Central Administrative Tribunal - Delhi
Gyanendra Kumar (G. K. ) Sabharwal vs The Chairman-Cum-Managing Director on 12 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI OA No.4060/2010 New Delhi, this the 12th day of August, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Gyanendra Kumar (G. K. ) Sabharwal S/o Late Prabhu Dayal Aged about 61 years, R/o A-3/78, Plot No.12, Varun Apartment Sector-IX, Rohini, Delhi 110 085. Applicant (By Advocate: Sh. N. L. Bareja) Versus 1. The Chairman-cum-Managing Director HQ Delhi Transport Corporation I. P. Estate, New Delhi 110 002. 2. The CAO-cum-CGM Through Addl. Chief Account Officer, HQ Delhi Transport Corporation, I. P. Estate, New Delhi 110 002. 3. The Deputy Manager (Personal) Delhi Transport Corporation, I. P. Estate, New Delhi 110 002. . Respondents. (By Advocate: Shri N. K. Singh for Mrs. Avnish Ahlawat) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Shri Gyanendra Kumar Sabharwal, the applicant herein, joined the Delhi Transport Corporation (DTC in short) on 27.07.1978 and retired on 31.10.2009. He was a member of the Contributory Provident Fund (CPF) Scheme at the relevant time as there was no pension Scheme for the DTC employees. In the meantime, DTC notified a Pension Scheme for its employees serving and retired with effect from 3.08.1981 vide Office Order dated 27.11.1992 (Annexure-A1). As there was operational problem with LIC, the same Pension was not immediately operated but after the Ministry of Surface Transport vide its letter dated 31.10.1995 modified few clauses and authorized DTC, the same got operated. The said Pension Scheme inter alia provided to opt within 30 days from the date of issue of the order (27.11.1992). It is the case of the applicant that the employees covered under the Employees Pension Scheme of Provident Fund Commissioner and not covered under DTC Pension Scheme were called upon to exercise their option vide Office Order dated 28.10.2002 (Page 31) and 01.11.2002 (Page 30) and he exercised his option vide his letter dated 7.11.2002 (Page-29) by opting for DTC Pension Scheme. He was informed vide circular dated 04.05.2009 that he would attain age of superannuation and would retire on 31.10.2009. The applicant responded in his letter dated 19.05.2009 (Page 34) to the Sr. Manager (PLD) DTC intimating that as he had not given option in 1992 he would be covered under the DTC Pension Scheme. He followed up with a representation on 19.09.2009 to which he received a reply from Deputy Manager (PLD-I) in his letter dated 12.06.2009 (Page 38) that as per his Service Book and pay slip he had been noted as not opted DTC Pension Scheme. He was further replied by DTC in the letter dated 29.12.2009 (Page 47) that he did not opt for the DTC Pension Scheme as he was already a member of EPS-1995 for which `541 PM deductions were regularly remitted to the RPFC authorities and he was eligible to get monthly pension from RPFC Office under EPS-1995 Scheme only. Feeling aggrieved by the said decision of DTC, he sent his legal notice to the Respondent on 12.03.2010 (Pages 48-59 of the Paper Book). The Advocate of DTC sent a reply dated 27.05.2010 (Pages 60-63) to the said legal notice indicating therein that the applicant having not opted for DTC Pension Scheme was not entitled to the Pensionary benefits as claimed. Being aggrieved by the said decision of the respondents, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 impugning the letter dated 4.11.2009 with the following prayers:-
(i) to kindly accept the present application of the applicant with costs, since he has been compelled to approach this Honble Tribunal for seeking justice and in pursuance thereof, quash/set aside the impugned letter dated 04.11.2009 issued by the respondents, and in pursuance there of;
(ii) Issue appropriate order(s) and/or direction (s), directing the respondents to grant/release the DTC pension to the applicant w.e.f. the date of his superannuation on 31.10.2009 from the services of the DTC, in terms of the instructions contemplated in the DTC pension scheme circular dated 31.10.95 and in pursuance thereof, for release of the arrears of pension, w.e.f. 01.11.2009, when he became entitled to the same.
(iii) Pass any other or further order(s) and/or direction (s) as may be deemed fit and proper to meet the ends of justice.
2. Shri N. L. Bareja, learned Counsel for the applicant referring to the DTC Pension Scheme 1992 would submit that the applicant should be treated as deemed optees since he did not exercise his option within 30 days of the Scheme introduction. It is contended that applicant opted in 2002 in response to DTC requesting to exercise option for the Pension Scheme. He submits that the applicant has objected to the Respondents for not granting him pension under DTC Pension Scheme. Shri Barejas contention is that applicant cannot be held responsible for the respondents deducting from his pay towards EPS 1995 Scheme. He further contended that when the DTC Pension Scheme 1992 was fully operationalised in 1995 fresh option should have been called for by the DTC employees. However, applicant submitted his option in 2002 opting for the DTC Pension Scheme. For the inaction of the respondents Shri Bareja would urge, the applicant should not be deprived of the benefits under DTC Pension Scheme.
3. On receipt of the notice from the Tribunal, the respondents have entered appearance through their learned Counsel Mrs. Avnish Ahlawat. During the final hearing, Shri N. K. Singh, learned Counsel appearing on her behalf would submit that the Applicant has not opted for DTC Pension and CPF amount has been regularly deducted from his pay and on his retirement the respondents have paid him CPF and other retiral dues. In this, Shri Singh submits that the issue in the present OA is whether an employee who is a deemed Pension optee but later on withdraws from the same, receives CPF etc. would be entitled to opt for the Pension? He answers his question by referring to the Honble Apex Court judgment in DTC Retired Employees Association and Others versus DTC [decided on 8.05.2001 in 4 appeals and WP(C) No.499/2000 (Shri Jai Chand Verma and Others versus DTC)] and submits that the prayers of the Petitioners/Appellants to get the benefits under 1992 Pension Scheme were dismissed. He further referred to the Delhi High Court judgment in LPA No.330/2002 decided on 17.04.2002 in the case of DTC Employees Association versus DTC, wherein while dismissing the LPA it was decided that the Petitioner would have no right to switch back to the Pension Scheme after they have availed of the benefits under CPF Scheme after opting out of the Scheme. A SLP was also dismissed by the Honble Supreme Court on 2.09.2002. Shri Singh also relied on the orders of this Tribunal in TA No.798/2009 decided on 10.08.2009 in the matters of Manzoor Ahmed Khan versus Delhi Transport Corporation. Shri Singhs contention is that the case of the applicant is covered by the above relied judgments and as such the OA should be dismissed.
4. The only controversy for our consideration is whether the applicant is legally entitled to the benefits under the DTC Pension Scheme 1992?
5. At this stage, we may refer to the judgments relied on by the respondents. The Respondents in support of the contentions have submitted their additional affidavit and have filed the judgment of Honble Delhi High Court upheld by Honble Supreme Court. We may refer to the said judgment. In a batch of 21 Writ Petitions [Delhi Transport Corporation versus Madhu Bhushan Anand in WP(C) No.14027/2009 and 20 other WPs commonly decided on 10.08.2010] the Honble Delhi High Court analysed the facts of the petitioners/respondents and observed that all employees who are litigating under the various petitions either as the petitioner or as the respondents, except the two petitioners of W.P.(C) Nos.1639/2010 and 1729/2010, submitted offer letters to be voluntarily retired under the VRS Scheme notified on 3.3.1993, which contained the terms of the scheme and as extended from time to time in the year 1993. As regards W.P.(C) No.3339/2010, the respondent thereof had retired on 10.7.1991 i.e. before the notification dated 27.11.1992 was issued and as regards him, vide para 6, if he did not specifically opt for the pension scheme within 30 days of the notification dated 27.11.1992 he would have got no benefit under the pension scheme for the reason on his retirement he was paid over the due i.e. the amount to his credit under the Contributory Provident Fund Scheme. Had he exercised such an option he was obliged to have refunded the managements contribution credited to his account under the Contributory Provident Fund Scheme. Honble High Court held as follows:
17. Thus, we can conveniently segregate the litigating parties in three compartments. Those who exercised option for voluntary retirement in 1993. Those who exercised option for voluntary retirement in the year 1995. Lastly the respondent of W.P.(C) No.3339/2010 whose case has to be dealt with de-hors the Voluntary Retirement Schemes.
18. We deal with the grievance of the Corporation pertaining to W.P.(C) No.3339/2010, the respondent whereof has got benefit from the Central Administrative Tribunal, where vide order dated 15.1.2010 his claim has been allowed by holding that he is a deemed optee for pension as per the pension scheme notified on 27.11.1992.
19. No discernable reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has treated his entitlement in terms of clause 9 of the pension scheme dated 27.11.1992, ignoring the fact that clause 9 applied to the serving employees of DTC and in respect of those who had retired prior to the promulgation of the notification dated 27.11.1992, were required to exercise a positive option to be given pension with concomitant act of refunding the managements share received by them under the Contributory Provident Fund Scheme, vide para 6 of the notification dated 27.11.1992. Indeed, this has been so held by a Division Bench of this Court in the decision dated 16.3.2000 in LPA No.33/1998 DTC Vs. Sh.Baijnath Bhargav & Ors. which decision has been upheld by the Supreme Court in the decision reported as (2001) 6 SCC 61 DTC Retired Employees Association & Ors. Vs. DTC & Ors.
20. Thus, as regards W.P.(C) No.3339/2010 is concerned, noting that the respondent therein could not be treated as a deemed optee for the pension scheme and having not specifically opted for the pension scheme and having received all dues payable to him when he retired as per the amount lying to his credit as a member of the Contributory Provident Fund Scheme and obviously he having not opted for the pension scheme and thus not having returned the managements contribution pertaining to him and as credited in his account as a member of the Contributory Provident Fund Scheme, said respondent would have no case at all.
21. Thus, W.P.(C) No.3339/2010 is allowed. Impugned judgment and order dated 15.1.2010 allowing TA No.1209/2009 is set aside and TA No.1209/2009 is dismissed.
6. It must be noted that the SLP filed against the above judgment was dismissed on 3.12.2010 and the Review Petition (Civil) No.630/2011 filed in the said SLP was also dismissed by Honble Supreme Court on 03.03.2011. Thus, the law laid in the judgment of Honble High Court of Delhi has become final and the same is binding judicial precedent.
7. We may refer to the facts of the said judgment and find out its applicability to the instant OA. In all Writ Petitions except one the issue was mainly on the voluntary retirement Scheme 1993 and 1995 in reference to those who took voluntary retirement claimed the benefit of 1992 Pension Scheme. That is not the case here in this OA. The only exception is WP(C) No.3339/2010. In the above case the deemed optee position was turned down on the ground that the Respondent in the WP (C) No.3339/2010 was a retired employee (Pulak Mukherji) prior to the Pension Scheme came into being (27.11.1992) having retired on 10.07.1991. In his case deemed optee status was not allowed. But the present case is to some extent different, as the applicant was in service and retired only on 31.10.2009 and he has opted out of the DTC Pension Scheme 1992. He also received both management and his contribution to CPF. He is aware of the CPF contribution all the years of his service till he retired in 2009. Law laid in Para 20 of the above judgment of Honble High Court of Delhi fully covers the controversy in the present OA.
8. Admittedly, the Applicant was an employee of the DTC on 27.11.1992 when the Pension Scheme of DTC was introduced. The Applicant claims that he has not exercised the option for the DTC Pension Scheme within 30 days of its implementation and has not opted out of the said Pension Scheme. The respondents have contested the claim and have referred to the judgment of this Tribunal in M. A. Khans case (supra) where the applicant in that TA No.798/2009 took advantage of the fact of the misplacing of the file containing 212 forms of officers specifically opting out of the Pension Scheme and the Tribunal having considered the records and salary slips came to the conclusion that the said applicant was not eligible for 1992 DTC Pension Scheme. We find that the present OA is fully covered by the said judgment of this 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.
10. In the years 1993 and 1995, the DTC introduced Voluntary Retirement Scheme (VRS) seeking employees to opt for the same. At that stage there was no need to call for option under 1992 Pension Scheme. The ground taken by the applicant that not calling for option in 1995 is not factually tenable.
11. It is noted that the respondents have brought on record the following which provides credibility to their grounds. Those are the following: (i) the applicants Service Book has an entry of Not opted for Pension and the said entry is dated 26.04.1993; (ii) the list of officers on roll as on 31.03.1996 who have not opted DTC Pension Scheme includes the applicants name at Serial No.77; (iii) Copy of Pay Slips (electronically prepared) at Annexure R5 which revealed that `417 was deducted from his pay of August, 1999 towards CPF and `541 deducted for the months of April, 1999, July, 2003, April 2004 and January, 2006; (iv) Further, the Provident Fund Settlement Committee in its meeting held on 3.11.2009 considered the applicants case as Not Opted for the DTC Pension Scheme and authorized release of both shares of contribution of CPF in the letter dated 29.12.2009 and (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.
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.
(Dr. Ramesh Chandra Panda) (V K Bali) Member(A) Chairman /pj/