Delhi Transport Corporation vs Sh. Balbir Singh
2016 Latest Caselaw 4902 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA No.113/2014 and CM No.18836/2015

%                                                          28th July 2016

DELHI TRANSPORT CORPORATION                            ..... Appellant
                     Through:                Ms.    Avnish     Ahlawat,
                                             Advocate
                    versus

SH. BALBIR SINGH                                         ..... Respondent

                                 Through:    Mr. Pradeep Kadiyan, Mr.
                                             Gautam Singh, Advocates
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular Second Appeal under Section 100 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit for

setting aside the concurrent Judgments of the courts below; of the Trial

Court dated 21.9.2013 and the First Appellate Court dated 4.1.2014; by

which the courts below have decreed the suit of the respondent/plaintiff

and directed the appellant/employer to grant pension to the

respondent/plaintiff under the pension scheme and not treat the

respondent/plaintiff as being covered under the Provident Fund Scheme.

2. The facts of the case are that the appellant/defendant on

23.11.1992 introduced a pension scheme vide an Office Order dated

27.11.1992 and as per para 9 of which scheme any employee of the

appellant/employer who does not exercise the option in the prescribed

period of 30 days would automatically be deemed to have exercised the

option of the pension scheme benefits. Respondent/plaintiff did not

exercise the option and therefore, he became the deemed pension optee.

Respondent/plaintiff however thereafter wrote a Letter dated 4.4.1994,

Ex.PW1/D1, whereby he requested that his option of deemed optee for

the pension scheme be changed because he wanted to opt out of the

pension scheme. This request of the respondent/plaintiff was accepted by

the appellant/employer vide Letter Ex.PW1/D2 dated 12.4.1994. The

courts below have however held that once the respondent/plaintiff was

deemed to be a pension optee on account of not having exercised the

option within 30 days, the subsequent Letter of the respondent/plaintiff

dated 4.4.1994 would make no difference. In arriving at this conclusion

the courts below have referred to the fact that in the salary slips

(Ex.PW1/3 colly.) of the respondent/plaintiff issued by the

appellant/employer the alphabet "S" is denoted indicating that employee

has opted for the pension scheme whereas if the employee had to

continue under the Provident Fund Scheme then instead of alphabet "S"

the alphabet "Z" would have been mentioned.

3. Learned counsel for the appellant/defendant has very

vehemently argued that respondent/plaintiff is estopped from claiming

that he continued under the pension scheme inasmuch as the

respondent/plaintiff himself withdrew his option by means of his Letter

dated 4.4.1994 Ex.PW1/D1 and which was accepted by the

appellant/employer vide document dated 12.4.1994, Ex.PW1/D2.

Learned counsel for the appellant/defendant also strongly relies upon the

document Ex.PW1/D3 dated 29.4.1994 issued by its office showing that

in fact the respondent/plaintiff was granted loan from the provident fund

account and which would not have been in case the respondent/plaintiff

was continued under the pension scheme, and since the

respondent/plaintiff was not continued under the pension scheme in view

of his own request Letter dated 4.4.1994. It is also argued that there

remained no doubt with respect to the respondent/plaintiff not being a

pension optee, inasmuch as, though when the suit was filed the

respondent/plaintiff was in service, but during the pendency of the suit

respondent/plaintiff retired and on retirement he took benefit of provident

fund and related monetary benefits. Finally, it is argued on behalf of the

appellant that the courts below have overlooked the fact that an

administrative mistake of mentioning the letter „S‟ instead of letter „Z‟ in

the salary slips of the respondent/plaintiff would not make difference

once in fact not only the respondent/plaintiff is found to have opted out of

the pension scheme in view of his Letter dated 4.4.1994 but also that the

salary slips which are filed by the respondent/plaintiff themselves show

that in each of the salary slips in column no.41 there is deduction shown

for provident fund and the fact of the matter is that in spite of the

administrative/clerical mistake in writing the letter "S" instead of "Z",

every month provident fund amount was regularly deducted from the

salary of the respondent/plaintiff.

4. For disposal of this present second appeal, the following

substantial question of law is framed:

"Whether the courts below have committed a grave illegality and perversity in giving importance to an administrative mistake of the appellant/employer using the alphabet "S" instead of "Z" although the respondent/plaintiff had himself opted out of the pension scheme vide his Letter dated 4.4.1994 and appellant/employer had acted accordingly by accepting the same vide its document dated 12.4.1994 with the fact that in every month‟s salary provident fund amount was deducted from the respondent‟s/plaintiff‟s salary and thus respondent/plaintiff is estopped from claiming that he has not opted out of the pension scheme?"

5. Learned counsel for the appellant places great emphasis on

the judgment of the Supreme Court in the case of DTC Retired

Employees' Association and Others Vs. Delhi Transportation

Corporation and Others, (2001) 6 SCC 61 which holds that once a

person who has opted out of the pension scheme, although such a person

originally was deemed a pension optee by failing to exercise the option

within 30 days, then in such a case such an employee cannot turn around

to claim benefit of the pension scheme. Learned counsel for the appellant

also argued that there were hundreds of similar cases of different

employees of the appellant/employer who opted out of the pension

scheme by giving letters and all judicial proceedings initiated by such

persons who opted out of the pension scheme for seeking pension once

again have been dismissed not only by the Supreme Court in the case of

DTC Retired Employees' Association (supra) but also by judgments of

this Court including the Division Bench judgment in bunch of cases with

lead case being Delhi Transport Corporation Vs. Madhu Bhushan

Anand, W.P.(C) No.14027/2009 decided on 10.8.2010. It is also stated

by counsel for the appellant/employer that challenge by employees to the

Judgment of the Division Bench dated 10.8.2010 was dismissed by the

Supreme Court. The relevant paras of the judgment of the Supreme

Court in the case of DTC Retired Employees' Association (supra) are

paras 24 and 25 and the same read as under:

"24. Learned counsel for the petitioners in Writ Petition No. 499 of 2000 contended that the petitioner had initially opted for the Pension Scheme in 1992, but as they were apprehensive regarding DTC‟s ability to implement the Pension Scheme, they were compelled to opt out of the Pension Scheme. It is submitted that in 1995 only under the threat of contempt notice from this Court, DTC came forward to implement the Pension Scheme, but no fresh option was given to the employees. It is also argued that DTC had not communicated to all its employees that they were going to implement that Scheme. It is also submitted that pension is neither a bounty nor a charity. Therefore, all the retired employees should have been given the benefit of the Pension Scheme.

25. It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In para 9 of the counter- affidavit filed on behalf of DTC it is stated that as far as the time to fill up pension option form is concerned, the letter dated 23-11- 1992 conveyed by the Government of India, Ministry of Surface Transport, contained that DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, DTC, in fact, extended the time twice, namely, firstly up to 15-1-1993 and, secondly up to 1-2-1993. Therefore, the retired employees had, in fact, more than one month‟s time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of Employer‟s Provident Fund Scheme failed to exercise their option and thus disentitled themselves from getting the pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get pension. The appeals and the writ petition are without any merit and these are dismissed without, however, any order as to costs." (underlining added)

6. A reading of the aforesaid paras of the judgment of the

Supreme Court makes it clear that although an employee of the appellant

was a deemed pension optee on account of failing to exercise option

within 30 days of introduction of the pension scheme, however, if such

employees subsequently take the route of withdrawing from the pension

option by writing a letter which is accepted by the employer, then such

employees cannot claim benefit of the pension scheme and are estopped

from doing so. The facts of the present case show that though the

respondent/plaintiff was a deemed pension optee as he did not exercise

any option within 30 days, however, respondent/plaintiff vide his Letter

dated 4.4.1994 prayed for change of his option to receive provident fund

benefits instead of pension, and this Letter dated 4.4.1994 reads as under:

"Depot Manager DTC Hari Nagar Depot-III New Delhi Sir, With respect I say that I have not given in writing regarding pension. Hence I am entitled for pension. I do not want to get pension. Please cancel by pension. I will be obliged.

Thanking you.

Applicant Sd/x x x Balbir Singh Conductor B No 13072 T No 17018 PEC May be forwarded to Mgr (Pension) dated 4.4.94 Sd/x x 4.4.94 HND/94/439 4.4.94"

7. The aforesaid Letter dated 4.4.1994, Ex.PW1/D1 of the

respondent/plaintiff was acted upon pursuant to the document dated

12.4.1994, Ex. PW1/D2, of the appellant/employer and in which list out

of 305 persons who had opted out of the pension scheme the name of the

respondent/plaintiff is found at serial no. 236. The fact that the

respondent/plaintiff acted as per his fresh option to be not governed by

the pension scheme but by the provident fund scheme also becomes clear

from the document Ex. PW1/D3 dated 29.4.1994 which shows that

respondent/plaintiff applied for and got a loan against his provident fund

account. The document is dated 29.4.1994 and, which position obviously

would not have been if the respondent/plaintiff was a pension optee,

because, in the case that respondent/plaintiff was a pension optee he would

not have been allowed loan against his provident fund account. This

document dated 29.4.1994 reads as under:

"No.HND-I/Non-Ref./94/1812 Dated:29.4.94 Sh. Balbir Singh S/o Sh. Inder Singh, Conductor, B. No.13072 T.No.17918 of this Unit has been sanctioned a sum of Rs.40,000/- Furpees Forty thousand only) by the Depot Manager as Non-refundable advance from his own contribution towards Provident Fund as well as employer‟s contribution in connection with the construction of his house situated at New Roshan Pura, Najafgarh, New Delhi in Lal Dora. In accordance with Clause 19-A(1) of the D.T.C. employees Provident Fund Trust Regulation 1978. The amount of advance sanctioned to him will be paid in two equal instalments each from H.Ors.

       From his own contribution:         Rs.21,000.00
       From employer‟s share:             Rs.19,000.00
                                          Rs.40,000.00

Sh. Balbir Singh shall utilise the amount of advance only the purpose for which the same has been granted and shall give a certificate together with documentary proof testifying the utilisation of the amount of advance. The IInd instalment of Rs.20,000/- will be paid after submission of the utilisation of amount of his first instalment. If the Corporation is satisfied that the advance granted to him has not been utilised for the purpose for which it has been sanctioned of the conditions of advance have not been fulfilled wholly or partly or that the excess amount in not refundable the corporation shall forthwith take steps to recover the amount due with interest at the subscriber in such number of instalments as may be prescribed by the corporation.

1. The credit balance of share of employee as per pay slip for the month of March, 94 is Rs.25,004.09.

2. The credit balance of employer‟s share as per pay slip for the month of March, 94 is Rs.25,486.99.

3. The balance of C.P. Fund of refundable loan as per pay slip for the month of March, 94 is Rs.3900/-.

4. That the employee has not with drawn non-refundable advance under para 19A(1) of the C.P. Trust, Regulations-1978.

5. That the entries of this Non-refundable advance will be made in the S. Book at page no.12.

6. Sh. Balbir Singh filed the pension form for not obtaining the pension scheme.

This has the approval of Competent Authority.

Sd/-

Dy. Manager (T) Dy. Manager (PF) Hqrs.

CC to : P. Concerned.

: PFC (Cond.)- alongwith the complete case file contg. 3N+10 Cr. for maling necessary entry in the S. Book at page No.12."

8. Clearly the courts below have fallen into a grave error and

caused grave miscarriage of justice, besides perversity existing in their

judgments, because, the documents Ex. PW1/D1 to PW1/D3 leave no

manner of doubt that respondent/plaintiff after becoming a deemed optee

under the pension scheme himself voluntarily changed the option to the

provident fund scheme. Once the respondent/plaintiff has done so and in

fact taken benefit of the same by getting a loan in the provident fund

account as per Ex.PW1/D3, it therefore does not lie in the mouth of the

respondent/plaintiff to claim that respondent/plaintiff should be given

pension under the pension scheme. Whatever doubt remains is removed

from the fact that respondent/plaintiff who retired during the pendency of

these judicial proceedings received complete amount of his retirement

benefits including towards provident fund and which the

respondent/plaintiff would not have received, and in fact would have

immediately returned if received, in case the respondent/plaintiff had been

governed by the pension scheme and not by the provident fund scheme. It

also bears note that a mere administrative mistake of writing the alphabet

"S" instead of "Z" in the salary slips of respondent/plaintiff cannot have the

effect of making the salary slips as under the pension scheme when the fact

of the matter is that under the salary slips amount is shown to be deducted

every month, month after month, towards the provident fund account.

9. Therefore, I hold that the substantial question of law has to be

answered in favour of appellant/defendant and against respondent/ plaintiff

and consequently the Judgments of the courts below dated 21.9.2013 and

4.1.2014 are liable to be and accordingly set aside by dismissing the suit

of the respondent/plaintiff. Accordingly this second appeal is allowed by

dismissing the suit of the respondent/plaintiff, leaving the parties to bear

their own costs.

JULY 28, 2016                                   VALMIKI J. MEHTA, J
godara