Delhi High Court
Delhi Transport Corporation & Ors vs Zile Singh on 19 January, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7043/2015
Date of decision: 19th January, 2017
DELHI TRANSPORT CORPORATION & ORS ..... Petitioner
Through Ms. Avnish Ahlawat and Ms. Latika
Chaudhary, Advocates.
versus
ZILE SINGH ..... Respondent
Through Mr. U. Srivastava, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL)
Delhi Transport Corporation, in this writ petition, impugns the order
dated 10th February, 2015, passed by the Principal Bench of the Central
Administrative Tribunal (Tribunal, for short), whereby OA No.883 of 2013
filed by Zile Singh, the respondent before us, has been allowed, holding that
the respondent is entitled to pension under the pension scheme dated 27th
November, 1992.
2. In order to appreciate the reasoning given by the Tribunal, we would
like to reproduce paragraphs 7 and 8 of the impugned order dated 10 th
February, 2015, which read as under:-
"7. In my considered view, the aforesaid stand
taken by the respondent is quite unfair. When the
applicant has given his option for the pension scheme
of 2002 on the basis of the offer given by the
respondent, the fact that he was not an optee for the
earlier scheme has no relevance. In case the new
Pension Scheme to which he has given his option was
not carried through by the respondent, in all fairness,
it had the responsibility to inform the applicant that
the old Pension Scheme has been revived and since he
was not an optee for the said scheme, he will not be
entitled for pension.
8. In view of the above facts and circumstances of
the case, I am of the considered view that the stand
taken by the respondent in denying the pension to the
applicant is not tenable. Accordingly, I allow this OA
and direct the respondent - DTC to grant the pension
and other admissible terminal benefits to the applicant
on his retirement with effect from 30.06.2008. He
shall also be paid interest on the arrears of Pension at
9% p.m. for the delay in payment of the pension till
they are paid to him. However, they are at liberty to
adjust the amounts already paid to him in lieu of
Pension and the terminal dues with 9% p.m. interest
against the dues payable to him. The aforesaid
directions shall be complied with, within a period of
two months from the date of receipt of a copy of this
order. No costs."
3. The accepted and admitted position is that the respondent, an
employee of the petitioner Corporation had specifically opted out of the
pension scheme dated 27th November, 1992 and had given his preference to
be covered by the Employees Provident Fund Scheme. To this extent, there
is no dispute or lis between the petitioner Corporation and the respondent
employee. It is not the case of the respondent employee that he had
remained silent and by default was a pension optee under the pension
scheme dated 27th November, 1992. This is a crucial fact which we observe
and hold is the distinguishing factor between the case of the respondent and
the employees in the judgments relied upon by the counsel for the
respondent.
4. The petitioner Corporation vide letter/office note dated 20th October,
2002 had invited options from employees, who were not already covered
under the pension scheme. This letter/office note dated 20th October, 2002
was not binding or conclusive offer. It was expressly stated that exercise of
option by the employees was provisional and subject to exemption from the
Regional Provident Fund Commissioner and refund of the amount held by
them to the petitioner - Corporation. If exemption was not granted by the
Regional Provident Fund Commissioner, the option exercised by the
employee was redundant. In that event, the status of the employee would
remain the same as before i.e. the employees would be covered by the
Employees Provident Fund Scheme and not under the pension scheme.
5. It is an accepted and admitted case that the 2002 pension scheme was
never operationalized. This fact is also noticed by the Tribunal in paragraph
7 of the impugned order. This finding is factually correct and accepted
position.
6. The office order dated 20th October, 2002 had invited fresh option
from the employees to be covered under the pension scheme. Albeit such
employees were clearly told that the option was being entertained
provisionally and would be operationalized only after and subject to
satisfaction of specified conditions. The said stipulations were binding and
sacrosanct. As the pension scheme pursuant to the office order dated 20th
October, 2002 was never operationalized, no right accrued in favour of the
respondent. This being the position, we do not think that the respondent is
entitled to pension under the pension scheme dated 27th November, 1992,
read with the provisional offer under office order dated 20th October, 2002.
7. The view, we have taken, is in consonance with the decision of this
Court dated 14th October, 2011 in W.P. (C) No. 7477/2011, Rati Bhan Vs.
Delhi Transport Corporation. In this case also, the writ petition filed by the
petitioner therein was dismissed noticing the employee had opted out of the
pension scheme dated 27th November, 1992. The employee had thereafter
exercised provisional option under the office order dated 20th October, 2002,
which was never implemented.
8. Counsel for the respondent has drawn our attention to a Division
Bench judgment dated 14th September, 2016 in W.P. (C) 6630/2016, B.R.
Khokha Vs. Delhi Transport Corporation, wherein it has been held as
under:-
"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."
The aforesaid reasoning would indicate that the Division Bench had
held that the employee in the said case was covered by paragraph 9 of the
office order dated 27th November, 1992, which had stipulated that it would
apply to all employees including those, who do not exercise their option
within 30 days, or quits or dies without exercising the option. By default,
the employee in the said case was a pension optee. In the present case, the
respondent pursuant to the office order dated 27th November, 1992, had
clearly opted out of the pension scheme. Hence, the said ratio would not
apply.
9. For the same reasoning, the decision dated 30th July, 2014 of this
Court in W.P. (C) No. 4728/2014, Delhi Transport Corporation Vs. Raj
Singh would not be applicable. In the case of Raj Singh (supra), the
contention raised by the Corporation was that the employee's name did not
figure in the list of pension optees and, therefore, it may be presumed that
the employee was not a pension optee. This contention was rejected holding
that the pension scheme dated 27th November, 1992 was applicable by
default and would apply to an employee, except those who had opted out of
the said pension scheme.
10. In the present case, the respondent employee had specifically opted
out of the pension scheme dated 27th November, 1992 and, hence, he would
not be covered by the same. Accordingly, we allow the present writ petition
and set aside the impugned order dated 10th February, 2015. OA No.883 of
2013 filed by the respondent would be treated as dismissed. There would be
no order as to costs.
SANJIV KHANNA, J.
JANUARY 19, 2017/NA CHANDER SHEKHAR, J.
