Kamlesh Bhardwaj vs D.T.C.
2007 Latest Caselaw 423 Del

JUDGMENT

Hima Kohli, J.

1. With the consent of counsels for the parties, the writ petition is taken up for final hearing and disposal.

2. By way of the present writ petition, the petitioner has sought directions to the respondent, to extend the benefit of the pension policy dated 27th November, 1992 to the petitioner on the terms and conditions contained therein and further directions for payment of arrears of pension and family pension with interest thereon, to the petitioner.

3. The brief facts material for deciding the present writ petition are that the respondent vide Office Order dated 27th November, 1992, introduced a pension scheme for its employees retiring on or after 3rd August, 1981 on the same pattern as the scheme for the Central Government employees. As per the said scheme, option for payment was to be exercised within 30 days from the date of issue of the said Office Order. Public notice to this effect was published by the respondent in the newspapers. However, for various reasons, the respondent failed to implement the pension scheme. As a result, litigation ensued and finally, pursuant to a contempt petition that came to be filed in the Supreme Court against the failure on the part of the respondent to implement the said scheme, the respondent gave an assurance to the Supreme Court in the year 1995, that payment of pension would begin very soon. As a result, the respondent started paying pension to its employees with effect from 1st November, 1995.

4. In the present case, the husband of the petitioner retired from service on 31st May, 1987. He expired on 29th December, 1988. The pension scheme in question was introduced on 27th November, 1992. It is averred by the petitioner, widow of the deceased employee, that though the aforesaid pension scheme was introduced by the respondent, she could not opt for pension under the scheme for the reason that she was not very well educated and did not come to know about the advertisement issued in the press with respect to the Office Order dated 27th November, 1992. Pursuant to the directions passed by the Supreme Court in the year 1995 and the respondent implementing its pension scheme, the petitioner made representations to the respondent requesting it to release arrears of pension of her late husband and for payment of family pension in her favor.

5. As the respondent did not concede to the request of the petitioner, she filed a writ petition in this Court, being CWP No. 5638/2001, claiming arrears of pension and family pension with interest from 1st June, 1987 till the date of payment. However, in the meantime, the Supreme Court rendered a judgment in the case of D.T.C. Retired Employees' Association and Ors. v. Delhi Transport Corporation reported as , in an appeal filed against a judgment dated 16th March, 2000 delivered by a Division Bench of this Court which directed implementation of the pension scheme, and also held that the pension scheme should be made applicable to those employees of the respondent who had retired under the Voluntary Retirement Scheme, provided they refunded the gratuity received by them under the EPF Act at the time of retirement, with interest thereon. In the appeal preferred against the aforesaid judgment, the Supreme Court held as under:

Para 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 23-11-1992 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....

6. Relying upon the aforementioned judgment of the Supreme Court, a learned Single Judge of this Court dismissed the aforesaid writ petition preferred by the petitioner vide order dated 15th March, 2002.

7. The second round of litigation started when the respondent published a general notice in the newspaper on 23rd September, 2003 addressed to 'Surviving DTC retired employees between 3rd August, 1981 and 27th October, 2002 only'. The said general notice read as under:

DELHI TRANSPORT CORPORATION

For Surviving DTC Retired employees between 3-8-81 and 27-10-2002 only

On the basis of various representations made by unions of retired employees of DTC, an information is being solicited without commitment at this stage of indicating whether the Retired Employee is willing for DTC Pension Scheme on the prescribed format (TO BE COLLECTED FROM PENSION CELL DTC [HQ]) on the conditions given in the prescribed format from the surviving employees retired between 3-8- 1981 and 27-10-2002.

The Surviving retired employees may give their information of intent within 10 days from the date of publication to the Unit Officers/Depot Manager from where they retired. It may be noted that this is only in the form of an intimation of intent to DTC and does not involve commitment in any manner, which would be subject to various parameters to be examined by the DTC later on.

Sd/-

(M.P. Bhatnagar) Addl. Chief Accounts Officer

8. Pursuant to the said notice, the petitioner submitted her form and expressed her intention for being covered under the aforesaid scheme. As the respondent failed to take any action pursuant to the aforementioned general notice, the petitioner and other retired employees of DTC filed writ petitions in this Court seeking directions to the respondent to extend to them, the benefit of the pension scheme dated 27th November, 1992.

9. Learned Counsel for the petitioner submitted that once the respondent had issued the aforementioned general notice in the newspapers on 23rd September, 2003, it was under an obligation to act upon the same and extend the benefit of the pension scheme to similarly situated persons. It was submitted that the respondent is estopped from going back on its promise of extending the said benefits to the petitioner. It was argued that it is well established that the pension is not given as a bounty and it is a very valuable right of the employees which cannot be denied to them as pension is nothing but a form of deferred payment, and that the scheme is being implemented on the money of the petitioner itself. It was further submitted that the advertisement issued by the respondent amounted to extending the period stipulated in the earlier scheme of 27th November, 1992 for exercising the option for pension and failure on the part of the respondent to act on the aforesaid general notice was not only unconstitutional and discriminatory but was also arbitrary in nature.

10. On the other hand, counsel for the respondent submitted that the pleas of the petitioner as raised in the writ petition are misconceived. It was argued that a bare perusal of the general notice issued in the year 2003 makes it manifest that the said notice was meant only for 'surviving' DTC employees who had retired between the period 3rd August, 1981 and 27th October, 2002 and that the same was not meant for the benefit of the widows of the deceased retired employees. As the petitioner herself was not an employee but only a widow of the employee, she did not come within the ambit of the said notice and, therefore, in any case she was not entitled to apply in response to the general notice. It was further submitted that the respondent had decided not to follow up on the aforesaid general notice, as the financial health of the respondent did not permit it to pursue the said notice.

11. On merits, it was submitted by the counsel for the respondent that the husband of the petitioner retired from service on 31st May, 1987 on attaining the age of superannuation and that all of his dues as payable to him were paid at the relevant time. As regards the pensionary benefits, it was submitted that the same were not in force at the relevant time and thus the same could not be availed of. Moreover, the husband of the petitioner opted for pension (DTC) and both, the entire share of his provident fund i.e. employee's contribution as well as employer's contribution and gratuity was released to him at the time of his superannuation. It was further stated that a bare perusal of the general notice reflects that the same was only in the form of 'intimation of intent' and did not involve a commitment in any manner, and further that the same was in any case, subject to various parameters to be examined by the DTC later on. When the said parameters were examined by the respondent, it decided not to pursue the said notice. It was, therefore, argued that no vested rights had accrued in favor of the petitioner and against the respondent for the petitioner to seek enforcement thereof by way of the present writ petition.

12. Counsel for the respondent also relied on the judgment of the Supreme Court referred to above and the judgment of this Court in the case of DTC Retired Employees Association and Ors. v. Delhi Transport Corporation reported as 2002 LAB. I.C.1654, wherein following the judgment of the Supreme Court, it was held that once the pension scheme was opted for by an employee and subsequently the employee withdrew there from, which withdrawal was accepted by the employer and benefits pursuant thereto were availed by the employees, the employees thereafter cannot be permitted to resile from the same and contend that the scheme should be applicable to them.

13. I have heard the learned Counsels for the parties. The limited issue involved in the present writ petition is as to whether the petitioner can claim the extension of the benefit of the pension scheme floated in November, 1992, on the strength of the general notice issued by the respondent in the year 2003.

14. In so far as the earlier round of litigation pertaining to the pension scheme floated by the respondent vide OM dated 23rd November, 1992 is concerned, the same attained finality after the judgment rendered by the Supreme Court in D.T.C. Retired Employees' Association (supra). It was clearly stated in the aforesaid judgment that in view of the fact that the respondent had extended the time twice to enable the retired employees to exercise their option, there was no reason for the court to direct further enlargement of time for the said purpose as sufficient time had already been given to them. It was held that those employees who had received the benefit of EPF Scheme and had failed to exercise their option, disentitled themselves from getting the pension benefit as the said scheme was implemented on the basis of certain guidelines and it was not for the courts to interfere with the said guidelines. With the aforementioned judgment followed by the decision of a learned Single Judge of this Court vide order dated 15th March, 2002, the claim of the petitioner for entitlement of the benefit of the pension scheme floated in November, 1992 stood rejected and attained finality.

15. In the second round of litigation, i.e. in the present writ petition, a perusal of the general notice issued by the respondent makes it evident that the same was addressed to the 'surviving DTC Retired employees between 3rd August, 1981 and 27th October, 2002'. The petitioner's husband having expired on 29th December, 1988, undoubtedly the petitioner herein being the widow of the deceased employee could not seek entitlement under the aforesaid notice as the said notice was not applicable to her. Mere issuance of a notice by the respondent calling upon a certain category of applicants to furnish relevant information as to whether or not the retired employees were willing to avail of the DTC pension scheme cannot be termed to be in the nature of an offer, acceptance of which would bind the respondent in any manner.

16. The terminology used in the general notice is itself a clear indicator in this direction. The notice stated in no uncertain terms that only information was being solicited from the surviving retired employees who retired between 3rd August, 1981 and 27th October, 2002, without any commitment, and further, that the said information received from the applicant was only an intimation of intent to the DTC which did not involve any commitment in any manner. Thus it is not a case where pursuant to an offer and an acceptance, a solemn promise was made by the respondent to the petitioner committing itself to extend the benefits of the pension scheme to the petitioner or for that matter, to any other retired employees of the respondent in terms of the general notice. In this case the, the principles of promissory estoppel cannot be invoked. The advertisement issued was only exploratory in nature and not a firm offer which could be termed as final and binding on the respondent. Nor can the advertisement be held to be extending the period stipulated in the earlier scheme of 27th November, 1992 floated by the respondent. Any such interpretation given, shall amount to rendering nugatory, the judgment of the Supreme Court in DTC Retired Employees' case (supra).

17. Thus it is misconceived on the part of the petitioner to claim that any vested legal right had accrued in favor of the petitioner and against the respondent in terms of the general notice published in the newspapers for the petitioner to seek implementation thereof in the present writ petition. The writ petition is, therefore, dismissed as being devoid of merits, leaving the parties to bear their own costs.