Dtc Workers Union And Ors. vs Delhi Transport Corporation And ...
2006 Latest Caselaw 1920 Del

JUDGMENT

Manju Goel, J.

1. This writ petition is preferred by the DTC Workers Union and 751 members of the Union against the Delhi Transport Corporation (DTC) and others seeking a mandamus to allow the petitioners to opt for the pension scheme "as modified by the Central Government on 31.10.1995".

2. The petitioner No. 1 is a trade union representing the workmen of the Delhi Transport Corporation and the other petitioners are employees of the DTC. The factual matrix on which the relief is sought is as under:

The respondent No. 1 in consultation with the Lieutenant Governor of Delhi and the Government of National Capital Territory of Delhi, respondents Nos. 2 and 3 respectively introduced the pension scheme (hereinafter referred to as the Scheme) in 1992 by the Office Order dated 27.11.1992. The scheme was to be operated by the LIC on behalf of the DTC. Subsequently, the LIC refused to work the scheme on which the pension scheme was decided to be operated by the DTC itself. Options were called for from the existing employees of the DTC as well as those who retired after 3.8.1981 as to whether they would like the benefit of the pension scheme or would continue in the Employee's Contributory Provident Fund Scheme (CPF for short). The options could be exercised within 30 days from the date of the Office Order. All employees who joined after 23.11.1992 were automatically compulsorily covered by the scheme. Those who opted in favor of the scheme were required to refund the employer's contribution in the CPF. The petitioners did not opt for the pension scheme. As the operation of the scheme was being delayed, a circular, being Circular No. DY. CGM (PNA)/94/170 dated 16.2.1994 was issued allowing the employees to opt out of the scheme. Certain employees, who had earlier opted for the pension scheme, opted out of that. The final approval to the scheme was given on 31.10.1995 and disbursement of the scheme commenced on 01.11.1995. The petitioners contend that they had not opted for the scheme initially as it was doubtful as to whether the LIC would be inclined to bear the burden of the scheme. They further contend that on the scheme being modified in 1995, the respondent No. 1 should have offered another chance to the petitioners to opt for the pension scheme, which was not done. They also claim that the Fourth and Fifth Pay Commissions have provided that the CCS pension scheme shall be applicable to all the employees of Public Sector Undertakings and accordingly, the present petitioners are automatically covered by the pension scheme. The petitioners claim that on the modification of the pension scheme in 1995, the respondent No. 1-DTC should have given a fresh chance to its employees to opt for the pension scheme, which was not done. The petitioners made various representations to the DTC seeking an opportunity to exercise option to switch over to the pension scheme. The same was not done and hence the writ petition.

3. The DTC has opposed the prayer in the writ petition on various grounds. However, the main ground to oppose the writ petition is that this Court has already adjudicated upon the claim of the petitioners in LPA 33/98 and that the Supreme Court has dismissed an appeal over the LPA judgment, which is reported as DTC Retired Employees' Association and Ors. v. Delhi Transport Corporation etc. . The DTC denies that there was any modification in the scheme in 1995. The petitioners have also not pointed out what was the modification in 1995 and why they described the scheme as "modified pension scheme". Therefore, for the purpose of the present writ petition, the pension scheme of 1995 can be said to be the same as the pension scheme introduced in 1992 vide Office Order No. 16 dated 27.11.1992. The Supreme Court in the judgment of DTC Retired Employees' Association (supra) considered various pleas of various sections of the employees of DTC in respect of the scheme. The Supreme Court in the first place ruled that the clause in the scheme requiring the retired employees opting for the scheme to refund the employer's share of the Provident Fund was not irrational or illegal. Similarly the clause requiring those opting for the pension scheme to refund the gratuity received as a condition precedent was also found to be legal. It was also held that the employees retiring on or after 3.8.1981 (the date given in the scheme), who had not exercised their option within the stipulated period, were not entitled to the pension under the scheme. Paragraph-15 of the judgment can be extracted below to find the ruling of the Supreme Court on the question in issue before this Court:

15. It is to be noted that those who had retired by the time the Pension Scheme was introduced must have definitely availed of the benefit under the Provident Fund Scheme and as per the Pension Scheme they were liable to refund the employer's share of provident fund with interest thereon, if they wanted to opt for the Pension Scheme. On the contrary, some such retired employees might not have been interested in refunding the money received by them and having utilised such amount would also find it difficult to raise the funds for re-payment. It cannot be assumed that they are bound by the Scheme and would automatically come under its purview. The Pension Scheme cannot be thrust upon such employees even if it may, prima facie, be beneficial to them. As regards the existing employees as on 27.11.1992, the employer could always ask them to exercise their option within a stipulated period and if they failed to exercise their option, the deeming provision can be invoked and it could be said that they are covered by the Scheme. It is also important to note that as per Clause 4 of the Scheme, those employees who joined DTC with effect from 23.11.1992 are compulsorily covered by the Scheme. Therfore, the Division Bench is perfectly justified in holding that the employees who retired on or after 3.8.1981 but before 27.11.1992 and had not exercised their option within the stipulated period or within the extended period, and therefore such employees are not entitled to pension under the Scheme.

The Supreme Court concluded with the following in paragraph-26 of the judgment:

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 time to fill up pension option form is concerned, the letter dated 23.11.1992 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 up to 15th January, 1993, and secondly up to 1st February, 1993. Therefore, the retired employees had, in fact, more than one 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.

Appeals dismissed.

What was good for the retired employees is good also for the existing employees. The Supreme Court held that sufficient opportunity to opt for the scheme had been provided and so those who did not opt for the scheme within the given and extended time were not entitled to its benefits. The judgment of the Supreme Court was passed much after the confirmation of the scheme in 1995. Thus the plea raised by the petitioners in the present writ petition appears to be covered by the Supreme Court opinion. This Court, therefore, need not and should not go into the question of the entitlement of the petitioners to the pension scheme at this stage. This Court is, therefore, unable to give the relief, prayed for by the petitioners. The petition is dismissed.