Delhi Transport Corporation & Anr vs Nem Pal
2016 Latest Caselaw 1224 Del

$~5.
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       WRIT PETITION (CIVIL) No. 918/2015
                                       Date of decision: 16th February, 2016
        DELHI TRANSPORT CORPORATION & ANR......Petitioners
                             Through Ms. Avnish Ahlawat, Ms. Latika
                             Chaudhury & Mr. Anuj Dewan, Advocates.

                             versus

        NEM PAL                                        ..... Respondent

Through Nemo.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J. (ORAL):

We have heard learned counsel for the petitioners, but are not inclined

to interfere with the impugned order passed by the Central Administrative

Tribunal, Principal Bench (Tribunal, for short) dated 5 th August, 2014

allowing the OA No. 61/2013 filed by Nem Pal and directing the

petitioners to pay pension.

2. Learned counsel for the petitioners has submitted that the Delhi

Transport Corporation has misplaced or lost a large number of option

forms possibly because of connivance and malafides to help co-employees

and, therefore, the service book of the respondent is the most authentic

document. As per the service book, the respondent had opted for

Contributory Provident Fund Scheme (CPF Scheme) and is not entitled to

pension. She relies upon a decision of this Court in Writ Petition (C) No.

13142/2009, Manzoor Ahmed Khan versus Delhi Transport Corporation

dated 8th January, 2010, affirming the order of the Tribunal denying

pension to the said employee. It is highlighted that the petitioner in this

case as in Writ Petition (C) No. 13142/2009 had voluntarily contributed

towards CPF scheme.

3. The facts of the present case are rather peculiar. Delhi Transport

Corporation had introduced Pension Scheme for its employees on 27th

November, 1992 applicable retrospectively w.e.f. 3.8.1981. It was

stipulated that an employee not exercising any option within thirty days or

quitting service or dying without exercising any option or whose option

was incomplete, conditional or ambiguous, shall be deemed to have opted

for the Pension Scheme. Time for exercise of option was extended till

1995. On default or on failure to specifically opt, the respondent like any

other employee would be governed and entitled to the pension scheme.

4. The respondent was appointed as a daily rated driver on 18th August,

1979 and confirmed on 18th February, 1980. On 2nd July, 1993, the

respondent was removed from service and his entitlement under CPF

released. On this order of removal being set aside by the High Court vide

order dated 19th September, 2001, the respondent was reinstated on 31st

May, 2002 with full back wages and continuity of service. Thus, it is

apparent to us that in the present case the respondent, during the relevant

period when he could have opted for the Pension Scheme, i.e., from 2nd

July 1993 till 1995, was not in service. It is not the case of the petitioners

that they had asked the respondent to opt for either Pension Scheme or CPF

Scheme on rejoining after reinstatement on or after 31st May 2002. In the

normal course, the respondent would be deemed to have opted for the

pension scheme, unless he had specifically exercised his option to opt out.

5. Learned counsel for the petitioners submits that upon reinstatement,

till retirement on 31st March, 2012, regularly some amount was deducted

from the respondent's salary towards CPF contribution. The petitioner

Corporation had also paid their share as employer's contribution. This may

be correct. But the question of estoppel would arise, only if the respondent

was aware and conscious that this deduction would deny him benefit under

the pension scheme. The respondent was not informed about the choice to

opt. Estoppel precludes a party from denying the truth of some statement

previously made. The doctrine is based on equity and good conscience, and

is enforced to prevent fraud and promote honesty and justice. There is no

estoppel when truth of the matter is known to the parties or they had means

of ascertaining the truth by pursuing enquiries. The respondent was

working as a bus driver, and should have been informed of the choice "to

opt" he had on rejoining on 31st May, 2002 and that any contribution to the

provident fund, would disentitle him from receiving pension. What is,

noticeable is that the respondent upon retirement did not accept the

employer's share. The petitioner-Corporation accepts and admits that the

respondent was never paid the Corporation's share towards the CPF.

6. This being the factual position and in view of the relevant clauses

incorporated in the Office Order No. 16 dated 27th November, 1992 and

subsequent notification extending the period to exercise the option till

1995, we do not see any reason to upset the order passed by the Tribunal.

By default the respondent would be covered by the pension scheme. The

writ petition is accordingly dismissed.

(SANJIV KHANNA) JUDGE

(NAJMI WAZIRI) JUDGE FEBRUARY 16, 2016 VKR