Central Administrative Tribunal - Delhi
Shri Raj Kumar vs Delhi Transport Corporation on 24 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
MA No. 528/2011
OA No. 3088/2009
with
OA No. 3089/2009
TA No. 1326/2009
TA No.558/2009
New Delhi this the 24th day of March, 2011
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K.Joshi, Vice Chairman (A)
Honble Dr. Veena Chhotray, Member (A)
OA No 3088/2009
Shri Raj Kumar,
Ex. Sr. Clerk, T. No. 2378,
R/o RZ-139- I Exten,
Uttam Nagar, New Delhi-110059 Applicant
( Present None )
VERSUS
Delhi Transport Corporation,
Thro its Chairman, I.P. Estate,
New Delhi. Respondent
( By Advocate Shri J.S. Bhasin )
OA No 3089/2009
Shri Kapoor Chand,
Ex. A.T.I., T. No. 20617,
R/o S-162, Param Puri,
Uttam Nagar,
New Delhi-110059 Applicant
( Present None )
VERSUS
Delhi Transport Corporation,
Thro its Chairman, I.P. Estate,
New Delhi. Respondent
( By Advocate Shri J.S. Bhasin )
TA No 1326/2009
Shri Shadi Lal
S/o Late Shri Ram Rang,
R/o A-439, Kalkaji,
New Delhi-110019 Applicant
( By Advocate Ms. Deepali Gupta )
VERSUS
Delhi Transport Corporation,
Thro its Chairman-cum-Managing Director,
I.P. Estate,
New Delhi. Respondent
(By Advocates Shri J.N.Aggarwal with Shri D.D.Joshi )
TA No 558/2009
Govind Singh,
Son of Late Shri Kedar Singh,
R/o A-31, Rattan Bagh,
Nangloi, New Delhi-41. Applicant
(Present None )
VERSUS
Delhi Transport Corporation,
Thro its General Manager/Chairman,
I.P. Depot, I. P. Estate,
New Delhi. Respondent
( By Advocate Shri J.S. Bhasin )
O R D E R
Honble Mr. L.K. Joshi, Vice Chairman (A):
The issue which has come up for consideration before us is whether an employee of the Delhi Transport Corporation (DTC), who had sought voluntary retirement under the voluntary retirement scheme of 03.03.1993, which provided for pension as per the pension scheme of 27.11.1992, would be eligible for pension if he/she had opted for the same in the first instance, or deemed to have opted for the same, but later he/she had withdrawn the option by opting for the Central Provident Fund Scheme and accepted the benefits thereof.
2. The issue came up before a learned Division Bench of this Tribunal in TA number 1200/2009, which was decided by order dated 03.08.2009 in the following manner:
10. In the circumstances, we direct that in case the applicants make applications to the respondents, clearly indicating that they are prepared to remit the back amounts, received by them towards CPF, and extra gratuity without interest for receiving pension, as per the pension scheme, the Corporation is to advise the applicants about the details of remittance to be made. In line with the order in LPA 1262/2007 passed by the Delhi High Court, which is seen to have confirmed by an order in SLP 5205/2008, we direct that in that event pension will be paid to the applicants effective from the time the writ petition was filed (from 01.03.1998 onwards). After the remittance, the respondents are to pay the applicants pension from the aforesaid date. If the applicants apply for set off and adjustment of the sums payable by them to DTC as aforesaid, the request should be entertained. Pension payments as above should be in line with the payments to his colleagues taking notice of the revision that might be there from time to time. These exercise are to be carried out expeditiously and in any case before 30.11.2008. OA is disposed of accordingly. No costs. Another learned DB of this Tribunal, however, took a different view in OA number 863/2009, decided on 15.01.2010 holding that the applicant therein was not entitled to contend that after the receipt of the payments [of the Contributory Provident Fund], opting out of pension scheme, again the matter could be agitated under the pension scheme.
3. When similar issue again came up in OAs numbers 3088 and 3089 of 2009, both the above orders of the two learned DBs were brought to the notice of the Tribunal. It is in this context that the following reference came to be made in this matter:
Two Original Applications, namely, (OA 3088/2009 and 3089/2009) had come up for hearing. They pertain to pensionary claims of persons who had long ago retired from the DTC. Learned counsel for the applicant had sought to rely on judgment of the Delhi High Court in LPA No. 1262/2007 which has been confirmed by the SLP (C) 12856/2007. It is asserted that the applicants are situated exactly like the claimants there, and reliefs had been obtained by him. It is submitted that judgments as above had been followed by a Bench, where one of us was a party (Justice M. Ramachandran). While deciding TA No. 1200/2009 on 3.8.2009, reliefs were granted to the applicants concerned observing that since they had at the first instance opted for pension, the subsequent withdrawal of request and acceptance of the retirement dues would not have had any legal consequences, for them to press for pension. This was following the dictum of the High Court.
2. However, learned counsel for the respondents has rightly pointed out that in fact later in OA 863/2009 decided on 15.1.2010, a contrary view had been taken, by the Bench, of course, taking notice of fresh inputs. It had been noticed that the earlier decision had been arrived at, without noticing judgment of the Division Bench of the Delhi High Court in yet another case. The two judgments as now presented are difficult to be reconciled. The question is as to whether after accepting the PF declaring that that they are not interested in pension, will it be possible for them to revert back, and highlight an argument that the initial option alone mattered, in spite of their conduct of shifting their stand, the initial option for pension was to bind the parties overlooked.
3. We feel it is appropriate to place these matters before a full bench so that a final conclusive decision in the matter could be churned out. We adjourn the OAs. Registry is directed to place the maters before the Honble Chairman for follow up orders.
4. In TA number 537/2009, with related matters, another DB of this Tribunal took an identical view as in TA number 1200/2009 that an employee, who had retired on voluntary retirement as per the scheme dated 03.03.1993, would be eligible for pension even though he had relinquished his right for the same by withdrawing from the pension scheme and accepting the benefits of CPF scheme. The judgement dated 23.09.2009 in TA number 537 /2009 was reversed by the Delhi High Court in WP ) number 14027/2009 with other batch matters by its judgements dated 10.08.2010. The judgement of the Delhi High Court was challenged before the Honourable Supreme Court in SLP number 31241/2010, which was dismissed by order dated 03.12.2010.
5. The following order was recorded on 09.03.2011:
The Honble Supreme Court has now dismissed the SLP on 3.12.2010 which was against the order of the Division Bench of the Honble High Court dated 10.08.2010 in Writ Petition ( C) No. 1386 of 2010 and other connected Writ Petitions (C). Counsel for respondents moved an application for reviving the OAs as per direction given by us. Along with the Misc. Application, copy of the order of the Honble Supreme Court is also attached. The matter had been notified on 23.02.2011 to be listed for hearing today.
2. We notice that despite notification as mentioned above, no one has chosen to appear on behalf of applicant. Counsel for respondents informs us that copy of the order of the Honble Supreme Court was given to Shri S.N. Sharma, who represents the applicant in OA 3088/2009 and OA 3089/2009.
3. Having heard the learned counsel defending the respondents, it appears to us that the decision of the Division Bench of the Honble High Court in WP ) 1386/2010 and other connected WPs as confirmed by the Supreme Court would cover the issues involved in these cases. Despite that we reserve the orders. Proceedings of today be intimated to learned counsel for the applicant who may submit written arguments within seven days from today. Office will also intimate to counsel for the applicant about todays proceedings enabling him to file written submissions within the time mentioned above. After going through the written arguments filed, if any clarification would be required by the Tribunal, we may re-fix the case for arguments. The learned counsel for the applicant in TA number 1326/2009, Shadi Lal V. DTC, has now filed her written submissions on 14.03.2011. Counsel in other related OAs/TAs have not filed their written submissions.
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.
8. There will be no need to remand the OAs to the Division Benches, as the issue stands resolved.
( Dr. Veena Chhotray ) ( L.K.Joshi ) ( V.K.Bali ) Member (A) Vice Chairman (A) Chairman sk