Shri Narendra Kumar vs Delhi Transport Corporation
2008 Latest Caselaw 1524 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        LPA No.279 of 2003


%                                              Date of decision: 03.09.2008


SHRI NARENDRA KUMAR                               ...APPELLANT
                   Through:            Mr. S.D. Singh with Mr. Rahul
                                       Kumar Singh, Advocates.


                                   Versus


DELHI TRANSPORT CORPORATION             ...RESPONDENT
                   Through: Mr. Ataul Haque, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?               No

2.        To be referred to Reporter or not?                No

3.        Whether the judgment should be                    No
          reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. The appellant was appointed to the post of Conductor by

the respondent/DTC w.e.f. 8.1.1979 as per an appointment

letter dated 25.1.1979. The appellant was employed with

the respondent when an Office Order dated 27.11.1992 was

issued by the respondent introducing a Pension Scheme in

the DTC as applicable to Central Government employees.

The Scheme was to be operated by the LIC and was to be

effective from 3.8.1981. Insofar as the existing employees

were concerned the option was given to them in terms of

Clause 3 read with Clause 9 of the Scheme and the same

read as under:

"3) All the existing employees including those retired w.e.f. 3.8.1991 onward would have the option to opt for the pension scheme for the employees contributory provident Fund as at present, within 30 days from the date of issue of this G.O. for the implementation of the pension scheme as approved by the Govt. of Delhi.

.... .... .... .... .... .... .... .... ....

9) If any employees of D.T.C. 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 conditioned or ambiguous, he shall be deemed to have opted the pension scheme benefits."

2. It is not in dispute that the appellant was, thus, covered

under the aforesaid Scheme.

3. The respondent Corporation framed a Voluntary Retirement

Scheme (for short 'VRS') for its employees vide Office Order

dated 3.3.1993. Para 4 of the Office Order stipulated the

entitlement of an employee opting for voluntary retirement

and one of the benefits was of pension as per the Officer

Order No.18 dated 27.11.1992. The relevant portion reads

as under:

"4. An employee who taken voluntary retirement will be eligible to the following refunds/payments:- .... ..... .... .... .... .... .... .... ....

g) Pensionary benefits as per office order No.18 dated 27.11.1992."

4. It may be noted that the respondent also issued an Office

Order dated 16.3.1993 in respect of VRS whereby

though the Scheme initially covered the post of Conductor,

it was sought to be applied to all the employees. Some

further clarifications were also issued in respect of the VRS

dated 29.3.1993 but they are not germane to the issue.

5. The appellant availed of the said retirement Scheme by

filing an application dated 13.9.1995 and the respondent

Corporation acceded to the request of the petitioner vide

order dated 30.9.1995. The petitioner was issued a cheque

for Rs.1,06,214.92 and the same was accepted and

appropriated by the petitioner.

6. The petitioner had a second thought and thus submitted an

application for reinduction as a Conductor on 6.4.1998 but

the request of the petitioner was rejected on 13.7.1998.

7. A second request was made by the petitioner on 13.4.2000

to the effect that he should be entitled to the pensionary

benefits though he stood voluntary retired in view of a

judgement of the Delhi High Court. The petitioner

thereafter filed a writ petition, being WP (C) No.4064/1996

seeking a direction against the respondent to pay pension

to the petitioner in accordance with its circulars.

8. The sum and substance of the plea raised by the petitioner

was that the petitioner was entitled to the pensionary

benefits as part of the VRS referred to aforesaid. The

petition was, however, dismissed by the impugned order

dated 18.2.2003 passed by the learned single Judge of this

Court (as he then was).

9. The substratum of the impugned order is stated to be the

factum of there being no pension scheme applicable to the

petitioner when his request of voluntary retirement was

accepted and that the said position was also indicated by a

Memorandum dated 21.12.1994 which preceded the

request of the petitioner. The learned judge noticed that

the Memorandum dated 21.12.1994 clearly stipulated that

in case of an employee who had gone on voluntary

retirement under the scheme the said employee would not

be entitled to enjoy the pensionary benefits as he had

retired under the voluntary retirement scheme. A reference

was also made to the decision of the Supreme Court in

Bank of India & Ors. Vs. O.P. Swarnkar Etc. 2002 (9) Scale

519 where it was held that in respect of those employees

who have received the retirement benefits under the VRS

without protest, such employees would stand retired on

acceptance of their request for VRS.

10. Learned counsel for the appellant while assailing the

impugned order has referred to the judgement of another

learned single Judge of this Court in WP (C) No.4064/1996

decided on 19.9.1997.

11. The writ petition had been dismissed without calling for a

counter affidavit and thus, in the present Letters Patent

Appeal a counter affidavit was directed to be filed by the

respondent to the averment contained in the writ petition.

The counter affidavit was not found on record though

rejoinder was found on record. A copy of the counter

affidavit has been handed over to us in Court.

12. The plea raised by the respondent for non-grant of

pensionary benefits is stated to be the fact that the

petitioner retired under the VRS on 30.9.1995 and that the

circular dated 23.12.1994 had come into being prior to his

retirement in terms whereof the pensionary benefits were

not to be granted to persons who accepted the VRS after

the said date. The complete defence of the respondent

Corporation, thus, rests on this circular of 23.12.1994. The

circular reads as under:

"DELHI TRANSPORT CORPORATION (A GOVT OF INDIA UNDERTAKING) I.P. ESTATE: NEW DELHI

No.Admnl-5(41/94 Dated: 23.12.94

Sub.: Voluntary Retirement of employees of Delhi Transport Corporation.

******************

It has been decided to consider the request of the employee falling in the categories mentioned hereunder:-

1. GENERAL ADMINISTRATION 2. TRAFFIC STAFF.

       1. Sr. Clerk                            1) Drivers
       2. Jr. Clerk                            2) Conductors
       3. T.T.C.                               3) Traffic Inspector
                                            4) Asstt. Traffic Inspector

     3. CASH SECTION STAFF                   4. REPAIR & MAINT.
     1. Asstt. Cashier                       1. Auto Mech.
                                                    i)   Grade II
                                                    ii)  Grade II
    Stenographer                       2. Bench Fitter
                                                    i)   Grade I
                                                    ii)  Grade III
      5. MISC. STAFF.
         1. S.O. (C)                     3. Tyre Trade
         2. S.O. (E)                            I)    Grade           II
         3. Draughtman (C)                      II)   Grade           III
         4. Security Inspector           4. Auto Electrician
         5. Asstt. Security Inspector           I)    Grade           I
         6. Dressor                             II)   Grade           II
         7. Telephone Operator                  III)  Grade           III
         8. Monitor                      5. Black Smith
         9. Jr. Telephone Operator              I)    Grade           II
         10. Labour Welfare Inspector           II)   Grade           III

11. Jr. Labour Welfare Inspector6. Tin Smith

12. Librarian I) Grade II

13. Hindi Translator-cum-Asstt. 7. Painter I) Grade II

8. Machinist I) Grade I II) Grade II

6. CLASS-IV STAFF 9. Welder

1. Daftry, DMO, Bank Messenger I) Grade I

2. Peon II) Grade II

3. 4. Head Groundsman III) Grade III

10. Cushion Maker

i) Grade I

11. Sweeper Cleaner.

Even though disciplinary cases are pending against them, such employees may give their option in the prescribed proforma through proper channel latest by 10th January, 1995. The option forms may be obtained from the Depot/Unit Authorities by the willing employees.

The Unit Officers concerned will forward the prescribed Voluntary retirement calculation proforma including service book to the Labour Officer immediately and not later than 12.1.95 positively. The VRS proforma received after 12.1.95 will not be entertained. The Unit Officers will ensure that on the top right hand corner of the C.R. Calculation proforma it will be mentioned in Red Ink that a disciplinary cases is pending against the employee.

It is also notified for information of all such employees who opt for VRS they would not be entitled to join pension scheme if they are allotted retirement under VRS other salient features of the proposed VRS will remain the same at announced earlier vide this office circular dated 3.3.1993.

This issued with the approval of the Competent Authority.

Sd/-

(A.K. SHARMA) Dy. Chief General manager (IR)

All Heads of Department All Unit Officer All Notice Board of the Units.

c.c. to: Sr. Manager (Admn) & Incharge C.M.D.'s Sectt. For favour of information of CMD."

13. Learned counsel for the respondent emphasized that the

aforesaid circular clearly stated that such employees who

opted for VRS would not be entitled to join the pension

scheme. However, learned counsel for the appellant sought

to explain the circular by emphasizing that all that had

been stated was that when the request of the employee

falling in the categories mentioned in the circular was

examined "even though disciplinary cases are pending

against them", such employees would give option in the

prescribed proforma. Thus, the VRS was sought to be

extended even to personnel against whom disciplinary

cases were pending. It is in such cases that if the VRS was

accepted the pensionary benefits were not available.

14. The question which, thus, arises for consideration is

whether the circular dated 23.12.1994 applied to all the

applicants under the VRS or only to such of the applicants

under the VRS who were facing disciplinary proceedings.

15. On reading of the aforesaid circular it is obvious that the

same applies only to such cases where disciplinary

proceedings are pending. The circular begins with "It has

been decided to consider the request of the employee

falling in the categories mentioned hereunder" whereafter

the categories are mentioned in the circular and then the

sentence is completed with "even though disciplinary cases

are pending against them". Thus, what was decided was to

consider the request of the employees in the categories

mentioned in the circular even though disciplinary cases

are pending against them. However, on consideration of

such cases and their acceptance they were not entitled to

join the pension scheme. The circular, thus, had no

application to the other applicants against whom no

disciplinary proceedings were pending.

16. It is not in dispute that the VRS incorporated a clause giving

the funds and payments to be made to an eligible person in

para 4 of the Office Order dated 3.3.1993. Pensionary

benefits as per Office Order No.18 dated 27.11.1992 were

mentioned in sub-para (g) of para 4. Thus, pensionary

benefit was one of the benefits extendable to the persons

seeking VRS. The letter dated 23.12.1994 only sought to

extend the benefits of the scheme to persons against whom

disciplinary proceedings are pending but excluded the

aforesaid benefits of pension. This would have no

application to the applicant as he was undisputedly not a

person facing disciplinary proceedings.

17. The learned single Judge did not have the benefit of the

counter affidavit or the circular dated 23.12.1994 being

filed. This is the reason why a reference has been made

possibly incorrectly to a circular dated 21.12.1994. In any

case the defence of the respondent is clearly available in

the counter affidavit filed in the appeal proceedings.

18. The result of the aforesaid is that the impugned order dated

18.2.2003 is set aside and the appeal is allowed. The

appellant is held entitled to the pensionary benefits and the

necessary action be taken by the respondent for payment

of the past dues within a period of three (3) months from

today.

19. The parties to bear their own costs.

SANJAY KISHAN KAUL, J.

SEPTEMBER 03, 2008 MOOL CHAND GARG, J.

b'nesh