Central Administrative Tribunal - Delhi
Smt. Krishna Devi vs Delhi Transport Corporation on 25 March, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2146/2010 O.A.No.2501/2010 O.A.No.2822/2010 O.A.No.2804/2010 O.A.No.2719/2010 T.A.No.1024/2009 O.A.No.1162/2011 Friday, this the 25th day of March 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) OA 2146/2010 1. Smt. Krishna Devi wd/o late Shri Om Prakash, Asst-in-charge, PT No.4126 r/o House No.309, Prahladpur Delhi-42 2. Sunil Kumar Garg, Conductor B.No.21938 s/o late Shri Om Prakash r/o House No.309, Prahladpur Delhi-42 ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Ms. Avnish Ahlawat) OA 2501/2010 Balbir Singh, Ex-ATI, P.T.No.20143 s/o late Shri Bhagwana r/o Village & PO Sahibabad Daulat Pur House No.453, Bawana Road, Delhi-42 ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Ms. Avnish Ahlawat) OA 2822/2010 1. Hari Singh Chauhan, Ex. Driver, B.No.5850, Rohini-II s/o late Shri Mansa Ram r/o Village Dahi Sahara, PO Jatti Kalan District Sonepat, Haryana 2. Ram Mehar, Ex. Driver, B.No.4930, WPD-II s/o late Shri Jage Ram r/o House No.772/22, Shastri Park Old Rohtak Road District Sonepat, Haryana 3. Jagdish Chander, Ex. Driver, B.No.6645, GTKD s/o late Shri Basant Singh r/o House No.192 Village, PO Bhalaswa Delhi-33 4. Om Prakash, Ex. Conductor, B.No.11868, YVD s/o late Shri Ganesh Lal r/o H.No.122, Harijan Colony, Village Bhalswa Delhi-33 5. Karan Singh, Ex. Conductor, B.No.12357, Okhla s/o Kanhaiya Lal r/o B-69, Nange Ram Park, Phool Kalan Delhi-86 6. Krishan Kumar, Ex. Driver, B.No.11736, WPD-III s/o late Kartar Singh r/o village hamidpur Pur, Delhi-36 7. Bhag Mal, Ex. Conductor, B.No.18209, MPD s/o late Shri Sumer Singh r/o H.No.76, Harijan Colony, Village Bhalswar Delhi-33 8. Jai Singh, Ex. Conductor, B.No.18279, VVD s/o late Shri Bal Ram Singh r/o 77-B, Humayunpur, Delhi-29 9. Samajh Pal, Ex. Conductor, B.No.18880, GTK s/o late Shri Charan Singh r/o 78 Village Hamidpur, PO Alipur, Delhi-36 10. Suresh Pal, Ex. S/Guard, B.No.730, WPD-I s/o late Shri Moti Ram H.No.37, Village Akhbarpur & Post Palla Delhi-36 ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Shri J S Bhasin) OA 2804/2010 1. Inder Singh, Ex. Conductor, B.No.4776, WPD-II s/o late Shri Kanahiya Lal r/o Village Salimsar Majra, PO Khas District Sonepat, Haryana 2. Dharambir Singh, Ex. Conductor, B,No.5677, BBMD-II s/o late Shri Dalip Singh r/o Village Mahra District Sonepat, Haryana 3. Balbir Singh, Ex. Asstt. Fitter, B.No.8988, WPD-I s/o late Shri Kesho Ram r/o Village Bagru, PO Tihar Bagra District Sonepat, Haryana ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Shri J S Bhasin) OA 2719/2010 1. Roop Ram, Ex. TI, PT No.3914, BBMD-I s/o late Shri Jai Lal, r/o Village Naina, PO Bhola District Sonepat, Haryana 2. Ishwar Charan, Ex. TI, P.T.No.20592, GTKRD s/o late Shri Tara Chand, r/o House No.210, Gali No.3 Village & PO Shalimar, Delhi-88 3. Raghu Nath, Ex. ATI, P.No.16015, BBMD-I s/o late Shri Jai Lal r/o House No.375/7, Vilage Shalimar, Delhi-88 4. Prem Parkash, Ex. ATI, P.T.No.16062, BBMD-I s/o late Shri Sultan Singh r/o village & PO Murthal District SOnepat, Haryana 5. Surat Singh, Ex. Conductor, PT No.20267, GTKD s/o late Shri Pokarmal r/o village & PO Murthal District Sonepat, Haryana 6. Tej Pal, Ex. Conductor, P.T.No.19747, WPD-III s/o late Shri Singh Ram r/o Naina Tatan Pur, PO Bhola District Sonepat, Haryana 7. Raj Pal, Ex. Conductor, B.No.9695, GTKD s/o late Shri Subey Singh r/o village & PO Barwasni District Sonepat, Haryana 8. Partap Singh, Ex. Driver, P.T.No.15432, OKHD-I s/o late Shri Net Ram r/o village & PO Malhana District Sonepat, Haryana 9. Hari Chand, Ex. Driver, P.T.No.13090, WPD-I s/o late Shri Ram Sarup r/o Village & PO Malhana District Sonepat, Haryana 10. Ram Phal Singh, Ex. Conductor, PT No.29869, WPD-III s/o late Shri Ram Kishan r/o Village & PO Khubru District Sonepat, Haryana 11. Jagat Singh, Ex. Driver, PT No.36637, WPD-II s/o Shri Chatter Singh r/o Village & PO Jind District Jind, Haryana ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Shri J S Bhasin) TA 1024/2009 in WP (C) 4852/2001 1. Shri Harvinder Pal Singh Conductor, B.No.18005 s/o Shri Sohan Singh r/o 14/34-B, Tilak Nagar, New Delhi-18 ..Applicant (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Shri B Bhattacharya for Shri Anand Nandan) OA 1162/2011 1. Rm Murti wd/o late Shri Om Parkash, Ex. Conductor PT No.28154, WPD-III r/o House No.220, Village Gamri, PO Gohana District Sonepat, Haryana 2. Bhagwan Dass, Ex. Conductor, PT No.22997, OD-II s/o late Shri Amar Chand r/o 784 Mohalla Kaziwara, Palwal District Faridabad, Haryana ..Applicants (By Advocate: Shri Anil Mittal) Versus Delhi Transport Corporation IP Estate, New Delhi-2 Through Chairman-cum-Managing Director ..Respondent (By Advocate: Ms. Avnish Ahlawat) O R D E R (ORAL)
Shri M.L. Chauhan:
By this common order, we propose to dispose of these aforementioned OAs and TA, as common question of law and facts is involved.
2. These applications have been filed by the applicants as well as the LRs of the deceased, who were working under the Delhi Transport Corporation (DTC) as Conductor, etc. and have sought voluntary retirement under DTC voluntary retirement scheme (VRS) dated 3.3.1993. The case set up by the applicant(s) is that in terms of the provisions contained in the said scheme, the employees, who had sought retirement, would be eligible for pension even though they had relinquished their right for the same by withdrawing from the pension scheme and accepting the benefit of Contributory Provident Fund (CPF) scheme. For that purpose, the reliance was placed on the earlier decision as well as recent decision of the Honble Delhi High Court in LPA 2632/2005 decided on 1.4.2009 whereby it was held that employees, who were in service on or after 27.11.1992 and taken voluntary retirement in 1995, are entitled to pension.
3. Notice of these applications was given to the respondents and the respondents have filed reply.
4. The respondents have categorically stated that the matter in issue is entirely covered by the judgment rendered by the Honble Delhi High Court in Delhi Transport Corporation v. Madhu Bhushan Anand (WP (C) No.14027/2009 and connected petitions) decided on 10.8.2010 (Annexure R-11 annexed with the reply to the OA-2822/2010), which judgment has further been affirmed by the Honble Apex Court by dismissing the SLP vide order dated 3.12.2010 (Annexure R-12 to the reply in OA-2822/2010). Thus, according to the respondents, the applicants are not entitled to any relief.
5. We have heard the learned counsel for the parties and gone through the judgment of the Honble High Court of Delhi in Madhu Bhushan Anands case (supra).
6. As can be seen from paragraph 30 of the judgment of the Honble High Court, the 18 writ petitions, which were decided by the common judgment, were divided into 3 categories. Category 1 deals with the cases where the respondents before the Honble High Court have specifically opted for the pension schemes when they submitted their offer for being voluntary retired as per the terms and conditions notified in the voluntary retirement scheme notified on 3.3.1993, which was made applicable by reference to the subsequent schemes notified in the year 1993. The second category consists of those respondents, who having not submitted any option, have to be treated as deemed optees for the pension scheme when they submitted their offer for being voluntarily retired as per the terms and conditions notified in voluntary retirement scheme notified on 3.3.1993, which was made applicable by reference to the subsequent schemes notified in the year 1993. In the instant cases, we are not concerned with third category, as the applicants before us are claiming benefit under the voluntary retirement scheme notified on 3.3.1993 on the ground that they have received retirement under the aforesaid scheme, as such, they are entitled for pensionary benefits in terms of the order dated 27.11.1992, even if no specific option has been exercised by them. The claim of the applicants, who fall in first and second categories, was dealt with by the Honble High Court in paragraph 35 of the said judgment, which thus reads as follows:-
35. The claim of the respondents in category 1 and category 2 may be taken up together for the reason whether they exercised a positive option to be brought under the pension scheme or having exercised no option whatsoever and hence as deemed optees being brought under the pension scheme, their status would be the same as entitled to be brought under the pension scheme under the notification dated 27.11.1992. Since all these respondents applied for being voluntarily retired when the scheme notified on 3.3.1993 was extended from time to time in the year 1993, they certainly would be entitled to pension for the reason clause 4(g) of the scheme notified on 3.3.1993 clearly stated that such persons would be entitled to pensionary benefits. But, there are certain further facts which need to be noted qua them. The case of the Corporation is that having opted under the pension scheme or deemed to have opted under the pension scheme, the said respondents specifically opted out from the pension scheme and by the time they retired under the Voluntary Retirement Scheme, the pension scheme had not been formally brought into effect (as noted above it was formally brought into effect for the retirees who retired post 1.11.1995), they filed applications specifically stating that they intend to opt out of the pension scheme and be retained as members under the Contributory Provident Fund Scheme and thus on accepting their offers to be voluntarily retired the Corporation paid over to them not only their share in the Contributory Provident Fund Account but even the managements share, which they accepted without demur and hence could not rake up the issue after 12 to 15 years i.e. when they filed either writ petitions in this Court which were transferred to the Central Administrative Tribunal or filed Original Applications before the Central Administrative Tribunal.
7. Thereafter, after discussing the facts of the case falling under the aforesaid category and noticing the contentions of the applicants to the effect that they were under compulsion to opt out of the pension scheme after they had submitted their offer to be voluntarily retired and after the same was accepted and they stood retired, the Honble High Court made the following observations in paragraphs 43 & 44, which reads as under:
43. The compulsion alleged by them is the uncertainty of pension being released. As noted hereinabove the pension scheme notified on 7.11.1992 could not take off because LIC did not fund the scheme as envisaged and later on the Central Government agreed to fund the scheme on 31.10.1995 and indisputably those who retired after 1.11.1995 were paid pension. Thus, the compulsion resulting as the consequence of the uncertainty of pension being released, which may have been uncertain when the said respondents opted out to receive pension and reverted to receive benefit under CPF, came to an end on 1.11.1995. 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, by pulling wool over the eyes of the Court by pleading that their act of subsequently opting out of the pension scheme was meaningless because the contract stood concluded, a submission which was accepted by the Courts without considering the further issue of contract being novated.
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 the 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, laches 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. and ultimately in paragraph 47, the Honble High Court allowed the writ petitions and set aside the order of the Tribunal whereby the benefit was extended by the Tribunal in terms of the 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.
8. As already stated above, the judgment of the Honble High Court has been affirmed by the Honble Apex Court by dismissing the SLP, thus, according to us, the controversy raised by the applicants in these matters is squarely covered by the judgment of the Honble High Court, as approved by the Honble Apex Court. That apart, the effect of contradictory judgments rendered by this Tribunal in the light of the voluntary retirement scheme framed by the DTC, vis-`-vis, the pension scheme dated 27.11.1992 was considered by the Full Bench of this Tribunal in Shri Raj Kumar v. Delhi Transport Corporation (OA-3088/2009 with connected matter) decided on 24.3.2011 and this Tribunal disposed of the matter by holding that the issue stands resolved by the judgment of the High Court and upheld by the Honble Apex Court. The Tribunal further held that there will be no need for us to consider the issue in the Full Bench and made the following observations:-
7. The law, as laid down by the Delhi High Court and upheld by the Honourable Supreme Court, in the matter would be that an employee of the Delhi Transport Corporation, retiring on seeking voluntary retirement under the scheme of 03.03.1993, will not be eligible for pension as envisaged in order dated 27.11.1992, even though he/she had opted or deemed to have opted for it, in case he/she later withdrew the option for pension and accepted the retirement benefits of the CPF..
9. In view of what has been stated above, we are of the view that the aforesaid OAs and TA deserve to be dismissed, as the matter is fully covered by the judgment rendered by the Honble High Court in the aforementioned decision and affirmed by the Honble Apex Court, as also the view expressed by the Full Bench of this Tribunal based upon the judgment of the Honble High Court.
10. Learned counsel for applicants while inviting our attention to the letter dated 24.3.2009 (Annexure A-7 to the rejoinder in OA-2146/2010) argued that the direction may be given to the respondents to place the matter before the Cabinet for decision/re-consideration, as some of the retired people, who had taken retirement under voluntary retirement scheme and formed an association, had sent representation to the Chief Minister, Delhi seeking pension and it was under these circumstances that DTC has taken a decision to place the matter before the Cabinet. We are not inclined to grant any such direction, inasmuch as the so-called letter is dated 24.3.2009.
11. We have also perused letter dated 24.3.2009. It is an intimation given by the Senior Manager (A)/Pension to B.S. Dabas, Convener, DTC retired employees Association and such a letter written by the Senior Manager cannot have any binding effect on the DTC. Be that as it may, the date of the said letter is 24.3.2009 whereas the DTC is agitating the matter even in 2010 by filing writ petitions before the Honble High Court, which makes it clear that the DTC is not inclined to extend the benefit of pension to employees, who had taken voluntary retirement and thereafter received the benefit under the CPF scheme after their retirement and are now agitating the matter after a lapse of about 12 to 14 years. Thus, no direction can be given to the respondents to act upon the letter dated 24.3.2009, as argued by the applicants.
12. With these observations, aforementioned OAs and TA stand disposed of. No costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/