Delhi High Court
Dtc vs Om Prakash Sharma on 16 May, 2016
* HIGH COURT OF DELHI AT NEW DELHI
+ RSA 68/2009
Pronounced on: 16th May, 2016
DTC ..... Appellant
Through: Mrs. Avnish Ahlawat, Adv. with
Ms. Latika Choudhary, Adv.
versus
OM PRAKASH SHARMA ..... Respondent
Through: Mr. Ved Prakash Sharma, Advocate with
Ms. Amrit Kaur Oberoi, Advocate &
Mr. Kunal Dutt, Advocate
+ RSA 178/2010
OM PRAKASH SHARMA ..... Appellant
Through: Mr. Ved Prakash Sharma, Advocate with
Ms. Amrit Kaur Oberoi, Advocate &
Mr. Kunal Dutt, Advocate
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through: Mrs. Avnish Ahlawat, Adv. with
Ms. Latika Choudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. These are two cross appeals filed by the appellants (i.e. DTC and
Om Prakash Sharma respectively) against the same order dated
10.02.2009 passed by the learned Senior Civil Judge by virtue of
which the judgment and the decree passed by the learned Civil
Judge on 20.10.2007 was affirmed.
2. The DTC has challenged the impugned order by raising substantial
question of law while as Mr. Sharma has challenged the rejection
of the prayer by the learned Senior Civil Judge with regard to grant
of interest @ 24% per annum on the pensioner benefits and
awarding interest only @ 8% per annum.
3. Before dealing with the respective contentions of the parties, it
would be pertinent here to give the brief facts of the case. It is also
made clear that the parties are being referred by their names in
order to avoid any confusion with regard to the status in the present
appeal.
4. Om Prakash Sharma filed a suit for declaration that he is entitled to
pension in terms of office Order No.16 notified vide Circular
No.Admn-1-5(41)/92 dated 27.11.1992 w.e.f. 01.05.1994 and for
grant of mandatory injunction directing the defendant to pay to the
plaintiff pensionary benefits including computation of pension and
arrears of pension after giving benefits under rules 29 and 30 of
C.C. Pension Rules for 10 years in his qualifying service with
interest @ 24% per annum because the said benefits have been
withheld illegally and against the provisions of law, w.e.f.
01.05.1994
5. He stated that he joined the DTC as Law Officer on 27.11.1978 and
in course of time was promoted to the post of Legal Advisor. On
27.11.1992, DTC introduced a pension scheme for its employees at
par with the Central Government employees vide office order
which is Ex.PW-1/1 which reads as under:-
"No.Adm1-5(41)/92 Dated: 27-11-92
OFFICE ORDER NO.16
Sub:- Introduction of Pension Scheme in DTC as
applicable to the Central Govt. Employees.
The introduction of Pension Scheme for the employees of
the D.T.C. has been sanctioned by the Central Govt. and
conveyed by the M.O.S.T. vide letter No.RT-12019/21/88-
TAG dated 23.11.1992 as on the same pattern as for the
Central Govt. employees, subject to the following
conditions:-
1) The pension Scheme would be operated by the LIC on
behalf of DTC.
2) The date of effect of Pension Scheme would be
3.8.1981.
3) All the existing employees including those retired
w.e.f. 3.8.1981 onwards would have the option to opt
for the pension scheme of the Employees Contributory
Provident Fund as at present, within 30 days from the
date of issue of this ... for the implementation of the
Pension Scheme as approved by the Govt. of India.
4) The Pension Scheme would be compulsory for all the
new employees joining D.T.C. w.e.f. 23.11.92, the
date of sanction of the Scheme.
5) The Pension Scheme would be operated by the LIC on
behalf of DTC. The employers share in the EPF A/c
of the DTC employees, who opt for pension scheme
would be transferred to the LIC, for operating the
pension scheme on behalf of DTC and the amount
deposited in the Central Govt./State
Govt./Guaranteed Securities would be encashed on
maturity.
6) The employees who have retired on or after 3rd
August, 1981 and the existing employees, who have
drawn the employer‟s share, under the EPF Act,
partly or wholly shall have to refund the same with
interest in the event of their opting for the pension
scheme. The total amount to be refunded by the
retired employees/existing employees would be the
amount that would have accrued, had they not
withdrawn the employer‟s share.
7) Excess amount of gratuity, if already paid to ex-
employees and which is not admissible under the
Pension Scheme, will have to be refunded by them
before any benefit under the scheme, is granted to
them.
8) A due and drawn statement would be prepared in
respect of retired employees opting for pension
scheme and the amount to be paid/refunded, would be
worked out by the concerned unit, wherefrom the
employee had retired from service.
9) If any of the employee of DTC, who does not exercise
any option within the prescribed period of 30 days or
quit service or dies without exercising an option or
whose option is incomplete conditional or ambiguous,
he shall be deemed to have opted the pension scheme
benefits.
Application forms for exercising option would be
available with the Unit officers and all employees
including retired employees wishing to exercise option,
should do so with the unit of their present working/where
from they retired, within a period of 30 days from the
date of issue of this office order.
The Unit Officers, after receiving the options from the ex-
employees, will take further necessary action for getting
the necessary forms completed, which will be supplied to
them by the LIC for pension, etc. They will also ensure
the recovery of DPF and Gratuity from the Ex-employees
before forwarding their applications as mentioned above.
The cases of all officers will be dealt with at
Headquarters.
The options received from the existing employees for not
opting pension may be kept in their personal file and
entry made in their Service Book.
Sd/-
(L.C. GOYAL)
DY. CHIEF GENERAL MANAGER (P)"
6. In March, 1993 DTC introduced Voluntary Retirement Scheme
(VRS) vide office order dated 03.03.1993 and 16.03.1993 which
are Ex.PW-1/2 and PW-1/3 respectively which read as under:-
"DELHI TRANSPORT CORPORATION
(A GOVT. OF INDIA UNDERTAKING)
I.P. ESTATE: NEW DELHI
No. Adml-5(41)/93 Dated: 3.3.1993
Subject: Voluntary Retirement of Employees of
Delhi Transport Corporation.
The matter pertaining to the introduction of
Voluntary retirement Scheme for the employees has been
under consideration of Delhi Transport Corporation.
Salient features of the proposed voluntary retirement
scheme are as under:
1. Applicability:
The scheme will be applicable to all regular
employees of the Corporation, i.e. workers and
executives who are appointed against regular
vacancies in the Corporation.
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.
3. Conditions governing voluntary retirement:
(a) Voluntary retirement will be normally allowed
only in cases of incumbents of the posts which
have been declared surplus or redundant.
However, voluntary retirement scheme could also
be allowed in other cases depending on the merits
of each case and in the interest of the
corporation.
(b) Voluntary Retirement cannot be claimed by any
employees as a matter of right. The Corporation
will have the right not to grant voluntary
retirement for reasons to be recorded in writing.
Under no circumstances will the relief under this
scheme be allowed from a date earlier than the
date of passing orders.
(c) An employee in whose case any disciplinary case
is pending will not be considered under this
scheme until the disposal of the same.
4. Benefits under the Scheme:
An employee who takes 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
applicable 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 months‟ notice pay as is applicable in the
individual case as per the terms of his/her
employment.
(e) An Ex-gratia payment equivalent to 1½ months‟
basic pay plus DA for each completed year of
service limited to one month pay multiplied by the
number of whole months of service left before
normal date of retirement.
(f) Expenses for travelling by the entitled class for the
employee and his/her family comprising his/her
spouse and dependent members form the place of
his/her posting to the place where he/she intends to
settle down in India.
(g) Pensionery benefits as per office order No.16
dated 27.11.1992.
All amounts due to the Corporation will be
adjusted against the payments under (d) & (e) above
and the employee concerned should clear any
outstanding dues/advances taken before the date of
effect of voluntary retirement.
Employees working on the post of Conductor in the
Corporation are proposed to be covered under the
Voluntary Retirement Scheme in the first instance.
Such Conductors who are desirous of seeking
voluntary retirement in the proposed scheme may give
their option in the prescribed proforma through
proper channel within 15 days to the concerned unit
officers who will forward the same to the Secretary,
DTC Board.
This issues with the approval of competent
authority.
Sd/-
3.3.93
(A.K. SHARMA)
DY. CHIEF GENERAL MANAGER (IR)"
"DELHI TRANSPORT CORPORATION
(A GOVT. OF INDIA UNDERTAKING)
I.P. ESTATE: NEW DELHI
No. Adml-5(41)/93 Dated: 16.3.1993
Subject: Voluntary Retirement of Employees of
Delhi Transport Corporation.
Salient features of the proposed Voluntary
Retirement Scheme were announced vide this office
circular of even number dated 3.3.1993 (copy
enclosed). Initially the coverage of this scheme was
applicable only to the employees working on the post
of Conductor.
Now, it has been decided to cover all the
employees of the Corporation under the proposed
Voluntary Retirement Scheme. Such employees who
are desirous of seeking voluntary retirement in the
proposed Scheme may give their option in the
prescribed proforma through proper channel within
15 days to the concerned Unit Officers, who will
forward the same to the Secretary, DTC Board.
This issue with the approval of the competent
authority.
Sd/-
16.3.93
(A.K. SHARMA)
DY. CHIEF GENERAL MANAGER (IR)"
7. The scheme of VRS as contained in Ex.PW-1/2 was given wide
publicity and a circular came to be issued by the DTC calling upon
its employees to exercise their options in terms of the aforesaid
circular. It is the case of Mr.Sharma that he exercised his option
for VRS which was accepted by DTC vide acceptance letter dated
29.04.1994 which is Ex.PW-1/4. The respondent retired from the
service of the Cooperation w.e.f. 30.4.1994. Further, It has been
stated that the incumbent had completed 15 ½ years of qualified
service at the time of acceptance of his option of VRS. Certain
benefits were released to Mr.Sharma vide letter dated 29.04.1994
Ex.PW-1/5 which were received by him under protest as certain
benefits under VRS in respect of salary and encashment of leave
were not properly calculated. This question of having received the
benefits "under protest" is disputed by the DTC and even the
photocopies of the original record which were shown in the court
also does not show any protest having been lodged by the
incumbent at the time of acceptance although an argument in this
regard is being made. Mr.Sharma was found eligible to get
pension and in terms of VRS Scheme Para 4 (g) of Ex.PW-1/2 it
was alleged that the DTC withheld its share towards contributory
provident fund. After about two years of acceptance of VRS in
1996, Mr.Sharma was intimated that he was not entitled to any
pension as he had not completed 20 years of service. He served a
legal notice dated 17.06.1996 Ex.PW-1/8 which was followed up
by him, allegedly by several reminders which did not yield and
result finally culminating into filing of a suit for declaration in
September, 1998 and mandatory injunction to the effect that he was
entitled to pensioner benefits including computation of pension and
arrears after giving benefits under Rule 20 and 30 of CCS (Pension
Rules) with interest @ 24% per annum.
8. It has been also stated that the decision of the DTC not to pay any
pension to any of its employees who had not completed 20 years of
service was challenged by some of the employees before the High
Court of Delhi in which the court vide its judgment dated
19.09.1997 had held that "who ever had completed ten or more
years of service, was entitled to pension." It was observed that
"VRS Scheme was meant to get rid of its staff and all those who
opted for it were entitled to the benefits detailed in Clause 4 of the
Scheme including pension as per CCS (Pension) Rules."
9. The said judgment was challenged by the DTC in LPA which was
rejected on 16.03.2000 and SLP also did not bring any desired
result. On the basis of the aforesaid facts it was alleged that Om
Prakash Sharma is entitled to the aforesaid benefits.
10. It has been stated by the respondent that on 23.04.2001 the counsel
for the DTC and its representative gave a statement in the suit
proceedings filed by Mr. Sharma conceding that the respondent
was entitled to benefit of Rule 29 and 30 of the CCS (Pension)
Rules and that the DTC would file due and drawn statement
accordingly. The DTC filed due and drawn statement Ex.PW-1/16
but did not give the benefit of Rule 29 and 30 of the CCS (Pension)
Rules and also did not grant any arrears of pension or commutation
thereof. On the contrary, it is alleged that the statement showed
recovery of compound interest @ 12% per annum on loan taken by
Mr.Sharma from his provident fund and also Mr.Sharma's share to
the provident fund which DTC had decided to recovery from him
which the DTC had released in 1996.
11. The learned Civil Judge after completion of the pleadings framed
following issues:-
"1. Whether the plaintiff is entitled to the pension benefits,
including the computation of pension and arrears after
giving benefits under Rule 29 and 30 of the CCS (Pension)
Rules? OPP.
2. Whether the plaintiff is entitled for the interest on the
pensionery benefit, if so, at what rate and for what period?
OPP.
3. Relief?"
12. Mr.Sharma in support of his case examined himself as PW-1 and
the DTC examined only one witness, namely, DW-1 Daulat Singh,
Deputy Manager (Pension Scheme), DTC.
13. The learned Civil Judge after hearing arguments decreed the suit on
20.10.2007 after holding that Mr.Sharma was surplus and was
entitled to the benefit of Rule 29 together with interest @ 8% per
annum on the arrears of pension and other benefits and since the
DTC had decided to give pension to him pursuant to the decision
by the Hon'ble High Court the declaratory relief with regard to
pension was not pressed and Mr.Sharma gave up his claim with
regard to applicability of Rule 30 of CCS (Pension) Rules.
14. Thus, the only question which remains in to be considered is as to
whether Rule 29 of the CCS (Pension) Rules apply. The DTC
challenged the judgment and the decree of the learned Civil Judge.
The first Appellate Court upheld the said judgment and the decree
vide its judgment dated 10.02.2009. Thus, there was a concurrent
finding of fact by the learned Civil Judge and by the first Appellate
Court that Mr.Sharma was declared surplus and was entitled to
benefit of Rule 29 of the CCS (Pension) Rules.
15. DTC has challenged the same under the present appeal while as
sensing that the challenge to the appeal is on merits, Mr.Sharma
also filed a cross appeal though belatedly challenged the rejection
of his prayer for grant of interest @ 24% per annum on the delayed
payment of pensionary benefits.
16. Before this Court Mrs. Ahlawat, the learned counsel for the DTC
made submissions and accordingly, the Court had framed the
following three questions for being considered:-
"(i) Whether the post of Legal Advisor which the respondent
in the instance case was holding at the time of seeking
voluntary retirement was declared surplus or redundant, if
so, to what effect?
(ii) If the answer to question (i) is in affirmative, whether
Rule 29 of CCS (Pension) Rules would be applicable to him?
(iii) Whether the respondent had been granted voluntary
retirement under clause-3 of the VRS Scheme vide Circular
No.AdmI-5(41)/93 dated 3.3.1993?"
17. I have heard Mrs. Ahlawat, the learned counsel for the DTC and
Mr. Ved Prakash Sharma, the learned counsel for Om Prakash
Sharma.
18. Mrs. Ahlawat, the learned counsel for the DTC has contended that
the respondent himself in his cross-examination has admitted that
he is not in possession of any order to indicate that he was ever
declared as surplus or redundant. Accordingly, it is contended since
respondent himself has admitted that he was not declared as
surplus, therefore, he could not be given the benefit of five added
years service for the calculation of his pensionary benefits. The
exact words which have been used by Mr. Om Prakash Sharma in
his cross-examination are reproduced as under:-
"... It is correct to suggest that I was not issued any such
letter showing therein myself as a surplus employee."
19. This question has been countered by Mr. Ved Prakash Sharma, the
learned counsel for the respondent by contending that under the
order dated 03.03.1993 Rule 3 reads as under:-
"3 (a) Voluntary retirement will be normally allowed
only in cases of incumbents of the posts which have been
declared surplus or redundant. However, voluntary
retirement scheme could also be allowed in other cases
depending on the merits of each case and in the interest
of the corporation."
20. It has been contended that the perusal of the aforesaid rule clearly
shows that the voluntary retirement would normally be granted
only in cases where the incumbent was declared surplus or
redundant and the very fact that the voluntary retirement was
permitted in the case of the respondent clearly indicated that he
was surplus or redundant and, therefore, he had to be given the
benefit of five years added service for the benefit of calculation of
his pension. It has been further stated by him that the respondent
Om Prakash Sharma had made averments in Para 14 of the plaint
in this regard. It was stated that the appellant/defendant in the
written statement had taken the plea that Om Prakash Sharma is not
entitled to pension because Rule 48-A of the Pension Rules
because he had not completed 20 years of service.
21. I have carefully considered the respective submissions. I have also
gone through the record.
22. It has been averred to in Para 14 of the plaint and WS as under:-
"14. That at the time of retirement, the plaintiff was
having 15½ years of qualifying service at his credit, and
in addition to this, as per provisions of Rule 29 and 30 of
the CC Pension Rules, the plaintiff was further entitled to
an additional benefits of about 10 years under the said
Rules i.e. five years under Rule 29 and five years under
Rule 30, as he was given voluntary retirement after he
was declared surplus, because the said voluntary
retirement scheme was meant only for surplus staff and
further when he joined the defendant/Corporation, as
Law Officer as per R.Rs. for the said post, he was having
more than 10 years of service at his credit. .....
Para 14 of WS
14. Contents of para No.14 of the plaint are wrong
and denied, it is denied that the case of the plaintiff
comes under the provision of Rule 29 and 30 of the CC
Pension Rules, it is submitted that Rules 29 and 30 of CC
Pension Rules related to those employee, who was
declared surplus by the DTC, but in this case the plaintiff
himself applied for VRS and accordingly his request has
acceded to by the management. So the case of the
plaintiff comes under Rule 48-A."
23. Curiously, the Court has not framed any issue with regard to the
same, i.e. an issue as to whether the respondent was declared
surplus or not, if so, to what effect. Further, no evidence has been
produced by the plaintiff on that very point. The plaintiff would not
succeed on this issue merely because the appellant had taken an
incorrect defence ant no evidence has been produced by it. Further,
in my view, a declaration which confers a legal character ought to
have been obtained by the respondent. Under Section 34 of the
Specific Relief Act, 1963. No such relief was ever claimed by the
respondent then how could he be declared as surplus.
24. I do not agree with the contention of Mr. Sharma that under Rule 3,
the very fact that an incumbent has been granted VRS then ipso
facto he is to be treated as surplus or redundant. The said rule
states that "normally" incumbent who have been declared surplus
or redundant may be granted VRS. This is further amplified in the
subsequent sentence used in the same rule which says that
"depending on the merits of each case VRS could be granted in
"other cases" also. Therefore, it cannot be said that VRS can be
granted only in surplus cases or vice versa. Meaning thereby that
the very fact that voluntary retirement has been granted to a person
then he has to be presumed as surplus. It is further stated that as a
matter of fact in Government of India or its undertaking before an
employee is declared surplus there is a surplus inspection unit
attached to Ministry of Human Resources or DOP which conducts
a study and identifies the staff which is surplus. Empirical research
is done to streamline the staff and cut the flab keeping in view the
work of the organization. While as no such inspection in the
instant case has been done internally or even externally to show
that the post which the respondent was holding was surplus.
Therefore, merely because respondent was granted voluntary
retirement, it cannot be presumed that his post was surplus.
Moreover, it is a matter of fact that the respondent was holding the
post of a Law Officer and was promoted as a Legal Advisor and he
applied for VRS in the capacity of Legal Advisor. There was not
more than one post of Law Officer / Legal Advisor while as there
may be number of posts of lower categories of law officers or
Assistant Law Officers or Junior Law Officers. Where a particular
post is only one in number, whether it is of Deputy Law Officer or
Law Officer or Legal Advisor itself, how could such one post be
treated as having become surplus, because in such an event the
entire decision making process in the organization would crumble.
25. Mr. Sharma, the learned counsel for the respondent has drawn my
attention to some documents which is a note put to the Director and
to the Board where the total strength of the legal Department has
been given. It has been stated in the note that the respondent who
was Law Officer at the relevant time and was permitted to take
VRS. It has been further stated that till date the Law Officer has
not been recruited and his function are being attended to by the
Assistant Law Officer or Additional Law Officer. That cannot be a
ground to assume that he has been declared surplus or that he was
granted VRS because of this reason.
26. I do not get persuaded by this submission of the learned counsel for
the respondent. There has to be a positive order passed by the
organization that the respondent has been declared a surplus and
therefore, he has been permitted to take VRS. This is not so.
Further, merely because no regular law officer has been recruited
and his work is being attended to by the Assistant Law Officer is
also not at all helping the case of the respondent.
27. Moreover, if one sees the plaint which has been filed by the
respondent himself he has nowhere used the word „surplus‟ or that
he was declared surplus in the entire plaint except in para 14 nor
has he sought declaration that he be declared as surplus and
therefore he applied for voluntary retirement. Since there was no
such issue framed by the respondent, consequently there was no
occasion for the DTC herein to produce the evidence in the
negative. The fundamental rule of evidence is one who asserts
must prove. Since the respondent was alleging that he was surplus,
he ought to have proved the same which he has failed to do so. Yet
there is finding returned by the trial Court and confirmed by the
first Appellate Court holding the respondent to be surplus. This
finding returned by the two Courts below concurrently is without
any evidence on record and, therefore, such a finding which is
based on no evidence would be a perverse finding. Accordingly,
the substantial question No.1, which is framed by this Court is
decided in affirmative in favour of the appellant/DTC.
28. The contention of Mr. Sharma that the Division Bench of this
Court headed by Hon'ble Ms. Justice Usha Mehra in Jagpal Singh
Vs. Delhi Transport Corporation; 1997 VI AD(Delhi)1001 had
upheld the validity of Rule 29 and granted pension to the
employees of the DTC after completion of ten years does not help
the respondent in any manner because it is not an authority with
regard to addition of five years because of VRS.
29. If the question No.1 is decided in favour of the appellant/DTC in
affirmative, obviously, the only question which would arise is as to
whether the relief which has been granted to the appellant with
regard to the pension on the strength of Rule 29 of the CCS
(Pension) Rules is in order or not? In other words, the respondent
having put in 15½ years of service is entitled to pensionary benefit
under Rule 29 without being given the benefit of added weightage
of five years of service on account of being declared as a surplus
and therefore, the pension of the respondent including
commutation of pension had to be modulated. Accordingly, the
second question also gets answered in the same tone that is to say
that five years service will not be added to his service for
calculation of his pensionary benefits.
30. The third contention is with regard to the payment of interest. In
the cross appeal which has been filed by the respondent Om
Prakash Sharma, has prayed for grant of interest @ 24% per
annum. It has been stated that the respondent had received belated
payment of pensionary benefits in pursuance of the directions
passed by the two Court below and he has been granted interest
only @ 8% per annum. It has been stated that the respondent was
entitled to interest @ 24% per annum. The learned counsel for the
respondent in support of his contention on grant of interest has
relied upon the judgments wherein such rate of interest has been
granted on account of belated payment of pensionary benefit to the
incumbent.
31. I have considered the submissions and gone through the judgments.
The judgments relied upon by the respondent are-
1. Bank of India & Anr. vs. K. Mohandas & Ors;
2009(4)SCALE576
2. Gurdev Kaur & Ors. vs Kaki &Ors;JT 2006 (5) SC 72
These judgments which have been relied upon by the learned
counsel for the respondent are distinguishable from the facts of the
present case. In the present case the issue was as to whether the
respondent was to be granted benefit of five years of added service
to his actual service of 15½ years and thereby the pension to be
sanctioned to him. It is a matter of fact that the respondent had put
in only 15 years of service and applied for VRS and all the benefit
except a portion of which was released to him which was accepted
by the respondent without prejudice. Though the learned counsel
for the respondent had stated that the payment was accepted subject
to reservation or without prejudice. However, it has not been
shown on original record by the respondent that such a payment
was ever accepted by him without prejudice. On the contrary, this
was a belated plea taken by the respondent to further his own
interest. Once the payment is accepted by an incumbent without
reservation, he cannot retrace his steps and then say that he has
accepted the payment without prejudice. Only a fraction of some
benefits were to be released to him because there was a confusion
with regard to reversing of the incumbent from Contributory
Provident Fund Scheme to the Pension Scheme and certain
contributions were to be re-adjusted or repaid to the employer.
32. All these points were not involved in the cases which have been
relied upon by the learned counsel for the respondent. So,
therefore, there are fundamental differences in the facts of the cases
which have been relied upon by the learned counsel for the
respondent and the case in hand.
33. It has been held by this Court that the respondent is not to be given
the benefit of five years of service because he was never declared
surplus and, therefore, he was to be granted pensionary benefits in
pursuance to Rule No.29 as he had rendered 15½ years service.
While as the eligibility for grant of pension was ten years. This
pension in substantial portion had been paid to him and only a
small fraction was paid belatedly. For this small fraction, the
respondent's interest cannot be increased to 24% per annum as the
grant of interest is a matter of discretion by the Court and no
question, much less a substantial question can be deemed to have
arisen in the second appeal. This aspect has already been dealt with
by the Court below and some interest has been granted.
34. Therefore, I feel that the appeal of the respondent Om Prakash
Sharma with regard to payment of interest @ 24% deserves to be
dismissed and the appeal filed by the appellant/DTC deserves to be
allowed and the concurrent finding of fact returned by the two
Courts below holding that the respondent was permitted to take
voluntary retirement as he was declared surplus and therefore, he
was given the benefit of five years of service is based on no
evidence and to that extent the judgment and the decree deserves to
be modified. Ordered accordingly. Parties to bear their own costs.
Pending applications, also stand disposed of.
V.K. SHALI, J.
MAY 16, 2016
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