Central Administrative Tribunal - Delhi
Raja Ram vs Delhi Transport Corporation, Govt. Of ... on 3 November, 2017
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 347/2016
Reserved on: 26.10.2017
Pronounced on: 03.11.2017
Hon'ble Shri Uday Kumar Varma, Member (A)
Shri Raja Ram (Conductor), Aged 60 yrs.
S/o Sh. Buddan Singh,
R/o H.No. 3242, B-Block,
Gali No.83, Santnagar,
Burari, Delhi-110084 - Applicant
(By Advocate: Mr. Nitin Kumar)
Versus
Delhi Transport Corporation
IP Estate, New Delhi - Respondent
(By Advocate: Ms. Swati Jain for Ms. Ruchira Gupta)
ORDER
The instant Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash and set aside the impugned order dated 14.05.2015 and direct the respondents to grant pensionary benefits to him as per Circular dated 27.11.1992.
2. The facts of the case, briefly stated, are that the services of the applicant, while working as Conductor in the respondent-organization, were terminated by the respondents vide order dated 28.10.1992 after issuance of chargesheet and holding of enquiry and thereafter an 2 Application bearing OP No.508/1992 under Section 33(2)(b) of the Industrial Disputes Act before the Industrial Tribunal, Karkardooma Courts, Delhi, which came to be dismissed by the Industrial Tribunal vide order dated 27.01.2003. The applicant contends that against the aforesaid order of the Industrial Tribunal, the respondents preferred a WP(C) No.5339/2003 before the High Court of Delhi and during the pendency of the Writ Petition, a settlement arrived at between the parties and in view of the Settlement Agreement dated 09.02.2010 executed between the parties, the Writ Petition was disposed of by the High Court vide order dated 17.05.2010. It is the contention of the applicant that during the pendency of the matter before the High Court, the respondents introduced the Pension Scheme as applicable to Central Government employees vide order dated 27.11.1992.
3. On 12.07.2010, the respondents asked the applicant to report for duty on or before 15.07.2010 along with certain required documents. Accordingly, the applicant joined his duties w.e.f. 24.07.2010 and subsequently he wrote letters dated 09.08.2011, 21.09.2011 and 07.07.2014 to the respondents opting pension scheme. However, the applicant was relieved from his duties vide letter dated 16.1.2015 with a direction to report to Sarojini 3 Nagar Depot w.e.f. 17.1.2015. The applicant was issued a letter dated 10.03.2015 informing him that he would stand retired on 04.05.2015 on attaining the age of superannuation with further stipulation that he has not opted for pension scheme, to which the applicant explained his position of opting the pension scheme vide representation dated 25.03.2015. In response thereof, the respondents vide letter dated 1405.2015 informed the applicant that since he was removed from service w.e.f. 28.10.1992 before the commencement of pension scheme and reinstated in service in 2010, he is not entitled for the pensionary benefits in view of Circular dated 13.05.2008. The applicant again submitted a detailed representation to the respondents with regard to his entitlement for pension, but his request did not yield any favourable response and, hence, he is before the Tribunal for redressal of his grievance.
4. The respondents have filed their counter affidavit denying the submissions of the applicant made in the OA. They have submitted that the applicant is covered under the EPS 95 Scheme wherein pension is to be paid by RPFC and the monthly contribution towards the same was being deducted from his salary slip from 2010 till his retirement i.e. 31.05.2015. They have further submitted that the 4 applicant has concealed the fact that the respondents have released the gratuity amount and employee's share along with employer's share of CPF vide office order dated 21.05.2015 and 26.06.2015 respectively. They have reiterated that the applicant is not a DPC Pension Scheme optee and rather was a member of EPC-95 which was the only pension scheme operating in the respondent organization when the applicant was reinstated in service in 2010. It is also necessary to mention that the services of the applicant were terminated on 28.10.1992 while the DTC Pension Scheme was introduced vide office order dated 27.11.1992. Thereafter the applicant was reinstated as per the settlement agreement between the parties vide office order dated 22.07.2010 and one of the conditions of the said agreement was that the applicant would not be entitled for any payment of back wages for the intervening period and the said intervening period would be treated as break in service and shall not be counted for any service benefits. Hence, the intervening period between termination and reinstatement shall be treated break in service and not to be counted for any service benefits. Moreover, when the applicant was reinstated, the only pension scheme which was in existence was EPS-95 Scheme and the deductions from his pay slips were made 5 accordingly till his superannuation. The respondents further submitted that as the applicant has not come to the Tribunal with clean hands and has concealed the material facts from the notice of the Tribunal, and the OA is also deficient in merit deserves to be dismissed.
5. I have thoroughly gone through the pleadings of the case and have carefully heard the arguments so advanced by the learned counsel for both the sides.
6. After perusing the material on record and listening to the learned counsels for the rival parties, the following facts have emerged:-
(a) That the applicant had joined the respondent organization, namely, Delhi Transport Corporation on 03.12.1977. His services were terminated on 28.10.1992 against which he approached the judicial fora and after a protracted phase of litigation, the matter was sorted out by arriving at a settlement agreement between the applicant and the DTC.
According to the terms of the Settlement dated 09.02.2010, the applicant was to be reinstated with immediate effect subject to his being found medically fit by DTC Medical Board and having in possession of a valid conductor license. It is further agreed that the applicant was not to be entitled 6 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 in the year 2010; the said intervening period was to be treated as 'break in service' and was not to be counted for any service benefits.
(b) That following the settlement, the applicant joined the organization and superannuated on 31.05.2015. Prior to his superannuation, he moved representation dated 25.03.2015 to the respondent seeking his inclusion in the Pension Scheme introduced by DTC on 27.11.1992. However, the respondent, by order dated 14.05.2015, declined the request of the applicant on the ground that when the Pension Scheme was introduced the applicant was not in service and was reinstated in service only in the year 2010 when the Pension Scheme was not in existence.
7. It will be appropriate to carefully examine the Office Order dated 27.11.1992 stating that the introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Government subject to the certain conditions. Conditions 1,2,3,4 and 9, which have direct relevance to this controversy, are reproduced hereinbelow:-
"(1) The Pension Scheme would be operated by the LIC on behalf of DTC.7
(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. 23.11.92 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."
The contention of the applicant is that even though he was not in employment of DTC on the date this Pension Scheme was introduced, i.e. 27.11.1992 but he was in service on 03.08.1981 when the Pension Scheme was to become effective and, therefore, the Scheme ought to have been made applicable to him. His other arguments seek help from the provision contained in Condition No. 9 and it is his contention that even though he had not made any option with regard to acceptance or otherwise of the Pension Scheme, he was deemed to have opted for the Pension Scheme Benefits because Condition No. 9 stipulates that absence of option shall be deemed as an option for the Pension Scheme.
8. It is not in dispute that this Pension Scheme was introduced on 27.11.1992 and was to be effective from 03.08.1981. However, 8 Condition No. 3 makes it abundantly clear that the Scheme was applicable to existing employees as on 27.11.1992 as also to those who retired w.e.f. 03.08.1991 onwards and to none other. A reading of the wording of Condition No. 3 reveals that the basic requirement for application of this Pension Scheme to any employee is his being in employment on the date of introduction of this Scheme. Now it is on record that on 27.11.1992, the applicant was not in the employment of the Corporation because his services were terminated w.e.f. 28.10.1992, almost a month before the introduction of this Pension Scheme. In fact, reading of the whole Scheme makes it clear that this Scheme, for all intents and purposes, was devised for employees who were in employment on the date of introduction of this Scheme and for those employees who retired w.e.f. 03.08.1981. In other words, being in employment on 27.11.1992 or having retired on or after 03.08.1981 were the two essential conditions for employees to be entitled for this Scheme. In my considered opinion, since the applicant, on the date of introduction of the Scheme, was not in employment of the Corporation, therefore, this Scheme could not have been applied to him and he could not have claimed the benefits of this Scheme.
9
9. As regards the argument of the applicant that since the pension scheme of 27.11.1992 was to be brought into effect from 03.08.1981, therefore, even though he was not in service on 27.11.1992, he is still entitled for the benefit of the pension scheme as they were applicable from 03.08.1981 when he was in service, the said argument is absolutely fallacious. The primary and essential condition to get the benefit of this Scheme, an employee has to be in employment of the DTC on 27.11.1992 which the applicant was not and, therefore, irrespective of the date with effect from which the said Scheme came into operation, the applicant cannot claim the benefit of this Scheme. If one were to accept the logic of the applicant in this regard, anyone or everyone, whose services have been terminated between 03.08.1981 and 27.11.1992, will all become eligible for the benefit of the pension scheme, which is not the intent of the Scheme at all.
10. It has so happened that when the applicant was reinstated in service in 2010, this Pension Scheme was wound up as the consequence of the decision of the Government of India to shift from defined Benefit Pension Scheme to defined Contribution of Pension Scheme w.e.f. 01.01.2004. The DTC took a decision to discontinue this Scheme for employees joining Corporation on or after 01.01.2004. The argument of the applicant is that he was not 10 a new employee who had joined after 2004 but as being in service since 1977, even though the period from the date of termination, i.e. 28.10.1992 till the date of reinstatement in the year 2010 has been treated as 'break in service'. The stipulation of 'break in service' may also include an interpretation that the service of the applicant was to be treated as a new service. In other words, the applicant had two phases of service in his career: one between the date of his joining in the year 1977 till 27.10.1992 and the second phase of his service started after his reinstatement in 2010 till he superannuated on 31.05.2015. Therefore, it cannot definitively be argued that the new Pension Scheme introduced after 2004 will not be applicable to the applicant and I am not convinced from the argument of the applicant that while reinstating in 2010, the new Pension Scheme will not be applicable to him. A perusal of the record further reveals that even though he had made a representation prior to his retirement, the same was also decided on 14.05.2015 which is prior to his retirement. He accepted, without any protest or objection, his claims under EPS 95 to which he had subscribed right from the beginning and to which he continued to subscribe after his reinstatement in 2010. He chose to approach the judicial fora only after accepting all his retiral benefits which also included his dues under EPS 95. The contention of the respondent that after having accepted his dues 11 under EPS 95 and after having got his representation duly decided against him by the respondent before his retirement, the applicant cannot claim the benefits of Pension Scheme and same is clearly an afterthought. There seems to be some force in the argument of the respondent essentially because the action of the applicant accepting dues under EPS 95 is indicative of the fact that he had accepted the decision of the respondent with regard to his eligibility to be covered under Pension Scheme, otherwise he would either not have accepted this amount or would have challenged the same before an appropriate forum. He had done neither and therefore, this matter, which was first filed in the High Court and then withdrawn from there and subsequently filed in the Tribunal, could be an afterthought. However, the argument of the respondents of this being an afterthought has no material bearing as far as my conclusions are concerned.
11. Given the facts and circumstances of this case, I am of the clear view that the OA is devoid of merit and deserves to be dismissed and is accordingly dismissed The parties shall bear their own cost.
(Uday Kumar Varma) Member (A) /lg/