Central Administrative Tribunal - Delhi
Rattan Singh vs Delhi Transport Corporation, Govt. Of ... on 15 February, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.1007/2015
Reserved on: 07.02.2019
Pronounced on: 15.02.2019
Hon'ble Mr. A.K. Bishnoi, Member (A)
Rattan Singh S/o Chunni Lal, Age-61,
R/o H. No. 195, Ranikhera
Delhi-81.
-Applicant
(By Advocate: Ms. Neelima Rathore for Shri U. Srivastava)
Versus
1. Delhi Transport Corporation through
The Chairman cum Managing Director
DTC HQ, IP Estate,
New Delhi.
2. Dy. CGM Pension
DTC HO, IP Estate, New Delhi
3. The Dy. Manager (Acctts.)
DTC, Pension Cell, IP Estate,
New Delhi.
4. The Depot Manager
DTC, Nangoli Depot
Delhi.
-Respondents
(By Advocate: Shri Jatin Prashar for Shri Ajesh Luthra)
ORDER
The present OA has been filed seeking the following reliefs:-
"(a) Directing the respondents to place the relevant records pertaining to the present OA before the Hon'ble Tribunal for the proper adjudication in the matter.2 O.A. No.1007/2015
(b) Declaring the actions of the respondents ignoring the case of the applicant for extending the Pensionary benefit to the applicant on the pretext of not opted for it despite the facts that the applicant has opted to come over to DTC Pension Scheme vide its application dt. 14.11.02 further processed on
02.12.02 as illegal, unjust, arbitrary, malafide, unconstitutional, against the principles of natural justice and against the mandatory provisions of law with a further direction to the respondents to release the pension to the applicant keeping in view the facts that the applicant has already opted to DTC Pension Scheme firstly on 10.04.2000 subsequently on 14.11.02 that was further processed on 02.12.02 with all other consequential benefits namely the arrears thereof with interest, etc. admissible to the applicant in accordance with the relevant rules and instructions on the subject.
(c) Allowing the OA of the applicant with all other consequential benefits and costs.
(d) Any other fit and proper relief may also be granted to the applicant".
2. The facts of the case, as stated by the applicant, are as follows:-
2.1 The applicant has been working with the respondents after appointment on 07.12.1968. In the year 1992, a Pension Scheme was introduced by the DTC when the options were invited from the employees either to opt for the said Pension Scheme or for the Employees Provident Fund (hereinafter referred as EPF) Scheme.
The applicant opted for the EPF Scheme.
2.2 On 10.04.2000 (Annexure A-1), the applicant submitted a representation stating that he did not opt for the Pension Scheme under the circumstances and condition prevailing at that time but 3 O.A. No.1007/2015 in the changed circumstances, he is inclined for the Pension Scheme and may be treated as having opted for the Pension Scheme. However, the same was not acted upon. Subsequently, DTC introduced a Pension Scheme vide Circular dated 28.10.2002 following which the applicant submitted his option on 14.11.2002 (Annexure A-2) to be covered by the DTC Pension Scheme in terms of the aforesaid Circular, which was forwarded internally for further action by the concerned department vide order dated 02.12.2002 (Annexure A-3).
2.3 The respondents issued an order dated 11.08.2003 (Annexure A-4) informing the applicant that he will retire from the Corporation on 31.01.2004 and mentioning that he has not opted for DTC Pension Scheme. Thereafter, the applicant submitted another representation dated 11.02.2004 requesting that only his share of PF deposited may be released till the final disposal of pension option submitted by him. The respondents, however, issued an order dated 20.05.2004 (Annexure A-6) releasing the entire amount of CP fund.
2.4 The applicant made further representation to the respondents dated 29.09.2005 (Annexure A-7) requesting to release the pension in terms of the options submitted by him vide letter dated 14.11.2002. He has cited the order of this Tribunal in OA 4 O.A. No.1007/2015 No.883/2013-Zile Singh vs. DTC decided on 10.02.2015 in support of his case.
2.5 The applicant has mainly taken the following grounds in this OA:-
i) With regard to the options invited in the year 1992, he made a representation dated 10.04.2000 requesting the respondents to change his earlier option but no action was taken;
ii) The respondents vide Circular dated 28.10.2002 invited options from the employees regarding the DTC Pension Scheme in which the applicant filled up his option in the prescribed form on 14.11.2002 which was duly processed by the respondents;
iii) The respondents did not consider either his initial representation dated 10.04.2000 regarding change of option made in 1992 nor did they consider his option given on 14.11.2002 in response to the Circular dated 28.10.2002;
iv) The case of the applicant is squarely covered by the order of this Tribunal in OA No.883/2013 (supra).
3. Respondents in the counter reply have mentioned that in the year 1992, the applicant had the choice for opting for the DTC 5 O.A. No.1007/2015 Pension Scheme and he opted for EPF Scheme instead of DTC Pension Scheme. Subsequently, in the year 2002, fresh options were invited and he gave his option for the DTC Pension Scheme. The Scheme regarding which options were invited in the year 2002 did not take off and the Scheme introduced in the year 1992 continued. As the applicant had not opted for the said Scheme in the year 1992, he is not entitled for the DTC Pension. 4.1 Respondents have denied the contention of the applicant that he had submitted a representation dated 10.04.2000 and have contended that no such letter is available on record.
5. The applicant has submitted a rejoinder more or less reiterating the submissions made in the OA. He has also annexed the following judgements:-
(i) Judgement dated 30.07.14 of Hon'ble High Court of Delhi in W.P. (C) No.4728/14-Delhi Transport Corporation vs. Raj Singh (Annexure A/9).
(ii) Judgement dated 14.09.16 of Hon'ble High Court of Delhi in WP(C) No.6630/16-B.R. Khokha vs. Delhi Transport Corporation (Annexure A/10).
The following judgements have also been referred to:-
(i) Judgement dated 10.02.2015 of Principal Bench in O.A. No. 883/2013 (supra).
(ii) Judgment dated 10.12.1974 of Hon'ble Supreme Court in Amrit Lal Berry Vs. Collector of Central Excise, 1975 AIR
538. 6 O.A. No.1007/2015
(iii) Judgment dated 25.07.1997 of Hon'ble Supreme Court in K.C. Sharma & Ors. Vs. Union of India & Ors. 1998 (1) SLJ 54.
(iv) Judgment dated 19.07.1996 of Hon'ble Supreme Court in S.R. Bhanrale Vs. Union of India & Ors. 1997 (1) SLJ 14.
6. Learned counsel for the applicant while arguing the case submitted that the applicant had changed his option by giving the representation on 10.04.2000 but the same has not been considered and as such the applicant has been denied his right. Reliance has also been placed on an order passed by this Tribunal in Zile Singh (supra).
7. Learned counsel for respondents arguing the case submitted that the applicant had while exercising his option in the year 1992 chosen to opt for the EPF Scheme and as per the terms of the Scheme no change is permissible after the period of 30 days prescribed under the Scheme. He also contended that as there is nothing on record to show that the applicant had made a representation in the year 2000, and, even if the applicant made such a representation, it would have been made about eight years after he had exercised his option for EPF Scheme and that by no stretch of imagination can be termed as a reasonable time period. As regards the Scheme introduced in the year 2002, he has argued that the Scheme did not take off and as such no benefit can be 7 O.A. No.1007/2015 given to the applicant for giving fresh options under the said Scheme.
8. In support of his arguments, learned counsel for respondents cited the following judgments of the Hon'ble High Court of Delhi and of this Tribunal:-
"i) Delhi Transport Corporation & Ors. vs. Zile Singh in W.P. (C) N.7043/2015 decided on 19.01.2017;
ii) Rati Bhan vs. Delhi Transport Corporation in W.P. (C) No.7477/2011 decided on 14.10.2011;
iii) OA No. 1976/2012-Shiv Prakash & Ors. vs. Delhi Transport Corporation decided on 08.11.2017."
9. I have carefully gone through the pleadings, the arguments as also the judgments referred to by the learned counsel for two sides. The basic points of determination emerge as follows:-
a) When the applicant had opted for the EPF Scheme in the year 1992 can any benefit be granted to him on the basis of the representation made in the year 2000;
b) Whether it can be accepted on the face of record if such a representation was made;
c) What benefit accrues to the applicant on the strength of a choice that he had made vide letter dated 14.11.2002 following the Circular issued by the respondents inviting fresh options on 28.10.2002.8 O.A. No.1007/2015
10. Before proceeding further let me refer to the judgements cited by the applicant in support of his case. In DTC Vs. Raj Singh (supra), the employee had not responded in terms of the scheme dated 27.11.1992 and so got the benefit of Para 9 of the said scheme as per which if an employee did not exercise any option within the prescribed period of 30 days he shall be deemed to have opted for the pension scheme. The same is the case in B.R. Khokha (supra). In the present O.A., the applicant had consciously opted out of the scheme. Hence, the facts of the cases cited being totally different from that of the applicant in the present O.A. the ratio of the judgements referred to has no applicability in the instant matter.
As regards judgments of Hon'ble Supreme Court in Amrit Lal Berry (supra), K.C. Sharma & Ors. (supra) and S.R. Bhanrale (supra), the narration of the points of law inherent in these cases in the rejoinder itself indicates that they have no bearing on the present OA.
11. Coming back to the points of determination listed in para 9 above, points (a) and (b) can be taken together. It has been contested by the respondents that the applicant made a representation dated 10.04.2000 as claimed by him. However, to avoid elaborate discussion on the matter of facts, it can safely be stated that even assuming that the applicant made such a 9 O.A. No.1007/2015 representation, it would be eight years after the applicant had exercised his option for EPF Scheme and that by no stretch of imagination can be termed as a reasonable time period.
12. The Circular regarding exercise of options does not indicate any provision for changing the options but by making an interpretation of the time frame mentioned in para 9, it could be inferred that the period for changing an option could not be more than 30 days. Thus, the applicant cannot claim any benefit on account of his contention that he has made a representation on 10.04.2000 changing the option he made in the year 1992.
13. As regards the issue in para 10(c) above whether any benefit accrues to the applicant on the basis of the option exercised pursuant to the circular dated 28.10.2002, the applicant has cited the order in Zile Singh (supra). However, the referred order was challenged in W.P. (C) 7043/2015 dated 19.01.2017 (supra) before Hon'ble High Court of Delhi in which the Hon'ble High Court of Delhi ruled as follows:-
"3. The accepted and admitted position is that the respondent, an employee of the petitioner Corporation had specifically opted out of the pension scheme dated 27th November, 1992 and had given his preference to be covered by the Employees Provident Fund Scheme. To this extent, there is no dispute or lis between the petitioner Corporation and the respondent employee. It is not the case of the respondent employee that he had remained silent and by default was a pension optee under the pension scheme dated 27th November, 1992. This is a crucial fact which we observe and hold is the distinguishing factor between the case of the respondent and the employees in the judgments relied upon by the counsel for the respondent.10 O.A. No.1007/2015
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.
7. The view, we have taken, is in consonance with the decision of this Court dated 14th October, 2011 in W.P. (C) No. 7477/2011, Rati Bhan Vs. Delhi Transport Corporation. In this case also, the writ petition filed by the petitioner therein was dismissed noticing the employee had opted out of the pension scheme dated 27th November, 1992. The employee had thereafter exercised provisional option under the office order dated 20th October, 2002, which was never implemented.
8. Counsel for the respondent has drawn our attention to a Division Bench judgment dated 14th September, 2016 in W.P. (C) 6630/2016, B.R. Khokha Vs. Delhi Transport Corporation, wherein it has been held as under:-
"12. Although clause (iii) of the Office Order dated 28.10.2002 clearly stipulates that inviting option shall be provisional and subject to exemption from RPFC and in case no exemption was received from RPFC the said option would become redundant and 11 O.A. No.1007/2015 the status of the said employee would be the same as was before; but para 9 of the Office Order dated 27.11.1992 clearly stipulates that the Pension Scheme was to apply even in the case of all such employees of the DTC who did not exercise their option within the prescribed period of 30 days or quits or dies without exercising his option, or whose option was incomplete or conditional or ambiguous, he would have deemed to have opted for the Pension Scheme Benefits."
The aforesaid reasoning would indicate that the Division Bench had held that the employee in the said case was covered by paragraph 9 of the office order dated 27th November, 1992, which had stipulated that it would apply to all employees including those, who do not exercise their option within 30 days, or quits or dies without exercising the option. By default, the employee in the said case was a pension optee. In the present case, the respondent pursuant to the office order dated 27th November, 1992, had clearly opted out of the pension scheme. Hence, the said ratio would not apply.
9. For the same reasoning, the decision dated 30th July, 2014 of this Court in W.P. (C) No. 4728/2014, Delhi Transport Corporation Vs. Raj Singh would not be applicable. In the case of Raj Singh (supra), the contention raised by the Corporation was that the employee's name did not figure in the list of pension optees and, therefore, it may be presumed that the employee was not a pension optee. This contention was rejected holding that the pension scheme dated 27th November, 1992 was applicable by default and would apply to an employee, except those who had opted out of the said pension scheme.
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."
14. The case of the applicant is squarely covered by the judgment of the Hon'ble High Court of Delhi quoted above. As such, no further examination is required and I come to the conclusion that no benefit can be granted to the applicant on the strength of any of his contentions.
12O.A. No.1007/2015
15. Based on the above discussion, the present OA is dismissed. No order as to costs.
(A.K. Bishnoi) Member (A) cc.