Dtc Retired Employees ... vs Delhi Transport Corporation
2002 Latest Caselaw 290 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. Whether the employees of the DTC who had opted for the pension scheme of 1992 and later withdrew from the same are entitled to once again be covered under the pension scheme as per their request made subsequently?

2. The answer to this question will decide the batch of writ petitions raising this issue.

3. The genus of the problem is the introduction of a pension scheme on 27.11.92 by the respondent-corporation for its retired employees. The scheme was sanctioned by the Central Government on 23.11.92 and the scheme was to be operated by the Life Insurance Corporation of India on behalf of the DTC. The scheme became operative and the options were given to the employees as to whether they were desirous of being covered under the said scheme. After the scheme became operative and some employees had exercised their options certain disputes arose about the applicability of the deeming provision of the said scheme to certain employees. However, after the scheme had become applicable to them some of the employees who are all petitioners in the present petitions they sought to withdraw from the said scheme. It is stated that the same arose in view of the inordinate delay in implementation of the scheme and the petitioners could not wait for the same. As it transpired soon after the petitioners had withdrawn from the scheme the scheme became operative. The petitioners made a request that since the scheme had become operative, they should be covered under the Scheme. The respondent corporation, however, refused to accept this request stating that once the petitioners had withdrawn from the scheme and the said withdrawal had been accepted the respondent corporation was not willing to cover them under the Scheme.

4. It is relevant to state that there were a lot of employees who had not exercised their option to be covered under the scheme and were of the view that the scheme being in the nature of beneficial scheme the same should be applicable to all employees irrespective of the fact whether they had or had not exercised their option. This gave rise to another round of litigation on the scheme. Two judgments are important for determining the present controversy in question. In fact they arise from the same matter. The first is the judgment of the Division Bench of this court in LPA 33/98 and the appeal before the Supreme Court arising from the same judgment in DTC Retired Employees Associations and Ors. v. DTC etc. 2001(4) SCALE 30.

5. Mr. Raju Ramachandran, learned senior counsel appearing to the petitioner has referred to the observation of the Division Bench in LPA 33/98 as under :-

"Option to switch over to Pension Scheme, if it was later on withdrawn by an employee, before the date when it was accepted, will be non-est and would not confer a right on the Corporation to treat such an employee having opted to the pension scheme."

6. the learned senior counsel thus contended that it is apparent from the reading of the aforesaid judgment that the court was seized of the issue of an employee exercising the option and withdrawing the same before its acceptance. Thus it is contended that a specific distinction has been drawn in respect of the employees who had withdrawn the option before acceptance and employees whose option had been accepted but who chose to withdraw the same later on. In view thereof it is contended that the issue raised in the present petition is yet to be decided and the decision in the LPA and the judgment of the Supreme Court only related to persons who had withdrawn the option before acceptance.

7. The learned senior counsel referred to the judgment of the Supreme Court mentioned above arising from the LPA and contended that it would be apparent even from the reading of the Supreme Court judgment that the issue in the present case was not decided by the Supreme Court. Learned counsel referred to para 6 quoted as under:-

"6. In the writ petition filed by the retired employees under Article 32 of the Constitution, it is alleged that even though the Central Govt. had approved the Pension Scheme, no steps were taken by DTC to implement the same and the DTC Workers Union had to file a writ petition before this Court seeking implementation of the Scheme and pursuant to the orders passed by this Court, the scheme was initiated, but the DTC later failed to implement the Scheme and the Life Insurance Corporation also withdrew its co-operation in implementing the Scheme. The employees who had retired and opted for pension had not collected their share of employer's provident fund and other benefits and were forced to back out and change their options for pension and lated took their share of provident fund and gratuity because of the financial difficulties faced by them. It is alleged by them that though they had opted out of the Pension Scheme, they are also entitled to Pension. In the writ petition, it is prayed that the respondents may be directed to extend the benefit of Pension to the writ petitioners and other employees irrespective of the fact whether they had opted for or opted out of the Pension Scheme, on the same terms and conditions as contained therein and to direct the respondents to pay arrears of pension."

(Emphasis supplied)

8. Learned senior counsel further contended that it would be apparent from the reading of para 25 and 26 of the judgment that certain employees were compelled to opt out of the scheme as they were apprehensive of DTC implementing the scheme. It is further contended that as would be apparent from the reading of the paragraphs that the scheme was implemented only under the threat of contempt notices from the court. It would be relevant to reproduce para 25 and 26 which are as under:-

"Learned counsel for the petitioners in the writ petition No. 499 of 2000 contended that the petitioners had initially opted for the Pension Scheme in 1992, but as they were apprehensive regarding DTC's ability to implement the Pension Scheme, they were compelled to opt out of the Pension Scheme. It is submitted that in 1995 only under the threat of contempt notice from this Court, the DTC came forward to implement the Pension Scheme, but no fresh option was given to the employees. It is also argued that DTC had not communicated to all its employees that they were going to implement the scheme. It is also submitted that Pension is neither a bounty nor a charity. Therefore, all the retired employees should have been given the benefit of the Pension Scheme.

26. It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time to fill up pension option form is concerned, the letter dated 23.11.92 conveyed by the Govt. of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upon 15th January, 1993, and secondly up to 1st February, 1993. therefore, the retired employees had, in fact, more than on month's time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of employer's provident fund scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. The appeals and the writ petition are without any merit and these are dismissed without, however, any order as to costs."

9. The submission thus advanced on behalf of the petitioner is that the petitioner employee should not suffer as a consequence of the delay in implementation of the scheme by the respondent corporation since they withdrew only on that account. It is contended that the petitioner and the respondent corporation are not on the same footing and the employees of the corporation were in need of money since the pension scheme was not being implemented despite option being exercised by them. Thus they were left with no option but to withdraw from the said scheme. It is contended that non implementation of the scheme to such persons who had exercised their option would be violative of Article 14 of the Constitution of India since all the persons who had exercised their option and not withdrawn the same prior to the acceptance should be treated at par.

10. Learned counsel for the respondent, on the other hand, contends that the issue sought to be raised by the petitioner in the present petition is no more res integra in view of the observations of the Supreme Court in DTC Retired Employees Association's case(supra). Learned counsel for the respondent has referred to the observations of the Supreme Court in para 6 to contend that the case of the employees who had opted for pension and had not collected the share of employees provident fund and other benefits and were allegedly forced to back out and change from the option of pension and later took their share of provident fund and gratuity because of the financial difficulty faced by them are specifically mentioned in para 6. It is thus contended that in view of the reading of para 6 of the judgment of the Supreme Court read with the operative portion of the judgment in para 25 and 26 it is evident that the Supreme Court dealt with all such employees also as are petitioners before this court. It is thus contended that in view of the rejection of the case of those who had failed to exercise their option under the pension scheme, petitioner herein are not entitled to any relief since admittedly they had withdrawn their option and thus they are in the same boat as persons who had not exercised their option.

11. It may also be noted that Mr. Anil Mittal, learned counsel appearing for one of the petitioner had stated that though this issue had been raised in the para 6 of the judgment, the petitioners before the Supreme Court were not of such category and were in fact all petitioners who had failed to exercise their option under the scheme or had withdrawn their option prior to the acceptance of the scheme. It is thus contended that the observations of the Supreme Court are at best obiter dicta.

12. I have heard learned counsel for the parties and considered the submissions advanced on their behalf.

It cannot really be disputed that the cases of employees who had not opted for scheme and those who had opted and withdrawn from the scheme prior to the acceptance are squarely covered by the judgment of the Supreme Court in DTC Retired Employees Association's case(supra). The moot point which arises for consideration is whether the petitioners who had exercised their option and the option was accepted which was subsequently withdraw and the withdrawal accepted cannot be covered under the pension scheme. In my considered view the answer to this question would be in the negative. Undoubtedly once the option had been exercised and the same had been accepted both the parties are entitled to seek enforcement of the pension scheme in their case. However, the petitioners chose to withdraw from the scheme. It was up to the respondent to have accepted such a withdrawal or not to have accepted such a withdrawal. Admittedly the withdrawal was accepted. Not only this the benefits pursuant thereto were availed of by the petitioners. Thus the transaction relating to the withdrawal and the acceptance of the withdrawn stood concluded. Thus in my considered view no distinction can be made for these employees as compared to other employees who had exercised their option but withdrawn the same prior to its acceptance.

13. The issue of delay in implementation of the scheme has already been considered by the Supreme Court in DTC Retired Employees Association's case (supra). The contention advanced on behalf of the persons who had opted under the scheme and withdrawn from the same prior to its acceptance was also that they were compelled to do so due to financial exigencies. The contention advanced by learned counsel for the petitioner is more or less the same as advanced before the Supreme Court. This fact is verified by the observation of the Supreme Court in para 6 of the judgment.

14. Assuming that there were no such petitioners before the Supreme Court the ramifications of such a withdrawal has been considered by the Supreme Court relating to compulsion of the employees to opt out of the scheme on account of delay and their economic constraints. In my considered view the issue thus raised in the present petition is no more res integra. Parties having acted on the withdrawal, accepted the same and availed of the benefits cannot now be permitted to resile from the same and contend that the scheme shall be made applicable to them. The Supreme Court in the said judgment clearly observed that it is not for the courts to interfere with the pension scheme and the scheme has to be implemented in the form in which it is formulated.

15. In view of the aforesaid facts and I find no merit in these petitions and the same are dismissed leaving the parties to bear their own costs.