Central Administrative Tribunal - Delhi
Ved Ram vs Delhi Transport Corporation on 4 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.3017/2009 New Delhi, this the 4th of November, 2011 CORAM: HONBLE MR. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ved Ram, Ex. Dy Manager (TR.), Token No.3682, Unit: M.P. Depot, RZ-18 E/4, Gali No.3, Main Sagar Pur, New Delhi 110 046 Applicant (By Advocate: Shri S.N. Sharma) Versus Delhi Transport Corporation, I.P. Estate, New Delhi Through its Chairman Respondent (By Advocate: Shri N.K. Singh for Mrs Avnish Ahlawat) O R D E R
By Dr. Veena Chhotray:
The Applicant had superannuated from service as Deputy Manager (Traffic) on 31.8.2001. Through the instant OA, he is agitating claims for grant of pensionary benefits under the DTC Pension Scheme of 27.11.1992.
Through this OA, the following reliefs are sought:-
A. Direct the Respondents to release the pension to the Applicant with effect from 01.9.01 and all other pensionary benefits with interest @ 12% p.a. compounded annually.
B. Direct Respondent to pay pension to the Applicants month by month.
Any other order(s) the Honble Tribunal deems fit be also passed.
2. Learned counsels, Shri S.N. Sharma and Shri N.K. Singh for Mrs Avinash Ahlawat would represent the applicant and the respondent respectively.
3. The brief factual matrix of the case is that the applicant was initially appointed in the year 1961 as a Conductor under the DTC. After series of promotions, he reached upto the level of Deputy Manager (Traffic) from where he superannuated w.e.f. 31.8.2001.
3.1 As regards the Pension Scheme, the applicant had initially opted for pension as per the 27.11.1992 Circular. However, subsequently he changed his earlier option in favour of continuance under the Contributory Provident Fund Scheme. As per the statement of written arguments dated 8.9.2011 submitted on behalf of the applicant, this withdrawal from the Pension Scheme had to be resorted to as there was a doubt about the viability of the Pension Scheme introduced through the LIC; hence the applicant had preferred CPF instead.
This was acceded to by the respondents vide No.PC/HQ/94/231 dated 24.3.04 and accordingly an entry made in the Service Book.
3.2 It is a matter of record that the DTC Pension Scheme, though introduced in the year 1992, had some initial hiccups and got finally implemented only in the year 1995.
Once again the applicant made a request to the DTC authorities for treating him as having opted for the Pension scheme only, as per his original option. This was some time in the year 1999 or earlier to it. As submitted in the Written Arguments, this change came as the Pension Scheme with clear instructions became functional.
However, the request was not accepted vide the Office communication dated 22.4.1999. The reason cited was that the official, though initially opted for pension as per the Office Order dated 27.11.1992, had later on withdrawn himself from the DTC Pension Scheme. The request had been acceded to vide No.PC/HQ/94/231 dated 24.3.1994. Hence his request for opting DTC Pension Scheme could not be considered at that stage (Annex. A/1).
3.3 The case of the applicant is that he kept on making representations to the authorities before his retirement and even thereafter. The OA has particularly mentioned about the representation dated 6.5.2009 (Annex A/2). This was in the wake of the Honble Apex Courts dismissal of the SLP No.5205 of 2008 (DTC Vs Kishan Lal Sehgal & Ors) and upholding the High Courts view favouring the originally optees entitlement for DTC Pension.
As the representations and the personal visits to the Office bore no fruit, this has occasioned the present OA.
4. The applicant has under played the fact of his opting out of the Pension Scheme and instead averred that the respondents denial of his later request to be treated as per the original pension option was a kind of fraud. The averment of breach of terms of the Pension Scheme of 1992, not expected of a model employer has also been made.
4.1 As per the applicant, he had requested the Management not to release the employers share of the Provident Fund. A contention of the release of the retiral benefits under the CPF having been made unilaterally has also been made in the Written Arguments. In any case, the applicant has expressed his willingness to refund the CPF benefits so received, with interest.
4.2 Placing reliance on the decisions of the High Court in several cases such as Veer Bhan Vs DTC; Kishan Lal Sehgal & Ors Vs DTC; Surender Chawla Vs DTC; Gurcharan Lal & Ors Vs DTC; Satyaveer Singh Vs DTC and Girvar Singh Vs DTC, it has been contended that pension is neither a bounty nor a matter of grace, but a deferred portion of salary earned or payment of compensation for service rendered by the employee.
To reinforce the point further, in the Written Arguments the decisions of the Apex Court in (i) DS Nakara Vs Union of India {AIR 1983 SC 130} (ii) D.V. Kapoor Vs Union of India {AIR 1990 SC 1923} and (iii) R.L. Marwaha vs Union of India {1987 (4) SCC 31} have been cited.
4.3 The learned counsel for the applicant Shri S.N. Sharma would seek to highlight the fact of the present case not being one of VRS and the applicant having made constant representations even while in service.
It would further be argued by the learned counsel that these distinguishable features would make the case a different one from the decisions cited by the respondents. On the other hand it would be argued that the case was fully covered by Kishan Lal Sehgals as well as the general law on pension in D.S. Nakaras case etc.
5. The claims have been opposed by the respondents. A preliminary objection of the present OA being hopelessly barred by limitation has been raised. It is stated that the applicant having retired on 31.08.2001 and availed all retiral benefits under the CPF on 28.09.2001 cannot, after nearly 10 years, agitate a claim for Pension.
5.1 The claims are also contended to be factually untenable. The respondents have highlighted the act of the applicant regarding opting out of Pension and its having been acceded to by the Management. Thus, the applicant, as per the records, was not an optee for the pension scheme. This is sought to be reinforced by documentary proofs such as: entry in the Service Book (Annex. R/1); the retirement order dated 14.3.2001 about his retirement w.e.f. 31.8.2001 (Annex R/3); the order subsequent to retirement dated 28.9.2001 releasing his own as well as the Corporations share of CPF (Annex. R/2).
5.2 These arguments have been further supplemented in the Written Arguments. A list of 190 Officers (on roll), who had not opted for Pension and another list of 24 Officers who had opted for Pension as on 31.3.2006 has been produced. The name of the applicant finds place at serial no.185 of the first list. It has also been argued that the applicant was fully aware of the monthly deductions from his salary under the CPF. Had he opted for Pension, he would not have allowed these deductions to be made from 1994 onwards.
5.3 The fact of the applicant having received all the retiral dues as admissible under the Contributory Provident Fund Scheme including the increased share of gratuity and the Managements share of the PF have also been argued to oppose the claims in the OA.
5.4 Framing the basic controversy as Whether an employee having first exercised his option for Pension, but, later on withdrawn the same, would be entitled to re-opt for the Pension it has been argued that the issue has already been decided in judicial pronouncements in a number of cases. The following decisions have been replied upon:-
i) The Judgment of the Apex Court dated 8.5.2001 in DTC Retired Employees Association & Ors VS DTC deciding four appeals and one Writ Petition (Civil) No.499/2000. After discussing the main features in paras 24 and 25, the Honble Apex Court had held that those employees who had received the benefit of employer provident fund scheme failed to exercise their option and thus disentitle themselves from getting the pension benefits. The pension scheme was implemented on the basis of certain guidelines; it is not for the court to interfere with the same.
ii) Another round of litigation again by the DTC Retired Employees Association in the year 2002 involving about 18 Writ Petitions. The specific issue framed in the Writ Petition (C) No. 686 of 2002 with a batch of other Writ Petitions raised was whether the employees of DTC who had opted for pension scheme of 1992 and later withdrew from the same are entitled to once again be covered under the pension scheme as per their request made subsequently.
The learned Single Judge vide his judgment dated 26.2.2002 relying upon the earlier judgment of the Apex Court dismissed the petition. Further it was held: it cannot really be disputed that cases of employees who had not opted for scheme and those opted out of the scheme are squarely covered by the judgment of Supreme Court in DTC Retired Employees Association. On a challenge to the aforesaid decision in the LPA 330/2002, the view taken by the learned Single Judge was upheld. The view taken by the Ld. Division Bench was:
Once the members of the petitioner association and second and third petitioner opted for contributory provident fund scheme they have no right to switch back to pension scheme, especially when the petitioners have availed of the benefit under the contributory provident fund scheme after opting out of the pension scheme.
iii) The decision of the Honble Apex Court in DTC Vs Mool Chand decided on 2.12.2008 as reported in 2009 Vol. 1 SCC Page 255, held that when the VRS scheme which was formulated after 3rd March 1993 clearly stipulated that individuals opting under this Scheme will not get any pension. The question of granting any pension does not arise. The appeal filed by DTC was allowed.
iv) The decision dated 10.8.2010 of the Division Bench of the Delhi High Court in CWP No. 14027 of 2009 DTC Vs Madhu Bhushan Anand with batch Petitions has been relied upon, wherein the claims of the employees specifically opting out of the Pension Scheme had been dealt with and had been negated on grounds of limitation as also on merit:
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 pension scheme and DTC accepted the same and paid to them even the managements share in the CPF account. Their claims are hit by delay, latches 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.
v) As regards Krishan Lal Sehgals case, it is averred that it was not laying down any law. The Court had also relied upon two other judgments which were again not laying down any law and were on facts. Further, there was nothing on record to show that the individuals concerned had not opted for pension or opted out of pension.
vi) The present case is stated to be squarely covered by the decision of the Tribunal in the OA No.4060/2010 in the matter of G.K. Sabharwal Vs DTC decided on 12.8.2011. The OA had been dismissed with the following conclusive observations:-
12. Considering the facts and circumstances of the case and taking into account the law laid in the controversy, we come to the considered conclusion that Applicant has opted out of the DTC Pension Scheme right at the start of the Scheme and is not entitled to the benefits of DTC Pension Scheme, 1992. Resultantly, the OA having no merits is dismissed. No costs. Thus, as per the respondents, the OA is not maintainable and is fit to be dismissed.
6. Having carefully considered the respective submissions, the material on record and the law on the subject as emerging out of various judicial pronouncements; we do not find the claims in the OA as tenable. This is for the following reasons:
6.1 BARRED BY LIMITATION:
The basic cause of action had accrued in the year 1999 itself when for the second time the applicant had sought to reverse his option and instead of remaining covered under the Contributory Provident Fund as per the 1994 request, had wanted to be treated as an optee for pension as per the original option of 1992 under the DTC Pension Scheme. However, the request had not been acceded to by the respondent Corporation vide their communication dated 22.4.1999 (Annex. A/1). If the applicant had any grievance he should have approached the Tribunal at that point of time.
However, the applicant claims to have been making representations to the authorities during all these years. The endeavour on the part of the learned counsel for the applicant to distinguish the case, by stating that these representations had been made before his retirement as well would not be a material factor in this context. As is trite, representations, any number of them, would not be of avail to cross the basic hurdle of limitation beyond what is prescribed under Section 21 of the Administrative Tribunals Act.
The other representation specifically referred in the OA is dated 6.5.2009 (Annex. A/2). A perusal of this document shows that it was made after the Honble Apex Court dismissed the SLP as well as the Review Petition filed by the DTC against the Delhi High Courts judgment in Kishan Lal Sehgals case. Thus, the applicant who had superannuated in 2001, had despite the intervening prolonged gap of several years, attempted to have another shot at revival of his old claim for pension. In a similar context the Division Bench of the Delhi High Court while deciding the WP (C) No14027/2009 (DTC Vs Madhu Bhushan Anand) along with the batch of other Writ Petitions vide its judgment dated 10.8.2010 had observed:
43. The silence of these respondents for periods ranging from 12 to 15 years when they took recourse to legal action is clearly indicative of there being no compulsion. The silence of these respondents speaks for itself. It is apparent that with the passage of time these respondents became clever by a dozen and thought why not take the benefit of a few who likewise went to Court and obtained relief.. Under the circumstances, the plea of the right to receive pension being a continuous cause of action had not been found acceptable by the Honble High Court.
In its recent judgment in D.C.S. Negi Vs Union of India & Ors (Civil Appeal No.7956 of 2011) decided on 7.3.2011, the Honble Apex Court took strong exception to the entertaining of applications by the Central Administrative Tribunal in disregard of the period prescribed for purposes of limitation under Section 21 of the AT Act. The following observations were made:
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative 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).
The claims in the present case being hit by delay and latches and grossly barred by limitation, are not maintainable under Section 21 of the Administrative Tribunals Act.
6.2 BASIC ISSUE NO MORE RES INTEGRA -
We agree with the contention of the respondents that the basic issue e.g. whether a pension optee under the 27.11.1992 Scheme, be it specific or deemed, who had subsequently withdrawn such option and received the retiral dues as per the Contributory Provident Fund Scheme would still be entitled to pension stands firmly settled in view of the decisions of the Apex Court and the High Court cited by the respondents. The argument of the applicants learned counsel about these decisions not being applicable in the present case, as they had involved VRS, is not found to be tenable. The factor of VRS apart, one of the basic issues considered in these pronouncements was whether the claim for pension could still be considered despite the withdrawal. Even at the cost of repetition, it would be apt to state that while delivering its judgment dated 8.5.2001 in the (first) DTC Retired Employees Associations case (supra), the retired employees in the CWP 499/2000 initial optees under the Pension scheme but subsequent withdrawals and recipients of CPF retiral benefits had been claiming another chance to avail the pension scheme. The Honble Apex Court had not accepted their claims and had held: The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. In the subsequent round of litigations by the DTC Retired Employees Association only, at the level of the Single Judge (in the order dated 26.2.2002) the issue was held to be covered by the 2001 judgment of the Apex Court and all the petitions dismissed. Even in the LPA 330/2002, arising from the aforesaid Single Bench Judgment, it had been held that after having withdrawn the option of pension and having been granted the CPF retiral dues about there being no right to switch back to the Pension Scheme.
Even the Delhi High Court Division Benchs Judgment in Madhu Bhushan Anand and other batch writ petitions, the Honble High Court had dealt with claims for entitlement to pension of specific and deemed optees under the Pension Scheme.
As the justification for the subsequent withdrawals in favour of CPF option, it had been pleaded that due to the uncertainty in implementation of the 1992 DTC Pension Scheme, there had been a compulsion on the part of the employees. The Honble High Court had noted that even the uncertainty regarding implementation of Pension Scheme had ended in 1995. The claims for entitlement to pension from such quarters had not found favour with the Honble High Court on multiple scores. Even at the cost of repetition, Para 44 of the Judgment, of critical relevance relevant in the present context, is reproduced here 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 pension scheme and DTC accepted the same and paid to them even the managements share in the CPF account. Their claims are hit by delay, latches 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. In view of these specific judicial pronouncements on the subject of DTC Pension scheme, the decisions being cited on behalf of the applicants dealing with the general law on Pension as in D.S. Nakaras case/other similar cases would not be relevant.
6.3 The judgments in Kishan Lal Sehgals case, Vir Bhans case and other decisions on the said lines over ruled by the Larger Benchs Judgment dated 20.9.2011 in the LPA 708 of 2002 {R.D. Gupta & Ors Versus DTC} and the law in Madhu Bhushan Anand (supra) upheld.
The OA has placed reliance on the earlier decisions of the Delhi High Court in Kishan Lal Sehgals case, Vir Bhans case and several others to support its claims. However, perceiving a manifest and irreconcilable conflict in the decisions in Kishan Lal Sehgal & Ors case and Madhu Bhushan Anands case, the Larger Bench of the Delhi High Court (three Judges Bench presided over by the Honble Chief Justice) considered the issue at length and overruled the decisions in Kishan Lal Sehgals case, Vir Bhans case and other similar decisions. Instead the decision in Madhu Bhushan Anands case was upheld.
The fact of these cases involving VRS would not make a material difference in as much as they were also dealing with the basic issue of the impact of receipt of retiral benefits under the CPF Scheme on claims for entitlement to Pension under the DTC 1992 Scheme. (At this point it would be pertinent to note that K.L. Sehgals case had also involved VRS). While overruling the decision in K.L. Sehgals case, the Honble High Court had noted with emphasis the decision in the LPA 330/2002 decided on 17.4.2002 in DTC Retired Employees Association Vs DTC:
Once the members of the petitioner association and second and third petitioners opted for Contributory Fund Scheme, they have no right to switch back to the pension scheme, especially when the petitioners have availed of the benefits under the Contributory Provident Fund Scheme after opting out of the pension scheme. One of the reasons for not upholding the decision in Kishan Lal Sehgals case was its not taking note of this earlier decision upheld by the Apex Court. Para 18 ran as under:
.it is noticed that the decision rendered in Kishan Lal Sehgal and Ors. (supra) did not take note of the earlier decision rendered in DTC Retired Employees Association (supra). The said decision was rendered prior in point of time. It is well settled principle of law that earlier Division Bench decision is a binding precedent on the later Division Bench. . Further, in the conclusive paragraph, it had been clarified that the over-ruling decision pertained not only to Kishan Lal Sehgal & Ors (supra) and Vir Bhans case (supra), but also to the decisions on the said lines. Thus, the reliance being placed by the applicants learned counsel on Kishan Lal Sehgals case and the like, would not help either.
6.4 Covered by the decision in the OA No.4060/2010 (Gyanendra Kumar (G.K.) Sabharwal Vs DTC) decided on 12.8.2011 -
In their Written Arguments the respondents have also raised the plea of the issues in the present case being squarely covered by the recent decision of the Tribunal in the OA 4060/2010. A copy of the relevant order has been enclosed. In this case also the applicant had retired on superannuation on 31.10.2009 and was claiming this as well as there being no VRS as the distinguishing factors. Further, as he had opted for pension only in response to the 2002 Circular, he was claiming a deemed optee status as per the 1992 Scheme. The applicant had subsequently opted out of the Pension Scheme but was taking advantage of the relevant file having been misplaced. In this respect the facts were found to be covered by another judgment in the TA 798/2009 (M.A. Khan) where considering the records and salary sips the Tribunal had come to the conclusion that the said applicant was not eligible for the DTC 1992 Pension Scheme.
Para 9 of the order in G.K. Sabharwals case had recorded the following findings of the Tribunal :
9. We perused the copy of the relevant page of the Service Book of the Applicant placed in the OA by both the parties and find that there is an entry to say that Pension not opted. Once the applicant has opted out of the Pension Scheme and the same has been recorded in his Service Book in the year 1993, he cannot retrace and opt again for the 1992 Pension Scheme in 2002 which claim has been disputed by the respondents. We find convincing grounds in the argument of the respondents. Para 11 had listed several other documentary proofs brought to the notice of the Tribunal. It had inter alia included the fact of constant monthly deductions under the CPF. The relevant extracts are as below:
11. .(v) We also find that the applicant has exercised his option of nomination for his CPF and gratuity and his wife (Smt. Jai Shree Devi) is the nominee. The applicant is a senior officer of DTC and retired as DY. CGM (Mechanical). Had he opted for the pension or treated as deemed optee, he would not have allowed the management to recover amount towards CPF month after month. He having been aware of CPF deduction right through his service, gives lot more credibility to the arguments of the respondents. Considering the facts and circumstances of the case and taking into account the law, the applicant was not found entitled to the benefits of DTC Pension Scheme, 1992, and the OA was dismissed.
In the present case also the respondents have cited the plea of the entry in the Service Book, the list of 2006 of non-optees, the regular monthly contributions under the CPF providing ample documentary proofs of the applicant being entitled under the CPF Scheme. Thus the decision in G.K. Sabharwals case is also found to be of direct relevance to the issues at hand.
7. To conclude, after a close examination, we have not found the claims to be tenable. They are grossly hit by delay and latches and barred by limitation. Even on merit, they are not entertainable considering the law as emerging out of various judicial pronouncements by the Apex Court and the High Courts. The instant OA is found to be raising issues similar to the OA 4060/2010, where it had been dismissed.
Resultantly the OA is held as devoid of merit and is dismissed hereby, with no orders as to costs.
(VEENA CHHOTRAY) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) /pkr/