Delhi Transport Corporation vs Sh.Brij Bhushan Sharma
2010 Latest Caselaw 22 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P. (C.) No.1/2010


%                     Date of Decision: 06.01.2010


Delhi Transport Corporation                           .... Petitioner
                     Through Ms.Avnish Ahlawat, Advocate.


                               Versus


Sh.Brij Bhushan Sharma                                 .... Respondent
           Through             Ms.Kittu Bajaj, Advocate.



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be             YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                NO
3.    Whether the judgment should be reported in            NO
      the Digest?



ANIL KUMAR, J.

*

The petitioner/DTC has impugned the order dated 6th July, 2009

passed by the Central Administrative Tribunal in T.A No.629/2009,

Sh.Brij Bhushan Sharma v. Delhi Transport Corporation holding the

respondent eligible for pension under the pension Scheme of 27th

November, 1992 and directing the respondent to return the amount of

provident fund paid to him s and granting simple interest of 8% on the

arrears of pension.

The brief facts to comprehend the controversies are that the

respondent retired from the service of the petitioner Corporation on 31st

October, 2004. A pension scheme was issued by the petitioner by office

order No.16 dated 27th November, 1992 which contemplated in terms of

Clause 9 of the scheme that if any employee of DTC would not exercise

any option within the prescribed period of 30 days or quit service or

dies without exercising the option or if the option exercised is

incomplete or conditional or ambiguous, he would be deemed to have

opted for the pension scheme benefits.

The respondent had joined the services of the petitioner

Corporation in 1965 and according to respondent he did not give any

option in writing at the time of introduction of pension scheme and nor

did he file any option form. However, on his service book a stamp was

put indicating that he had not opted for the pension scheme. According

to the respondent he had not exercised the option and under Clause 9

of the scheme of 1992, he was deemed to have opted for the pension

scheme. In 2002 another office order dated 28th October, 2002 had also

been issued stipulating that those employees who had not opted under

the 1992 scheme could exercise their option for the pension scheme.

The respondent therefore, opted for the pension scheme pursuant to

officer order of 2002 as according to petitioner he had not filed any

option form in 1992. After his retirement the petitioner made

representations for grant of pension which was declined on the ground

that he had opted not to avail the pension in 1992.

On failure of the petitioner to grant the pension, an original

application under Section 19 of the Tribunals Act, 1985 was filed which

has been allowed by the Tribunal by order dated 6th July, 2009 in T.A

No.629/2009. The Tribunal noted that since the respondent had not

opted for pension scheme under the 1992 scheme and under the

deeming clause 9 he would be deemed to have opted for the same,

therefore, the respondent is entitled for pension under the said scheme.

The Tribunal has rejected the plea of the petitioner that the

endorsement was made on the service book of the respondent on the

basis of the option exercised by the respondent on the ground that the

option form of 1992 was not produced by the petitioner and the plea of

the petitioner that the option form had been removed by the respondent

in collusion with the officials the petitioner has also been rejected on

the ground that the plea is based on surmises.

This cannot be disputed that under Clause 9 of the Pension

Scheme of 1992, if an employee had not opted for the pension under the

scheme, under the deeming provision, he was deemed to have opted for

pension. The petitioner could substantiate its plea that the respondent

had not opted for pension by filing the option form of the respondent,

which has not been done. The plea of the petitioner that the option form

was removed by the respondent in collusion with other officials also

cannot be accepted in the facts and circumstances. In case the

respondent had filed an option form and had not opted for pension and

it was removed, the petitioner should have taken some action against

the delinquent officials or should have conducted enquiry about it.

The respondent had opted for the pension under the scheme of

2002. The pension scheme of 2002 was for those who had not exercised

their option under the pension scheme of 1992. Since the respondent

had applied under the scheme of 2002, at that time, the petitioner

ought to have declined to accept his option on the ground that the

scheme was only for those employees who had not exercised the option

under the pension scheme of 1992, which was not done by the

petitioner. The pension had been declined in 2004 by the petitioner

when the respondent demanded it after retirement. The Tribunal has

noted these facts and after considering the pleas of the parties, has held

that the respondent is entitled for pension.

In the circumstances, there is no such error or illegality in the

order of the Tribunal holding that the petitioner is entitled for pension

as he had not opted for pension under the 1992 scheme and he had

opted for pension under the scheme of 2002, which requires to be

corrected by this Court in exercise of its jurisdiction under Article 226

of the Constitution of India.

For the foregoing reasons the writ petition is without any merit

and it is, therefore, dismissed.

ANIL KUMAR, J.

January 06, 2010                               MOOL CHAND GARG, J.
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