Delhi High Court
B.R.Khokha vs Delhi Transport Corporation on 14 September, 2016
$~01.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6630/2016
% Judgment dated 14 th September, 2016
B.R.KHOKHA ..... Petitioner
Through : Mr.Lovkesh Sawhney and Mr.Naresh
Kumar, Advs.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through : Ms.Aditi Gupta, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. Challenge in this writ petition is to the order dated 28.7.2016 passed by
Central Administrative Tribunal (hereinafter referred to as „the
Tribunal‟) in O.A.No.4464/2014, whereby the Tribunal dismissed the
OA filed by the petitioner. The petitioner also seeks to challenge the
order dated 2.11.2015 whereby Review Application No.223/2015 filed
by the petitioner was dismissed by the Tribunal. The petitioner also
prays for a direction to the respondent to release his pension and arrears
of pension from the date of his retirement with compound interest at the
rate of 12% per annum.
2. The necessary facts, to be noticed for disposal of this writ petition, are
that on 19.11.1966 petitioner joined the respondent/Corporation. On
the lines of the scheme of the Central Government, the respondent
issued the Office Order bearing No.16 dated 27.11.1992 introducing
Pension Scheme with retrospective effect in lieu of management share
of provident fund and to opt out of the pension scheme. The petitioner
did not give any preference for the Pension Scheme pursuant to the
W.P.(C).6630/2016 Page 1 of 15
Office Order dated 27.11.1992. On 28.10.2002, the respondent issued
another Office Order bearing No.Pen.Cell/Option/2002/440 inviting
fresh option from the employees, including those who had earlier not
opted for DTC Pension Scheme. Pursuant to the Office Order dated
28.10.2002, the petitioner opted for the DTC Pension Scheme. The
Pension Cell, vide letter dated 20.6.2003, informed the petitioner that
his application dated 13.6.2003 for grant of pension, was under
consideration. The petitioner, vide letter dated 19.2.2004, requested the
respondent not to release his management share of provident fund, as
he has opted under DTC Pension Scheme pursuant to the Office Order
dated 28.10.2002. In the meanwhile, the petitioner superannuated from
the post of Superintendent on 29.2.2004. The respondent released the
amount of gratuity to the petitioner, treating him as having opted for
DTC Pension Scheme vide letter dated 29.2.2004. Since the
respondent did not release the pension of the petitioner, he approached
the Public Grievance Commission, Government of NCT of Delhi, in
the year 2004 itself, for grant of his pension. The petitioner claims that
the respondent had even appeared before the Public Grievance
Commission and submitted that the matter is sub judice. The
respondent, also vide letter dated 1.3.2005, informed the petitioner that
the subject matter of pension scheme is sub judice before the court of
law and as and when the said matter would be decided, the case of the
petitioner would be dealt with accordingly. The petitioner claims that
he waited patiently for the decision in the matter which was sub judice.
The petitioner also submits that a similar matter was listed before the
Tribunal in Raj Singh v. Delhi Transport Corporation and Anr., OA
4329/2012, which was finally decided on 17.2.2014. Aggrieved by the
order dated 17.2.2014, the respondent DTC filed W.P.(C) 4728/2014,
W.P.(C).6630/2016 Page 2 of 15
which was also dismissed by a Division Bench of this Court on
30.7.2014. Thereafter on 12.11.2014 the petitioner sent a legal notice
to the respondent for grant of pension. Since the pension was not
released to the petitioner, he filed OA No.4464/2014, which was
dismissed by the Tribunal vide impugned order dated 28.7.2015. The
petitioner thereafter filed RA No.223/2015 seeking review of the order
dated 28.7.2015, which was also dismissed on 2.11.2015. Aggrieved
by the impugned orders dated 28.7.2015 and 2.11.2015, the petitioner
filed the present writ petition.
3. Mr. Sawhney, learned counsel for the petitioner, submits that while
passing the impugned order dated 28.7.2015, the Tribunal has failed to
take note of the correct facts of the case, the Tribunal has incorrectly
applied the law and rejected OA 4464/2014. Mr.Sawhney further
submits that the Tribunal has also failed to take note of the fact that the
petitioner was conscious that he was entitled to pension as per the DTC
Pension Scheme and it is only for this reason that he did not accept the
scheme under Central Provident Fund (in short „CPF‟) for eight months
post his retirement and even thereafter accepted the same under protest.
Mr.Sawhney also contends that the Tribunal has lost track of the fact
that the petitioner in the year 2004 itself approached the Public
Grievance Commission, highlighting the injustice being meted out to
him and thereafter based on the stand taken by the respondent and the
order so passed, he patiently waited for the respondent to honour its
commitment made before the Public Grievance Commission, which
they did not.
4. It is further contended by learned counsel for the petitioner that while
passing the impugned order dated 28.7.2015, the Tribunal has failed to
apply the law as laid down in Raj Singh (supra) which was allowed by
W.P.(C).6630/2016 Page 3 of 15
the Tribunal and against which the writ petition filed by the respondent
herein was dismissed on 30.7.2014. It is further submitted by the
counsel that petitioner is identically placed as the petitioner in the case
of Raj Singh (supra). Counsel contends that both, the petitioner and
Raj Singh, petitioner in O.A. 4329/2012, did not opt for the scheme in
terms of the Office Order dated 27.11.1992 but in fact they opted for
the Scheme in terms of the Office Order dated 28.10.2002. It is also
contended by the counsel that since the order passed by the Division
Bench in W.P.(C) 4728/2014 has attained finality, as the DTC has
complied with the same by giving benefit to Raj Singh, the petitioner
herein should be given the same and identical benefits.
5. Per contra, learned counsel for the respondent has opposed this petition
on the ground that the petitioner did not opt for pension in terms of the
Office Order dated 27.11.1992 and instead exercised his option
pursuant to the Office Order dated 28.10.2002, which was only a
provisional circular and, thus, no benefit can accrue in favour of the
petitioner based on the Office Order dated 28.10.2002. In support of
this contention, counsel has relied upon a decision rendered by a
Division Bench of this Court in the case of Rati Bhan v. Delhi
Transport Corporation, 2011 IX AS (Delhi) 669, more particularly
paras 13 and 14 of the judgment, which reads as under:
"13. This Court has heard the learned counsel for the parties in
detail. This has not been disputed that another bench of this
Court in the case of Shyam Lal (Supra) had held that the office
order dated 28th October, 2002 and press note dated September,
2003 were only about the intention of the respondent, to
ascertain the financial implication and feasibility of extending
the benefit of the pension scheme and after considering the
option of the employees it was found that the introduction of the
pension scheme was not feasible and, therefore, it was not
introduced. The relevant portion of the judgment is as follows:
W.P.(C).6630/2016 Page 4 of 15
"18. Mere issuance of a notice by the respondent calling
upon a certain category of applicants to furnish relevant
information as to whether or not the retired employees
were willing to avail of the DTC pension scheme cannot
be termed to be in the nature of an offer, acceptance of
which would bind the respondent in any manner.
19. The terminology used in the general notice is itself a
clear indicator in this direction. The notice stated in no
uncertain terms that only information was being solicited
from the surviving retired employees who retired between
3rd August, 1981 and 27th October, 2002, without any
commitment, and further, that the said information
received from the applicant was only an intimation of
intent to the DTC which did not involve any commitment
in any manner. Thus it is not a case where pursuant to an
offer and an acceptance, a solemn promise was made by
the respondent to the petitioners committing itself to
extend the benefits of the pension scheme to the petitioners
or for that matter, to any other retired employees of the
respondent in terms of the general notice. In this case, the
principles of promissory estoppel cannot be invoked. The
advertisement issued was only exploratory in nature and
not a firm offer which could be termed as final and
binding on the respondent. Nor can the advertisement be
held to be extending the period stipulated in the earlier
scheme of 27th November, 1992 floated by the respondent.
Any such interpretation given, shall amount to rendering
nugatory, the judgment of the Supreme Court in DTC
Retired Employees' case (supra).
20. Thus it is misconceived on the part of the petitioners to
claim that any vested legal right had accrued in their
favor and against the respondent in terms of the general
notice published in the newspapers, for the petitioners to
seek implementation thereof in the present writ petitions.
The writ petitions are, therefore, dismissed as being
devoid of merits, leaving the parties to bear their own
costs."
W.P.(C).6630/2016 Page 5 of 15
Therefore, the option exercised under the office order dated 28th
October, 2002 and press note dated 23rd September, 2003 does
not give any crystallized right to the employees including the
petitioner to claim pension under the scheme of 27th November,
1992.
14. The learned counsel for the petitioner has not shown any
precedent of the High Court or the Supreme Court contrary to
the decision in the case of Shyam Lal (Supra) or holding that the
office order dated 28th October, 2002 and the option obtained
under it entitled an employee to claim pension under the scheme
of 27th November, 1992. This is also being not disputed by the
learned counsel for the petitioner that pursuant to the option
exercised under the scheme by office order on 27th November,
1992 a list of those employees who had exercised the option and
who had become entitled for pension was released in 1996
wherein the name of the petitioner had not appeared and the
petitioner had not objected to the same. In any case a perusal of
the order dated 28th October, 2002 clearly reflects that the
option exercised under the said office order dated 28th October,
2002 did not per se entitled a person for pension under the
pension scheme of 27th November, 1992. Therefore, the
petitioner is not entitled to claim that on account of him being a
deemed optee under the scheme of 27th November, 1992, he is
entitled for the benefits under the order dated 28th October,
2002 as well. The order dated 17th September, 2010 rejecting
the claim of the petitioner is also reproduced as under:-
"The Hon‟ble CAT vide judgment dated 4.6.2010 passed
the following directions:
"Reference of pension as per rules option exercised on 28-
10-2002 and press note of 2003."
The case has been admitted in detail and it had been found
that the claim of pension by the applicant is not justified
on the following grounds.
(i) It has been admitted in the writ petition filed in the
Hon‟ble Delhi High Court that the ex-employee originally
W.P.(C).6630/2016 Page 6 of 15
not opted for pension Scheme dated 27-11-1992.
Therefore, the employer‟s share of provident fund, gratuity
etc. were released to and withdrawn by the ex.Employee.
Thus, the ex.Employee has neither any right nor he has
claimed any which back to the Pension Scheme of 27-11-
1992.
(ii) In so far office order dated 28-10-2002 and note of
September, 2003 are concerned, the option exercised were
provisional and were in the nature of "intimation of
Intents" and did not involve commitment in any manner.
The office order dated 28-10-2002 itself stated the
provisional nature of the scheme and that the management
was to examine the options and to take a final decision in
this regard. It provided that:-
"After receiving the list employees exercising their
option in favour of DTC Pension Scheme, the matter
would be examined. The decision of the
management shall be final."
(iii) To the same effect was the language used in press
note 2003. It also stated that the offers received from
ex.Employees would be examined and the management
would take final decision, which would be binding.
(iv) The management in an application filed in
C.W.48/2001 DTC Workers‟ Union Vs. informed the Delhi
High Court to record its inability to introduce the intended
pension scheme as per office order dated 28-10-2002.
(v) In so far as press note of 2003 is concerned, it was also
in the nature of intendment and nothing more. The
Hon‟ble Delhi High Court in a batch of writ petitions viz.
CW.132/11/04, Shyam Lal and other writ petitions Vs.
DTC vide order dated 27-2-2007 upheld the contention of
W.P.(C).6630/2016 Page 7 of 15
the management that Press Note of 2003 was only
intendment.
vi) In addition to the above, the Corporation had in the
year 2005 come to decision that it lacked resources to
implement any pension scheme which might be formulated
pursuant to its offer dated 28-10-2002 and Press Note of
2003."
(Emphasis Supplied)
6. Counsel contends that in the case of Rati Bhan (supra) the Division
Bench observed that the Office Order dated 28.10.2002 was only a
provisional scheme, on account of the financial crunch the DTC had
decided not to follow the Office Order dated 28.10.2002 and also that
the petitioner therein had accepted the CPF.
7. Counsel for the respondent further submits that OA 4464/2014 filed by
the petitioner was barred by delay and laches and the petitioner has not
satisfactorily explained the delay in approaching the Tribunal and, thus,
at this stage, no benefit can be accrued to the petitioner.
8. We have heard learned counsel for the parties, considered their rival
submissions and also examined the impugned orders and the
documents filed on record. The facts of the case are not in dispute that
the petitioner is an ex-employee of DTC. His grievance before the
Tribunal was that DTC has not released his pension consequent to his
retirement on 29.2.2004 and despite repeated requests. The petitioner
claims that he had opted for the DTC Pension Scheme in response to
the Office Order dated 28.10.2002 issued by the DTC. As per the
petitioner, he accepted the CPF Scheme under protest and that too after
eight months of his superannuation.
9. Since the petitioner has placed strong reliance on the Office Order
W.P.(C).6630/2016 Page 8 of 15
dated 29.11.1992, we deem it appropriate to reproduce paras 6 and 9 of
the same:
"6. The employees who have retired on or after 3 rd 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.
...
9. If any of the employee of DTC, who does not exercise any
option within the prescribed period of 30 days or quits service or
dies without exercising an option or whose option is incomplete
or conditional or ambiguous, he shall be deemed to have opted
the Pension Scheme Benefits."
(Emphasis Supplied)
10. From a perusal of the aforegoing paras of the Office Order, it is clear
that any existing employee who did not exercise any option would be
deemed to have been opted for the Pension Scheme. To put it simply,
the Office Order mandated negative consent or opting out for
continuing in the CPF Scheme.
11. It would also be useful to reproduce clause (iii) and the concluding
portion of the Office Order dated 28.10.2002, which have been relied
upon by the counsel for the respondent:
"iii) Inviting/exercising option shall be provisional and subject
to exemption from the RPFC and refund of the amount held with
them. In case, no exemption is received from RPFC, this option
shall become redundant, and the status of an employee shall be
the same as is before the issue of these orders.
...
After receiving the list of employees exercising their option in
favour of DTC Pension Scheme, the matter would be examined.
The decision of the management shall be final."
12. Although clause (iii) of the Office Order dated 28.10.2002 clearly
stipulates that inviting option shall be provisional and subject to
exemption from RPFC and in case no exemption was received from
RPFC the said option would become redundant and the status of the
said employee would be the same as was before; but para 9 of the
Office Order dated 27.11.1992 clearly stipulates that the Pension
Scheme was to apply even in the case of all such employees of the
DTC who did not exercise their option within the prescribed period of
30 days or quits or dies without exercising his option, or whose option
was incomplete or conditional or ambiguous, he would have deemed to
have opted for the Pension Scheme Benefits.
13. The next objection raised by the respondent, which requires
consideration, is as to whether the petitioner had accepted CPF at the
time of his retirement. The stand taken by the counsel for the petitioner
is that the petitioner had accepted CPF under protest. It is further the
stand of the petitioner that the petitioner received a letter from the
respondent on 7.10.2004, i.e. after a gap of approximately eight months
of his retirement to collect the payment of Provident Fund dues, which
was collected by him under protest on 11.10.2004, copy of which has
been handed over in Court today.
14. In view thereof, the judgment relied upon by the counsel for the
respondent in the case of Rati Bhan (supra) would not be applicable to
the facts of the present case as in the said case the Division Bench of
this Court was persuaded with the view that the retiring employee had
accepted the Central Provident Fund without any protest. Even
otherwise, the Office Order dated 27.11.1992, more particularly para 6
thereof, deals with the situation where a person has accepted the
provident fund. As per para 6 of the said Office Order, the amount is to
be returned with interest.
15. In our view, the present case is fully covered by the decision rendered
in the case of DTC v. Raj Singh, W.P. (C) 4728/2014, relevant
paragraphs of which read as under:
"3. It appears that in the year 2002, a circular was issued by the
DTC calling upon the existing employees‟ who had not opted for
the pension scheme, to exercise fresh option for pension. The
respondent-applicant had exercised his option to be covered by
the pension scheme. Despite the aforesaid, the respondent-
applicant was denied pension upon his superannuation.
Consequently, the respondent preferred the aforesaid Original
Application before the Tribunal to seek release of pension with
effect from 01.12.2004 along with interest. The respondent relied
upon the documents of the petitioner, namely, a communication
dated 01.07.2004 issued by the Depot Manager which stated, „he
has opted DTC pension" and the order dated 29.11.2004 on the
subject of payment of gratuity which also showed at serial No. 12
that the respondent had opted for pension.
...
6. Before us, the submission of Ms. Ahlawat, learned counsel for
the petitioner is on the same lines as advanced before the
Tribunal. Ms.Ahlawat submits that the name of the respondent
did not figure in the list of pension optees prepared in 1992 since
the respondent did not opt for the pension scheme. She further
submits that so far as the 2002 Circular is concerned, the same
was issued without authority of law and exercise of option in
pursuance thereof by the respondent is of no avail. She further
submits that even in his legal notice, the respondent had not
claimed that he had opted for the pension scheme in the year
1992.
...
8. As observed by the Supreme Court in DTC Retired Employees
Association and Ors. (supra) and by this Court in Madhu
Bhushan Anand (supra), para 9 of the Pension Scheme of
27.11.1992 makes it clear that the said pension scheme applied
to all the existing employees of the DTC, except those who
consciously opted not to get covered by the said pension scheme.
The option had to be exercised by the existing employees to opt
out of the pension scheme. Otherwise, by default, all the existing
employees got covered by the pension scheme. The Supreme
Court in DTC Retired Employees Association and Ors. (supra),
inter alia, observed:
"14. It is to be noted that those who had retired by the
time the Pension Scheme was introduced must have
definitely availed of the benefit under the Provident Fund
Scheme and as per the Pension Scheme they were liable to
refund the employer‟
s share of provident fund with interest thereon, if they
wanted to opt for the Pension Scheme. On the contrary,
some such retired employees might not have been
interested in refunding the money received by them and
having utilized such amount would also find it difficult to
raise the funds for repayment. It cannot be assumed that
they are bound by the Scheme and would automatically
come under the purview. The Pension Scheme cannot be
thrust upon such employees even if it may, prima facie, be
beneficial to them. As regards the existing employees as
on 27.11.1992, the employer could always ask them to
exercise their option within a stipulated period and if they
failed to exercise their option, the deeming provision can
be invoked and it could be said that they are covered by
the Scheme. It is also important to note that as per Clause
4 of the Scheme, those employees who joined DTC with
effect from 23.11.1992 are compulsorily covered by the
Scheme. Therefore, the Division Bench is perfectly
justified in holding that the employees who retired on or
after 3.8.1981 but before 27.11.1992 and had not
exercised their option within the stipulated period or
within the extended period, are not entitled to pension
under the Scheme."
...
10. Therefore, merely because the respondent did not respond in
terms of the office order/pension scheme dated 27.11.1992 to
give his positive option to be covered by the pension scheme, it
cannot be inferred or interpreted that the respondent had opted
out of the pension scheme. The language used in para 9 of the
office order No. 16 dated 27.11.1992 is plain and clear and does
not, even remotely, support the submission of the petitioner that
the respondent was obliged to exercise the option positively and
expressly to get covered by the pension scheme. In the light of
the aforesaid, the petitioners submission that the circular of 2002
calling for options was issued without any authority, and that the
respondent opted for the pension Scheme only in pursuance of
the said circular, is of no avail.
11. Pertinently, despite repeatedly being asked whether the
respondent had consciously and expressly opted out of the
pension scheme in the year 1992 or thereafter, learned counsel
for the petitioner has not been able to show that the respondent
had so opted out of the pension scheme. Merely because his
name did not figure in the list of pension optees stated to have
been prepared in 1992 cannot be a reason to deny the legitimate
claim of the respondent."
(Emphasis Supplied)
16. We may also respectfully state that we are of the view that the case of
Rati Bhan (supra), as relied upon by counsel for the respondent, is not
applicable to the facts of the present case as in the said case, a list was
circulated of the persons who had become entitled to pension in which
the name of the petitioner did not feature and he had failed to make any
objection thereto. There was not dispute that in the absence of the
same, the petitioner therein would had been a deemed optee under the
Office Order dated 27.11.1992. The said Office Order also deals with
the situation where in case the amount of provident fund has been
received, the same is to be refunded with interest.
17. We also note that the judgment of this court in Raj Singh (Supra)
seems to be at odds with the previous judgment in Rati Bhan (Supra)
in respect of whether the non-featuring of the names of the employees
in the list prepared post the notification would disentitle them to
pension as per the Office Order dated 27.11.1992; but, at the same
time, there is no dispute as to para 9 of the said Office Order and its
consequence. Accordingly, in the present case there can be no doubt as
to whether the petitioner was covered under the Office Order dated
27.11.1992 as he had not expressly opted out of the pension scheme.
18. As far as the objection with regard to delay in approaching the Tribunal
is concerned, we may notice that the petitioner has been agitating the
issue ever since he retired from the service and without any loss of time
he had approached the Public Grievance Cell. The petitioner even
appeared before the Public Grievance Cell and on 14.3.2005 the
following communication was addressed to the petitioner by the Public
Grievance Cell:
"Please refer to your complaint on the above cited subject. I am
to inform that inquiry has been conducted by the DTC Deptt and
has intimated that subject matter is subjudiced. As soon, as the
decision of the Court is announced, the auction will be taken
accordingly.
In view of the above, your case has been closed for time
being in the Commission."
(Emphasis Supplied)
19. A reading of the communication dated 14.3.2005 would show that the
case of the petitioner was closed on the express stand taken by the DTC
that the matter is sub judice and as far as the decision of the Court is
announced, necessary steps would be taken accordingly.
20. In our view, the respondent being a State functionary has not acted
fairly and in accordance with law. The respondent should have either
complied with the order passed by the Tribunal in the case of Raj
Singh (supra) or informed the petitioner as his case is different than
that of Raj Singh (supra). Further, the petitioner cannot be blamed for
the delay as the decision in Raj Singh (supra) was rendered in the
month of July, 2014, and immediately thereafter the petitioner filed the
OA in the same year.
21. Accordingly, in view of above, Rule is made absolute. Present writ
petition is allowed and the impugned orders dated 28.7.2015 and
2.11.2015 passed by the Tribunal are set aside. The respondent shall
grant pension to the petitioner in terms of DTC Pension Scheme and
the amount shall be released in terms of para 6 of the Office Order
dated 27.11.1992. The petitioner shall refund the amount of Rs.
62,749/- under the CPF Scheme to the respondent in terms of para 6 of
the Office Order dated 27.11.1992.
22. Writ petition stands disposed of.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 14, 2016
//msr
