Dtc Retired Employees ... vs Delhi Transport Corpn.
1998 Latest Caselaw 896 Del

JUDGMENT

K. Ramamoorthy, J.

1. The first petitioner is an Association. The petitioners 2, 4 & 6 are retired employees of the first respondent. The petitioners 3 & 5 are widows of the retired employees of the first respondent.

2. The second petitioner, who was working as Vehicle Examiner, attained the age of superannuation on 14.4.1988 and he retired from service on the 30th of April, 1988. He submitted the required forms for pension, after the Office Order was issued on the 27th of November, 1992, by receipt dated 5.3.1993. According to the second petitioner, he had not received any intimation thereafter from the DTC.

3. The petitioner No. 3, Smt. Raj Rani Sharma is the widow of Chaman Lal who was working as Traffic Inspector in the DTC and retired from service on the 30th of June, 1983. According to her, she had submitted the pension forms with the DTC on the 9th of March, 1993.

4. The petitioner No. 4, Shri Tek Chand, retired from the service of the first respondent on the 31st of January, 1982 and he submitted pension forms on the 2nd of March, 1993. According to him, he has not received any intimation and he has not been paid pension.

5. The petitioner No. 5, Smt. Pritam Kaur is the widow of late Shri Tajinder Singh who was working as driver in the DTC. Shri Tajinder Singh died on the 2nd of November, 1984. According to petitioner No. 5, she submitted the pension papers on the 5th of March, 1993.

6. The petitioner No. 6, Shri Baij Nath Bhargava, was working as Traffic Superintendent and he retired from service of the DTC on the 31st of May, 1994. He has also not been paid pension.

7. Petitioners 2 to 6 claim pension on the ground that as per the scheme introduced by the DTC, the employees who had retired had become entitled to pension. The Office Order No. 16 issued in this behalf on the 27th of November, 1992 reads as under:-

Sub: Introduction of Pension Scheme in DTC as applicable to the Central Govt. Employees.

The introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Government and conveyed by the M.O.S.T. vide letter No. RT-12019/21/88-TAG dated 23.11.1992 as on the same pattern as for the Central Government employees, subject to the following conditions:

1) The pension scheme would be operated by the LIC on behalf of DTC.

2) The date of effect of Pension Scheme would be 3-8-1981.

3) All the existing employees including those retired w.e.f. 3.8-1981 onwards would have the option to opt for the Pension Scheme or the Employees Contributory Provident Fund as at present, within 30 days from the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt. of India.

4) The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23-11-92, the date of sanction of the Scheme.

5) The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF A/c of the DTC employees, who opt for Pension Scheme would be transferred to the LIC, for operating the Pension Scheme on behalf of DTC and the amount deposited in the Central Govt./State Govt./Guaranteed Securities would be encashed on maturity.

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.

8) A due and drawn statement would be prepared in respect of retired employees opting for Pension Scheme and the amount to be paid/refunded, would be worked out by the concerned unit, wherefrom the employee had retired from service.

9) If any of the employee of DTC, who does not exercise any option within the prescribed period of 30 days or quit service or dies without exercising an option or whose option is incomplete or conditional or ambiguous, he shall be deemed to have opted the Pension Scheme Benefits. Application forms for exercising option would be available with the Unit Offices and all employees including retired employees wishing to exercise option, should do so with the Unit of their present working/where from they retired, within a period of 30 days from the date of issue of this Office Order.

The Unit Officers, after receiving the options from the ex-employees, will take further necessary action for getting the necessary forms completed, which will be supplied to them by the DTC for Pension etc. They will also ensure the recovery of EPF and Gratuity from the ex-employee's before forwarding their applications as mentioned above. The cases of all offices will be dealt with at Headquarters.

The options received from the existing employees for not opting pension may be kept in their personal file and entry made in their Service Book.

8. The main objection taken by the learned counsel for DTC is that the petitioners 2 to 6 had not availed of the option given by the DTC mentioned in the advertisement made in the newspapers. The latest advertisement was made on the 20th of February, 1993 in the Hindustan Times and the advertisement reads as under:-

All those ex-employees/employees of DTC retiring upto 31.3.93, who have opted for Pension Scheme, are requested to fill in certain forms for the purpose of sanction/payment of Pension to them. They are, therefore, advised to obtain necessary forms from the Pension Cell, DTC-H.Qrs., Room No. A-4,I.P.Estate, New Delhi-2 during working days from 1000 hrs to 1300 hrs by 1.3.93 and submit duly filled-in by 8.3.93. In case of non-receipt of the requisite forms within the stipulated time, it will be assumed that they are not interested in the Pension and the option already exercised by them for Pension will be treated as cancelled."

9. The learned counsel for the petitioners 2 to 6 placed reliance on the provisions of clauses 3 & 9 of the office order and submitted that assuming that the petitioners 4 & 6 and petitioners 3 & 5 had not exercised the option, by virtue of the clause 9 the employees concerned shall be deemed to have got the pension benefits. Therefore, the pension should have been given to them by the first respondent.

10. The learned counsel for the petitioners submitted that as per the dictum laid down by the Supreme Court, the retired employees are entitled to pension as a matter of right and it is not an ex gratia payment which is made by the employer. The DTC seeks to project the clauses in the office order as a period of limitation and try to deny the benefit of pension to the employees who had served the first respondent organisation.

11. In paragraph 19 of the counter-affidavit, what is stated is that:

"Regarding para 9 of Office Order No. 16 dated 27.11.1992 it is submitted that the same was applicable only in case of existing employees and not over the employees who had already retired."

12. There is a total misconception of the provisions of the office order and the right of the employees to get pension. It is really amazing that the DTC should have taken a stand contrary to the Constitutional philosophy and the dictum laid down by the Supreme Court. If the claim of any person, who come for payment of pension, is bonafide, the DTC is bound to consider his/her case and grant him/her the pensionary benefits and on the ground that the claim is belated, no employee should be denied the right to get pension.

13. The learned counsel for the DTC, Mr. R.K. Gupta, submitted that a separate fund had been created for the purpose of pension and if the number of persons for pensionary benefits is increased, the whole scheme will collapse and the DTC is not in a position to really ascertain the number of employees who may come forward for pension in a matter like this and such a situation is unavaoidable. The only thing that has to be done by the DTC is to verify the claims of the individuals coming for pension. The NCT of Delhi and the Government of India had to necessarily come to the assistance of the Delhi Transport Corporation to regularise the funds for payment of pension.

14. The learned counsel for the DTC, Mr. R.K. Gupta, submitted that for this purpose, notice could be issued to the NCT of Delhi and the Union of India. I am of the view that in a matter like this the retired employees who have not been able to get anything for sustenance cannot be asked to wait for an unlimited lime and their legitimate rights to get pension cannot be delayed any further. Such a matter cannot brook any delay. In exercising jurisdiction under Article 226 of the Constitution of India, in a matter of this nature this Court can issue direction to the NCT of Delhi and to the Union of India to provide necessary funds to the Delhi Transport Corporation for the purpose of giving effect to the pension scheme and for the purpose of paying the pension to the bona fide claimants. Accordingly, the writ petition, at the instance of petitioners 2 to 6, stands allowed.

15. The first respondent is directed to pay pension to the not only to the petitioners 2 to 6 but to all persons who had served the first respondent and who come within the purview of the Office Order dated 27.11.1992. The first respondent shall pay pension to all the claimants who come forward to claim pension on the basis of their service in the first respondent organisation. The first respondent shall make the payment after considering the applications for pension on or before the 31st of December, 1998.

16. The NCT of Delhi and the Union of India shall provide necessary funds to the first respondent, the Delhi Transport Corporation, for the purpose of giving effect to the pension scheme and for the purpose of paying the pension to the bona fide claimants.

17. Copy of this order be sent to the NCT of Delhi and to the Union of India forthwith.

18. Copy of this order be given dasti to all the parties.

19. There shall be no order as to costs.