Delhi High Court
D.T.C. vs Jagdish Sharma on 9 July, 2015
Author: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: July 09, 2015
+ LPA 88/2008
D.T.C. ..... Appellant
Represented by: Mr.Nitesh Kumar Singh,
Advocate for Mrs.Avnish
Ahlawat, Advocate.
versus
JAGDISH SHARMA ..... Respondent
Represented by: None.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The issue in the present appeal is squarely covered by the decision of
the Supreme Court in Civil Appeal No.11440/2011 titled as D.T.C vs.Lillu
Ram holding that a person who has not completed ten years of service
cannot be granted pension.
2. The relevant portion of the judgment in Lillu Ram (Supra) is
reproduced as under:
"22. The minimum qualifying service which is required for
earning pensionary benefits finds place in Rule 49 of the
Pension Rules. For the sake of convenience, Rule 49 is
reproduced hereinbelow:-
"49. Amount of pension.- (1) in the case of government
servant retiring in accordance with the provisions of these
Rules before completing qualifying service of ten years, the
amount of service gratuity shall be calculated at the rate of
half month's emoluments for every completed six-monthly
period of qualifying service".
(2) to (4). xxxxx N.A.
(5) & (6). xxxxx"
23. Thus, looking to the matter from all angles, we are of
considered opinion that even though Respondent had
completed 10 years of service for being entitled to claim
VRS but he had certainly not become entitled to claim
pensionary benefits as he had not put in qualifying service
of 10 years with the Appellant.
24. Conjoint reading of Rule 3 (1) (q) and Rule 49 of the
Pension Rules quoted hereinabove, make it abundantly
clear that only those employees would become entitled to
pensionary benefits, who had put in 10 years of qualifying
service.
25. Looking to the facts of this case, where
Respondent/employee had remained absent, without any
sanction unauthorisedly for a long period of 486 days
during the period of 10 years of service, he had put in with
the Appellant, he would fall short of completing 10 years of
qualifying service.
26. As mentioned hereinabove, there are two different
things one with regard to grant of VRS and another with
regard to entitlement for pensionary benefits. First one is
governed under the VRS whereas the second one is
governed under the Statutory Rules. Merely because his
application for voluntary retirement was accepted,
automatically, he would not become entitled for grant of
pensionary benefits".
3. The factual matrix of the case is that Respondent Jagdish Sharma was
appointed as a Conductor on November 15, 1982 with the Delhi Transport
Corporation. On March 03, 1993 DTC introduced "Voluntary Retirement
Scheme" „(in short "VRS") and it was informed to the employees through
the circular that those opting for this VRS scheme shall be paid an ex-gratia
payment only. Jagdish Sharma sought voluntary retirement and was retired
under the VRS scheme on May 31, 1993. Since Jagdish Sharma had not
completed the qualifying service of ten years for the reason that he was on
leave without pay for 404 days he was held to be not entitled to grant of
pension.
4. The facts are not disputed. The only contention on the basis of which
the learned Single Judge passed the order was that Jagdish Sharma was not
informed that he would not be entitled to pension. The circular of DTC
dated March 03, 1993 introducing "Voluntary Retirement Scheme" is clear
and draws the distinction between the eligibility criteria with regard to VRS
and pension.
5. Clauses-2 and 4 of the Voluntary Retirement Scheme are reproduced
as under:
"2. Eligibility: An employee must have completed ten
years of service in this Corporation or completed 40 years
of age to qualify for consideration under the Scheme. For
this purpose, period of deputation/retention of lien in the
parent office in lieu of deputation prior to absorption in the
regular service of the Corporation will be excluded.
4. An employee who taken voluntary retirement will be
eligible to the following refunds/payments:-
a) Balance in his PF Account as per rules of provident fund
applicable to him.
b) Encashment of refused leave and accumulated Earned
Leave as per rules of the corporation as payable to him
as if he retires under the normal rules of retirement.
c) Gratuity as per payment of gratuity act and gratuity
Rules of the corporation applicable to him.
d) Three month notice pay as is applicable in the individual
case as per the terms of him/her employment.
e) An ex-parte payment equivalent to 1-72 month‟s basic
pay plus DA for such completed year of service limited to
one month pay multiplied by the number of whole month
of service left before normal date of retirement.
f) Expense for travelling for the entitled class for the
employee and his/her family comprising his/her spouse
and dependent members from the place of his/her posting
to the place where he/she intends to settle down in India.
g) Pensionary benefits as per office order No.16 at
27.11.92."
6. The definition of qualifying service which finds place in Rule 3(1)(q)
of the Pension Rules reads as under:
"3(1)(q). „Qualifying service‟ means service rendered
while on duty or otherwise which shall be taken into
account for the purpose of pension and gratuities admissible
under these Rules."
7. Thus there is a clear distinction between VRS scheme and entitlement
to pension as per the Pension Rules and the Appellant by its circular had
clarified that those who opt for VRS scheme would be entitled to ex-gratia
payment only and pensionary benefits as per Office Order No.16 dated
November 27, 1992 which were on the same pattern as per Central
Government which in turn provided for the qualifying service as noted
above.
8. In view of the decision of the Supreme Court in Lillu Ram (Supra) the
impugned order dated October 30, 2007 is set aside. Appeal is disposed of
accordingly.
(MUKTA GUPTA)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
JULY 09, 2015
'vn'
