Ram Chander vs Delhi Transport Corporation And Ors

The applicant joined the services under respondent No.1 on 18.09.1981 and retired from the service of Delhi Transport Corporation (DTC) on 31.03.2016. As stated in the O.A., the respondents introduced the Pension Scheme in the Office Order No. 16 dated 27.11.1992. The applicant exercised his option to continue to be a member of Contributory Provident Fund Scheme and did not exercise option in favour of DTC Pension Scheme. Subsequently, in the year 2002, vide Office Circular No. Pen. Cell/Option/2002/440 dated 28.10.2002, the Corporation further sought options and the applicant, as stated in the OA, exercised his option in favour of existing DTC Pension Scheme within the stipulated time. It is also stated that the Corporation did not take any decision on the option exercised by the employees in pursuance to their Circular dated 28.10.2002 and entrusted the matter to the Committee constituted by the GNCTD vide Notification dated 04.06.2012 for extending the pensionary benefits to its employees. It is stated that in a meeting held on 05.06.2015, a decision was taken by the respondents that the pension opted employees retired after 31.05.2015 may be covered under EPS'95 and non pension optees, whether existing or retired will not be considered for pension. In the meantime, the applicant, on attaining the age of superannuation, retired from service on 31.03.2016. The respondents did not release his pension despite the applicant advised the management not to release his management share of Provident Fund and for transferring the same to the DTC Pension Fund Corpus. Aggrieved by the decision of the respondents not considering the applicant under the Pension Scheme,  the  applicant  has  filed  the  present  O.A.  seeking  the following reliefs:-

"(i) The respondents may be directed to grant & release the pension to the applicant from the next date of retirement i.e. w.e.f. 1.4.2016 along with its arrears of pension with compound interest @12% p.a. to the applicant under DTC Pension Scheme.

(ii) The respondent may be directed to grant the commutation value of pension, which becomes absolute on the date of retirement, along with compound interest @12% p.a.

(iii) The cost of the proceedings may also be awarded in favour of the applicant."

The respondents in their reply have opposed the contentions made by the applicant in the O.A. The respondents have submitted that the present application is pre-mature as the competent authority is yet to take a final decision in the matter. It has also been submitted that the DTC has invited options twice-firstly as per Office Order No. 16 dated 27.11.1992 and secondly as per Circular No. Pen.Cell/option/02/440 dated 28.10.2002. It was clearly mentioned that after receiving the list of employees, who are exercising their options in favour of DTC Pension Scheme, the matter would be examined. The applicant, as per the counter reply, had not opted for pension in the year 1992 and, therefore, he is not entitled for pension under DTC Pension Scheme. Accordingly, his retiral benefits have been released as per procedure laid down.

Respondent No.2 have also filed their counter reply and opposed the averments made in the O.A.

Heard the learned counsels for both the parties and perused the record.

The respondents had issued a Circular dated 27.11.1992 introducing the following Pension Scheme in DTC:-

"(a) There would be no financial contribution by the Central Government and the entire financing of the pension would be done by the D.T.C. The Pension Scheme would be operated by the Life Insurance Corporation on behalf of DTC.

(b) The date of effect of Pension Scheme should be 3rd August,1981.

(c) All the existing employees including those retired w.e.f. 3rd August, 1981 onwards would have an option to opt for the Pension Scheme or the Contributory Provident Fund as at present.

(d) The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. the date of sanction of the scheme.

(e) To transfer employer's share in the E.P.F. Account of the DTC Employees who opt for the Pension Scheme to the LIC for operating the Pension Scheme on behalf of DTC. The amount deposited in the Central Government/State Govt./Guaranteed Securities would be encashed on maturity.

(f) The employees who have retired after 3rd August 1981 and who have drawn the employer's share in the EPF account shall refund the same with interest in the event of their opting for the pension scheme.

(g)This has the approval of Finance Wing vide their O.O. No. 1504/VS-II/92 dated 16.1.1992."

The above quoted Scheme very clearly stipulates that all the existing employees including those retired from 03.08.1981 onwards may opt for the Pension Scheme or the Contributory Provident Fund as at present. It also mentions that the Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. the date of sanction of the Scheme i.e. 27.11.1992. The applicant was already in service when the new Pension Scheme was introduced and was required to give option for the new Pension Scheme or to remain in Contributory Provident Fund. The applicant has confirmed that he exercised his option to continue to be a member of Contributory Provident Fund and did not exercise option in favour of DTC Pension Scheme after the same was introduced. Further, the respondents vide their letter dated 28.10.2002 issued an Office Order seeking option from all the existing employees including those who are covered under the RPFC Scheme under the following conditions:-

"(i) All the existing employees who are not covered under the existing DTC Pension Scheme may exercise their option in writing in case desire to opt DTC Pension Scheme.

(ii) The employees who have drawn the employer's share under the EPF Act, partly or wholly shall have to refund the same with interest in the event of their opting for the DTC Pension Scheme. The total amount to be refunded by the employees would be the amount that would have accrued, had they not withdrawn the employer's Share.

(iii) Inviting/exercising option shall be provisional and subject to exemption from the RPFC and refund of the amount held with them. In case, no exemption is received from RPFC, this option shall become redundant, and the status of an employee shall be the same as is before the issue of these orders.

(iv) The Unit Officers/Depot Managers, after receiving the Options, shall send the list of existing employees who exercised their option in favour of DTC Pension Scheme to the Pension Cell within a week of closing the date of option.

(v) All employees who are roll of the Corporation on the date of issue of this Office Order shall be eligible to opt DTC Pension Scheme and to exercise their option within 30 days from the date of issue of this Circular."

With the above conditions in the Office Order dated 28.10.2002, options had been asked from all the existing employees who are not covered under the existing Pension Scheme, if they so desire. This order also indicates the conditionalities for those who are opting for the DTC Pension Scheme at a later date as to how their share under the EPF etc. would be adjusted. It is also indicated that all the employees who are on the roll of the Corporation on the date of issue of this Office Order shall be eligible to opt DTC Pension Scheme and to exercise their option within 30 days from the date of issue of this order. The applicant has not been able to produce any document in support of his arguments that he opted for the Pension Scheme in terms of the Office Order dated 28.10.2002. However, he has stated that he retired from DTC on 31.03.2016 and advised the respondents vide his letter dated 12.05.2016 that although he had exercised his option in favour of DTC Pension Scheme in pursuance of Circular dated 28.10.2002 but unfortunately on his retirement letter it is mentioned that "not opted for pension". The applicant requested that further necessary correction may be made and that his management share of Provident Fund may not be released and the same may be transferred to Pension Fund of the Corporation as he had opted for DTC Pension Scheme. This argument of the applicant has been opposed by the respondents in their counter reply stating that the applicant did not apply for the Pension Scheme in time and, therefore, his application dated 12.05.2016 cannot be considered. It is evident from the perusal of the records that applicant did not consciously opt for the Pension Scheme introduced by DTC vide Office Order dated 27.11.1992.

During the arguments also, the applicant or the respondents could not produce any document suggesting that the applicant had opted for the Pension Scheme after the Circular dated 28.10.2002.

The applicant has retired from service and has been paid his retiral dues including the lump sum amount towards Contributory Provident Fund. The applicant has also prayed for interim order seeking directions to the respondents to release the provisional pension as the management share of Provident Fund has been retained by the Corporation for the purpose of pension. He has reiterated that he is entitled for pension as he has opted for pension in pursuance to the Circular dated 28.10.2002. The learned counsel of the respondents has argued that all retiral benefits i.e. Gratuity, Contributory Provident Fund and employee's share etc. have already been released to the applicant as per procedure laid down. As the applicant had not opted for pension in reference to the Circular dated 28.10.2002, he is not entitled for pension. It is evident that the applicant did not opt for the pension after the Circular dated 28.10.2002 and has requested the respondents to consider him under Pension Scheme after his retirement vide his letter dated 12.05.2016. Cases of similarly placed employees had been decided earlier by the Tribunal and also by the Hon'ble High Court of Delhi. The respondents have cited the Tribunal's order dated 21.09.2015 in OA-4365/2014 (Sh. Dayanand Vs. DTC) wherein the following order was passed:-

"11. In the present case, it has been found that the applicant was a deemed optee for the DTC Pension Scheme, but he voluntarily opted out of the DTC Pension Scheme in the year 1994. On his having voluntarily opted out of the DTC Pension Scheme in the year 1994, the respondent treated the applicant as a member of the CPF Scheme till the date of his retirement and paid him both the employer's and employee's contributions to CPF as well as other statutory dues as admissible to employees not covered by the DTC Pension Scheme. Therefore, the decision of the Tribunal in Raj Singh v. Delhi Transport Corporation (supra) is of no help to the case of the applicant in the present case."

In this case, the Tribunal held that the employee is not entitled to the relief claimed by him. The facts in this O.A. are, however, different from the facts of present O.A.

7.1 The applicant in his arguments cited the judgment of Hon'ble High Court of Delhi in the case of B.R. Khokha Vs. DTC [WP(C)-6630/2016) dated 14.09.2016 wherein the following has been held:-

"20. In our view, the respondent being a State functionary has not acted fairly and in accordance with law. The respondent should have either complied with the order passed by the Tribunal in the case of Raj Singh (supra) or informed the petitioner as his case is different than that of Raj Singh (supra). Further, the petitioner cannot be blamed for the delay as the decision in Raj Singh (supra) was rendered in the month of July, 2014, and immediately thereafter the petitioner filed the OA in the same year.

Accordingly, in view of above, Rule is made absolute. Present writ petition is allowed and the impugned orders dated 28.7.2015 and 2.11.2015 passed by the Tribunal are set aside. The respondent shall grant pension to the petitioner in terms of DTC Pension Scheme and the amount shall be released in terms of para

6 of the Office Order dated 27.11.1992. The petitioner shall refund the amount of Rs. 62,749/- under the CPF Scheme to the respondent in terms of para 6 of the Office Order dated 27.11.1992.

Writ petition stands disposed of."

In this case, the petitioner was not an earlier optee for the Pension Scheme but in response to the Office Order dated 28.10.2002, the petitioner opted for the DTC Pension Scheme. However, the same could not be finalized during the period and the petitioner superannuated and the pension has not been released, he has approached the Court. The Hon'ble Court decided that the petitioner should be treated under Pension Scheme. The Hon'ble Court also directed the petitioner to refund the amount received under the Contributory Provident Fund Scheme to the respondents. Another case that has been relied upon by the applicant is the order passed by this Tribunal in OA-1276/2015 (Rajinder Kumar Modi Vs. DTC) dated 12.09.2018. The facts of this case are that the applicant opted for DTC Pension Scheme pursuant to Circular dated 28.10.2002 but he did not receive any favourable decision from the respondents. The respondents with a view that the applicant had not opted for pension, did not consider his request. In this case also, the decision of Hon'ble High Court of Delhi in the case of B.R. Khokha (supra) was relied upon and the following orders were passed:-

"21. In my view, the case of the applicant in OA is squarely covered by the order of the Hon‟ble High Court of Delhi in the case of B.R. Khokha (supra) wherein the petitioner was similarly placed, as the applicant in OA. He was not a „pension optee‟- not having opted for the pension scheme of the respondent in terms of office order dated 27.11.1992. In OA No.4464/2014 Shri B.R. Khokha had sought similar benefit (as the present applicant in OA), which was rejected by the Tribunal in its order dated 28.07.2015. The petitioner however succeeded in the Hon‟ble High Court wherein the order of the Tribunal was set aside and the respondents were directed to grant pension to the petitioner in terms of DTC Pension Scheme, in terms of para 9 of the Office order dated 27.11.1992. Their Lordships held that the office order dated 27.11.1992 does not expressly mandate that the optees were obliged to exercise an option to get covered under the scheme. In para 10, it was held that

Therefore, merely because the respondent did not respond in terms of the office order/pension scheme dated 27.11.1992 to give his positive option to be covered by the pension scheme, it cannot be inferred or interpreted that the respondent had opted out of the pension scheme. The language used in para 9 of the office order No. 16 dated 27.11.1992 is plain and clear and does not, even remotely, support the submission of the petitioner that the respondent was obliged to exercise the option positively and expressly to get covered by the pension scheme. In the light of the aforesaid, the petitioners submission that the circular of 2002 calling for options was issued without any authority, and that the respondent opted for the pension Scheme only in pursuance of the said circular, is of no avail. 16 Since the issue has already been decided by the Hon'ble High Court of Delhi, I adopt the same arguments, for sake of brevity and to avoid repetition.

The respondents are directed to grant pension as well as arrears of pension to the applicant under DTC Pension Scheme of 27.11.1992 from the date of his retirement on superannuation. Before this, the applicant must refund the amount under CPF Scheme to the respondents in terms of the aforementioned office order. I am however not inclined to grant any interest on the arrears as claimed by the applicant. The respondents are granted three months time from the date of receipt of this order for implementation of directions contained in this order. OA is allowed. No costs."

This order of Tribunal is also for similarly placed applicant and is, therefore, relevant to the facts of the present O.A.

8.1 As the matter has already been settled by the Hon'ble High Court of Delhi in the above quoted case and similar orders have also been passed in OA-1276/2015, the respondents are directed to treat the applicant under the Pension Scheme and grant pension as well as arrears of pension under the DTC Pension Scheme of 27.11.1992 from the date of his superannuation. Before this, it is also directed that the applicant must refund the amount received under Contributory Fund Scheme to the respondents. No interest shall be granted on the arrears as claimed by the applicant. The order should be implemented within a period of three months from the date of receipt of a copy of this order. O.A. is allowed. No order as to costs.