Central Administrative Tribunal - Delhi
Shri Karan Singh vs Delhi Transport Corporation on 9 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 1068/2009 NEW DELHI THIS THE 9th DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) Shri Karan Singh, S/o Shri Mangal Singh, Ex-Conductor, D.T.C, C/o Choudhary Electronics, Agarwal Mandi, Tatiri, Distt. Bagpat, Uttar Pradesh. Applicant. (By Advocate Ms. Rashmi B. Singh) VERSUS Delhi Transport Corporation Through its Chairman-cum- Managing Director, I.P. Estate, New Delhi. Respondent. (By Advocate Ms. Jasmine Ahmed) ORDER
Mr. G. George Paracken:
This is a Writ Petition filed before the Honble High Court of Delhi numbered as WP (C) No. 7295/2002 and transferred to this Tribunal vide its order dated 16.03.2009 by virtue of the Notification No. S.O. 2580 (E) dated 01.12.2008 issued under sub-section (3) of Section 14 of the Administrative Tribunals Act, 1985 as the service matters pertaining to Delhi Transport Corporation (DTC for short) have been brought under the jurisdiction of this Tribunal. The prayers of the petitioner are as under:
a) to issue a writ of mandamus and/or in the nature of mandamus or any other appropriate writ or direction or order to the respondent for grant of pension to the petitioner in accordance with the pension scheme vide office order No. 16 dated 27.11.92 read with Voluntary Retirement Scheme, 1993;
b) to direct respondent to pay to petitioner and other similarly situate the arrears of pension payable along with interest due there at the rate of 18% per annum upto the date of payment;
c) the respondent should also be directed to pay amount of commuted value of pension to the petitioner and to pay interest at the rate of 18% p.a. on the said amount from the date of retirement; and
d) to pass such further order or orders as this Honble Court may deem fit and proper in the facts and circumstances of this case.
2. The relevant facts to be considered for adjudication of this case are as under:
(1) The petitioner joined service under the DTC as a Bus-conductor on 27.05.1983;
(2) The DTC introduced Voluntary Retirement Scheme (VRS for short) vide Annexure P-1 letter dated 03.03.1993. The eligibility for availing of the said Scheme was that an employee must have completed 10 years of service in DTC and completed 40 years of age and those who have been admitted to voluntary retirement were eligible for the following refunds/payments:
a) Balance in his PF Account as per rules of provident fund applicable to him;
Encashment of refused leave and accumulated Earned Leave as per rules of the corporation applicable to him as if he retires under the normal rules of retirement;
Gratuity as per payment of gratuity act and gratuity rules of the corporation applicable to him;
Three month notice pay as is applicable in the individual case as per the terms of him/her employment;
An Ex-parte payment equivalent to 1-72 months basic pay plus DA for such completed year of service limited to one month pay multiplied by the number of whole month of service left before normal date of retirement;
Expenses for traveling for the entitled class for the employee and his/her family comprising his/her spouse and dependent members from the place of his/her posting to the place where he/she intends to settle down in India;
Pensionary benefits as per Office Order No. 16 at 27.11.92. (3) According to the Annexure P-II Pension Scheme issued vide Office Order dated 27.11.1992 mentioned in Annexure P-I Scheme, it was on the same pattern as for the Central Government employees, subject to the following conditions:
1. The pension scheme would be operated by the LIC on behalf of DTC;
The date of effect of Pension Scheme would be 3.8.1981;
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;
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;
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;
The employees who have retired on or after 3rd August 1981 and the existing employees, who have drawn the employers 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 employers share;
Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them before any benefit under the Scheme, is granted to them;
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;
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. (4) In response to the applicants option/consent letter dated 18.03.1993, the competent authority, vide its letter dated 30.04.1993, a copy of which has been produced and placed on record, has accepted his request for VRS and he stood retired from the services of the DTC w.e.f. 30.04.1993 (A/N).
(5) From 25.07.1983 to 30.04.1993, the applicant had a total length of service of 9 years, 11 months, 5 days. The respondent DTC had given him a No Due Certificate vide Annexure P-III letter dated 30.08.1993. In the said letter, it has been stated that he had retired on 30.04.1993. Accordingly, his own share of the Contribution towards C.P. Fund was released and thereafter the amount has been paid by cheque. The Provident Fund Settlement Committee has accorded approval on 19.07.1993 and as per clearance certificate of the Unit, an amount of Rs.3135/- was recoverable from him towards loan against C.P. Fund.
(6) Since the applicant has not been paid pension w.e.f. 01.05.1993 onwards, he sent a notice through his advocate on 18.09.2002 calling upon the DTC to pay him the commuted value of pension and other terminal benefits with upto date arrears and interest for the delayed payment. Since there was no response to the aforesaid notice from the DTC, he has filed the present writ petition.
(7) The applicant in support of his aforesaid contention has relied upon a judgment of the High Court in LPA 33/98 Delhi Transport Corporation Vs. Shri Baijnath Bhargava & Ors. decided on 16.03.2000. One of the questions raised in the said LPA was whether DTC employees with less than 20 years of qualifying service but having put in 10 years or more qualifying service are entitled to pension on opting for voluntary retirement under the Voluntary Retirement Scheme introduced by DTC through Office Order dated 3rd March, 1993. The finding of the High Court in the said case was that there was no embargo in the Pension Rules that an employee having put in more than 10 years of qualifying service but less than 20 years and who is permitted to retire or is made to retire, in accordance with the Scheme will not earn pro rata pension. In other words, those who have put in more than 10 years of qualifying service but less than 20 years are entitled to get pro-rata pension under the VRS.
3. In the reply filed by the respondent DTC, they have stated that on 30.04.1993 i.e. on the date of retirement under VRS, the applicant had completed only nine years, one month and twenty five days of qualifying service. Out of the said period of service, he absented himself from duty for 98 days and the said period was treated as Leave Without Pay and, therefore, his qualifying service has come down to 9 years 1 month and 25 days. Since the said period of service was less than the minimum prescribed period of 10 years qualifying service, he is not entitled for pension. As regards the claim of the applicant for gratuity is concerned, they have submitted that he has not claimed the gratuity at all. However, he was given the service gratuity of Rs.5,175/- by cheque and the same has been accepted by him on 30.04.1993 along with other VRS benefits.
4. The learned counsel for the applicant, however, refuted the aforesaid contentions of the respondents. He submitted that, admittedly, the VRS issued on 27.11.1992 was on the same pattern as applicable to the Central Government employees. As far as the Central Government employees are concerned, they are governed by the CCS (Pension) Rules, 1972. According to Rule 49 (3) of the said Rules, in calculating the length of qualifying service, fraction of a year equal to (three months) and above shall be treated as a completed one half-year and reckoned as qualifying service. Therefore, when the applicant was having a total length of service of 9 years, 11 months and 5 days, by applying the aforesaid rules, he should have treated as having full 10 completed years of qualifying service. He has also submitted that he was never informed about the non-qualifying leave period before he was admitted to VRS.
5. We have heard the learned counsel for the applicant Ms. Rashmi B. Singh and the learned counsel for the respondents Ms. Jasmine Ahmed. It is an undisputed fact that the applicant was allowed to take voluntary retirement from service w.e.f. 30.04.1993 in terms of the respondents VRS. In terms of the aforesaid scheme, an employee who has completed 10 years of service in the DTC and completed 40 years of age, was qualified to be admitted to voluntary retirement. Once, the employee has been allowed to retire under the Scheme, he was entitled for various refunds/payments, including pensionary benefits as per order dated 27.11.1992 and there was no question of refusing them later. When the No Due Certificate was issued to the applicant vide letter dated 30.08.1993 as a pre-requisite of allowing him to accept voluntary retirement from service, it is evident on record that his case was considered as a pension case. It is also admitted by the respondent DTC that applicants case was considered as a pension case and he was paid his own share of the contribution towards CPF at the time of his retirement.
6. As held by the Honble High Court of Delhi in LPA 33/98 (supra), having once granted VRS, the respondent DTC cannot be permitted to back out of the said commitment thereafter and they are estopped from doing so. Unless the DTC had not assured him the pension, the applicant would not have opted for voluntary retirement under the VRS. The respondents are too late to say that he is not entitled for the pension under the VRS to which he has been admitted irrespective of the fact that his qualifying service has been later found to be less than 10 years.
7. In view of the above facts and circumstances of the case, we allow this O.A. We, therefore, direct the respondents to pay him the pension and all other benefits in accordance with the Pension Scheme issued by the DTC vide their Office Order dated 27.11.1992 read with VRS, 1993, taking into consideration that the applicant had the minimum 10 years qualifying service for payment of pension. The respondents are also directed to pay him upto date arrears of pension with interest at the rate applicable under the Provident Fund Scheme. They shall also consider his request for payment of commuted value of pension in accordance with the rules. However, they are at liberty to adjust any extra payments made to the applicant on his retirement w.e.f. 30.04.1993 treating him as a non-pensioner. The aforesaid directions shall be complied with, within two months from the date of receipt of a copy of this order. There shall be no order as to costs.
( A.K. Mishra ) ( G. George Paracken ) Member (A) Member (J) SRD