Delhi High Court
Delhi Transport Corporation vs Balbir Singh on 16 November, 2016
$~33.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) NO. 10812/2016
Date of decision: 16th November, 2016
DELHI TRANSPORT CORPORATION ..... Petitioner
Through Ms. Manisha Tyagi, Advocate.
versus
BALBIR SINGH ..... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
CM No. 42312/2016
Exemption application is allowed, subject to all just exceptions.
WRIT PETITION(CIVIL) NO. 10812/2016
We have heard counsel for the petitioner and also perused the
additional documents filed with the application CM No. 42311/2016.
2. The writ petition filed by the Delhi Transport Corporation has to be
dismissed for the reason that the Tribunal has taken a reasonable view.
The factual matrix also reveals that the petitioner Corporation has failed to
maintain sanctity and purity of service records as is required and mandated
by law. The petitioner has to, therefore, suffer the consequences of their
lapses and faults.
3. The respondent, a Conductor in the Delhi Transport Corporation,
had retired on 31st July, 2013 after about 30 years of service. In
accordance with the service records, the petitioner Corporation had written
letters dated 4th March, 2013 and 29th August, 2013 acknowledging and
accepting that the respondent was entitled to pension. As per the pension
scheme floated by the petitioner-Corporation, an employee had to
specifically opt out of the pension scheme, as the pension scheme was
applicable by default. The order dated 17th February, 2015 allowing O.A.
No. 1466/2014 reproduces the letters dated 4th March, 2013 and 29th
August, 2013 written by the petitioner Corporation accepting and admitting
that the respondent was entitled to pension.
4. Subsequently, the petitioner-Corporation had reversed their position
asserting that the respondent had specifically opted out of the pension
scheme. They had relied upon the list issued by the Manager
(Administration), Pension (HQ) circulated vide letter No. PC/HQ/94/231
dated 24th March, 1994. The respondent's name was included in the said
list at serial No. 1321.
5. The stand of the petitioner-Corporation was that due to oversight,
wrong and incorrect entry was made in the service book of the respondent.
6. The Tribunal after considering factual matrix held that the factum
that the respondent's name was included in the list circulated vide letter
dated 24th March, 1994 could not ipso facto show that the respondent had
opted out of the pension scheme. The Tribunal emphasised on the failure
to produce a single communication or letter written by the respondent to
show that he had opted out of the pension scheme. The contradiction in the
service record and the list circulated vide letter dated 24th March, 1994 was
apparent. In the given circumstances, insofar as the petitioner Corporation
was the custodian of the records and unless contrary was established, the
Tribunal has held that the respondent by default is a pensioner. We would
completely agree and affirm the said finding.
7. Subsequently, the petitioner Corporation filed a review application
enclosing therewith a letter, which it is submitted, was written by the
respondent and received in the office of the petitioner Corporation on 16th
March, 1994. There is a typed letter, which is badly mutilated and torn
from the bottom and is signed as "Bal". Thus, the signature on the said
letter is incomplete. Name of the author cannot be ascertained.
8. The Tribunal, dismissing the review application, has held that the
said letter as produced would not sufficiently establish and show that the
respondent was the author who had written the said letter.
9. We have also examined the partial signatures as visible in the
photocopy of the said letter, which is placed at page 49. It is not possible
for anybody to decipher and form a firm opinion whether the letter was in
fact signed by the respondent or by some other person.
10. The petitioner Corporation alongwith the application for additional
documents has filed letters written by Balwant Singh and Balwan Singh. It
is submitted that the letter received on 16th March, 1994 would not have
been written by either Balwant Singh or Balwan Singh. It will be difficult
to accept the said submission for a person/employee can write multiple
letters affirming that he does not want to join pension scheme. Someone
else who has been given benefit of the pension with the first alphabets
"Bal" could have also written they said letter. Thus, it cannot be
affirmatively held that the respondent was the author, who had written the
letter dated 24th March, 1994. We cannot proceed on the basis of this
assumption to deny pension to the retired employee. As noted above, the
petitioner Corporation being the custodian of the records ought to have
maintained their records and were it so, this complication and difficulty
would not have arisen.
11. For the reasons aforesaid, the writ petition has no merit and is
dismissed.
SANJIV KHANNA, J
CHANDER SHEKHAR, J
NOVEMBER 16, 2016
VKR/NA
