Delhi High Court
Raja Ram vs Delhi Transport Corporation on 24 January, 2018
$~43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 709/2018 & C.M. Nos. 3043-44/2018
RAJA RAM ..... Petitioner
Through: Mr. Atul T.N., Advocate.
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MS. JUSTICE REKHA PALLI
ORDER
% 24.01.2018
1. The petitioner is aggrieved by the judgment dated 03.11.2017
whereby the Central Administrative Tribunal (CAT) has dismissed his O.A.
No.347/2016.
2. A brief glance at the relevant facts of the case is considered necessary.
The petitioner had joined the respondent/DTC on 03.2.1977, as a Conductor.
On issuance of a charge sheet to him for embezzlement of funds and after
holding an inquiry against him, the services of the petitioner were
terminated vide order dated 28.10.1992. Aggrieved by the said termination
order, the petitioner had raised an industrial dispute which was referred to
the Industrial Tribunal. The Industrial Tribunal passed an order dated
27.1.2003, setting aside the petitioner‟s removal order and directing his
reinstatement with full back wages and continuity of service. Aggrieved by
the said order, the respondent/DTC approached the High Court by filing
WP(C) No. 5339/2003. During the pendency of the said petition, the parties
were referred to mediation and in the course of the said mediation, they
arrived at a settlement that was reduced into writing, vide Settlement
Agreement dated 9.2.2010. Para 6 of the Settlement Agreement that
encapsulates the terms and conditions of settlement between the parties is
reproduced herein below for easy reference:-
"6. After much discussion, the parties have reconciled their
differences and hence arrived at the following settlement:
a) That the Respondent, DTC shall reinstate the
respondent immediately provided that is found medically
fit by DTC Medical Board and he is in possession of
valid conductor license.
b) It is further agreed between the parties that
respondent shall not entitled for any back wages for the
intervening period i.e. from the date of termination i.e.
28.10.1992 till the date of reinstatement; the said
intervening period shall be treated as break in service of
the respondent and shall not be counted for any service
benefits.
(c) It is further agreed between the parties that the
gratuity amount and DTC‟s share of respondent‟s PF
withdrawn by the respondent will have to be returned by
the respondent to the petitioner with interest rate of 12%
per annum failing which same shall be adjusted from the
dues payable to the respondent to the respondent at the
time of his retirement with the same rate of interest i.e.
12% per annum.
d) It is further agreed between the parties that after the
reinstatement of the respondent with the petitioner
department, the respondent shall withdraw I.D. case
No.297/96 and any other case pending before any Court
related to the present dispute and simultaneously the
petitioner shall also withdraw W.P. (C) No. 5339/2009."
3. The above Settlement Agreement was taken on record and vide order
dated 17.5.2010, the respondent/DTC‟s writ petition was disposed of. On
12.7.2010, the respondent/DTC asked the petitioner to report for duty, which
he did with effect from 24.7.2010.
4. The petitioner claims that after reporting for duty, he had written
letters dated 9.8.2011, 21.9.2011, 07.7.2014 to the respondent/DTC opting
for the Pension Scheme, as applicable to Central Govt. employees but he did
not receive any response.
5. On 16.1.2015, the petitioner was promoted from the post of
Conductor to the post of Assistant Traffic Inspector. Vide letter dated
10.3.2015, the respondent/DTC informed the petitioner that he shall
superannuate on 31.5.2015. He was also intimated that he had not opted for
the Pension Scheme. On 25.3.2015, the petitioner submitted a representation
to the respondent/DTC stating inter alia that he had opted for the Pension
Scheme. He also submitted that his services were terminated on 28.10.1992
and at the time of termination, he had been paid gratuity and provident fund
and he was willing to return the same but had not received any response
from the respondent/DTC. The respondent/DTC replied to the petitioner‟s
representation vide letter dated 14.5.2015 declining his request and stating
inter alia that he had been removed from service w.e.f. 28.10.1992, which
was before the commencement of the DTC Pension Scheme, that was
introduced on 27.11.1992 and he was reinstated in service only in the year
2010, when the Pension Scheme was not in existence. The respondent/DTC
had also referred to the Circular dated 13.5.2008, wherein it was stated that
as the Central Govt. had amended the C.C.S. (Pension) Rules, 1972 and the
benefits of the provisions of the said Rules were confined to Govt. servants
appointed on or before 31.12.2003 only, the new Restructured Defined
Contribution Pension Scheme has been introduced by the Central Govt. for
those of the Govt. servants, who were appointed on or after 01.1.2004. As
per the said Circular, "the DTC Board had decided that new recruits in the
DTC should remain with the RPFC Pension Scheme i.e., EPS-95, which
shall apply to all those newly recruited Drivers and all the employees
recruited/appointed in the DTC on or after 01.01.2004".
6. When successive representations made by the petitioner for the same
relief were turned down by the respondent/DTC, for the very same reason,
he approached the Tribunal by filing the Original Application.
7. The respondent/DTC opposed the Original Application and stated in
its counter affidavit that the petitioner had failed to disclose that DTC had
released his gratuity amount and employee‟s share along with employer‟s
share of Contributory Provident Fund (in short „the CPF‟) vide Office
Memos dated 21.5.2015 and 26.6.2015 respectively, and he had accepted the
said amount without any protest or demur; that services of the petitioner
were terminated on 28.10.1992 whereas, the DTC Pension Scheme was
introduced thereafter, vide office order dated 27.11.1992 and that the
petitioner was not a DTC Pension Scheme optee but was a member of
EPS-95, which was the only pension scheme operating in the
respondent/DTC when he had been reinstated in the year 2010.
8. It was argued on behalf of the respondent/DTC that after a Settlement
Agreement was executed by the petitioner and the DTC before the High
Court, he was reinstated on 22.7.2010 and in terms of the said Agreement,
the parties had agreed that the petitioner would not be entitled to any back
wages for the intervening period i.e., from the date of his termination, till the
date of his reinstatement, which shall be treated as a „break in service‟ and
the same shall not be counted for any service benefits. The respondent/DTC
therefore justified the non-inclusion of the petitioner under the Old Pension
Scheme and stated that once he was reinstated, the only Pension Scheme
available was the EPS-95 Scheme and monthly deductions were made from
the petitioner's pay, till he had superannuated.
9. On examining the pleadings of the parties and the documents filed by
them, particularly the Settlement Agreement dated 09.2.2010, the Circular
dated 13.5.2008 issued by the DTC and the Office Order No. 16 dated
27.11.1992 that had introduced the Pension Scheme for employees of the
DTC, the Tribunal arrived at the conclusion that as the petitioner was not in
the employment of the respondent/DTC on the date of introduction of the
Old Pension Scheme, the same could not have applied to him and nor could
he claim any benefits under the said Scheme. The Tribunal further held that
the petitioner has been reinstated in service only in the year 2010 by which
date, the Old Pension Scheme had been wound up and a decision was taken
by the respondent/DTC not to shift all the employees from the Defined
Benefits Pension Scheme to the New Restructured Defined Contribution of
Pension Scheme, with effect from 01.01.2004, as had been done by the
Central Govt. for its employees. Instead, vide Circular dated 13.5.2008, the
RPFC Pension Scheme i.e., EPS-1995 was made applicable to all employees
of the DTC, who were recruited or appointed on or after 01.01.2004.
10. The Tribunal noted that the petitioner‟s service in the DTC could be
divided into two phases, the first one commencing from the date of his
joining in the year 1977 till 28.10.1992, when his services were terminated
and the second one from the date of his reinstatement i.e., from 24.7.2010,
till he had superannuated on 31.5.2015. In view of the Settlement
Agreement between the parties, wherein the period from the date of his
termination i.e., from 28.10.1992 till the date of his reinstatement in the year
2010, was agreed to be treated as a „break in service‟, the Tribunal rejected
the petitioner‟s argument that the New Pension Scheme made effective from
the year 2004, could not have been extended to him. The impugned
judgment further records that the petitioner did not deny the fact that after
his reinstatement, the respondent/DTC had been making deductions from
his pay by applying the RPFC Pension Scheme i.e., EPS-95, till he had
superannuated, but he did not raise any objection to the same or seek legal
recourse. It was observed that even though the petitioner had made
representations for extension of the benefits of the Old Pension Scheme
prior to his retirement, the said request had been turned down by the
respondent/DTC on 14.5.2015 whereafter, the petitioner had accepted
payments from the DTC under the EPS-95, without lodging any protest.
Only after receiving his entire retiral benefits, did the petitioner approach the
Tribunal for relief. Aggrieved by the aforesaid decision, the petitioner has
filed the present petition.
11. Mr. Atul T.N., learned counsel for the petitioner submits that
reinstatement in service amounts to continuity in service and the Tribunal
has erred in interpreting the term „break in service‟ by treating the
subsequent period of service rendered by the petitioner with the
respondent/DTC as a new service. He contends that the Tribunal overlooked
the representations submitted by the petitioner in the years 2011-14,
informing the respondent/DTC that he had opted for the Old Pension
Scheme and urges that the Office Order dated 27.11.1992 had been
misinterpreted and the Tribunal has wrongly held that the petitioner is not
covered by the said Pension Scheme.
12. We have gone through the records and carefully examined the
impugned judgment in the light of the pleadings of the parties. We have also
perused the relevant Circular and the Office Orders. There is no quarrel on
the facts of the case. The dispute hinges on which of the two Pension
Schemes would govern the petitioner, i.e., the DTC Pension Scheme as
applicable to Central Govt. Employees, introduced in terms of Office Order
dated 27.11.1992, or the RPFC Pension Scheme, i.e., EPS-95 extended by
the DTC to all its employees recruited or appointed on or after 01.01.2004,
in terms of the Circular dated 13.5.2008.
13. In para 7 of the impugned judgment, the learned Tribunal has
carefully analysed the terms and conditions of the Office Order dated
27.11.1992, in particular, Conditions No.1,2,3,4 and 9 that have a bearing on
the present case and observed that the said Pension Scheme though
introduced on 27.11.1992, was made effective from 03.08.1981. However,
taking note of Condition No.3, the Tribunal concluded that the Pension
Scheme could not have applied to the petitioner. For the purpose of ready
reference, Conditions No.1,2,3,4 and 9 are reproduced below:-
(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 or the Employees Contributory Provident Fund as at
present, within 30 days from the date of issue of this O.O. 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 DTC w.e.f. 23.11.1992 the date of sanctioned
of the scheme.
xxx xxx xxx
(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
or conditional or ambiguous he shall be deemed to have opted
the Pension Scheme Benefits."
14. As can be seen from the above, condition No. 3 of the Office Order
dated 27.11.1992 gives an option to the existing employees including those
who had retired with effect from 03.8.1981 onwards, to opt for the Pension
Scheme or the Employees Contributory Provident Fund within 30 days from
the date of issuance of the said order. Condition No.4 stipulates that the
Scheme would be compulsory for the new employees joining DTC on
23.11.1992, the date the Scheme was sanctioned. The petitioner has relied
on Condition No.9, which states that even if an employee of the DTC does
not exercise any option within the prescribed period of 30 days, he shall be
deemed to have opted for the Pension Scheme Benefits. The petitioner
claims that though he was not in the employment of the DTC when the
Scheme had been introduced on 27.11.1992, but in view of the stipulation
contained in Condition No.2, that had made the Scheme operative from
03.8.1981, since he had joined the services of the DTC in the year 1977, the
DTC Pension Scheme would apply to him irrespective of the fact that his
services were terminated on 28.10.1992. Further, the petitioner has taken a
stand that Condition No.9 would also come to his aid as it states that if the
employee does not exercise any option within 30 days, he shall be deemed
to have opted for the Pension Scheme benefits and it would automatically
apply in his case.
15. We are of the opinion that the petitioner cannot be heard to argue that
simply because the Office Order dated 27.11.1992 had introduced the DTC
Pension Scheme, as applicable to the Central Govt. Employees and it was
made effective from 03.08.1981, would be a ground to cover him under the
said Scheme, when Condition No.3 of the said Office Order states in so
many words that it would apply only to existing employees including those
who had retired from 03.8.1981 onwards. As on the date of issuance of the
said Office Order, the petitioner was neither an existing employee, nor could
he be treated as having retired on 03.08.1981, for him to claim any benefit
under the said Scheme. The services of the petitioner had been terminated by
the respondent/DTC on 28.10.1992 whereas, the Office Order introducing
the DTC Pension Scheme was issued exactly one month thereafter.
Therefore, we find merit in the observations made by the Tribunal that since
the petitioner was not in the employment of the DTC on the introduction of
the Scheme, it could not have applied to him.
16. It is relevant to note that only after the date the services of the
petitioner were terminated, i.e., 28.10.1992, was the Office Order dated
27.11.1992 introduced. At that point in time, the petitioner was covered by
the Employee Contributory Provident Fund Scheme and his terminal
benefits included the payments made to him by the respondent/DTC on
account of gratuity and the employee‟s share along with employer‟s share of
the CPF.
17. One of the terms of the Settlement Agreement dated 09.2.2010
executed between the petitioner and the respondent/DTC during the
pendency of the writ petition filed by the DTC against the order dated
27.1.2003 passed by the Industrial Tribunal, was that the petitioner shall
return the gratuity amount and employee‟s and employer‟s share of the CPF
to the DTC alongwith interest and on his failure to do so, the said amount
shall be adjusted from dues payable at the time of his superannuation with
the same rate of interest.
18. Admittedly, the petitioner did not return the aforesaid amounts.
Instead, he kept on writing to the respondent/DTC professing his willingness
to do so. In the meantime, on his reinstatement in the year 2010, the
respondent/DTC extended the EPS-1995 to the petitioner wherein, pension
was to be paid under the RPFC Pension Scheme. As a result, monthly
contributions were deducted from the petitioner‟s salary from the date of his
reinstatement, till his retirement. Given the above position, it cannot be
urged by the petitioner that he was unaware of the deductions being made by
the respondent/DTC from his monthly wages and feign ignorance as to the
Pension Scheme under which he was covered. Two weeks before his
superannuation, the respondent/DTC had passed an order dated 14.5.2015,
rejecting the petitioner‟s application dated 25.3.2015 regarding "deemed to
have opted for Pension Scheme" and informed him that the Circular dated
13.5.2008 would extend to him since he was reinstated in service only in the
year 2010 and the said Scheme had been extended to all new recruited
Drivers and all employees recruited or appointed on or after 01.01.2004.
19. Moreover, once the petitioner did not receive his retiral benefits
including gratuity and the employee‟s and employer‟s share of the CPF
under protest, the inference is that he had waived his right to challenge the
decision dated 14.5.2015 taken by the respondent/DTC informing him that
he would be covered under the RPFC Pension Scheme. Even otherwise, the
Settlement Agreement had made it clear that the petitioner would not be
entitled to payment of back wages for the period between his termination,
i.e., 28.10.1992, till his reinstatement in the year 2010 and the said period
shall be treated as a „break in service‟ and it would not be counted for any
service benefit. This being the position, when the petitioner was reinstated,
the only Pension Scheme that was available was the RPFC Pension Scheme,
i.e., EPS-95 and the respondent/DTC has rightly covered him under the said
Scheme.
20. In the present case, the date on which the DTC Pension Scheme had
come into operation cannot be treated as a determinative consideration. The
deciding factor is whether the person claiming benefit under the said
Scheme, was an existing employee of the respondent/DTC, as on
27.11.1992. The petitioner most certainly was not an employee of the DTC
on that date. We do not find any error in the findings returned by the
Tribunal on this aspect. Merely because the petitioner had been reinstated in
the year 2010, the entire period of his service cannot be treated as a
„continuity in service‟. Once the parties had arrived at a settlement
whereunder the petitioner had agreed that the period from the date of his
termination of service till the date of his reinstatement, i.e., from 28.10.1992
to 24.7.2010 shall be treated as a „break in service‟, no such arguments can
be permitted to be raised by the petitioner.
21. Immediately upon his reinstatement in the year 2010, the
respondent/DTC had covered the petitioner under the RPFC Pension
Scheme i.e., EPS-95 and he was well aware of the fact that deductions were
being made from his salary on a monthly basis towards his contribution
under the said Scheme but he opted not to seek any legal recourse against
the said decision. In fact, the petitioner remained silent even at the time of
his superannuation or, for that matter, when the respondent/DTC released
his gratuity and the employee/employer‟s share of contribution of provident
fund in May, 2015. The petitioner had admittedly accepted the said amount
without lodging any protest at that time; nor did he refuse to accept the said
amount and seek legal recourse at that stage. Only after receiving the entire
retiral benefits, did the petitioner approach the Tribunal, sometime in the
year 2016.
22. Given the aforesaid facts and circumstances, we are of the opinion
that the Tribunal has passed a well reasoned order, which does not warrant
any interference. Accordingly, the present petition is dismissed as devoid of
merits, along with the pending applications.
HIMA KOHLI, J
REKHA PALLI, J
JANUARY 24, 2018
ap/rkb/na
