Calcutta High Court (Appellete Side)
Monojendra Chakraborty & Ors vs The State Of West Bengal & Ors on 26 July, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Before:
The Hon'ble Justice Hiranmay Bhattacharyya
WPA 7450 of 2021
Monojendra Chakraborty & Ors.
Vs.
The State of West Bengal & Ors.
For the Petitioners : Sardar Amjad Ali, Sr. Adv.
Mr. Masum Ali Sardar ....advocates
For the respondent
nos.2 to 5 : Mr. Soumya Majumdar
Ms. Deblina Chattaraj ... advocates
For the State : Mr. Pantu Deb Roy
Mr. Subrata Ghosh Biswas
Mr. Pannalal Banerjee ... advocates
Reserved on : 14.07.2023
Judgment on : 26.07.2023
Hiranmay Bhattacharyya, J.:-
1. The writ petitioners have prayed for issuance of a mandamus
commanding the respondents to allow them to opt for the pension
scheme in terms of the Calcutta Tramways Co. (1978) Ltd. Employees
Pension Regulations, 2001.
2. The petitioners claim that while they were in service, the Government of
West Bengal, with the approval of the Department of Finance, introduced
a pension scheme for the employees of the Calcutta Tramways Company
(1978) Ltd. now known as West Bengal Transport Corporation Ltd. The
petitioners further claim that the employees were given the option to
switch over to the pension scheme. The petitioners state that the
Managing Director of Calcutta Tramways Co. (1978) Ltd. (for short "CTC")
issued a Circular dated 24.07.2006 (wrongly mentioned as 24.07.2007)
giving an opportunity to the employees who may prefer to come under
the purview of the pension scheme to exercise their option within
31.07.2006. The said circular dated 24.07.2006 was followed by an
advertisement published in the Ananda Bazar Patrika on 25.07.2006. By
the said publication all the retired employees or the widows of the retired
employees who expired on or after 02.04.1997 were given the final
opportunity to exercise their option to avail the benefits of the pension
scheme. The petitioners submitted a representation which was received
by the office of the CTC on 18.12.2019 requesting the authorities to allow
each of them to switch over to the pension scheme after necessary
adjustments. Alleging inaction on the part of the respondent authorites,
the writ petitioners have approached this Court.
3. Sardar Amjad Ali, learned Senior counsel representing the petitioners
contended that fixation of cut-off date for exercising option to switch over
to the pension scheme resulted in creation of two groups i.e., optee and
non-optee of pension which is contrary to the law laid down by the
Hon'ble Supreme Court in the case of D.S.Nakara vs. Union of India
reported at (1983) 1 SCC 305. He further submitted that the respondent
authorities have illegally denied the benefits of the pension scheme to
those employees who did not exercise their options within the cut-off
date. Mr. Ali further contended that the issuance of the circular thereby
extending the last date for exercising the option to switch over to the
pension scheme within 31.07.2006 and the subsequent publication
made in the Bengali Daily, Ananda Bazar Patrika on 25.07.2006 cannot
in any event be said to be an effective circulation as the last date for the
exercising such option was 31.07.2006. In other words, according to Mr.
Ali sufficient time was not given to the petitioners to exercise their option
pursuant to the notification published on 25.07.2006. Mr. Ali also relied
upon an unreported decision of a Hon'ble Division Bench of this Court in
FMA 470 of 2021 in the case of State of West Bengal and ors. vs.
Kamala Kanta Jana and ors. delivered on 05.05.2022.
4. Per contra Mr. Soumya Majumdar learned counsel representing CTC
seriously disputed the submissions made by Mr. Ali. He contended that
the petitioners were not at all ready and willing to switch over to the
pension scheme since the introduction of the Pension Regulations, 2001
till the last extension for exercising such option. He submitted that the
petitioners cannot be allowed to switch over to the pension scheme at
such a belated stage and in support of such contention he placed
reliance upon a judgment and order dated 22.02.2016 passed by a
Hon'ble Division Bench of this Court in APO 302 of 2015 in the case of
Dilip Sankar Das and ors. vs. State of West Bengal and ors.
5. Heard the learned advocates for the parties and perused the materials on
record.
6. Calcutta Tramways Company (1978) Ltd. Employees Pension
Regulations, 2001 (hereinafter referred to as the "2001 Regulations") was
framed by the Calcutta Tramways Company (1978) Ltd. and the said
Regulations were notified in the Kolkata Gazette on December 24, 2001.
The 2001 Regulations came into force with retrospective effect from
01.04.1997.
7. Regulation 2(2) of the 2001 Regulations states that the pension shall
normally be treated as death-cum-retirement benefits admissible to the
employees who were on pay roll of the company on 01.04.1997 and are
on pay roll of the company and remain on the pay roll of the company till
the date of actual notification of such regulations in the official gazette,
in lieu of the benefits of the contributory provident fund as provided in
the provident fund regulation of the company but including the benefits
of gratuity under the Gratuity Rules of the State Government.
8. Regulations 2(3) states that the 2001 Regulation shall be optional in case
of the employees covered under Regulations 2(2).
9. Regulation 2(4), however, provides that the Pension Regulations shall be
binding upon the new entrants on and after the date of official
notification.
10. The provisions for exercising option to switch over to the pension scheme
have been laid down in Regulation 6 of 2001 Regulation which is
extracted hereinafter.
"6. (1) The employee who may prefer to come under the purview of
these regulations shall have to exercise his option within six months
from the date of actual publication of these regulations in the Official
Gazette.
(2) The employees who were on pay roll of the Company on the date
on which these regulations came into effect and onwards but retired
on subsequent dates, but before the publication of these regulations
may exercise their option within six months from the date of
publication of these regulations provided they refund to the
Company the full amount of the share of Company's contribution
towards Contributory Provident Fund together with interest accrued
thereon plus an additional interest @ 5% simple chargable from the
date of receipt of the Company's share upto the month preceeding
the month of refund. They will however, be entitled to get the benefit
of pension from the date they retired and disbursement of pension
shall be made only after they refund the Company's contribution of
P.F. together with interest they received.
(3) Failure to exercise option by an employee within the stipulated
period as referred to in Regulation 6(1) and (2) shall be treated as if
he had not opted towards the pension regulations.
(4) If an employee expires before exercising his option as referred to
in Regulations 6(1) and 6(2) it should be taken as if he had not
exercised his option in favour of the pension."
11. Regulation 6(1) states that the employee who may prefer to come under
the purview of 2001 Regulations shall have to exercise the options within
six months from the date of actual publication of such regulations in the
official gazette.
12. The Regulations 6(2) are applicable in case of employees who were on the
pay roll of the company on the date on which 2001 Regulations came
into effect and onwards but retired on subsequent dates but before the
publication of 2001 Regulations and they may exercise their option
within six months from the date of publication of 2001 Regulations
provided thus refund to the company the full amount of the share of
company's contribution towards contributory provident fund together
with interest accrued thereon plus an additional interest at the rate of
5% simply chargeable from the date of receipt of the company's share up
to the month preceding the month of refund. It was further provided
therein that such employees will however be entitled to get the benefit of
pension from the date they retired and disbursement of pension shall be
made only after they refunded the company's contribution of provident
fund together with interest they received.
13. Regulation 6(3) states that failure to exercise option by an employee
within the stipulated period as referred to in Regulation 6(1) and (2) shall
be treated as if he had not opted towards the Pension Regulation.
14. The employees covered under Regulation 2(2) have been given a right to
switch over to the Pension Scheme. However, in case such employees
decide to switch over to the Pension Scheme, they have to exercise their
option in terms of Regulation 6 of the 2001 Regulations. Failure to
exercise such option shall be treated as if such employee had not opted
for the Pension Scheme.
15. Record reveals that the Deputy Secretary of Government of West Bengal
by a Memo dated 21.07.2006 informed the Managing Director, CTC
Limited that the Finance Department of the Government of West Bengal
has agreed to extend the last date of submission of option on or before
31.07.2006. Pursuant to the said letter dated 21.07.2006 the Managing
Director of CTC Limited issued a circular dated 24.07.2007 wherein it
was stated that the employees who may prefer to come under the
purview of the scheme have to exercise their option within 31.07.2006.
16. It is not in dispute that the petitioners did not exercise their option to
come under the purview of 2001 Regulations within the time limit
specified in Regulation 6 of 2001 Regulations. The petitioners also did
not exercise their option to come under the purview of 2001 Regulations
within 31.07.2006. The petitioners submitted a representation for the
first time which was received by the office of the CTC Limited only on
18.12.2019. It has been stated by the writ petitioners in the said
representation that a Circular dated 26.12.2001 was issued from the
office of the Managing Director of CTC Limited to all the departments
including the offices of all the unions notifying the introduction of the
2001 Regulations and also the main features of such Regulations. It has
also been specifically stated therein that thereafter a Memo dated
01.03.2002 was issued by the Chief Accounts Officer to all the Offices
and departments to circulate the scheme amongst the employees. The
writ petitioners have specifically admitted in the writ petition that the
said pension scheme was introduced while they were in service.
Therefore, this Court holds that the petitioners were well aware of the
introduction of the pension scheme. The reasons for which the
petitioners did not exercise their option within the time limits specified
under Regulation 6 of the 2001 Regulations or within 31.07.2006 as
stated in the said representation was that the amount of pension offered
under the 2001 Regulations was less attractive compared to the
contributory provident fund for which the signatories to the
representation though eligible to apply under the 2001 Regulations
refrained themselves from exercise options for availing pension.
According to the petitioners, previously there was serious anomaly in
fixation of the pension amount and the employees have decided to come
under the purview of 2001 Regulations after the pension was made at
par with the rate as applicable to the retired employees of other
departments under the Government of West Bengal.
17. The writ petitioners took a conscious decision not to switch over to the
pension scheme either within the time limit mentioned under Regulation
6 of 2001 Regulations or within 31.07.2006 i.e., within the extended time
limit. It is not the case of the writ petitioners that they were not aware
about the introduction of the 2001 Regulations at the relevant point of
time. The mere fact that the extension of time for exercising the option to
switch over to the pension scheme till 31.07.2006 was notified in the
newspaper only on 25.07.2006 cannot in any event justify the action of
the writ petitioners in approaching the authorities for exercising option to
switch over to the pension scheme for the first time only on 18.11.2019.
18. Mr. Ali would contend that the stipulation made in the 2001 Regulations
for exercising option to come within the purview of 2001 Regulation
amounts to creation of two classes within the employees for the benefit of
whom the 2001 Regulations were framed. In other words it is the
contention of Mr. Ali that the authorities ought to have allowed the
employees including the retired employees who are willing to switch over
to the pension scheme even if such option was not exercised within the
time limits specified thereunder. Such submission of Mr. Ali cannot be
accepted in view of the fact that in respect of employees covered under
Regulation 2(2) option is to be exercised within the time limit mentioned
in Regulation 6(1) and 6(2) and failure to exercise option within such
time limit shall be treated as if he had not opted for the Pension
Regulations. Therefore, in order to switch over to the pension scheme
option is to be exercised either within the time limit mentioned in
Regulation 6(1) and 6(2) of the 2001 Regulations or within the extended
time i.e., within 31.07.2006.
19. In D.S.Nakara (supra) the issues which fell for consideration was
whether the pensioners entitled to receive superannuation or retiring
pension under the Central Civil Service (Pension) Rules, 1972 form a
class as a whole and whether the date of retirement is a relevant
consideration for eligibility when a revised formula for computation of
pension is made effective from a specified date. D.S. Nakara (supra)
dealt with liberalization of pension formula. While dealing with these
aforesaid issues the Hon'ble Supreme Court observed that if pensioners
form a class their computation cannot be by different formula affording
unequal treatment solely on the ground that some retired earlier and
some retired later.
20. In the case on hand the petitioners are all Provident Fund retirees. It is
not in dispute that they have been paid their gratuity as well as
provident fund amount including the employer's contribution after they
had retired from service. The petitioners herein intend to switch over to
pension scheme from the Contributory Provident Fund scheme.
21. Five Hon'ble Judges of the Supreme Court of India in the case of
Krishena Kumar vs. Union of India and ors. reported at (1990) 4 SCC
207 posed to itself the question of law as to what was the ratio decidendi
in Nakara Case and how far that would be applicable to the case of
Provident Fund retirees. The Hon'ble Supreme Court in Krishena
Kumar (supra) observed that in Nakara it was never held that both the
pension retirees and the PF retirees form a homogeneous class and that
further classification among them would be violative of Article 14. The
Hon'ble Supreme Court in paragraph 32 of the said retirees held thus-
"32. In Nakara it was never held that both the pension retirees and
the P.F. retirees formed a homogeneous class and that any further
classification among them would be violative of Article 14. On the
other hand the court clearly observed that it was not dealing with
the problem of a "fund". The Railway Contributory Provident Fund is
by definition a fund. Besides, the Government's obligation towards
an employee under CPF Scheme to give the matching contribution
begins as soon as his account is opened and ends with his
retirement when his rights qua the government in respect of the
Provident Fund is finally crystallized and thereafter no statutory
obligation continues. Whether there still remained a moral obligation
is a different matter. On the other hand under the Pension Scheme
the Government's obligation does not begin until the employee retires
when only it begins and it continues till the death of the employee.
Thus, on the retirement of an employee government's legal obligation
under the Provident Fund account ends while under the Pension
Scheme it begins. The rules governing the Provident Fund and its
contribution are entirely different from the rules governing pension. It
would not, therefore, be reasonable to argue that what is applicable
to the pension retirees must also equally be applicable to PF retirees.
This being the legal position the rights of each individual PF retiree
finally crystallized on his retirement whereafter no continuing
obligation remained while, on the other hand, as regard Pension
retirees, the obligation continued till their death. The continuing
obligation of the State in respect of pension retirees is adversely
affected by fall in rupee value and rising prices which, considering
the corpus already received by the PF retirees they would not be so
adversely affected ipso facto. It cannot, therefore, be said that it was
the ratio decidendi in Nakara that the State's obligation towards its
PF retirees must be the same as that towards the pension retirees
An imaginary definition of obligation to include all the government
retirees in a class was not decided and could not form the basis for
any classification for the purpose of this case. Nakara cannot,
therefore, be an authority for this case."
22. The writ petitioners in the case on hand, as observed by this Court
hereinbefore are PF retirees. Therefore, the writ petitioners cannot claim
that they and the retirees who are enjoying the benefits of the pension
scheme form a homogeneous class. Therefore, the fixation of the cut-off
date for exercising option to switch over to the 2001 Regulations from the
contributory provident fund regulations cannot be said to be violative of
Article 14 of the Constitution of India. The decision in the case of D.S.
Nakara (supra) cannot be applied to the facts of the case on hand for the
reasons as stated hereinbefore.
23. The Hon'ble Division Bench in the case of Dilip Sankar Das (supra) held
that since the appellants therein chose not to exercise their option within
the time frame stipulated in the 2001 Regulations and as extended by
the CTC, thereunder are not entitled to claim the pension under the
aforesaid regulations at such a belated stage more so when all of them
have received their gratuity and provident fund dues upon retirement.
The Hon'ble Division Bench held thus-
"There is no doubt that right to receive pension has now been
considered as a fundamental right by the Supreme Court as pension
is the property of an employee. However, when a Scheme for
pension is made applicable to existing employees conditional upon
them opting for the same and such option is not exercised within the
stipulated time, they cannot claim the pension as a matter of right.
The pension is payable under the Pension Regulations of 2001
which have been notified in the Official Gazette. Since, the
appellants chose not to exercise their option within the time framed
stipulated in the Pension Regulations and as extended by the CTC,
they are not entitled to claim the pension under the aforesaid
Regulations."
24. The decision of the Hon'ble Division Bench in Dilip Sankar Das (supra)
shall squarely apply to the case on hand. For such reason this Court is
of the considered view that the petitioners cannot be now allowed to
exercise option to switch over to the pension scheme introduced by the
2001 Regulation.
25. In Kamala Kanta Jana (supra) the issue which fell for consideration
was whether the retired and current employees of a Technical Institute
can be said to be covered by the notification issued by the School
Education Department. The said decision being distinguishable on facts
cannot come to the aid of the petitioners herein.
26. For all the reasons as aforesaid this Court is of the considered view that
the writ petition is devoid of any merit and the same is liable to be
dismissed and is accordingly dismissed. There shall be no order as to
costs.
27. Urgent photostat certified copies, if applied for, be supplied to the parties
upon compliance of all formalities.
(Hiranmay Bhattacharyya, J.)
(P.A.-Sanchita)
