Delhi Transport Corporation ... vs Union Of India
1997 Latest Caselaw 905 Del

JUDGMENT

Usha Mehra, J.

(1) Present petition was filed by the Dtc Retired Employees Association through its Chairman beside three individuals S/Shri Hari Singh, R.R.Sharma and Sansar Chand. The main relief sought in this petition is that the respondent Delhi Transport Corporation (in short DTC) vide order No.16 dated 27th November, 1992 introduced pension scheme for its employees retiring on or after 3rd August, 1981 on the same pattern as applicable to the Central Government employees.

(2) That when the said scheme was not implemented inspite of the assurance given to the Supreme Court, the petitioners filed contempt proceedings in the Supreme Court. During these proceedings the Dtc implemented the pension scheme. However, according to petitioners the same is rendered ineffective because the Dtc adopted unreasonable and illegal stand thereby asking the petitioners to pay interest on the amount of employer's contribution paid to the retired employees. The employees are prepared to refund the employer's contribution but not the interest. According to them the Dtc is not entitled to charge interest on the same. Similarly, DTC's insistence on payment of interest on excess amount of gratuity due to be refunded by the employees is also illegal. Because Dtc is not paying any interest on the amount of arrears of pension withheld by it beside on the amount of commuted value of pension which became due to the petitioners and other similarly situated retired officials of the DTC. The respondent Dtc has neither indicated the rate of interest to be charged on the amount of employer's contribution/excess gratuity to be refunded nor Dtc has issued any payment order to most of the retired employees. Even no details have been given as to how the amount of pension was arrived at. In fact the pension had been deprived to the retired employees because of the insistence of the Dtc to deposit the interest on the amount to be refunded i.e. on employer's contribution/excess gratuity. Thus, according to the petitioners they are not liable to pay interest on the amount of employer's contribution of Provident Fund as also on the excess amount of gratuity which the petitioners are to refund on their having opted for pension scheme. It is in this background that the demand of the respondent/DTC of interest has been challenged in this writ petition.

(3) Dtc took the preliminary objection about the maintainability of the writ petition by Dtc Retired Employees Association which according to the respondent does not exist. Few retired employees cannot get together and form an Association. Each individual's case vary. Considering the objection raised by the respondent and the fact that each individual who is aggrieved has to plead his own case, this Court vide order dated 4th September, 1997 held that the petitioner No.1 had no locus standi. All those retired employees who are aggrieved have to file their writ petition individually. The Association is not the representative of all the retired employees. Moreover, facts of each case are different. Hence, petition by petitioner No.1 is not maintainable.

(4) On merits I heard Mr.Narottam Vyas for the petitioner and Mr.R.P.Gupta for the respondent. Admittedly, vide office order No.16 dated 27th November, 1992 the respondent Dtc introduced the pension scheme as applicable to the Central Government employees. This pension scheme was sanctioned by the Central Government and conveyed to Dtc on 23rd November, 1992. This pension scheme was subject to certain conditions. Some of the conditions stipulated in the said circular which are relevant for our consideration are reproduced as under : 4. The pension scheme would be compulsory for all the new employees joining Dtc w.e.f. 23.11.1992, the date of sanction of the same. 6. The employees who have retired on or after 3rd August, 1981 and the existing employees, who have drawn the employer's share, under the E.P.F.Act, partly or wholly shall have to refund the same with interest in the event of their opting for the pension scheme. The total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. 7. Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the pension scheme, will have to be refunded by them before any benefit under the scheme, is granted to them.

(5) The office order dated 27th November, 1992 was issued pursuance to the letter received from the Government of India dated 23rd November, 1992. Perusal of that letter clearly show that sanction of the pension scheme was accorded by the Central Government on certain conditions so stipulated in the sanction letter. Clause `F' of that sanction letter dated 23rd November, 1992 reads as under : (f) The employees who have retired after 3rd August, 1981 and who have drawn the employer's share in the Epf account shall refund the same with interest in the event of their opting for the pension scheme.

(6) Therefore, the introduction of the pension scheme for its employees by the Dtc was as per the sanction accorded by the Central Government vide letter dated 23rd November, 1992 which clearly stipulated that the Dtc had to charge interest from its employees at the time of their refunding employer's share. This condition cannot be called unreasonable because the employees after retirement on 3rd August, 1981 had received the employer's share of provident fund. They had enjoyed that amount since 1981. Now since they opted for the pension scheme and are going to get the arrears of pension and commuted amount, they cannot be allowed to say that asking of interest is arbitrary or against the principles of natural justice. If on the other hand they do not pay interest, to my mind, Mr.Gupta rightly contended that they will be doubly enriched. Mr.Narottam Vyas's contention that if Dtc charges interest on the employer's share under the Epf Act then employees are also entitled to interest on delayed pension on the arrears of commuted amount. This argument is devoid of merits because the retired employees had enjoyed the amount of provident fund i.e. contribution of employer's share, gratuity and other retiral benefits. Therefore, having enjoyed the same he cannot turn around and say that pension scheme was made applicable from 1992, therefore, he should also be paid interest. It has never been the case of the petitioners No.2 to 4 that their retiral benefits applicable to them on the date they retired were withheld by the DTC.

(7) That the pension scheme was introduced on 27th November, 1992 with a clear stipulation that the employees will have to refund the employer's share under the E.P.F. Act with interest. Mr. Vyas in order to support his case that respondent is not entitled to charge interest placed reliance on the decision of the Supreme Court in the case of R.Subramaniam Vs. Chief Personnel Officer, Central Railway, Ministry of Railways, . I must clarify that the decision relied by counsel for the petitioner is of no help to him. In this case contract came into existence between a retired employee and the respondent Dtc when he was told vide office order No. 16 that if he opts for the pension scheme he will have to refund the employer's contribution of the provident fund with interest. It is only after knowing this condition he opted for the pension scheme knowing fully well that he would get pension subject to that condition. He by opting for pension scheme accepted that offer. The respondent/DTC sought clarification vide letter dated 25th November, 1994 from the Government of India with regard to interest on the pensionary benefits. The Government of India vide letter dated 23rd December, 1994 (Annexure - Ix with the counter affidavit) pointed out clearly that the instructions contained in the Department of Pension and Pensioners' O.M. dated 25th August, 1994 were clear. The said instructions show that for the refund of pensionary benefits and for the option of the pension scheme, the employees have to pay interest on the same. The said Office Memorandum issued by the Government of India, Department of Pension and Pensioners' Welfare dated 25th August, 1994 is Annexure - Viii to the counter affidavit. Therefore, Dtc is bound by the instructions issued by the Government of India. The retired employees having opted for the pension scheme have to refund the employer's contribution with interest. They cannot turn around now to say that they are not liable to pay interest. The rate of interest to be charged by the respondent is given in O.M. dated 25th August, 1994 (Annexure - Viii to the counter affidavit). It may also be clarified that the respondent/DTC is not entitled to charge interest on the excess amount of gratuity to be refunded by the employees. Perusal of the Clauses reproduced above of Office order No. 16 nowhere says that on the excess amount of gratuity paid to the ex-employees they have to pay interest. Like in Clause 6 where it is stipulated that interest has to be paid there is no such stipulation in Clause 7. Therefore, Dtc cannot charge interest on the excess amount of gratuity to be refunded by the employees. Hence, interest, if already charged on the excess amount of gratuity from petitioners, the Dtc will refund back the same to them.

(8) That the employees of the Dtc immediately on the opting of the pension scheme should have refunded that amount. Having not done so they cannot ask the Dtc not to charge interest. So far as the petitioner No. 2 is concerned, it has been stated at the bar that he has already refunded the employer's share alongwith interest. So far as petitioner No. 3 is concerned, he did not draw employer's contribution, therefore, there is no question of his paying interest to DTC. So far as petitioner No. 4 is concerned, it is stated at the bar that Dtc has already deducted interest from his retirement benefits towards employer's contribution.

(9) With these observations, the petition is allowed to the extent that interest on the excess amount of gratuity paid to the employees which is to be refunded by them cannot be charged by DTC. But Dtc will be entitled to charge interest on the amount of employer's contribution of provident fund received by the employees which they are liable to refund. On refund of gratuity amount and the provident fund and paying interest on the refund of the employer's share of the provident fund, pension amount including the arrears should be paid forthwith to the employees. It must also be clarified at this stage that petitioners No. 2, 3 and 4 were paid the pension immediately after the scheme was approved by the Central Government w.e.f. November, 1995 as has been stated by respondent in its additional affidavit filed on 18th September, 1997. Therefore, so far as petitioners No. 2, 3 and 4 are concerned, they cannot have any grievance. Similarly, the other employees who returned the employer's contribution of provident fund with interest and the excess amount of gratuity, their pension should be worked out and paid.

(10) With these observations, the petition stands disposed of.