Kishan Lal Sehgal And Ors. vs D.T.C.
2007 Latest Caselaw 1415 Del

JUDGMENT

Hima Kohli, J.

The present writ petition has been filed by the petitioners seeking inter alia directions to the respondent/DTC to grant pensionary benefits to the petitioners as per the scheme of pension dated 27.11.1992, floated by the respondent/DTC.

2. Brief facts necessary to decide the present case are that the petitioner No. 1 joined the services of respondent/DTC as Conductor on 1.12.1961, petitioner No. 2 joined as Conductor in March 1969 and petitioner No. 3 joined in the capacity of Assistant Cashier on 20.3.1971. The respondent/DTC, issued an office order No. 16 dated 27.11.1992, inviting its employees to opt for the pension scheme which was made effective from 3.8.1981. While the said scheme was made compulsory for all new employees, it was also made applicable to all the existing employees including those who had retired after 3.8.1991. A time period of 30 days from the date of issuance of the above office order was granted for exercising the option under the said pension scheme. The petitioners exercised their right by opting for the scheme within the stipulated period of 30 days, in the month of December, 1992.

3. On 3.3.1993, respondent/DTC notified a Voluntary Retirement Scheme for its employees. The petitioners No. 1 to 3 applied under the aforesaid scheme and were relieved from their duties w.e.f. 31.5.1993, 30.4.1993 and 31.5.1993, respectively. However, they were not paid the share of employer's contribution to the Provident Fund. In April, 2005 the petitioners filed the present writ petition stating inter alia that despite having opted for the said scheme, the respondent/DTC had not paid the pension to the petitioners.

4. On the issue of delay and laches in approaching the Court, it is stated by the counsel for the petitioners that certain litigations were pending with regard to the applicability of the scheme to such of the employees who had opted for voluntary retirement. One such writ petition, being WP (C) No. 4064/1996 entitled Baij Nath Bhargava and Ors. v. DTC was decided on 19.9.1997, wherein it was held that persons who had taken voluntary retirement were entitled to pension.

5. Aggrieved by the aforesaid judgment dated 19.9.1997, the respondent/DTC filed an intra court appeal being LPA No. 33/1998, which was dismissed by the Division Bench on 16.3.2000. It may be noted that question No. 3 framed by Division Bench i.e., 'Whether DTC employees having opted for voluntary retirement under the Scheme with pension are entitled to ex gratia amount (taken at the time of voluntary retirement) and the pension'? was answered as below:

...Question 3 is on the entitlement to ex gratia amount. During the course of hearing learned Counsel for the appellant on instructions stated that the DTC has decided not to contest this point as it has already started paying pension to all eligible employees having 20 years of service even when they had not refunded the ex gratia amount taken at the time of Voluntary Retirement Scheme. Thus, this question need not be answered.

6. An SLP was directed by the respondent/DTC against the aforesaid judgment of the Division Bench by filing Civil Appeal No. 3715- 16/2001. The Supreme Court disposed of the SLP vide judgment dated 8.5.2001, wherein it upheld the judgment of the Division Bench of this Court.

7. Counsel for the petitioners submits that thereafter the petitioners approached the respondent/DTC for making the pension operational in their favor. He states that the petitioners were willing to refund the employees share of Provident Fund received by them in May 1996, along with interest thereon. However, as no reply was received by the petitioners, they were compelled to approach this Court by filing the present writ petition.

8. It is further stated that the issue raised in the present writ petition is no longer res integra in view of the judgment rendered by a learned Single Judge of this Court on identical facts in the case of Girwar Singh v. DTC being WP (C) No. 1949/2005, decided on 10.2.2006, wherein after examining the entire issue, a learned Single Judge of this Court held as under:

Para 9 - In similar circumstances this Court had held that the DTC cannot withhold pension of those who opted under the original pension scheme 1992 and had availed benefits of VRS since that condition of contract stood completed, for voluntary retirement. The main defense of the DTC appears to be that even though the petitioner was an optee nevertheless some times in 1995 he opted out the original pension scheme of 1992.

Para 10 - Apart from the bald averments to that effect contained in the counter affidavit and reliance placed by the order dated 4.8.1995 no material has been produced to indicate that the petitioner had indeed opted out the pension scheme. No circular has been brought to the notice of the Court, enabling an optee, who secured the benefit, to divest himself of the right to pension. In the absence of such circular, and in the absence of the documents by which that right itself was sought to be voluntarily taken away, I am unable to see any force in the submissions of the respondent.

Para 11 - Upon acceptance of request for voluntary retirement the rights of existing employees to the benefits as per the VRS which included a pension component vested and could not be taken away. It is too well established that pension is no longer a charity or bounty, but a matter of right. In this case it has been established that the petitioner was an optee, and also falling in the category of deemed optee in terms of circular dated 27.11.1992. There is no rationale to deny the petitioner the benefit of pension.

9. The aforesaid judgment was followed by another Single Judge of this Court in WP (C) No. 3879/1994 entitled Vir Bhan v. DTC decided on 24.7.2006.

10. By relying on the judgment in Girwar Singh's case (supra), it was held in the case of Vir Bhan (supra) that the petitioner therein had to be treated as one who had opted for the pension scheme and benefit of the pension scheme was to be granted to him. However, it was directed that the petitioner shall be liable to be pay interest on the amount received by him over and above his entitlement under the pension scheme and that the interest payable by the petitioner was to be the same which the petitioner would have been entitled to receive had he continued to hold an account with CPF.

11. Aggrieved by the aforesaid judgment, the respondent/DTC filed an intra court appeal being LPA No. 359/2007, entitled 'DTC v. Vir Bhan' which was dismissed on 24.5.2007, by upholding the judgment of the learned Single Judge and observing as below:

Para - 4 -A bare reading of the circular under which the pension scheme was introduced by the appellant indicates that deeming Clause 9 is applicable to the appellant as he did not exercise any option within the prescribed period of 30 days. Subsequent option exercised by the respondent long after his retirement for getting provident fund and gratuity instead of a pension should not have been accepted and was not applicable. The said acceptance was contrary to Clause 9 of the circular dated 27.11.1992. The respondent in terms of the provisions of scheme was entitled to receive only the pension and, therefore, the learned Single Judge had justified in holding that the respondent should be paid pension.

Para 5 - We find no merit in this appeal and the same is dismissed.

12. The facts of the case in hand are identical to those in the case of Veer Bhan (supra). On equity, it may be noted that though the petitioners claim that they had made several representations to the respondent/DTC for seeking the benefit of the pension scheme and further that the right to the benefit of pension accrued in their favor in May, 2001, when the Supreme Court disposed of the SLP filed against the judgment of the Division Bench of this Court, however, the petitioners have not been able to demonstrate from the writ petition as to what action, if any, was taken any by them from 2001 to the date of filing of the present writ petition in April 2005, except for serving a legal notice dated 15.2.2005 on the respondent/DTC, on the eve of filing the writ petition.

13. Thus it is necessary to balance the equities and keeping in mind the facts and circumstances of the case, it would be appropriate to direct the respondent to fix the pension of the petitioners from the respective dates of their retirement. The pension order shall be issued to the petitioners within a period of 8 weeks from today. However, arrears of pension shall be payable to the petitioners from 1.4.2005, till date within the aforesaid period of 8 weeks. The petition is allowed to the aforesaid extent.

14. The petitioners are directed to deposit within eight weeks, the share of employer's contribution to CPF as received by them along with interest thereon at the same rate which the petitioners would have been entitled to had they continued to hold an account with the CPF. The petitioners shall be entitled to receive the arrears of pension under the pension scheme with interest at the same rate.

15. With these directions, the writ petition stands disposed of. No order as to costs.