Central Administrative Tribunal - Delhi
Shri Nahar Singh vs Delhi Transport Corporation on 15 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.863/2009
New Delhi this the 15th day of January, 2010
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Honble Mr. Justice M. Ramachandran, Vice Chairman (J)
Honble Dr. Veena Chhotray, Member (A)
Shri Nahar Singh,
S/o Shri Bharat Singh
R/o B-5, Gupta Tower,
Azadpur, Delhi-110033. Applicant
(By Advocate Ms. Kitto Bajaj )
VERSUS
Delhi Transport Corporation,
Through its Chairman-cum-Managing Director,
I.P. Estate, New Delhi. Respondent
(By Advocate Shri U.N. Tiwari )
O R D E R
M. Ramachandran, Vice Chairman (J) :
Learned counsel for applicant submits that the issue as raised in this application is covered in favour of the applicant by the Division Bench judgment of this Tribunal, dated 23.9.2009 in TA 537/2009 and connected cases. On behalf of the respondents it has been contended that although the decision as above has proceeded on the basis as suggested, it could not be taken as the last word. The Bench had held that when an employee had once opted for pension, notwithstanding his withdrawal of the option, the Corporation will be bound to extend to him pensionary benefits, if he makes an application. Respondent contends that in view of the finality given to the issue, by a Division Bench of the Delhi High Court which also got the stamp of approval by the Supreme Court, the decision cannot be acceptable precedent. Standing counsel for the Corporation submitted that by an oversight the decision as above might not have been brought to the notice of the bench of this Tribunal. Therefore, the decision in TA 537/2009 may not be a safe guide as has been claimed by the applicant. There appears to be a controversy in working. The facts of the case are not very much disputed and could be stated briefly herein under.
2. The applicant was an employee of the DTC. By Office Order 16 of 1992 DTC had introduced Pension Scheme for its employees covering persons who had retired after 3.8.1981 as well. Prior to the said order, Contributory Provident Fund Scheme was in existence. Option was to be submitted within the time stipulated. There was a deemed provision whereby persons who had not opted were deemed to have opted for the Scheme.
3. As far as applicant is concerned, he had opted for the pension Scheme. On 3.3.1993, newly a Voluntary Retirement Scheme was introduced by the DTC for its employees. Persons who had completed 10 years of service could have opted for retirement under the Scheme. It stipulated payment of pension. The applicant had applied for voluntary retirement under the Scheme on 23.3.1993. It had been accepted by the competent authority on 31.5.1993 and on the said date the applicant came out of the establishment. Benefits were payable at enhanced rate and it is conceded that the applicant had received the benefits as envisaged by the voluntary retirement scheme.
4. The applicant submits that it was due to delay in sanctioning the pension that such benefits were accepted. The pension scheme had not been brought into effect on the day. As a matter of fact, applicant had given in writing that he was withdrawing from the pension Scheme. The compensation had been paid including Contributory Provident Fund on that basis. After receiving the amount as above, and when pension was implemented, the applicant had found that the pension scheme would have been advantageous to him. He had re-opted in view of a Notification issued by the Corporation by office order dated 28.10.2002 . But the fresh option submitted by him had not been accepted by the Corporation. The applicant submits that persons similarly situated like him had approached the Delhi High Court and it had been held that option for pension given could not have been possible to be ignored as there was no circular issued by the DTC authorizing for such conduct. The present application has been presented since the request for pension had not been conceded by the DTC. It is therefore, prayed that the amount of pension to the petitioner be released from 1.6.1993 with interest, and pension to be given from month to month basis based on his original option although it had been withdrawn at a later stage. The withdrawal was not to have any legal effect, and required to be ignored.
5. Counsel for respondents however, submits that the application is misconceived. It is pointed out that on 3.9.1994 the applicant had opted out of the Scheme of pension and on 15.2.1995 by a specific order it had been accepted by the DTC. It was only after that on 10.1.1996 the dues were calculated and paid over to the applicant, which he had accepted without any protest. It was a case of conscious act on the part of the applicant to withdraw from the pension scheme and on such withdrawal the authorities had acted upon and since the withdrawal was accepted, the applicant could not have transposed himself to a position whereby his claim of pension required to be revived.
6. Learned counsel had invited our attention to the judgment of a learned Judge in CWP 686/2002 and connected cases disposed of on 26.2.2002. The question that had come before the learned Judge had been formulated as following:
Whether the employees of the DTC who had opted for the pension Scheme of 1992 and later withdraw from the same are entitled to once again be covered under the pension scheme as per their require made subsequently?
After going through the details of the case, the Learned Judge had held that there was no merit in the petitions. They were consequently dismissed. It had been observed that of course once the option had been exercised and the same had been accepted, both the parties are entitled to seek enforcement of the pension Scheme. In so far as petitioners case was concerned, they had chosen to withdraw from the scheme. It was, left to the respondents to accept such withdrawal or not. When the withdrawal was accepted and when alternate benefits were availed of by the persons concerned, the transaction stood concluded. Therefore, the writ petitions were not maintainable.
7. An appeal had been filed as LPA No. 330/2003 therefrom titled as DTC Retired Employee Association Vs. DTC. The Division Bench held that once the members of the association had withdrawn their option and it had been accepted by the DTC and incumbents had obtained Contributory Provident Fund they had no right to claim under pension Scheme especially since they had availed of all the benefits after opting out of the pension scheme. Learned counsel submits that an SLP before the Supreme Court as 16135/2002 had been held, but the petition had been dismissed on 2.9.2002. It was further submitted that the above details had not been brought to the notice of the Division Bench of the Principal Bench when TA 537/2009 had been decided.
8. Dealing with the present case of the applicant, the request to withdraw from pension was accepted and it is pointed out that on this aspect there is no dispute. The difference of dues wes paid on 10.1.1996 and the proceedings of the date are among the record. As available under the voluntary retirement scheme balance amount had already been paid over to the applicant. Therefore, it was on par with the facts decided in LPA 330/2003.
9. Learned counsel for the applicant thereupon had submitted that a different view had been taken by the High Court in WP 3879/1994 by judgment on 24.7.2006. Of course, the Court had followed the judgment rendered in WP (C) 1949/2005 titled Grewar Singh Vs. DTC. But we find that there is no reference to the earlier Division Bench judgment. Also the facts of the case appear to be dissimilar. In the aforesaid circumstances, we are of the view that relief as prayed for by the applicant could not be granted. Applicant was not entitled to contend that after the receipt of the payments, opting out of the Pension Scheme, again the matter could be agitated under Pension Scheme. Application is dismissed. No order as to costs.
( Dr. Veena Chhotray ) ( M. Ramachandran) Member (A) Vice Chairman (J) sk