Ram Niwas vs Dtc
2007 Latest Caselaw 2171 Del

JUDGMENT

Hima Kohli, J.

1. The petitioner/workman has filed the present writ petition praying inter alia for directions to the respondent/DTC to release the amount of pension payable to the petitioner/workman w.e.f. 1.3.2006 along with other pensionary benefits and interest for the period of delay in disbursement of pension not paid to the petitioner/workman.

2. Briefly stated, the facts of the case are that the petitioner/workman was appointed as a Conductor on 14th April, 1966 and was last working as a Traffic Inspector. On 27th November, 1992, the respondent/DTC introduced a pension scheme, vide Office Order No. 16, the relevant clauses of which are as below:

1) xxxxx

2) xxxxx

3) All the existing employees including those retired w.e.f. 3.8.1981 onward 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 Government of India.

4) The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23.11.1992, the date of sanction of the Scheme.

5) xxxxx

6) The employees who have retired on or after 3rd August, 1981 and the existing employees, who have drawn the employers 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 The total amount to be refunded by the retired employees would be the amount that would have accrued, had they not withdrawn the employer's share.

7) xxxxx

8) xxxxx

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.

The petitioner/workman, however, did not opt for the aforesaid pension scheme.

3. On 3rd March, 1993, the respondent/DTC introduced a Voluntary Retirement Scheme (in short 'the Scheme') inviting applications from individual employees to opt for voluntary retirement which also offered pensionary benefits. The relevant Clause of the aforesaid Scheme is reproduced hereinbelow:

4. Benefits under the Scheme:

xxxxxx

(g) Pensionary benefits as per Office Order No. 16 dated 27.11.1992.

4. Vide letter dated 30th March, 1993, the petitioner/workman applied for voluntary retirement under the aforesaid Scheme. Along with his application, he also made an option for pension, which was duly received by the respondent/ DTC on 31st May, 1993. However, before any order could be passed on the application, the petitioner/workman withdrew his application for voluntary retirement on which the respondent/DTC refused to act and instead, he was relieved from service under the said Scheme. Aggrieved, the petitioner/workman filed a writ petition in this Court, being WP(C) No. 4009/1993, which was disposed of by a Division Bench vide order dated 1.9.1993, in the following manner:

The petitioner had applied for voluntary retirement but before the respondent could pass any order, he withdrew that offer of voluntary retirement. The respondent however thereafter compulsorily retired the petitioner. Being aggrieved, the petitioner has filed this writ petition.

The petitioner has received compensation towards voluntary retirement. Since the respondent has taken a policy decision to take back those people who had withdrawn their consent before the order of voluntary retirement was passed, we are of the view that the petitioner should also get the same benefit provided the petitioner refunds the full amount of compensation received by him towards voluntary retirement, on the date of his joining. The petitioner will report on duty within two weeks from today.

The writ petition is disposed of in the above terms. No cost.

5. As a result of the aforementioned orders, the petitioner/ workman joined the respondent/DTC back in duty and ultimately, superannuated from service on 28.2.2006, after rendering service of 40 years. At the time of his superannuation, the respondent/DTC paid the petitioner/workman his gratuity dues, but the entire provident fund was retained by the respondent/DTC till as late as on 8th August , 2006 when the said amount was received by the petitioner/workman totaling to Rs. 9,26,353/-. It is pertinent to note that the aforesaid amount was released to the petitioner/workman during the pendency of the present writ petition filed by the petitioner/workman in July, 2006 for release of pension in his favor. On receiving the aforesaid amount, the petitioner immediately wrote a letter dated 8.8.2006 to the respondent/DTC stating inter alia that the respondent/DTC had deliberately released the employees' share as also the employer's share of provident fund in spite of his request not to release his provident fund till a decision is taken on his request for pension. It was also stated that the petitioner/workman was ready and willing to deposit the said amount back with the respondent/DTC.

6. Counsel for the petitioner/workman submits that the action of the respondent/DTC in refusing to pay pension to the petitioner is illegal, arbitrary and contrary to its own rules. She points out that the respondent/DTC had issued a circular dated 7.5.1993 whereunder the employees who had earlier not opted under the circular dated 27.11.1992, were given an opportunity to exercise their option for pension while applying under the Scheme. She further states that since the petitioner/workman had applied under the Scheme and had also made his option for payment of pension, he was entitled to receive pension from the respondent/DTC. The circular dated 7.5.1993 is reproduced hereinbelow:

DELHI TRANSPORT CORPIRATION

(A GOVT. OF INDIA UNDERTAKING)

I.P. ESTATE: NEW DELHI

No. IRD-VRS/HQ/93/352 Dated: 7.5.1993

Some of the employees, who have opted for the Voluntary Retirement Scheme and whose request for VRS has been accepted/under consideration and who had earlier not opted for the Pension Scheme, have now opted for the Pension also.

A list of such cases may please be forwarded to the Dy.CGN (Pension) under intimation to this office, so that necessary action in their cases could be taken by the Pension Cell.

Sd/-

DY. CHIEF GENERAL MANAGER (IR)

7. Per contra, counsel for the respondent/DTC submits that admittedly, the petitioner/workman did not opt for pension in the beginning and that the circular dated 7.5.1993 relied upon by the petitioner/workman is only an internal letter of the respondent/DTC which cannot confer any benefit on the petitioner/workman. He further submits that Clause 4(g) of the Scheme dated 3.3.1993 also did not come to the aid of the petitioner/workman because he withdrew his option under the Scheme.

8. The principal stand for refusing the case of the petitioner/workman for pension, as stated in the counter affidavit of the respondent/DTC, is that the petitioner/workman had opted for pension only at the time of seeking voluntary retirement which orders stood withdrawn on 1.9.1993 in view of the directions passed in WP(C) No. 4009/1993 and thus, he was treated as not having opted for pension.

9. The circular dated 7.7.1993 came up for judicial scrutiny in certain other cases, including WP(C) No. 4691/2002 entitled Shri Krishan Lal. v. DTC, wherein after adverting to the aforesaid circular, which was relied on by the counsel for the DTC therein, the Court in identical facts, held that the Circular was in two parts; the first part dealt with option to proceed on voluntary retirement and the second part with option to opt for the pension Scheme and observed that the DTC could not deny to the employee, employer's share towards provident fund as well as pension and that it was not disputed by the DTC that every employee is entitled to either of the two. Accordingly, the writ petition was allowed vide order dated 3.2.2004 and the respondent/DTC was directed to pay to the legal heirs of the deceased petitioner therein the pensionary dues payable to the petitioner along with interest @ 6% p.a. from the date the pension became due and payable till the date of payment.

10. In WP(C) No. 115/1998 entitled "M.J. Ralhan v. DTC", a learned Single Judge of this Court, after taking note of Clause 9 of the pension scheme dated 27.11.1992 which was made applicable from 3.8.1881 and by virtue of Clause 3 thereof covered the existing employees including those who retired w.e.f. 3.8.1981, and taking into consideration a judgment rendered by a Division Bench of this Court in LPA No. 33/1998 entitled "DTC v. Baijnath Bhargav and Ors." decided on 16.3.2000, and that of the Supreme Court in the case of DTC Retired Employees' Association and Ors. v. DTC etc. reported at 2001 (4) Supreme 218, held that the stand of the respondent/DTC to the effect that since the petitioner therein did not opt for pension, he was ineligible to receive it, was untenable in view of the aforesaid judgment of the Supreme Court as also a plain reading of the Clause 9 of the Office Order No. 16 of 1992. Thus, the writ petition was allowed vide order dated 27.10.2005 with directions to the respondent/DTC to disburse the arrears of pension to the petitioner therein.

11. Counsel for the petitioner/workman draws the attention of this Court to the letter dated 30th August, 2006, which was issued by the respondent/DTC pursuant to a query raised by the petitioner/workman under the Right to Information Act. Under cover of the said letter, the petitioner/workman was forwarded a photocopy of the relevant extract of his service book and was informed at the time of settling his accounts, that the petitioner/workman was not granted pension as he had not opted for pension as per the service book. It was, therefore, stated that at the time of his superannuation, he was treated as "not opted for pension".

12. A perusal of the photocopy of the relevant extract of the service book of the petitioner/workman shows that while in column 5, there is an endorsement to the effect, "pension not opted", which was countersigned on 8.3.2000, another page of the said record reflects that the petitioner/workman had opted for the pension scheme and an endorsement to the said effect is contained in the said service record where the word "No" has been struck off from the term "No option for Pension Scheme".

13. It is stated on behalf of the petitioner/workman that at no stage did the respondent/DTC inform him that his case was treated as having not opted for pension and that the petitioner/workman came to know about the said position only at the time of his superannuation when a letter dated 21.2.2006 was issued to him forwarding him gratuity amount of Rs. 1,79,685/-. In the said letter, against column 11, it was indicated that the petitioner/workman had not opted for pension. This fact is not controverter by the respondent/DTC. However, a plea is raised on behalf of the respondent/DTC that there seems to have been some connivance at the lower level of the staff which has resulted in deletion of word "No" prefixed to the term, "option for Pension Scheme". The same is not acceptable. In any case the benefit of doubt, if any, has to be given to the employee rather than the employer, more so in the light of Clause 9 of the Office Order No. 16 which specifies that in case of incomplete or conditional or ambiguous option, the employee shall be deemed to have opted for pension scheme benefits.

14. An alternate plea is also raised on behalf of the petitioner/workman that irrespective of whether the petitioner/workman exercised an option for pension at the time of applying for voluntary retirement or not, Clause 9 of the Office Order 16 of 1992 comes to his aid. A plain reading of Clause 9 makes it manifest that if any of the employees of DTC, did not exercise any option within the prescribed period of 30 days or quit service or died without exercising an option or whose option is incomplete or conditional or ambiguous, he shall be deemed to have opted for the Pension Scheme benefits. Thus, the petitioner/ workman was in any case entitled to be considered eligible for pension as per the aforesaid Clause 9, as on being taken back in service after 1993, he had never exercised any option for refusing pension.

15. The stand of the respondent/DTC that the option made by the petitioner/workman for pension stood lapsed at the time when he withdrew his application for voluntary retirement, is not tenable for the reason that the respondent/DTC did not accept the said attempt made on the part of the petitioner to withdraw his application. Rather it proceeded to act on the basis of the previous application made by the petitioner/workman for voluntary retirement and retired him from service. It was only when the petitioner/workman approached this Court by filing a writ petition in the year 1993, that on the directions of the Court, the respondent/DTC was compelled to take the petitioner/workman back in service. The respondent/DTC having compulsorily retired the petitioner/workman contrary to his request seeking withdrawal of his application for voluntary retirement, cannot take advantage of the situation and turnaround and claim that on withdrawal of his application seeking voluntary retirement, his option stood automatically lapsed. Furthermore, the circular dated 7.5.1993 comes to the aid of the petitioner/workman. Lastly, Clause 9 of the Office Order No. 16 of 1992 leaves no manner of doubt that even if an employee like the petitioner/workman herein does not exercise the option for seeking pension, he shall be deemed to have opted for the pension scheme benefits.

16. Even if the respondent/DTC wanted to act on the noting in the service records of the petitioner/workman by holding that he was not entitled for pension, having withdrawn his application for seeking voluntary retirement, it was incumbent upon the respondent/DTC to have put the petitioner/workman to notice before making such an endorsement as such a decision has visited the petitioner/workman with serious civil consequences of depriving him of his right to receive pension. Failure to afford an opportunity of hearing before making such an entry in the service book of the petitioner/workman, has resulted in grave injustice to him which needs to be undone.

17. For all the aforesaid reasons, this Court deems it appropriate to hold that the petitioner/workman had opted for pension and the respondent/DTC could not have refused to grant pension to him. As the petitioner/workman states that during the pendency of the present petition, the respondent/DTC has released the employer's share as also the employees' share of provident fund to him, which was duly received by the petitioner/workman on 4th August, 2006, while directing the respondent/DTC to make payment of pension to the petitioner/workman, the petitioner/workman is directed to first refund the employer's share of provident fund to the respondent/DTC along with interest @ 8% per annum from the date of receipt of the said amount within two months. Immediately upon receipt of the aforesaid amount, the respondent/DTC shall make the necessary computation for fixing the pension payable to the petitioner/workman and shall forward the details of calculation to the petitioner/workman as also the arrear thereof, within a period of 10 weeks. The arrears of pension payable shall be released to the petitioner from the date of his entitlement i.e. the date of his superannuation, within two weeks thereafter and thenceforth, he shall be entitled to receive regular pension on a month to month basis.

18. Counsel for the petitioner/workman states that the petitioner/workman is also entitled to claim interest on the amount of pension illegally withheld by the respondent/DTC. Considering that the petitioner/workman had in any case received the entire provident fund share of the employee as well as the employer in August, 2006, which has been retained by him, the said request is rejected.

19. The writ petition is disposed of in the above terms. The parties are left to bear their own costs.