Delhi Transport Corporation vs Ram Kishan
2016 Latest Caselaw 3432 Del

$~23
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                          W.P.(C) 4022/2016

                                                Date of decision: 9th May, 2016

       DELHI TRANSPORT CORPORATION                 ..... Petitioner
                    Through: Ms. Ruchira Gupta, Adv.

                           versus

       RAM KISHAN                                                   ..... Respondent
                           Through:     None.

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

       SANJIV KHANNA, J. (ORAL)

Delhi Transport Corporation by this writ petition impugns the

order dated 5th February, 2016 passed by the Principal Bench of the

Central Administrative Tribunal, New Delhi, whereby OA

No.1970/2010 has been allowed with the direction that Ram Kishan

would be entitled to pension under the DTC Pension Scheme. The

petitioners have been directed to consider Ram Kishan's case for

increased bonus in the light of the aforesaid directions. However, the

Tribunal has rejected the prayer for grant of interest on arrears of

pension and increased bonus, if any.

2. Ram Kishan was appointed as a Driver in the petitioner-

Corporation on 16th September, 1981. After about 27 years of

service, Ram Kishan vide letter dated 9th January, 2008 had sought

retirement on the ground of ill health. He had given three months'

advance notice to the petitioner-Corporation. By letter dated 24th

April, 2008, the respondent was informed as under:-

"The resignation tendered by Sh. Ram Kishan S/o Sh. Bhale Ram Driver B.No.9116, P.T. No.27201 vide his application dated 09.01.2008 by giving three months notice has been accepted w.e.f. 01.05.2008 under clause 9(c) of the DRTA (Conditions of Appointment & Services) Regulation 1952.

As per record he has opted DTC Pension scheme. His nominee is Smt. Santosh (wife) as per entry in his Service Book."

However, pension was not paid to Ram Kishan. After about one year by

letter dated 25th June, 2009, the petitioner informed Ram Kishan that he

would not be entitled to pension as per Rule 26 of CCS (Pension) Rules,

1972 as he had resigned from service and his past service stands forfeited.

3. Faced with the aforesaid reversal and flustered, Ram Kishan filed OA

No.1970/2010. This OA was initially allowed vide order dated 28 th April,

2011, recording that Ram Kishan had requested for retirement and had never

resigned. To ascertain the facts, the Tribunal had asked the petitioner to

produce the original records, which were never produced. The Tribunal,

therefore, directed that the letter dated 9th January, 2008 should be treated as

a letter requesting for voluntary retirement and the case should be processed.

The pension and other dues should be paid within six weeks. The petitioner

thereafter filed Review Application No.278/2011 and for the first time

brought on record the Pension Fund Regulations, 1995. It was submitted

that Rules 48 and 48A of the CCS (Pension) Rules, 1972 relating to

voluntary retirement were inapplicable. By order dated 4th May, 2012, the

Review Application was allowed and the earlier order dated 28th April, 2011

was recalled and the OA No.1970/2010 was listed for fresh adjudication.

The impugned order dated 5th February, 2016 reiterates the view taken in the

earlier order dated 28th April, 2011, recording, inter alia, that the respondent

had never resigned.

4. We have heard the learned counsel for the petitioner and perused the

impugned order.

5. The facts narrated above show and establish that Ram Kishan had not

resigned. He had never written a resignation letter. By letter dated 9th

January, 2008, Ram Kishan had sought early retirement on account of ill

health and had given three months' advance notice. This letter cannot be

treated as a resignation letter. In case, retirement or voluntary retirement

was not permitted or permissible under the extant Rules, the said position

and situation should have been informed or stated. Further, the order dated

24th August, 2008 observers and records that Ram Kishan had opted for

pension scheme, thereby clearly reflecting that Ram Kishan would be

entitled to pension. It is only after an year that by letter dated 25 th June,

2009, the petitioner changed their stand and turn around claiming that Ram

Kishan had resigned under Rule 26 of the CCS (Pension) Rules, 1972 and,

therefore, had forfeited his past service and he would not be entitled to

pension. The said position should have been so informed and told to Ram

Kishan before treating the letter of retirement as a letter of resignation. This

would have enabled Ram Kishan to make an informed choice. Apparently,

both the petitioner and Ram Kishan were not aware that Rules 48 and 48A

of the CCS (Pension) Rules, 1972 were not applicable. They had proceeded

under a mistake of law. The petitioner had denied applicability of Rules 48

and 48A of the CCS (Pension) Rules, 1972 for the first time in the review

application in the year 2011. As noticed earlier, in the letter dated 24th

April, 2008, the petitioner had stated that Ram Kishan had opted for

pension. This would indicate that Ram Kishan would be paid pension as he

had opted for the same.

6. Ram Kishan was appointed as a Driver in 1981 and had worked in the

petitioner Corporation for about 27 years till April, 2008. In normal course,

Ram Kishan would have retired on attaining the age of 55 years on 30 th

April, 2009. In case, the petitioner had not accepted the request for

retirement by treating the same as resignation or had immediately informed

that Ram Kishan that his past service would be forfeited and he would not

be entitled to pension, Ram Kishan it is apparently conceivable would have

continued to work till 30th April, 2009.

6. Looked from many a angle, we find that the stand and stance of the

petitioner is unjust and inequitable. The writ petition has no merit and is

accordingly dismissed.

SANJIV KHANNA, J.

NAJMI WAZIRI, J.

MAY 09, 2016/NA