Central Administrative Tribunal - Delhi
Rajinder Singh vs The Delhi Transport Corporation (Dtc) on 23 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.3953/2010 NEW DELHI THIS THE 23RD DAY OF MAY, 2011 HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) HONBLR DR. DHARAM PAUL SHARMA, MEMEBR (J) Rajinder Singh Token No.21279, (Ex. Conductor, B.No.12876), S/o Sh. Meer Singh, R/o P-42, 2nd floor, Vijay Vihar, Uttam Nagar, New Delhi 110059 Applicant (By Advocate: Shri Amit Kumar) Versus 1. The Delhi Transport Corporation (DTC) Through the Chairman-Cum-Managing Director, DTC Govt. of NCT of Delhi, I.P. Estate, New Delhi-110002 2. The Senior Manager (Pension Cell), DTC, Govt. of NCT of Delhi, I.P. Estate, New Delhi-110002 3. The Depot Manager, DTC Hari Nagar Depot-I, Hari Nagar, New Delhi-110064 Respondents. (By Advocate : Ms. Rashmi Priya for Sh. J.S. Bhasin) ORDER DR. RAMESH CHANDRA PANDA, MEMBER (A):
Shri Rajinder Singh, the Applicant herein, joined as Conductor in Delhi Transport Corporation (DTC) on 19.01.1979 and continued as such till he opted for VRS vide his application dated 17.03.1993 (which inter alia stated for not-opting pension) and retired under Voluntary Retirement Scheme (VRS) with effect from 30.04.1993. It is the case of the Applicant that DTC introduced the pension scheme vide the Office Order No.16 dated 27.11.1992 when the Applicant was in service. The Applicant opted out from the Pension Scheme. After he submitted his VRS request letter including not-opting for pension statement, the Applicant vide his application dated 23.04.1993 requested that the pension as per the Office Order dated 27.11.1992 should be extended to him while accepting his voluntary retirement. His VRS was accepted and came into effect from 30.04.1993. The Applicants letters and decision thereon by the Respondents received by him under Right of Information Act, available at Annexure A4, Annexure A5, Annexure A6 and Annexure A7 provide details. It is further stated that the Applicants case should have been considered favourably by the Respondents in terms of the order issued by the Respondents dated 07.05.1993. The Respondent DTC did not act on the Applicants option for pension at the time of VRS. It is his case that he did not apply for CPF but in compelling circumstances he accepted the CPF. The Applicants case is that he submitted representations dated 18.01.2010 and 09.03.2010, which were still pending consideration of the Respondents. He having found no other option but having been aggrieved by the action of the Respondents in not extending him the benefit of pension as per the Office Order dated 27.11.1992, he has approached this Tribunal under 19 of the Administrative Tribunals Act with the following relief(s):-
(a) to direct the Respondents to grant benefit of pension w.e.f. 01.05.1993 and its consequential benefits including its arrears and difference of arrears on fixation on revised pay scale under 6th CPC, with interest @ 18% per annum.
(b) to impose exemplary cost for dragging the poor and retired employee without pension and having no source of livelihood.
(c) Pass any other or further order(s)/direction(s) as this Honble Tribunal may deem just and proper in the interest of justice.
2. Highlighting the case of the Applicant for claiming pension under 1992 Pension Scheme and the Voluntary Retirement Scheme of 1993, Shri Amit Kumar, the learned Counsel for the Applicant submitted that Applicant would be entitled to the pension as admissible under 1992 Pension Scheme. He submits that Clause 4 (g) of 1993 VRS provides for the pension under 1992 Pension Scheme. Very extensively he argues to say that the case of the Applicant is fully covered by the Judgment of the Honble High Court of Delhi in LPA No.531/2009 decided on 14.12.2009. He took us through the entire Judgment to submit that the Applicant is entitled to the 1992 Pension Scheme. The Applicant opted for the pension scheme after his voluntary retirement and would be entitled to get pension as per office order dated 27.11.1992. He further submits that the Applicant having received CPF was willing to refund entire CPF with interest to the Respondents to extend the Applicant with the pension under 1992 pension scheme.
3. He drew our attention to Clause 4 (g) of the VRS scheme dated 03.03.1993, which envisages that an employee who takes voluntary retirement will be eligible inter alia to the payments of pensionary benefits as per Office Order No.16 dated 27.11.1992. Thus, Shri Amit Kumar urges that the pension was payable in terms of the Office Order dated 27.11.1992 to the Applicant. He contended that there is no need to exercise any option for payment of pension, as VRS scheme under 1993 very clearly envisages the eligibility to get pension under 1992 Pension Scheme. He placed his reliance on the Judgment of the Honble High Court of Delhi, the case of the Kailash Chander Versus Delhi Transport Corporation (LPA No.531/2009 dated 14.12.2009.
4. The Respondents, after receiving notice from the Tribunal, have submitted their reply affidavit on 18.02.2011 and have controverted the grounds taken by the Applicant.
5. Mrs. Rashmi Priya representing Shri J.S. Bhasin, learned counsel for the Respondents would submit that the Applicant was not entitled for the pension under 1992 pension scheme. She would submit that Applicant sought VRS in the letter dated 17.03.1993, which was accepting on 24.4.1993. When the 1992 Pension Scheme was introduced, he opted out of the Pension. But, at the time of VRS, he submitted his VRS letter and subsequently wanted to be covered under 1992 Pension Scheme. Her contention is that Applicant having opted out is not entitled to pension. Further, he retired on 30.04.1993 and at the time of VRS the Applicant received entire CPF including employers contribution vide letter dated 14.9.1993.
6. It is stated that the Applicant has opted out of the pension scheme and opted for the Contributory Provident Fund Scheme and as such the pension would not be applicable to him under VRS. She took us through the para 30, 32, 35 to 47 of the Judgment of Honble High Court in a batch of Writ Petitions, the leading one being WP(C) No.14027/2009 decided on 10.08.2010 to submit that the employees once opt out of 1992 Pension Scheme of DTC, they would not be entitled to the pension even if they opt for the same later on. Honble High Court also rejected the plea of compulsion to opt out. The said Judgment was challenged before the Honble Supreme Court in SLP (C ) No.18732/2010 along with batch cases, which was dismissed vide its order dated 03.12.2010. She stated that the issue has also been considered by the Full Bench of this Tribunal in OA No.3088/2009 along with OA No.3089/2009, which was decided by the Full Bench on 14.03.2004. She submits that as per decision of the Honble High Court as per the Judgment of Honble High Court in WP(C) No.14027/2009 upheld by the Honble Supreme Court and fully adopted by the Full Bench in Raj Kumar Versus DTC and others. Applicants claim is not admissible and, therefore, the OA is liable dismissed.
7. The Respondents raised a preliminary objection on the grounds for limitation that the Applicant had been agitating before the Tribunal after a lapse of 17 years. Thus, the OA is hopelessly barred by limitation. She submitted that on the grounds of limitation alone the OA should be dismissed. Even otherwise, there is no merit in the Applicants case. We note that the Applicant has submitted representation requesting grant of pension in January and March, 2010 to which the Respondents did not reply. Being aggrieved of their inaction, the Applicant filed this OA on 19.11.2010. We, therefore, find that the OA is well within the limitation period prescribed under Section 21 of the Administrative Tribunals Act, 1985.
8. Admittedly, the Applicant preferred to opt out of the Pension under 1992 Pension Scheme. He opted for VRS under 1993 Scheme. It is not in dispute that he received CPF and other admissible benefits under VRS. The 1992 Pension Scheme very clearly stipulates employees of DTC to exercise their option. Thus, there are 3 types of employees viz. (i) employees who opted for pension; (ii) those who opted not for pension; and (iii) employees who did not exercise option and are deemed optee. The Applicant belongs to the category (ii) and exercised his option for no-pension. The Applicant having exercised his option by opting out of the Pension Scheme of 1992, his request to withdraw his earlier preference and to opt for the Pension Scheme is not admissible. Further, only after submitting his proposal for voluntary retirement under the Scheme of 1993, when he was well aware of his status of opting out of the Pension Scheme of 1992, subsequent request to opt for the Pension Scheme of 1992 seems to be illegal and irrational. Though the 1993 Voluntary Retirement Scheme provides in the Clause 4 (g) that the pension would be admissible only to the employees opting for pension as per 1992 Pension Scheme, the employees who have opted out of 1992 Pension Scheme, even if they opt subsequently, the same would not be admissible. Moreover, it is not denied by the Applicant that he has received all his CPF benefits from the DTC. What he claims at present is that he would return the benefits that he has received from CPF along with interest in order to claim the benefits under Para 4(g) of 1993 Voluntary Retirement Scheme.
9. The issue raised in the present OA has already been adjudicated in the judicial fora. The Applicant has drawn our attention to LPA No.531/2009 in case of Kailash Chander versus Delhi Transport Corporation (supra) to labouriously argue that the case of the Applicant is fully covered by the judgment in the said LPA No.531/2009. We take the extract of relevant part of the said judgment:-
10. Having heard learned counsel for the parties and having perused the record, we are unable to agree with the reasoning and conclusion of the learned single Judge. A collective reading of the note dated 22.4.1993 and the Circular dated 7.5.1993 reveals that the DTC intended to give all employees who opted for the VRS to also opt for pension, although they may not have expressly done so at the time of opting for the VRS. Further, it is plain that even on 28.4.1993, before his request for voluntary retirement under the VRS was accepted, the appellant had clearly indicated that he wanted to also opt for pension. We are unable to take a narrow view of the Circular dated 7.5.1993. The DTCs stand that Circular dated 7.5.1993 extended the facility of option for pension scheme only to those whose request for retirement under the VRS had not been accepted by that date, cannot be countenanced since that would mean that there are two classes of similarly placed persons, one of them being granted the benefit of pension and the other denied. We find such a classification to be arbitrary and not based on any rational criterion. Factually also, the appellant exercised the option for pension before 7.5.1993 and before the date DTC accepted his request under the VRS. We therefore find no justification for DTC denying to the appellant the opportunity of opting for pension.
10. On the other hand, the judgment of Honble Delhi High Court in WP(C) No.14027/2009 along with other batch matters which were challenged before the Honble Supreme Court in SLP No.31241/2010 has set the law in the matter and covers the field. Subsequently, the Full Bench of this Tribunal has considered the issue in OA No.3088/2009 and OA No.3089/2009 which was decided in a common order dated 24.03.2011 and decided that once an employee of DTC retiring on seeking voluntary retirement under the Scheme of 3.3.1993 would not be entitled to the pension as envisaged in the order dated 27.11.1992 even though the employee would have opted or deemed to have been opted for it in case he had withdrawn the option for pension and accepted the retirement benefits of the CPF. We, therefore, take the extract of Paragraph 6 and 7 of the Full Bench judgment, which read as under:-
6. We have perused the written submissions by the learned counsel for the applicant in the above mentioned case. The same arguments, which formed the basis of judgement in TA number 537/2009 and batch matters and in TA number 1200/2009, have been repeated in the written submissions. The learned counsel has not denied that the case is now entirely covered by the judgement of the Honble Delhi High Court in WP (C) number 14027/2009, which has been upheld by the Honourable Supreme Court, in which the view taken in TA number 537/2009 has been reversed.
7. Since now the issue stands resolved by the judgement of the Delhi High Court and upheld by the Honourable Supreme Court, there will be no need for us to consider this issue in the Full Bench. The reference has already been answered by the judgement of Delhi High Court. 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. The order dated 15.01.2010 in TA number 1200/2009 and TA number 537/2009 and connected matters is overruled.
11. It has been legally established that those employees opted/deemed optee for 1992 Pension Scheme and if they withdraw such option, and receive CPF benefits, would not be eligible for pension under 1992 Pension Scheme. The present case is little different in the sense, the Applicant has opted out of the pension along with his VRS application, but later on he submitted request for granting him pension under 1992 Scheme. He received CPF benefits and willing to refund the same with interest.
12. As has been indicated in the facts of the case as well as in our discussion and the judgments of the Honble High Court, Supreme Court and this Tribunal, we note that the Respondents have not taken any decision on his representation in the year 1993 and subsequently in 2010. In view of the above facts and circumstances of the case, we direct Respondents to consider Applicants representation keeping in view the above judgment and pass speaking and reasoned order as to whether the Applicant having opted out of the 1992 Pension Scheme at the time of seeking VRS and later on before acceptance of VRS requesting to sanction Pension, and having received the CPF benefits from the DTC which he is willing to refund with interest, he would be entitled to get pension under 1992 Scheme? Respondents would pass order within 3 months from the date of receipt of a certified copy of this order.
13. In terms of the above directions, the Original Application is disposed of, leaving the parties to their respective costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
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