Central Administrative Tribunal - Delhi
Dharambir Singh vs Delhi Transport Corporation on 21 October, 2013
Central Administrative Tribunal Principal Bench OA No.2828/2012 Reserved on: 12.08.2013 Pronounced on:21.10.2013 Honble Dr. Birendra Kumar Sinha, Member (A) Dharambir Singh, Ex. Driver, B.No.1619, HND-II S/o late Kawal Singh, R/o Village Ujjwa, New Delhi 73. Applicant (By Advocate: Mr. Anil Mittal) Versus Delhi Transport Corporation I.P. Estate, New Delhi-110 002. (Through The Chairman-cum-MD) Respondent (By Advocate: Mr. U.N. Tiwari) O R D E R
The applicant, vide the instant Original Applicant filed under Section 19 of the Administrative Tribunal, 1985, has not challenged any particular order but is directed against denial of the benefits of the Pension Policy introduced vide their Office Order No.16 dated 27.11.1992 (Annexure A-1) . The applicant has prayed for a direction to be issued to the respondents to extend the benefits under the Pension Policy ibid to the applicant as also payment of the arrears of pension with interest.
2. The facts of the case, briefly put, is that the applicant, who joined the respondent organization on 29.09.1961 as Driver with Batch No.1619, stood retired w.e.f. 30.06.1993. In the meanwhile, the respondents introduced a Pension Scheme vide Office Order No.16 dated 27.11.1992 for its employees retiring on or after 03.08.1981. Rule 9 of the afore Pension Scheme provides that if any of the employee of the respondent organization fails to exercise any option within the prescribed period of 30 days or quit service or dies without exercise the option or whose option is incomplete or ambiguous, he shall be deemed to have opted the Pension Scheme benefits. Admittedly, the applicant had opted for benefits of the pension scheme but, it is the case of the applicant, the same was forced to be withdrawn under duress. This stand of the applicant gets strengthened by the fact that the respondent organization paid him the gratuity but he was not paid the employers share of Employees Provident Fund [hereinafter referred to as EPF]. However, since the respondent organization failed to release the pension to the applicant in terms of the Pension Scheme and the applicant had to marry his daughter, he requested the respondent to release the employer share of EPF, which was released to him in March, 1995.
3. The applicant further claims that when the respondent organization started paying pension from October, 1995, the applicant requested the respondent organization vide his representation dated 22.11.1995 that since he was forced to withdraw from the Pension Scheme, he be included back in the Pension Scheme. This request, however, did not find favour with the respondent organization. Though the applicant, in support of his claim, has relied upon the various decisions of the Honble High Court in Writ Petitions filed by retired employees seeking similar relief, which were allowed vide order dated 19.09.1997, 17.10.1997 and 20.10.1997 holding that the workmen who had retired from service were entitled to pension, but has neither given the Writ Petition numbers nor annexed the relevant judgments/orders of the Honble High Court.
4. The applicant has adopted the following grounds in support of his claim:-
Refusal to grant pension to the applicant amounts to arbitrariness, inequity, unconstitutionality and discrimination;
Since the applicant had initially opted for grant of pension but under compelling circumstances created by the respondents had to withdraw the same and other similarly persons having been granted the said benefits of pension scheme, the respondents are estopped from going back to their promise for extending such benefits to the applicant. Hence, the respondents cannot be permitted to take advantage of their own wrong;
The applicant is, however, prepared to refund/adjust the EPF with interest as the intention of the applicant had always been to avail the benefits of the Pension Scheme;
It is well settled proposition of law that pension is not a bounty given by the State or employer but is a very valuable right of the employee and is in the form of deferred payment;
5. The respondents have filed a counter affidavit contesting the claim of the applicant wherein they have admitted the averments of the applicant. However, they have taken a preliminary objection that the instant Original Application is hopelessly barred by limitation as is evident from the narration of the facts of the applicant that he had withdrawn the option so exercised by him and own his own volition, which was accepted by the respondents on 13.12.1994, thereby novating the contract; he was paid the gratuity and EPF amount with employer share at his request; he had made a representation for his claim way back on 22.11.1995 but had slept over the same for a long period of 18 years for the reasons best known to him. It is amply clear from the above facts that it is not open to the applicant at this belated stage to claim that he should be treated as a pension optee.
6. I have carefully gone through the pleadings of the parties and documents so submitted by them. I have also listened to the oral submissions advanced by the respective counsels.
7. The facts in issue are not in dispute. Admittedly, the withdrawal of option of the applicant for the benefits of the Pension Scheme was accepted by the respondent organization on 13.12.1994 and he was paid the retiral dues including the EPF amount including the employers share way back in the month of March, 1995. It is also seen that though the applicant had sent a representation on 22.11.1995 but thereafter he did not take any initiatives to pursue his claim which goes to show that he was not vigilant enough about his claim of benefits of pension Scheme. It is also noticed that though he has averred that he was prepared to refund the employers share to the respondent organization but has failed to annex any documentary proof in this behalf. He has also vaguely submitted that the Honble High Court has allowed similar claim in the writ petitions filed by similarly retired employees but has failed to annex those judgments/order so as to appreciate the facts of those case. The applicant has also failed to meet the preliminary objection of limitation raised by the respondents.
8. In the case of Union of India & Others versus Durairaj (dead) by LRs [JT 2011 (3) SC 254], the Honble Supreme Court has held that the delayed application cannot be entered by this Tribunal. Relevant portion of the judgment reads as under:-
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar [2010 (2) SCC 58] and held as follows:
"The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications.
X X X X X When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. It it is with reference to a 'dead' or 'stale' issue or dispute, the Court/ Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect."
9. In the case of D.C.S. Negi versus Union of India & Others [Civil Appeal No. 7956 of 2011 decided on 07.03.2011], Honble Supreme court has observed as under:-
Before parting with the case, we consider it necessary to note that for quite time, the Admi9nsitrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21.
Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).
10. However, if it is considered that the cause of action came to be accrued to the applicant in the year 1995 when, after having come to know that the respondents have been implementing the Pension Scheme, he filed the representation before the respondents for the benefits of the Pension Scheme, even then the instant Original Application is barred by limitation in view of the decision of the Honble High Court of Delhi in the matter of DTC versus Madhu Bhushan [WP (C) No.14027/2009 decided on 10.10.2010] wherein it has been held as under:-
44. In our opinion these respondents have no claim whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension scheme and DTC accepted the same and paid to them even the management's share in the CPF account. Their claims are hit by delay, laches and limitation. They are not entitled to plead that right to receive pension is a continuous cause of action, for the reason, in law either pension can be received or benefit under the CPF account. If the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach the Court or the Tribunal within a maximum period of 3 years being the limitation prescribed to file a suit.
11. In view of the above discussion and various pronouncements of the Honble Courts, I am of the considered opinion that the instant Original Application is hopelessly barred by time and the same, therefore, deserves to be dismissed. I order accordingly. There shall be no order as to costs.
(Dr. Birendra Kumar Sinha) Member (A) /naresh/