Central Administrative Tribunal - Delhi
Surender Kumar vs Delhi Transport Corporation, Govt. Of ... on 20 October, 2023
1
O.A. No.584/2020
M.A. No. 758/2020
Item No.23 (Court no. 4)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.584/2020
M.A. No. 758/2020
This the 20th day of October , 2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
Surender Kumar
Aged about 60 years,
S/o Late Sh. Shri Chand R/o H. No. 277, Village Khera Khurd,
Delhi-110082 Mob. No. 9312435033 Post: Assistant Store Keeper
Group-C
........Applicant
(By Advocate : Ms. Shradha for Mr. Anuj Aggarwal)
Versus
Delhi Transport Corporation
Through the Chairman,
Depot-4, Sector-18, Rohini, New Delhi-110085
...Respondent
(By Advocate : Mr. Ajesh Luthra)
2
O.A. No.584/2020
M.A. No. 758/2020
Item No.23 (Court no. 4)
O R D E R (ORAL)
By virtue of the present O.A., the applicant is seeking the following relief:
"(i) declare the impugned decision taken in the Pension Trust meeting dated 29.10.2013 by the respondent whereby it was decided that due to shortage/paucity of fund, the payment of commutation of pension, dearness relief to pensioners from July, 2013 onwards may be deferred till the budgetary support is given by the DTC/Govt. of NCT of Delhi as illegal, unjustified, arbitrary, discriminatory, punitive, unreasonable, unconstitutional, ultra vires, violative of Articles 14, 16 & 21 of the Constitution of India;
(ii) issue an appropriate order/direction to the respondent for releasing/granting the commutation value of pension payable to the applicant at the time of his retirement i.e. 31.03.2019 along with appropriate interest to be calculated @ 12% p.a.; and
(iii) allow the present Original Application with costs in favour of the applicant; and
(iv) issue any other order or direction as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in the favour of the applicant;"
2. The factual matrix of the case is as follows:-
(i) The present applicant joined DTC as a conductor in October 1982 and retired from DTC on 31.03 2019. At the time of retirement, the respondents paid him full pension and other pensionary benefits. However, the applicant submitted a representation to the respondents for commutation of his pension as per the DTC pension scheme. The representation is dated 31.12.2018; however, according to the applicant, there was no response from the respondents. The applicant came to know that, due to the adaptation of the policy by DTC in its Pension Trust meeting dated 29.10.2013, the respondent 3 O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) decided not to commute the pension to the retired employee.
The applicant and similarly placed employees who retired from DTC are suffering as a result.
3. The applicant has taken following grounds in support of the relief prayed by him:
(i) The financial condition of the DTC is not a valid reason for denying the pension to retired employees. The learned counsel for the applicant asserts that, because the DTC has adopted the pension scheme, retired employees have the right to have their pension commuted instead of receiving the full pension.
(ii) The learned counsel for the applicant asserts that the Pension Trust Fund is not competent to take a decision regarding the payment of pension or commuted value of pension to retired employees. The pension scheme was introduced by DTC in the year 1992 with retrospective effect from August 3, 1981. Since then all retired employees were receiving pensionary benefits, including commuted value of pension, in the same manner. The present applicant should have been allowed the commutation of his pension as per the rules. In support of her argument, the learned counsel for the applicant cited the decision of the Hon'ble Apex Court in Deokinandan Prasad v/s. The State of Bihar, (1971) 2 SCC 330 wherein it was held:-
"35. Having due regard to the above decisions, we are of the opi- nion that the right of the petitioner to receive pension is property under Art. 3 1 (1) and by a mere executive order the State had no power to withhold the same. Similarly, the said claim is also 4 O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) property under Art. 19(1)(f) and it is not saved by sub-article (5) of Art. 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner fight to receive pension affects the fundamental right of the petitioner under Arts. 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Art. 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law."
(iii) The learned counsel for the applicant further cited the judgment of Hon'ble High Court in Delhi Transport Corporation V/s K.K. Berry & Ors., MANU/DE/9107/2006 wherein in similar situation Hon'ble High Court held:-
"11. The pensioners were aggrieved by the said `due and drawn' statement. It is their contention that an employee becomes entitled to the commuted value of pension on the very next day after having retired from service and the amount of pension is reduced proportionately, i.e., by 1/3rd. It is submitted that the correct way of calculating the amount of EPF to be refunded by the pensioners was that from the entire amount of the EPF, the commuted value of the pension should be deducted first and thereafter on the balance, if any, the interest may be calculated month-wise by adjusting the monthly pension that becomes due and payable to the pensioners. It was also pointed out that the Government in any event takes care of the interest payable on the commuted pension inasmuch as that the amount of commutation is calculated on the pension likely to be earned by the retiring persons during the next 10 years depending on the age factor. This commuted amount is then paid to the retiring employee immediately on his retirement. Thereafter the employee starts receiving the proportionally reduced pension, i.e., 1/3rd of the basic pension. The full pension is, however, restored to the retired employee after 15 years and not after 10 years for which the calculations are made. In other words, the commuted portion of the pension paid in advance is recovered back fully with interest by the Government.
18. There is also no answer by the appellants to the point made by the respondent pensioners that while the award of pension is calculated on the basis of the pension likely to be earned by the retiring person during the next ten years depending on his age factor, the full pension is received only after 15 years and not after 10 years. Therefore, obviously, the portion of the commuted value of pension paid in advance is recovered back together with the interest that such amounts could have earned. There appears to be no specific denial by the appellant to this averment made in para 12(iii) of the writ petition. The only stand by way of reply is that there is no specific provision in the 1972 Rules for payment of such interest. We are of the view that the absence of a provision to 5 O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) pay interest on the commuted value of the pension cannot be offered as an explanation for answering the charge of arbitrariness and unreasonableness resulting from the denial of the payment of such interest, particularly in view of the fact that the Government, and now the appellant, have chosen to arm themselves with specific powers to charge such interest from the pensioners on the amounts that they seek to recover from them by way of refund of the EPF dues."
4. Per contra, learned counsel for the respondents draws attention to para 1.6 of the counter reply which states as follows:-
1.6 . It is respectfully submitted that the employer is well within its rights to impose restrictions on the remuneration of the employees in the event of the organization facing financial crises. Obviously, the DTC Pension Corpus Fund had been facing financial crises. Taking into consideration the availability of funds, the respondents, in their best judgment, have worked out a middle path whereby interests of both the sides are balanced. The present case is squarely covered by the decision of the Hon'ble Tribunal in Chatter Pal V/s DTC OA No. 414/2016 decided on 30.05.2017."
5. The learned counsel for the respondents asserts that DTC is an Autonomous Organization, and its pension fund is not directly funded by the State Exchequer of the Delhi Government. The financial condition of this organization will determine the manner in which pensionary benefits are provided to retired employees. He further submits that the CCS Pension Rules of 1972, which are applicable to Central Government employees, are not applicable to the present case.
6. In response to averment regarding competency of the respondents to take decision regarding commutation of pension, learned counsel for the respondents referred to the minutes of the meeting dated 29.10.2013, which reads as under:-
"(i)The matter may be taken up with the DTC EPF Trust for.
purchase of bonds/loan against these bonds to avoid loss on premature encashment of bonds.
6O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4)
(ii) The matter may be taken up with DTC and Govt. of NCT of Delhi for providing the funds/budgetary support to DTC Pension Trust for disbursement of pension.
(iii) Due to shortage/paucity of fund, the payment of commutation of pension, dearness relief to pensioners from July, 2013 onwards may be deferred till the budgetary support is given by the DTC/Govt. of NCT of Delhi.
(iv) Any incremental Pension Liability on account of fixation of pre 2006 pensioners, enhancement of pension on age factor and residuary benefits and payment of family pension from Civil side to Military Family Pensioners as per Govt. notification may be deferred till the budgetary support is given by the DTC/ Govt. of NCT of Delhi."
6.1. In view of the above, the decision not to allow commutation of pension of DTC employees is not that of the Pension Trust Fund, but that of DTC itself. DTC is competent to take such decision.
7. The learned counsel for the respondents further avers that the decision to defer commutation of pension is not a permanent policy. This decision is due to the financial condition of DTC and due to inability of the Government of the National Capital Territory of Delhi to finance pension commitments of DTC employees. Until financial assistance is received from the Government of the National Capital Territory of Delhi, the Autonomous Organization, DTC, has decided to defer the payment of commutation to its retired employees who are retiring during that period.
7.1. The learned counsel for the respondents further states that when an Autonomous Organization like DTC is facing financial crises, it has the discretion to decide the manner in which retirement benefits, such as commutation pension, shall be granted to its retired employees. In 7 O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) support of his assertion, the learned counsel for the respondents cited the order of this Tribunal in Chatter Pal v/s. DTC and Ors., OA No. 414/2016 decided on 30.05.2017. In the said OA, the applicant sought directions from the respondents to grant commuted value of pension with 12% interest from the date of retirement. The Tribunal declined the relief to the said applicant, citing a series of judgments given by the Hon'ble Apex Court.
7.2. The learned counsel for the respondents further cited the decision in the matter of Chairman & M.D., K.S.R.T.C vs K.O. Varghese & Ors on 9 July, 2007, relevant para of the same reads as under:-
"18. Even before us, also, it has been clearly pleaded by KSRTC that its financial position is unsound. In fact, the High Court has also noticed it. This Court has held that the financial position of a Corporation like KSRTC is certainly relevant when the Corporation takes a decision as to whether it should implement a recommendation for enhanced emoluments and pension. Since we find from the relevant aspects brought out that the financial position of KSRTC is not sound, we are of the view that the decision taken by the State Government not to implement, here and now, the recommendations of the Fifth Pay Commission for KSRTC and the decision based on it by KSRTC are fully justified. Certainly, the decision cannot be said to be vitiated by any extraneous consideration or perverse appreciation of the circumstances obtaining."
7.3 The learned counsel for the respondents avers that the judgment in Delhi Transport Corporation V/s K.K. Berry & Ors. decided on 05.09.2006 as well as the judgment in State of UP & Ors V/s Dr. Om Prakash Singh 2004 have held similar position that financial condition of an autonomous organisation would determine the manner in which Pension shall be commuted.
8O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) 7.4. In view of the above, the learned counsel for the respondents states that the applicant has no vested right to demand the commutation of pension if the financial condition of DTC and the amount available in the DTC Pension Fund do not permit it.
8. I have heard the learned counsel for the parties and perused the records.
8.1. In the present case, the applicant is requesting the commutation of his pension and seeking relief in the form of a direction to the respondents for the payment of commuted amount of pension. I agree with the contention of the learned counsel for the respondents that DTC is an Autonomous Organization, and its financial position determines the manner in which pensionary benefits, like commutation, are to be paid to its employees. In this instance, the employee received the full pension, and his request to commute his pension as per the existing policy of DTC was not allowed due to the financial condition of the DTC. It is a fact that the DTC has requested financial support from the Government of the National Territory of Delhi to operate its pension fund. This request is evident from the proceedings of the Pension Trust meeting dated October 29, 2013, and the relevant portion has already been cited above.
8.2. I also agree with the contention of the learned counsel for the respondents that ratio of judgments laid down in Deokinandan Prasad (supra) is not applicable to the case at hand. In the instant case, Pension, including full Pension, has been granted to the applicant. Here 9 O.A. No.584/2020 M.A. No. 758/2020 Item No.23 (Court no. 4) the issue is whether the applicant has vested right to get a portion of his pension commuted. As the facts and the issues are quite distinguishable in the instant case in comparison to those obtaining in Deokinandan Prasad (supra) case, the ratio of said judgment does not apply to the instant case. That case is applicable only to the Central Government employee not to Autonomous Organization like DTC. I further agree that the ratio of judgments cited by the learned counsel for the respondents are applicable in the instant case. Similarly, the orders of this Tribunal in OA No. 414/2016 dated May 2017 are also applicable in the instant case. The subject matter in the OA No. 414/2016 is exactly same as in the present case.
9. In view of this, I have no doubt to take a divergent view than the one taken in the OA No. 414/2016. Accordingly, the present OA lacks merit and dismissed. No costs.
(Dr. Chhabilendra Roul) Member (A) /arti/