Calcutta High Court (Appellete Side)
Csts Retires' And Pensioners' ... vs The State Of West Bengal & Ors on 22 March, 2017
Author: Arijit Banerjee
Bench: Arijit Banerjee
In the High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WP 4114(W) of 2013
CSTS Retires' and Pensioners' Association & Anr.
-Vs.-
The State of West Bengal & Ors.
Coram : The Hon'ble Justice Arijit Banerjee
For the petitioners : Mr. Soumen Bhattacharjee, Adv.
For the respondents : Mr. Amal Kr. Sen, Adv.
Mr. S. Mondal, Adv.
Heard On : 14.01.2016, 21.01.2016, 04.05.2016,
14.06.2016
04.08.2016, 23.08.2016, 26.08.2016,
02.09.2016
04.10.2016, 04.11.2016, 12.12.2016 &
21.12.2016
Judgment On : 22.03.2017
Arijit Banerjee, J.:
(1) The petitioner no. 1 is an association registered under the Societies Registration Act, 1961. The petitioner no. 2 is the Secretary and authorized signatory of the association. The members of the association are all ex-employees of the Calcutta State Transport Corporation being the respondent no. 3(in short 'CSTC') all of whom retired between 1999 and 2008. The prayer in this writ petition is for grant of pension to the members of the petitioner no. 1 under the CSTC Employees' (Death-cum-Retirement Benefits) Regulations 1990 or under government scheme declaring that the members of the petitioner no. 1 are entitled to pension without depositing the Employer's share of Provident Fund or gratuity after the ceiling unit but by adjustment against the arrear pension.
Case of the Petitioners:
(2) The CSTC employees were initially under the Directorate of Transport, Government of West Bengal. The Government formed the CSTC under the Road Transport Corporations Act, 1950 to own and manage the State transport services at Calcutta and the surrounding areas with effect from 15 June, 1960. It was decided that all persons who remained employees of the said undertaking under the State Government up to 14 June, 1960 would become employees of the CSTC with effect from 15 June, 1960 under Section 47(b)(i)(f) of the Road Transport Act, 1950 as amended by the Road Transport Corporations (West Bengal Amendment) Act 1959, the relevant portion whereof reads as follows:-
""Persons employed by the State Government in connection with State undertaking and continuing in office immediately before the establishment of the Corporation shall be employed by the Corporation on such terms and conditions, not less advantageous than what they were entitled to immediately before such establishment, as may be determined by the corporation."
Except employees mentioned below, any employee of this undertaking under Government, who is not willing to continue in service under the Corporation from 15th June, 1960 will be permitted to resign and given one month's pay and other usual benefits to which they may be entitled. Notice of intention not to continue in the service of the Corporation should be given in writing to the employing authorities on or before 15th June, 1960.
Exceptions:
(1)As regards permanent Government servant at present employed in this undertaking on deputation, they may continue to be in the service of the Corporation on foreign service terms, until they are called back by their parent department on the Corporation decide otherwise, whichever is earlier.
(2)Apprentices, probationers or any other employee who is in the service of the Directorate as an Apprentice, Probationer or in any other capacity on the basis of specific agreement made with the Directorate/Government in each case, shall be liable to abide by the terms of the agreement or contract even after the conversion of the undertaking into a Corporation."
(3) In exercise of power conferred by Section 45 of the Road Transport Corporations Act, 1950 and with the previous sanction of the State Government, Calcutta State Transport Corporation Employees Service Regulations were framed regulating conditions of appointment and service and the scales of pay of the Officers and servants of the CSTC other than the Chief Executive Officer and the Chief Accounts Officer. The said regulations did not contain any scheme for compensation for superannuating employees of CSTC. Regulation 23 provided that in respect of matters for which no specific provision has been made in the Regulations, the West Bengal Service Rules shall apply provided that the said Rules are not inconsistent with any of the provisions of the Road Transport Corporations Act or the Rules framed thereunder.
(4) In exercise of power under Section 45 of the Road Transport Corporations Act, CSTC Employees' (Death-cum Retirement Benefits) Regulations, 1990 were framed and were brought into force on 22 April, 1991 with retrospective effect from 1 April, 1984.
(5) The petitioners submit that under the DCRB Regulations, 1990, all employees of the Corporation who were on its pay roll as on 1 April, 1984 and retired subsequently were entitled to receive pension under the said Regulations, if they opted for the same. It is their case that all the members of the petitioner association had submitted their options for pension in terms of the 1990 Regulations. However, they were made to believe that pension under the said Regulations was irregular and they should withdraw the retiral benefits including the employer's share of provident fund and accordingly they withdrew their terminal benefits.
(6) However, subsequently it was found that pension under the said Regulations was being regularly paid and accordingly the members of the petitioner no. 1 again applied for pension. By a memo dated 2 July, 2007 the respondent no. 5 called upon one of the members of the petitioner no. 1 to deposit the amount of employer's share of contributory provident fund and excess amount of gratuity above Rs.
70,000/- if any, in the event he wanted to be a beneficiary under the DCRB Regulations, 1990. They contended that they do not have the money to refund the benefits they had received earlier and the employer's share of CPF and any excess gratuity should be adjusted against the arrear pension and if necessary against future pension. In view of the failure of the respondent authorities to extend the pensionary benefits to the members of the petitioner no. 1, the present writ application has been filed.
(7) The petitioners also relied on a circular dated 24 May, 2007 issued by the Managing Director of the respondent Corporation which is to the following effect.:-
"It had been noticed that opinion under (DCRB) Regulation' 1990 had duly been exercised by a large number of employees of CSTC after introduction of the Pension Scheme. Unfortunately these option forms obtained in different dates were not properly preserved. These forms should have been kept in PIL file service in cold against each of the employees into proper notings and attestation of competent authority in the Service Books. On the contrary, a list prepared by most of the units containing only the names of the employees who were supposed to have submitted option forms. These lists were sent to Pension Cell without referring anything about physical existence of those option forms whether kept in the PIL file or units. Presence of option form is required to see whether the employee opted either for pension under CSTC's (DCRB) Regulate or contributory Provident Fund under the DCRB MF Act and Gratuity under the Payment of Gratuity Act, 1992.
In connection with the above, it has been ordered that henceforth whose option form is not physically found in the PIL file along with the records of office should not be considered as deemed optee save and except the retirees up to 10.02.1999. Presence of option form would help entitlement of pension provided that all other criterias are not duly filled in fulfilled.
All concerned are requested to act accordingly."
(8) The petitioners finally relied on Clause 63 (2) of the DCRB Regulations, which reads as follows:-
"63 (2). The employee who have retired after 1.4.97 or will retire hereafter employer's contribution to the Contributory Provident Fund along with interest accrued thereon and any other retirement benefit already drawn under Payment of Gratuity Act or other rules and Acts, etc. will have to be refunded to the Calcutta State Transport Corporation for being eligible to draw pensionary benefits as mentioned above. In the case of those employees who already drawn retirement benefits in the shape of employer's contribution towards C. P. Fund and/or gratuity under the existing rules which was in operation at the material time the amount of such retirement benefit shall however, be adjusted to the extent possible against arrears of pension and other retirement benefits payable with effect from 1.4.97. If any balance remains the same may be adjusted against the future payment on account of relief on pension."
(9) On the basis of the aforesaid submissions, learned Counsel for the petitioners prayed for an order in terms of the prayers in the writ petition.
Case of the respondents:-
(10) Learned Counsel for the respondents raised a preliminary issue of maintainability of the writ petition. He submitted that the petitioner no. 1 cannot maintain the writ petition to enforce alleged personal rights of individual members. He submitted that there is no averment in the writ petition that the members of the petitioner no. 1 society could not approach the Court of law to enforce their personal rights.
Section 19 of the West Bengal Societies Registration Act, 1961 confers on the persons mentioned therein the power to enforce the rights of the society and not the rights of individual members. In this connection Learned Counsel relied on a decision of a Division Bench of this Court in the case of Siliguri Inter District Minibus Owners' Association-vs.-Sri Bijon Krishna Bhowmick, (1993) 2 CLJ 99, in support of the proposition that a writ petition at the instance of an association is not maintainable where the association itself is not affected by the impugned order. The members of such an association may be affected by a common order and may have a common grievance but for the purpose of enforcing the rights of the members, a writ petition at the instance of the association is not maintainable.
Learned Counsel also relied on an order dated 11 February, 2015 passed by a learned Single Judge of this Court in WP NO. 3606(W) of 2015 as also an order dated 13 February, 2015 passed in WP 2072(W) of 2015. In both the cases, the writ petitioner no. 1 was the CSTC Employees' (Ex-servicemen) Welfare Association. In the first case, it was held that the principal petitioner is an association and has no locus standi to espouse the causes of retired employees of CSTC and leave was granted to the petitioners to withdraw the petition with liberty to file afresh in the individual names of the retired employees. In the second case, the association was the petitioner no. 1 and the other petitioners were its members who are retired employees of the CSTC. Their grievance was that the enhanced retiral benefits due to the retired members of the first petitioner association were not being released by the Corporation. The learned Judge held that the association has no cause of action in that case and the individual causes of action of the petitioners were separate and could not be combined together.
(11) On merits, Learned Counsel for the respondents submitted that it is admitted in the writ petition that the members of the petitioner association withdrew from the DCRB Scheme. It was their voluntary decision to switch over to the CPF Scheme. It is not the case that the members of the petitioner association were prevented from exercising their option to go under the DCRB Scheme. No injustice has been caused to the members of the association. If they are allowed to switch over to one scheme to the other at their whim, there would be no end to the same.
(12) Learned Counsel further submitted that the judgment of Barin Ghosh, J., dated 24 January, 2003 passed in WP 12274(W) of 2001 does not help the members of the petitioner society since all of them retired after 1 April, 1997. The members of the petitioner society are not covered by any judgment of the High Court. They have identified themselves as a separate class by opting for and then withdrawing from the DCRB Scheme. The claim of the members of the petitioner no. 1 is barred by the doctrines of estoppel and acquiesence. In this connection Learned Counsel relied on a decision of the Hon'ble Apex Court in the case of General Manager, Sri Siddeshwara Cooperative Bank Limited-vs.-Ikbal, (2013) 10 SCC 83. In that case, while considering Rule 9(1) of the Security Interest (Enforcement) Rules, 2002, the Hon'ble Apex Court observed that the said Rule is mandatory and is for the benefit of the borrower. However, even if a provision is mandatory, it can always be waived by a party for whose benefit such provision has been made.
(13) As regards Clause 63 of the DCRB Regulations, Learned Counsel submitted that the question of adjustment of retiral benefits already drawn by the members of the petitioner no. 1 does not arise since such benefits were extended as one time benefit in terms of Clause 63(2) of the Regulations (as amended in 1999) for those employees of the corporation who had already withdrawn the retiral benefits till that period under the CPF Scheme but wanted to switch over to the Pension Scheme under the DCRB Regulations. The members of the petitioner no. 1 belonged to a separate class who initially opted for the Pension Scheme as per clause 6 of the Pension Regulation, 1990 for getting pension under that Scheme but suddenly opted for the CPF Scheme and obtained full retiral benefits including gratuity under the Payment of Gratuity Act.
(14) As regards the offer made by the Managing Director of the Corporation in 2007 for switching over from the CPF Scheme to the DCRB Scheme, Learned Counsel submitted that the Managing Director had no authority to issue such letter. There never was any Scheme or Policy of the Corporation to cover those retired employees who initially had opted for Pension Regulations and later opted for CPF Scheme followed by withdrawal of benefit under the CPF Scheme including the gratuity. In any event, such offer was not accepted by the members of the petitioner no. 1 as they did not comply with the terms of the said offer. The entire payments of CSTC employees whether on account of salary or wages or retiral benefits are made out of budgetary allocation made by the State Government and any such offer made by the Managing Director of the Corporation to any member of the petitioner no. 1 had to be preceded with due sanction of the State Government which was not there.
(15) Learned Counsel finally submitted that having initially opted for the Pension Scheme and subsequently voluntarily switched over to the CPF Scheme and having obtained all the retiral benefits under the CPF Scheme, the members of the petitioner no. 1 cannot now, after lapse of almost a decade after their retirement, seek to revert back to the Pension Scheme. In this connection Learned Counsel relied on the following decisions;
(i) Pepsu Road Transport Corporation, Patiala-vs.-Mangal Singh, (2011) 11 SCC 702
(ii) Union of India-vs.-M.K. Sarkar, (2010) 2 SCC 59.
(iii) An unreported judgment dated 4 February, 2016 delivered by a learned Single Judge of this Court in WP No. 29286(W) of 2015 (Tarapada Biswas-vs.-The State of West Bengal). Petitioner's case in reply:-
(16) In reply, learned Counsel for the petitioners relied on a decision of the Hon'ble Supreme Court in the case of Steel Authority of India Limited-vs.-Sutni Sangam, (2009) 16 SCC 1. In particular learned Counsel relied on an observation of the Hon'ble Apex Court in paragraph 53 of the reported judgment to the effect that an Association could file a writ application representing its members.
Learned Counsel also relied on the decision in the case of General Manager, Sri Siddeshwara Cooperative Bank Limited-vs.-Ikbal (supra), in support of the proposition that there is no estoppel against statute.
(17) Learned Counsel for the petitioners finally submitted that the Corporation did not reject the request of the members of the petitioner no. 1 for permitting them to switch back to the Pension Scheme under the DCRB Regulations. The Managing Director of the Corporation made a conditional offer to the members of the petitioner no. 1 who are ready, willing and prepared to comply with such conditions.
Court's View:-
(18) Let me address the issue of maintainability of the writ petition first. In the case of Siliguri Inter District Minibus Owners' Association (supra), two associations of bus owners' registered under the Societies Registration Act and their respective secretaries approached the Hon'ble Appeal Court challenging an interim order passed in a writ petition to which they were not parties. They prayed for leave to appeal contending that they were affected by the interim order. The Hon'ble Appeal Court observed that whether or not the appellants had locus standi to prefer the appeal would depend on whether or not they could file a writ petition against the proposed action of the Regional Transport Authority. If they had the locus standi to file a writ application, then the appellants could be said to be aggrieved by the order in question and were entitled to prefer the appeal. In that context at paragraph 5 of the reported judgment, the Hon'ble Division Bench observed as follows:-
"5. In the instant case, the Association is not bound by the order, secondly it does not appear that the association itself can be said to be aggrieved or prejudicially affected by it. Association is a society registered under the Societies Registration Act and is a separate and distinct legal entity apart from its members. Under the Motor Vehicles Act, 1939 as association was given some limited right of representation under Sec. 47(1) of the Act, but subsequently that was amended and the right of representation by the association of operators was deleted. Motor Vehicles Act of 1988 did not provide any right upon the association of operators to file objection and/or to make representation and that it is not the requirement of law that such association is to be heard before the Regional Transport Authority and the authority can take a decision in the matter. Further before a leave is granted to prefer an appeal against the order, it has to be seen whether the applicant was a necessary party in the writ application. In view of the relief claimed in the writ application, it does not appear that the applicants were either proper or necessary parties to the writ application. A stranger cannot come forward and cannot apply for additional party unless it is established that the determination made in the writ application will affect his interest directly or indirectly and/or is likely to be prejudicially affected by the decision in question. If he cannot make out a case that he was a proper and necessary party in the writ application, it is not entitled to prefer and appeal after obtaining leave. The applicant nos. 1 and 3 are association of operators. The operators in such rule are all rivals in the trade. The rivals in trade have no locus standi to move the Court, even if the Regional Transport Authority or any other authority acts in contravention of the provisions of law. In the case of J. M. Desai v. Roshan Kumar reported in AIR 1976 SC 578 Supreme Court held that 'rival in the trade has no locus standi to move a writ application and further stated that if such discretionary remedy is exercised in favour of the rival in the trade, that would be against public policy. It will eliminate healthy competition in this business which is essential to raise commercial morality. It will tend to perpetuate the appellant's monopoly of some as against other and that it would affect the fundamental right of a person against whom such relief is claimed guaranteed under Article 19(i)(g) of the Constitution of India to carry on trade or business. Further in the case of Nagpur Rice and Flour Mills v. N. T. Gowda reported in AIR 1971 SC 246 wherein it was held by the Supreme Court that a rice mill owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another, even if such setting up be in contravention of Section 8(3)(c) of Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an applicant is infringed."
At paragraph 6 of the reported judgment the Hon'ble Division Bench held that an association can be formed to protect the interest of the consumers or operators, but such a group cannot move a writ application. Members of such an association may be affected by a common order and may have a common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable (Emphasis is mine). An individual can be said to be aggrieved by common action or inaction on the part of an authority if he has a right which has been infringed. Similarly, partnership firms, office, corporations, labour union etc. can file writ applications if their rights are directly affected. Right to maintain a writ petition postulates a personal right. Exception to the rule is that a person who has been prejudicially affected by any act or omission of an authority can file a writ even though he has no proprietary or fiduciary interest in the subject matter. (19) In an order dated 11 February, 2015, a learned Single Judge of this Court in WP No. 3606(W) of 2015 held that the CSTC Employees' (ex-servicemen) Welfare Association did not have locus standi to espouse the cause of retired employees of CSTC and the members of the association, if aggrieved, should file individual writ petitions. To the similar effect was the order dated 13 February, 2015 passed by a learned Single Judge in WP 2072 (W) of 2015. However, in the case of Steel Authority of India Limited (supra), the Hon'ble Apex Court held at paragraphs 49, 50 and 53 of the judgment that a registered association could file a writ application representing its members. The Hon'ble Apex Court did not state that a registered association could file a writ application only for the purpose of enforcing a legal right of the society. A society is after all nothing but an association of persons having a common cause or common interest. The Supreme Court judgment referred to above was not placed before the Learned Single Judge who passed the orders dated 11 February, 2015 and 13 February, 2015 in WP No. 3606(W) of 2015 and WP No. 2072(W) of 2015 respectively. Further, the Division Bench of this Court in the case of Siliguri Inter District Minibus Owners' Association (supra), could not have considered the said decision of the Hon'ble Apex Court since it is a much subsequent decision. I am of the view that an association formed by a group of persons for promoting and protecting a common interest or legal right can maintain a writ application on behalf of its members. In fact, the whole object of forming an association in the vast majority of cases is for individual members of the association with a common cause to get united and operate as a group to promote such cause since they may find it difficult to do so in their individual capacity whether because of financial constraints or other reasons. (20) In view of the aforesaid and relying on the aforesaid decision of the Hon'ble Apex Court, I hold that the present writ application is maintainable.
(21) Coming to the merits of the case, it is an admitted position that the members of the petitioner association had initially opted for the DCRB Scheme. However, subsequently they thought it fit to withdraw from the DCRB Scheme and switch over to the CPF Scheme. This was a voluntary act on their part and was not induced by any act or representation on the part of the respondent authority. In their wisdom they felt that the CPF Scheme would be more profitable and advantageous to them. They also received and appropriated the entire retiral benefits under the CPF Scheme. I am in agreement with learned Counsel for the respondent that the judgment and order delivered by B. Ghosh, J. (as his Lordship then was) in WP 12274(W) of 2001 does not help the members of the petitioner association. In that case all the writ petitioners had retired before 1 April, 1997. In the present case, all the members of the petitioner association retired after 1 April, 1997. Further, in that case, the writ petitioners did not withdraw from the DCRB Scheme and opt for the CPF Scheme as in the present case. The writ petitioners in that case and the writ petitioners in this case cannot be said to be similarly placed. I am of the view that the members of the petitioner association in the present case having once switched over from the DCRB Scheme to the CPF Scheme and having enjoyed all benefits under the latter scheme, cannot after a long lapse of time claim to be entitled to switch back to the DCRB Pension Scheme. I am constrained to hold that the writ petitioners have waived their right to receive any benefit under the DCRB Scheme. As held by the Hon'ble Apex Court in the case of General Manager, Sri Siddeshwara Cooperative Bank Limited (supra), a beneficial provision can always be waived by a party for whose benefit the provision has been made.
(22) In Union of India-vs.-M. K. Sarkar (supra), the Hon'ble Supreme Court held that whenever a scheme extending the benefit of option for switching over stipulates that the benefit will be available only to those who exercise the option within the specified time, the option should be exercised within such time. In that case, the respondent chose not to exercise the option and continued to remain under the CPF Scheme and also received the entire provident fund amount on his retirement. The Apex Court held that having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could not seek to switch over to the pension scheme which would result in the respondent getting in addition to the provident fund amount already received, a large amount as arrears of pension for 22 years (which will be much more than the provident fund amount that will have to be refunded in the event of switch over) and also monthly pension for the rest of his life. If the request for such belated exercise of option was accepted, the effect would be to permit the respondent to secure the double benefit of both provident fund scheme as also pension scheme, which would be unjust and impermissible.
(23) In Pepsu Road Transport Corporation, Patiala-vs.-Mangal Singh (supra), the Hon'ble Apex Court also rejected the delayed claim of the employees for switching over to the pension scheme after having availed of their retiral benefits arising out of the CPF and gratuity without any protest.
(24) Under the CPF Scheme a retiring employee receives a handsome and lump sum amount. Apparently, it looks much more attractive than the deferred payment of retiral benefits by way of pension every month. A lump sum amount can be invested prudently to generate substantial returns. Further, sometimes an employee may feel that because of the uncertain nature of life it would be better to receive a lump sum amount rather than a comparatively trivial amount every month by way of pension. It appears to me that prompted by these factors the members of the petitioner association had switched over from the pension scheme to the CPF scheme and received all benefits thereunder. However, with time the pension scheme became more and more attractive, on account of various factors like dearness allowance being included in the pay for computing pension, ceiling of pension being removed and liberalization of family pension, etc.. Hence, the members of the petitioner association are now seeking to revert back to the pension scheme. This cannot be permitted. In this connection I refer to the decision of a learned Single Judge of this Court dated 4 February, 2016 delivered in WP No. 29286(W) of 2015 (Tarapada Biswas-vs.-The State of West Bengal) wherein the learned Judge held as follows:-
"The petitioners are a part of the 12 per cent who remained with the contributory provident fund scheme. It is not as if the petitioners did not exercise their option. The petitioners consciously did not apply for a switch over from the CPF to the pension scheme. Thus, in a manner of speaking, the petitioners exercised their option to remain covered by the CPF Scheme.
Long after the time to opt for pension had expired, the petitioners must have noticed that the benefits under the pension scheme outweighed the benefits under the CPF scheme. In myriad ways, employees of several organizations attempted to switch over from the less beneficial scheme to the more beneficial and, in some cases, indulgent court orders permitted them to do so. The conduct of the petitioners can be seen as akin to an attempt to purchase the winning ticket after the lottery results have been announced. At the time that the employees were required to exercise their option, the employees could not be sure as to whether the benefits under the one scheme would be more than the benefits under the other. The majority of the employees opted for the pension scheme in the hope that the benefits thereunder would be more. The minority who chose consciously to be covered under the CPF scheme cannot be subsequently permitted to opt for the pension scheme upon it now being evident that the benefits under the pension scheme are more attractive."
(25) As regards the offer made by the Managing Director in 2007 for switching over from the CPF Scheme to the DCRB Scheme, I am in agreement with learned Counsel for the respondent that the Managing Director had no authority to issue such letter. If the Managing Director offered something to the members of the petitioner association acting beyond his authority or power, as he apparently did, the same would not bind the respondent corporation. In any event, the members of the petitioner association did not comply with the terms of the said offer.
(26) For the reasons aforestated, I am unable to grant any relief to the writ petitioners. This application fails and is dismissed, without, however, any order as to costs.
(27) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)