Central Administrative Tribunal - Delhi
Ram Kumar Ahuja vs Delhi Transport Corporation, Govt. Of ... on 22 May, 2019
Central Administrative Tribunal
Principal Bench
OA No.787/2016
Orders Reserved on 24.04.2019
Pronounced on: 22.05.2019
Hon'ble Mr. Pradeep Kumar, Member (A)
Ram Kumar Ahuja, 62 years,
S/o Sh. Bhagwan Dass,
Ex. Assistant In-charge (IPD),
Pay Token No.21500
R/o H.No.6/6, Indira Vikas Colony,
Opp. Sant Nirankari Senior Secondary (Boy) School,
Delhi-110009.
-Applicant
(By Advocate: Shri Jagdish Chandra Kundlia)
-Versus-
1. Delhi Transport Corporation
Through its Chairman-cum-M.D.
I.P. Estate,
New Delhi-110002.
2. Regional Provident Fund Commissioner
Employees Provident Fund Organization
Bhavishya Nidhi Bhawan,
28, Wazirpur Industrial Area
Near Ashok Vihar,
Delhi-110052.
-Respondents
(By Advocates: Shri Anurag Sharma (R-1), Sh. Keshav Mohan
with Sh. Rishi Awasthi & Ms. Akshara Chauhan (R-2))
ORDER
The applicant joined Delhi Transport Corporation (DTC) as an Apprentice Conductor on 22.07.1975. Thereafter he was appointed as Conductor on 23.05.1977. He was 2 (OA No.787/2016) promoted in due course se Senior Clerk and retired from this post on 31.08.2013.
2. The employees in DTC were governed by the CPF Scheme which was administered by Employees Provident Fund Organization (EPFO) wherein there was no provision of pension to the retired employees. However, in the unfortunate event of death of the retired employee bereaved family was entitled for family pension.
3. There was demand by the employees for pension. Accordingly, DTC vide their notification dated 27.11.1992 introduced a DTC Pension Scheme at par with Central Government employees. The circular reads as under:
"DELHI TRANSPORT CORPORATION (A Government of India Undertaking) I.P. Estate: NEW DELHI No. Adm-I-S(4)/92 Dated 27.11.92 OFFICE ORDER NO.16 Sub: - Introduction of Pension Scheme in DTC as applicable to the Central Govt. Employees.
The introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Govt. and conveyed by the M.O.S.T. vide letter No.RT- 12019/21/88-TAG dated 23.11.92 as on the same pattern as for the Central Govt. employees subject to the following conditions:-
1. The pension scheme would be operated by the LIC on behalf of DTC.
2. The date of effect of Pension Scheme would be 3.8.1981.3
(OA No.787/2016)
3. All the existing employees including those retired w.e.f. 3.8.1981 on wards would have the option to opt for the Pension Scheme or the Employee Contributory Provident Fund as at present with 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 sanction of the scheme.
5. The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF A/C of the DTC employees, who opt for Pension Scheme would be transferred to the LIC, for operating.
6. The employees who have retired on or after 3rd August 1981 and the existing employees, who have drawn the employee's share, under the E.P.F. Act, partly or wholly shall have to refund the same with interest in the event of their opting for the Pension Scheme. The total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share.
7. Excess amount of gratuity, if already paid to ex- employees and which is not admissible under the Pension Scheme, will have to refunded by them before any benefit under the Scheme, is granted to them.
8. A due and drawn statement would be prepared in respect of retired employees opting for Pension Scheme and the amount to be paid/refunded, would be worked out by the concerned unit, wherefrom the employee had retired from service.
9. If any of the employee of DTC, who does not exercise any option within the prescribed period of 30 days or quite 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.
Application forms for exercising option would be available with the Unit Officers and all employees including retired employees wishing to exercise option, should do so with the unit of their present working/where from they retire, within a period of 30 days from the date of issue of this Office Order.
The Unit Officers, after receiving the option from the ex- employees, will take further necessary action for getting the necessary from completed, which will be supplied to then by the LIC for Pension etc. They will also ensure the recovery of E.P.F. and Gratuity from the Ex-employees before forwarding their applications as mentioned above. 4
(OA No.787/2016) The cases of all officers will be dealt with at Headquarters.
The options receive from the existing employees for not opting Pension may be kept in their Personal file and entry made in their Service Book."
Sd/-
(L.C. Goyal) DY. CHIEF GENERAL MANAGER (P)."
4. The Scheme dated 27.11.1992 was to be implemented by LIC. Subsequently it was decided that the Scheme would be operated by the DTC themselves and a notification to this effect was issued by the Ministry of Surface Transport on 31.10.1995.
5. However, there were persistent demands from those employees who had not opted for pension, to again be given the opportunity to exercise this option. With a view to examine the implications, the DTC issued an office order dated 28.10.2002. It reads as under:
"DELHI TRANSPORT CORPORATION GOVT. OF N.C.T. OF DELHI.
I.P.ESTATE: NEW DELHI.
No.Pen. Cell/Option/2002/440 Dated 28.10.2002 OFFICE ORDER In compliance of the orders conveyed by Sh. Abhijit Sarkar, Secretary to Minister (Transport), Tourism and Power, Govt. of N.C.T.of Delhi vide letter No.PA/MOTTP/2002/11117 Dated 4.10.2002, it has been decided that the option from all the existing 5 (OA No.787/2016) employees including those who are covered under the RPFC Scheme may obtain in the following condition:
i) All the existing employees who are not covered under the existing Pension Scheme may exercise their option in writing in case desire to opt DTC Pension Scheme.
ii) The employees who have drawn the employer's share under the EPF Act, partly or wholly shall have to refund the same with interest in the event of their opting for the DTC Pension Scheme. The total amount to be refunded by the employees would be the amount that would have accrued, had they not withdrawn the employer's Share.
iii) Inviting/exercising option shall be provisional and subject to exemption from the RPFC and refund of the amount held by them. In case, no exemption is received from RPFC, this option shall become redundant, and the status of an employee shall be the same as is before the issue of these orders.
iv) The Unit Officers/Depot Managers, after receiving the Options, shall send the list of existing employees who exercised their option in favour of DTC Pension Scheme to the Pension Cell within a week of closing the date of option.
v) All employees who are roll of the Corporation on the date of issue of this Office Order shall be eligible to opt DTC Pension Scheme and to exercise their option within 30 days from the date of issue of this Circular.
After receiving the list of employees exercising their option in favour of DTC Pension Scheme, the matter would be examined. The decision of the management shall be final.
Sd/-
(Ramesh Chander ) Addl. Chief Accounts Officer"
6
(OA No.787/2016)
6. Many employees gave their option against this letter. The applicant produced copy of the letter dated 28.10.2002 which shows a list of those who opted for pension and applicant's name appears at serial no.172 of this list.
The applicant is aggrieved that despite this option, he was continued under CPF Scheme and the employer's share has also been credited to his bank account and he has been denied the DTC pension. Feeling aggrieved, the instant OA has been filed seeking the following reliefs:
"i) The respondent no.1-DTC may be directed to grant the pension alongwith its arrears of pension with interest to the applicant under DTC Pension Scheme along with commutation amount of pension with compound interst @ 12% p.a. from the date of retirement to till the release of final payment as the applicant has opted DTC Pension Scheme.
ii) The respondent no.2-RPFC may be directed to refund the entire contribution towards EPS'95 (including FPS'71) with interest to the respondent No.1-DTC as applicable from time to time on provident fund, which has been deposited by the Respondent No.1-DTC inadvertently."
7. The applicant relied upon the following judgments:
i) Decision of the Hon'ble High Court of Delhi in DTC Workers Union & Ors. v. Delhi Transport Corporation & Ors., [Writ Petition (Civil) No.48/2001, dated 31st October, 2006].7
(OA No.787/2016)
ii) Order of this Tribunal in D.T.C. Workers Union & Ors. v. Delhi Transport Corporation & Ors., [CM No.8732/2005 in TA No.770/2009, dated 13th August, 2009].
iii) Decision of the Hon'ble High Court of Delhi in Jagdish Chandra v. DTC and Ors., [W.P. (C) No.672/2012, dated 22.07.2013].
iv) Decision of the Hon'ble High Court of Delhi in B.R. Khokha v. Delhi Transport Corporation, [W.P. (C) No.6630/2016, dated 14.09.2016].
v) Decision of the Hon'ble High Court of Delhi in DTC v. Shri Jagdish Chandra & Ors., [Writ Petition (Civil) No.8173/2016, dated 21.03.2017].
vi) Decision of this Tribunal in Shri Rajinder Kumar Modi v. The Chairperson-cum-Managing Director, DTC, [OA No.1276/2015, dated 12.09.2018].
vii) Decision of this Tribunal in Sh. Ram Chander v. DTC & Anr., [OA No.2042/2016, dated 12.04.2019].
8. The respondents opposed the OA. The respondents pleaded that the applicant had consciously opted to remain in CPF Scheme when the options were called for on 27.11.1992 and this is an admitted fact. He subsequently retired and his retiral dues have accordingly been settled and 8 (OA No.787/2016) as these retiral dues have been received by him without any protest, he cannot have any grievance in this regard at this stage.
9. The respondents also pleaded that the option called for on 28.10.2002 were in the nature to assess the implications before a final decision could be taken. A close reading of this letter (para-5 supra) makes this aspect very clear. Once options were received financial implications were required to be examined.
9.1 Even thereafter the implementation of pension scheme was subject to whether EPFO organization will agree for implementation of the same in DTC. In this context it was brought out that as per notification issued in 1995 an organization was either to be fully covered by EPFO or it was to be fully excluded. The EPFO did not envisage a system wherein some employees in an organization were to be covered by the CPF Scheme while some were to be covered by the pension scheme.
Eventually the RPFO never agreed for partial withdrawal of the DTC and as such the options called for on 28.10.2002 could never be acted upon.
10. It was also pleaded that in the context of the letter dated 28.10.2002 since options were subject to examination 9 (OA No.787/2016) mere exercising of an option does not generate a vested right in any employee. Accordingly the relief sought at para (i) in para 6 above, is not admissible.
11. The EPFO who are respondent No.2 had also pleaded that the relief at para (ii) in para 6 above, sought by the applicant, pertains to certain financial transactions between the DTC (respondent no.1) and EPFO (respondent no.2). The applicant herein has no direct dealing with the EPFO organization and as such what happens between the DTC and EPFO is not a subject matter of adjudication by the applicant. On this account relief sought at para (ii) is not maintainable.
12. Respondent no.2 also brought out that the financial transactions in relation to CPF Scheme, pertain to obligation on the part of DTC to deposit contributions with the EPFO. These contributions were actually not deposited by the DTC and this is already a subject matter of adjudication by the Hon'ble High Court of Delhi in W.P. (C) No.1712/2013 and the decision thereof is still awaited.
13. The respondents also pleaded that the reliefs sought is barred by limitation as the applicant retired on 31.08.2013 and the OA has been filed in 2016. It was also pleaded that the applicant received all his retiral dues without any 10 (OA No.787/2016) protest. Accordingly, he cannot turn around now and raise any grievance now.
14. The applicant had relied upon the judgment by the Hon'ble High Court in B.R. Khokha's case (supra). The factual matrix of this case has been observed by the Hon'ble High Court themselves. This reads as under:
"2. The necessary facts, to be noticed for disposal of this writ petition, are that on 19.11.1966 petitioner joined the respondent/Corporation. On the lines of the scheme of the Central Government, the respondent issued the Office Order bearing No.16 dated 27.11.1992 introducing Pension Scheme with retrospective effect in lieu of management share of provident fund and to opt out of the pension scheme. The petitioner did not give any preference for the Pension Scheme pursuant to the Office Order dated 27.11.1992."
It is clear from these observations made by Hon'ble High Court that when the options were to be exercised as per the DTC Pension Scheme dated 27.11.1992, the petitioner had actually opted for pension scheme. However, the DTC did not treat him under pension scheme and settled him under CPF scheme. This was stuck down by the Hon'ble High Court and he was covered under DTC pension scheme.
15. The factual matrix of B.R. Khokha vis-a-vis that of the instant applicant, is thus entirely opposite in the sense that the applicant herein had admittedly not opted for pension and thus by implication he continued under CPF scheme. 11
(OA No.787/2016) The ratio of this judgment is, therefore, not attracted in the instant case.
16. The respondents relied upon the following judgments:
a) Decision of the Hon'ble High Court of Delhi in Rati Bhan v. DTC, [W.P. (C) No.7477/2011, dated 14.10.2011], where the Hon'ble High Court held as under:
"6. According to the petitioner, the respondent had issued another office order dated 28th October, 2002 inviting option from all the employees of DTC who wanted to opt for DTC Pension. The option was to be exercised within 30 days. The petitioner pleaded that he exercised his option under office order dated 28th October, 2002 on 11th November, 2002.
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9. Since the respondent had not granted the pension to the petitioner, he filed a writ petition being W.P(C) No.13206-07/2004, which was later on transferred to the Central Administrative Tribunal and was re-numbered as T.A No.632/2009. The Central Administrative Tribunal by its order dated 4th June, 2010 disposed of T.A No.632/2009 by directing the respondent to consider the claim of the petitioner in terms of the official policy and on account of option exercised by the petitioner on 11th November, 2002. The respondent, thereafter, rejected the claim of the petitioner by the order dated 17th September, 2010 observing that so far as the office order dated 28th October, 2002 and note of September, 2003 are concerned, they were provisional and were in the nature of intimation of intents and did not involve a commitment in any manner. In any case the order dated 28th October, 2002 categorically stipulated that the respondent had to examine the matter after receiving the option from different employees and the decision of the respondent in this regard was final. Even the press note dated September, 2003 stipulated that the final decision would be taken by the respondent and that the decision would be binding on the employees including the petitioner. Reliance was also placed on the writ petition being CWP No.13211 & 15215 of 2004 titled as Shyam Lal & Anr. v. DTC which was disposed of by an order dated 28th February, 2007 wherein the plea of the respondent that the office order dated 28th October, 2002 and note dated September, 2003 were not final and were only intendment was upheld and the decision of the 12 (OA No.787/2016) respondent in 2005 that it lacked the resources to implement the pension scheme which could be formulated pursuant to the office order dated 28th October, 2002 and press note of September, 2003 was also upheld and, therefore, the order categorically stated that the petitioner is not entitled for any benefit under the pension scheme.
xxx xxx xxx
14. The learned counsel for the petitioner has not shown any precedent of the High Court or the Supreme Court contrary to the decision in the case of Shyam Lal (Supra) or holding that the office order dated 28th October, 2002 and the option obtained under it entitled an employee to claim pension under the scheme of 27th November, 1992. This is also being not disputed by the learned counsel for the petitioner that pursuant to the option exercised under the scheme by office order on 27th November, 1992 a list of those employees who had exercised the option and who had become entitled for pension was released in 1996 wherein the name of the petitioner had not appeared and the petitioner had not objected to the same. In any case a perusal of the order dated 28th October, 2002 clearly reflects that the option exercised under the said office order dated 28th October, 2002 did not per se entitled a person for pension under the pension scheme of 27th November, 1992. Therefore, the petitioner is not entitled to claim that on account of him being a deemed optee under the scheme of 27th November, 1992, he is entitled for the benefits under the order dated 28th October, 2002 as well.
xxx xxx xxx
(iv) The management in an application filed in C.W.48/2001 DTC Workers‟ Union Vs. informed the Delhi High Court to record its inability to introduce the intended pension scheme as per office order dated 28-10-
2002.
xxx xxx xxx
16. The writ petition is, therefore, without any merit and it is dismissed. Parties are, however, left to bear their own cost."
It was pleaded that this judgment establishes that the scheme dated 28.10.2002 was an exercise to find out implications and it does not lead to a vested right to those who opted in response to it.
13
(OA No.787/2016)
b) Decision of the Hon'ble High Court in DTC v. The Regional Provident Fund Commissioner, Delhi, (W.P. (C) No.1712/2013 dated 20.03.2013].
c) Decision of the Hon'ble High Court of Delhi in DTC & Ors. v. Zile Singh, [W.P. (C) No.7043/2015 dated 19.01.2017], where the Hon'ble High Court has held as under:
"4. The petitioner Corporation vide letter/office note dated 20th October, 2002 had invited options from employees, who were not already covered under the pension scheme. This letter/office note dated 20th October, 2002 was not binding or conclusive offer. It was expressly stated that exercise of option by the employees was provisional and subject to exemption from the Regional Provident Fund Commissioner and refund of the amount held by them to the petitioner - Corporation. If exemption was not granted by the Regional Provident Fund Commissioner, the option exercised by the employee was redundant. In that event, the status of the employee would remain the same as before i.e. the employees would be covered by the Employees Provident Fund Scheme and not under the pension scheme.
5. It is an accepted and admitted case that the 2002 pension scheme was never operationalized. This fact is also noticed by the Tribunal in paragraph 7 of the impugned order. This finding is factually correct and accepted position.
6. The office order dated 20th October, 2002 had invited fresh option from the employees to be covered under the pension scheme. Albeit such employees were clearly told that the option was being entertained provisionally and would be operationalized only after and subject to satisfaction of specified conditions. The said stipulations were binding and sacrosanct. As the pension scheme pursuant to the office order dated 20th October, 2002 was never operationalized, no right accrued in favour of the respondent. This being the position, we do not think that the respondent is entitled to pension under the pension scheme dated 27th November, 1992, read with the provisional offer under office order dated 20th October, 2002.
xxx xxx xxx
14
(OA No.787/2016)
10. In the present case, the respondent employee had specifically opted out of the pension scheme dated 27th November, 1992 and, hence, he would not be covered by the same. Accordingly, we allow the present writ petition and set aside the impugned order dated 10th February, 2015. OA No.883 of 2013 filed by the respondent would be treated as dismissed. There would be no order as to costs."
This judgment also establishes the exploratory nature of the Scheme dated 28.10.2002.
d) Decision of the Hon'ble High Court of Delhi in DTC v. Jagdish Chandra and Ors., [Writ Petition (Civil) No.8173/2016 dated 21.03.2017] and Jagdish Chandra v. DTC & Ors., [Writ Petition (Civil) No.9949/2016 dated 21.03.2017].
e) Order of this Tribunal in Ranvir Singh Chhikara v. DTC & Ors., [OA No.739/2016 dated 06.07.2018], wherein this Tribunal held as under:
"3. Though in view of the above order, provisional option was sought and was given by the applicant but because no exemption has been granted, the option became redundant and the Scheme did not materialize.
xxx xxx xxx
5. Identical cases came up and they attained finality by the judgment of Hon'ble Delhi High Court in the case of Rati Bhan Vs. Delhi Transport Corporation, reported in 2011SCC OnLine Del 4394. The said Office Order of 2002 was discussed and held that the applicant therein was not entitled to be brought on DTC Pension Scheme. Again 15 (OA No.787/2016) in DTC Vs Shri Jagdish Chandra and Ors decided on 32.03.2017 in Writ Petition (Civil) No. 8173/2016, in para 16 it is further held that if no exemption is received from the Regional Provident Fund Commissioner, the option expressed shall become redundant."
f) Order of this Tribunal in Ajay Kumar Chawla v. DTC & Ors., [OA No.3924/2016 dated 25.09.2018]. 16.1 It was pleaded that OA is required to be dismissed.
17. The matter has been heard at length. Shri Jagdish Chandra Kundlia, learned counsel represented the case of the applicant and Shri Anurag Sharma and Shri Keshav Mohan with Sh. Rishi Awasthi and Ms. Akshara Chauhan represented the respondents.
18. It is admitted by the applicant that he had not opted for pension when the options were called as per policy letter dated 27.11.1992. The plea put-forth by the applicant for not opting for pension is on the line that the scheme was to be implemented by the LIC and a large number of employees had doubts whether LIC will actually operate the same and eventually the LIC had withdrawn also and thereafter it was decided by the DTC in the year October, 1995 that DTC will operate the pension scheme.
This contention has been examined. Since a clear option by the applicant to continue in CPF scheme was actually exercised, which is an admitted fact, therefore the 16 (OA No.787/2016) hypothetical question that the applicant had doubts about the capability of the LIC to implement the scheme and, therefore, he had not opted for pension, cannot be accepted.
19. The applicant had retired in August 2013 and took all the retiral dues without any protest. The instant OA has been filed in 2016 which is about three years later. The OA is, therefore, time barred and adequate explanation has also not been put-forth for delay except pleading that the applicant continued to pursue with the respondent-DTC to cover him under pension scheme. This argument is not acceptable and especially so in absence of any evidence in support of this argument.
20. The applicant's plea that he had opted for the pension scheme under the notification dated 28.10.2002 and thus he should be covered under pension scheme, is also not acceptable. The letter issued on 28.10.2002 makes it very clear that this was with a view to examine implications. This aspect has been upheld by judicial pronouncements also [para 16 (a,c,e) supra]. Therefore, taking any option under this letter does not lead to any vested right. This argument is, therefore, not acceptable.
21. The applicant had also pleaded that the Hon'ble High Court in DTC v. Jagdish Chandra & Ors. [WP (C) No.8173/2016 decided on 21.03.2017] and Jagdish 17 (OA No.787/2016) Chandra v. DTC & Ors. [WP (C) No.9949/2016 decided on 21.03.2017] had decided that DTC is not covered under the EPFO Act and, therefore, DTC ought not to have asked for the exemption from the EPFO in the first place and in that event this cannot be cited as a reason for non- implementation of pension scheme as per letter dated 28.10.2002. This proposition is not acceptable in view of the observations made by the Hon'ble High Court in the judgment relied upon by the applicant [W.P. No.8143/2016] which reads as under:
"14. In our opinion, the matter is covered by the Division Bench decision of this Court in Writ Petition (C) No. 7477/2011, Rati Bhan versus Delhi Transport Corporation, decided on 14th October, 2011. Referring to the notification dated 28th October, 2002 inviting options from employees who had not earlier opted for Pension Scheme of 1992 to opt for the same, it was observed that the office order dated 28th October, 2002 had showed only an intendment of the DTC. Use of the expression "provisional" was highlighted, to indicate that receipt or exercise of option would not create a vested right. Thereafter, on the basis of the number of applications received, DTC did not find it feasible/possible to implement the Pension Scheme of 1992 on account of financial implications and constraints. In other words, Office Order dated 28th October, 2002 had been issued to examine and ascertain the financial implication and feasibility of extending benefit of Pension Scheme of 1992 to non-optees. The Office Order dated 28th October, 2002 and subsequent Press Note dated 23rd September, 2003 did not give a crystallized right to the employees to claim pension under the Scheme dated 27th November, 1992. Refund of payments as per paragraph 2 of the Office Order dated 28th October, 2002 were not made or received.
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16. The decision in Rati Bhan (supra) had interpreted clause (iii) of the Office Order dated 28th October, 2002 in two parts. First, exercise of inviting options was 18 (OA No.787/2016) provisional, i.e. subject to examination of feasibility of implementing the DTC Pension Scheme dated 27th November, 1992 to those who had expressed their desire to be covered by the said Scheme. Secondly, this was subject to exemption from the Regional Provident Fund Commissioner and refund of the amount held with them. It was clarified that if no exemption was received from the Regional Provident Fund Commissioner, the option expressed shall become redundant. The 2 stipulations were independent of one another, as has been held and decided in Rati Bhan's case (supra)"
It can be seen from the above the DTC actually satisfied all conditions to be covered under EPFO and as such if still DTC was to be exempted to be covered from the EPFO it was for GNCTD to take a view.
Further, this belated contention can also not be accepted since the CPF Scheme had continued to be in force right from the time 1992 till applicant had retired and he had himself contributed towards the same all along and was fully aware of such deductions/contributions. This argument by the applicant, therefore, is not acceptable.
22. In view of the foregoing, the pleas put-forth by the applicant are not gaining acceptability. The OA is dismissed being devoid of merit. There shall be no order as to costs.
(Pradeep Kumar) Member (A) 'San.'