove.  However, what was sought to be

taken advantage of was sub-clause (2) of Clause 5 of the SVRS-2004

Scheme, providing for  ex-gratia to be computed on the basis of salary

received as on the date of retirement, but also providing that in case of

wage revision being effected from a date prior to the date of notification

of the SVRS-2004 Scheme in the Official Gazette, the benefit of revised

pay for purposes of payment of ex-gratia would be allowed.  It appears

that in the course of justifying their actions, an argument was sought to

be advanced on behalf  of  the insurance company,  that  apart  from the

objective of reduction of man-force, the employees were given ex-gratia

payment which they were otherwise not entitled to, and were also given

an additional amount of pension because a notional period of five (5)

years had been added to the number of years served by them (It may be

noted, however, that this is contrary to the clear stipulation in the SVRS-

2004Scheme).  This Court opined in favour of the insurance companies,

specifically noticing that retrospective rise in salary is only given to those

2See Manojbhai N. Shah &Ors. v. Union of India &Ors.(2015) 4 SCC 482.

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employees who are in service at the relevant point in time or to those

who retired in normal circumstances, and not to those employees opting

under such special schemes, like the SVRS 2004 Scheme.  No doubt the

plea of five (5) years addition for calculation of pension was noticed in

the judgement, however, no further discussion of the same formed part of

the reasoning.

8. The beneficiaries of the SVRS-2004 Scheme sought a review of

the  judgment  predicated  on  a  plea  that  this  Court  had  incorrectly

recorded that persons retiring under the SVRS-2004 Scheme would be

given the  benefit  of  five  (5)  years  of  extra  service  for  calculation  of

pension,  while  actually  the  same  had  been  specifically  excluded.

However,  such  endeavour  proved  to  be  fruitless  and  the  review

application was dismissed on 7.4.2015.

9. That  ought  to  have  put  the  issue  at  rest,  but  the  insurance

companies in their wisdom made a belated attempt to once again urge

that issue, by seeking to plead that those observations were only obiter in

nature and were factually contrary to the scheme.  This application for

modification/clarification  was,  however,  refused  to  be  listed  by  the

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Registrar  as  it  was  found to  be  a  belated  endeavour  at  review.   The

beneficiaries  then  filed  a  Miscellaneous  Application  which  was  listed

before the Court, but was later withdrawn.

10. We  have  set  out  the  aforesaid  controversy  because  the  real

substantive ground forming the basis of the plea of the appellants before

us is that what was recorded in the judgment in the Manojbhai N. Shah

&Ors  case3 amounted  to  a  concession  on  the  part  of  the  insurance

companies, which concession in turn resulted in a finding against them to

the effect that, the, insurance companies are bound to give the benefit of

additional five (5) years’ service, as per the 1995 Scheme, even to those

persons who have opted for voluntary retirement under the SVRS- 2004

Scheme.

11. The aforesaid controversy, after an initial direction to the insurance

companies  to  examine  the  demands  of  the  retired  employees

substantively,  was  examined  by  the  learned  Single  Judge,  when  the

former came to be rejected by the insurance companies, by the judgment

in WP(MD) No.19431/2015 and connected matters dated 8.6.2016.In this

judgement, it was opined that in view of the judgment of the Supreme

3Supra.

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Court in  Manojbhai N. Shah &Ors.,4 this benefit of additional five (5)

years’ service, as per the 1995 Scheme was admissible despite the clear

terms of clause 6(1)(c) of the SVRS-2004 Scheme.  The learned Single

Judge also opined that since clause 6(1)(c) of the SVRS-2004 Scheme

did not specifically exclude the benefits under para 30(5) of the 1995

Scheme, there was no reason to deny the same to the beneficiaries of the

SVRS-2004 Scheme.

12. The aforesaid judgment was assailed before the learned Division

Bench, which, however, opined to the contrary and dismissed the original

writ petition filed by the appellants vide judgment dated 17.7.2017 in WA

(MD) Nos.1228-1231/2016.  It is this judgment which has been assailed

before us.

13. We have examined the impassioned plea made on behalf of the

employees by Mr. Guru Krishna Kumar, learned Senior Advocate and the

defence put up by the insurance companies through Mr. Rakesh Dwivedi,

Senior Advocate and Mr. Jaideep Gupta, Senior Advocate.

14. One  of  the  aspects  emphasised  by  learned  counsel  for  the

4Supra.

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appellants  was  that  the  financial  impact  would  not  be  huge,  as  was

sought to be contended by the insurance companies, as it would be in the

range of Rs.388 to Rs.1477, per beneficiary, per month.  We, however,

find that this would neither be here nor there, as that cannot be the basis

for  grant  or  refusal  of  the  relief.   The  question  for  consideration  is

whether  the  beneficiaries  under  theSVRS-2004  Scheme,  which

specifically excludes the benefit of additional five (5) years’ service of

the  1995  Scheme,  would  still  be  entitled  to  claim  the  said  amount

contrary to the explicit terms.  We are of the view that the answer to this

question must be in the negative.

15. It has to be appreciated that the SVRS-2004 Scheme is statutory in

character, being a Scheme under Section 17-A of the General Insurance

Business (Nationalisation) Act, 1972.  It would not be appropriate to add

or subtract terms from the Scheme, which has a statutory flavour.  There

could not have been any concession contrary to the terms of the Scheme,

and if such a concession was tenure for the benefit of the retirees, then it

had to go through the process of a formal notification.  In fact, post the

decision in Manojbhai N. Shah &Ors.,5both the parties also understood

5Supra.

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that  there  was  really  no  question  of  availing  the  benefit,  contrary  to

clause 6(1)(c) of the SVRS-2004 Scheme.  This is what resulted in the

review application,  the  clarification  and  modification  application,  etc.

The rejection of the review application filed by the beneficiaries itself

shows that post the judgment, clause 6(1)(c) was once again highlighted

before the Bench.  Despite this, the review application was dismissed,

which clearly shows that this fact was not important for finally coming to

the conclusion that the salary revision was not applicable to those who

had already retired.   Learned senior  counsel  for  the appellant  himself

acknowledged that in the absence of any specific direction in this behalf,

they could not have even filed a contempt petition and thus the fresh

round of litigation began.

16. Learned  senior  counsel  for  the  appellants,  however,  sought  to

persuade  us  by  referring  to  the  judgment  of  this  Court  in  State  of

Maharashtra v. Ramdas Shrinivas Nayak & Anr.6 where, in para 4, a

question  arose  qua a  concession  made  in  the  High  Court,  while

contending the matter before this Court.  It is in that context that it was

observed that  this  Court  would not  launch into an inquiry as  to what

6 (1982) 2 SCC 463

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transpired in the High Court: “4. .........It is simply not done. Public Policy bars us. Judicial decorum  restrains  us.  Matters  of  judicial  record  are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters  in  the  game  of  litigation"  (Per  Lord  Atkinson  in Somasundaram Chetty v.  Subramanian Chetty,  AIR 1926 PC 136).    We are  bound to accept  the statement of  the Judges recorded in their judgment, as to what transpired in court.  We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence.  If the judges say in their judgment that something was done, said or admitted  before  them,  that  has  to  be  the  last  word  on  the subject.  The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that  the happenings in court  have been wrongly recorded in a judgment, it is incumbent upon the party, while the  matter  is  still  fresh  in  the  minds  of  the  judges,  to  call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhu  Sudan  Chowdhri  v.  Chandrabati  Chowdhrain,  AIR 1917  PC  30).    That  is  the  only  way  to  have  the  record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call  in question the very fact of making the concession as recorded in the judgment.”

17. The aforesaid paragraph was, once again, extracted with approval

in  Y.  Sleebachen  &  Ors.  v.  State  of  Tamil  Nadu  through

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Superintending Engineer Water Resources Organisation/Public Works

Department &Anr.7

18. On the other hand, it was canvassed by the insurance companies

that there could be no concession against law [Tripura Goods Transport

Association & Anr. v. Commissioner of Taxes &Ors.8].Learned counsel

also referred to  New India Assurance Company Limited v. Raghuvir

Singh Narang & Anr.9 to buttress the plea that if there is a scheme which

has a statutory character, then there could not be any contention which

could  be  permissibly  raised,  contrary  to  the  Scheme.   Even  qua

contractual schemes, if one has availed of the benefits, it would not be

open to raise pleas and seek benefits beyond what is stipulated in the

Scheme.   

19. The earlier judgments in Bank of India & Ors. v. O.P. Swarnakar

& Ors.10 And  HEC Voluntary  Retired  Employees  Welfare  Society  &

Anr.  v.  Heavy  Engineering  Corporation  Ltd.  &Ors.,11 dealing  with

voluntary retirement schemes have been taken note of in the impugned

7 (2015) 5 SCC 747 8 (1998) 2 SCC 264 para 9 9 (2010) 5 SCC 335 10 (2003) 2 SCC 721 11 (2006) 3 SCC 708

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judgment, to come to the conclusion that the terms of such schemes must

be strictly followed, and the contract cannot be varied.  We may add here

that apparently there are certain observations in paras 33 and 34 of the

impugned  order,  which  may  also  run  contrary  to  clause  5(1)  of  the

SVRS-2004 Scheme, insofar as the Division Bench has opined that the

words  “whichever  is  less”  have  been  excluded  from clause  5  of  the

SVRS-2004 Scheme.  It may be noted that such is not the case, for clause

5 of the SVRS-2004 Scheme, as extracted above, explicitly provides, in

clause 5(1), that an employee seeking special voluntary retirement, under

the Scheme shall  be entitled to the lower of the  ex-gratia amounts as

mentioned thereunder.  We feel it suffice to clarify that what is binding

between the parties is the statutory scheme itself, as per its terms.

20. We  have,  thus,  no  hesitation  in  coming  to  the  conclusion  that

statutory or contractual, such voluntary retirement schemes as the SVRS-

2004 Scheme have to be strictly adhered to, and the very objective of

having such Schemes would be defeated, if parts of other Schemes are

sought to be imported into such voluntary retirement schemes.  What is

offered by the employer is a package as contained in the Schemes of

voluntary retirement, and that alone would be admissible.

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21. The issue which arose in Manojbhai N. Shah &Ors.12 Was qua the

revision of pay, with retrospective effect.  That was the only issue.  That

issue was decided against the beneficiaries of the SVRS-2004 Scheme.

If there are certain observations made by that Bench while deciding so,

qua aspects which are not forming the subject matter of that dispute, the

same cannot be read to amount to grant of relief/benefits, contrary to the

terms  of  the  Scheme,  and  that  too,  in  the  absence  of  any  specific

directions.

22. The  intent  of  the  SVRS-2004  Scheme  was  made  even  more

explicitly  clear  by  clause  8  specifying  the  general  conditions  in  sub-

clause(xiv), which reads as under:

“8. General conditions:

xxxx xxxx xxxx xxxx xxxx

(xiv) Save as provided in para 5(2) the benefits payable under this scheme shall be in full and final settlement of all claims of whatsoever  nature,  whether  arising  under  the  regulation  or otherwise to the employee (or to the nominee in case of death). An employee who voluntarily retires under this Scheme shall not have any claims against the Company for re-employment or compensation or employment of any of his or her relative on compassionate grounds in the service of the company or for any other like benefits.”

12Supra.

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23. It is, thus, abundantly clear that nothing more would be given than

what is stated in the Scheme, and for that matter, nothing less.  If the

employees avail of the benefit of such a Scheme with their eyes open,

they cannot look here and there, under different schemes, to see what

other benefits can be achieved by them, by seeking to take advantage of

the more beneficial  schemes,  while  simultaneously enjoying the more

beneficial aspects of the SVRS-2004 Scheme.

24. We,  thus,  find  no  reason  to  interfere  with  the  impugned order,

except  with  regards  to  observations  made  in  paras  33and  34  of  the

impugned order, and consequently, the appeals are dismissed leaving the

parties to bear their own costs.

..….….…………………….J. [Kurian Joseph]

              ...……………………………J. [Sanjay Kishan Kaul]

New Delhi. October 26, 2018.

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