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Judgment
Aradhana Johri, Member (A)
Applicants (19 in numbers), are employees of respondent no.1-Delhi Transport Corporation [hereinafter referred to as 'DTC']. All of them have either retired, taken VRS or their services were terminated. None of the applicants are any more in the service of DTC. Though they did not opt for Pension Scheme that was introduced by DTC in 1992, and continued to be governed by CPF, or in one case by EPS'95, till the date their services with DTC came to end. They are now claiming pensionary benefits under the Pension Scheme. The specific relief claimed by the applicants is as follows:-
"a). Pass an order directing the Respondent Department to grant the Applicants all pensionary benefits including subsequent promotions and financial benefits as the Applicants are ready to deposit the amount already withdrawn from the Respondent Department and want to get monthly pension as the other similarly placed/situated retired employees are getting from the Respondent Department."
It is the contention of the applicants that when the new Pension Scheme was introduced in 1992 they did not have enough time to understand the Scheme and therefore, did not opt for it. They have also admitted that they continued to be covered under the CPF Scheme/EPS'95. They have also stated that the date for exercising option was extended, vide Circular No.Pension Cell/2002/440 dated 28.10.2002 but they did not exercise the option once again. They have cited the decision of the Hon'ble High Court Delhi in the case of B.R. Khokha vs. Delhi Transport Corporation [WP(C) No.6630/2016 decided on 14.09.2016] and claimed the benefits of this judgment.
The respondents have denied the claims of the applicants. They have stated that this OA is barred by res judicata since the applicants through respondent no.2. i.e. DTC Workers Union had approached the Tribunal in 2011 wherein this Tribunal had directed the DTC to examine the matter afresh. They have further stated that Hon'ble Supreme Court in Civil Appeal No.3715-16/2001 titled as DTC Retired Employees Association & Ors. Vs. DTC & Ors. [2001 (6) SCC 61] held that sufficient time was given to both retired and existing employees to opt for the DTC-Pension Scheme and therefore, such employees are not entitled to get pension under the Scheme. The relevant part of the above decision is extracted as under:-
"25. It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time to fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Govt. of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st February, 1993. Therefore, the retired employees had, in fact, more than one month's time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of employer's provident fund scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. The appeals and the writ petition are without any merit and these are dismissed without, however, any order as to costs."
As per the respondents, on the aforesaid ratio of the Hon'ble Apex Court, Hon'ble High Court of Delhi in DTC Workers Union & Ors. Vs. Delhi Transport Corporation & Ors. decided on 31.10.2006, held as under:-
"What was good for the retired employees is good also for the existing employees. The Supreme Court held that sufficient opportunity to opt for the scheme had been provided and so those who did not opt for the scheme within the given and extended time were not entitled to its benefits. The judgment of the Supreme Court was passed much after the confirmation of the scheme in 1995. Thus the plea raised by the petitioners in the present writ petition appears to be covered by the Supreme Court opinion. This Court, therefore, need not and should not go into the question of the entitlement of the petitioners to the pension scheme at this stage. This Court is, therefore, unable to give the relief, prayed for by the petitioners. The petition is dismissed."
The respondents have further stated that this OA is barred by delay and latches since the Scheme was introduced vide Office Order No.16 dated 27.11.1992 and the applicants were to give option within one month which they did not do. The respondents have also averred that Circular dated 28.10.2002 was provisional in nature and was never implemented in the respondent Corporation. Also, the Courts have upheld the provisional nature of this circular.
The respondents have given full particulars of all the applicants to bring out the fact that none of the applicants opted for the Pension Scheme and continued to be governed by the CPF/EPS Scheme till the end of their service and received both the employees' share and employer's share at the time of their retirement. In certain cases specific applications not opting for the Pension Scheme have been provided. In other cases specific entries to the effect that pension was not opted for or CPF was specifically opted for, have been given in the pay slips which have been filed by the respondents.
As per the respondents, the case of B.R. Khokha (supra) is different to those of the applicants. Mr. Khokha had opted for the DTC Pension Scheme pursuant to the order dated 28.10.2002 and the Pension Cell, vide letter dated 20.06.2003, informed the petitioner that his application dated 13.06.2003 for grant of pension, was under consideration. The petitioner also requested the respondents not to release his management share of provident fund, as he had opted under DTC Pension Scheme. In the meantime, the petitioner superannuated on 29.02.2004 and the respondents released the amount of gratuity to the petitioner treating him as having opted for DTC Pension Scheme vide letter dated 29.02.2004. Since the respondents did not release the pension of the petitioner, he approached the Public Grievance Commission for grant of pension. He was informed that the matter was sub judice before the court of law and once the matter was decided, the petitioner's case would be dealt with accordingly. It was noted by the Hon'ble High Court of Delhi that the petitioner was conscious that he was entitled to the pension as per the DTC Pension Scheme and only for this reason he did not accept the Scheme under CPF for eight months post his retirement and even thereafter accepted the same under protest. In the present case the applicants had accepted CPF/EPS Scheme without any protest right till the end of their service. They have also stated that the applicants did not give any representation regarding change of option to the Pension Scheme nor have they filed any copy of the same. The respondents have cited the decision of Hon'ble Delhi High Court in case of Delhi Transport Corporation vs. Madhu Bhushan Anand [(2010)172 DLT 668 (DB)] in support of their contention.
Heard Sh. Diwakar Kumar, learned counsel for the applicants and Ms. Mona Sinha for Ms. Ruchira Gupta, learned counsel for the respondents.
Rule 10 of the CAT (Procedure) Rules, 1987 provides that an application shall be based upon a single cause of action and the applicant may seek one or more reliefs provided that they are consequential to one another. The applicants have prayed that an order be passed directing the respondents to grant the applicants all pensionary benefits including subsequent promotions and financial benefits. These two pleas are neither related nor consequential. Even if the applicants were wanting pension and not CPF/EPS, it had no connection whatsoever with any promotion. Hence, this OA is liable to be dismissed on this ground alone.
It also emerges that the applicants were members of DTC Workers Union and therefore, they will be squarely covered by the decision of the Hon'ble Supreme Court in the case of DTC Retired Employees Association & Ors. Vs.DTC & Ors. (supra). In the case where DTC Workers Union approached this Tribunal in 2011 wherein, as per averments of the applicants themselves, the Tribunal while disposing off the OA directed the DTC to examine the issue afresh. Therefore, raising the same issue again and again would be barred under res judicata.
The respondents have given details in tabular form of all the applicants giving clearly the status under which Scheme they were covered as well as details regarding exercising of option. These are reproduced as follows:-
No.
Applicant
Period of Service
Status
Category/ Nomenclature as mentioned on Pay Slips, Service Book and Retirement Memo
1
Harish Chander
09.05.1972-
30.11.2008
The applicant opted out of DTC Pension Scheme vide his letter dated 01.03.1994. All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee
Service Book: Pension not opted.
Retirement Memo: Pension not opted
Pay Slip "Z".
2
Sant Ram
21.09.1979 - 30.04.2015
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Not opted for Pension.
Retirement Memo: Pension not opted
Pay Slip "Z"
3
Rajendra Singh
17.01.1979 - 28.02.2011
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Pension not opted.
Retirement Memo: Pension not opted
Pay Slip "Z"
4
Basti Ram
1972-2012
The applicant vide his option form dated 07.01.1993 did not opt for DTC-Pension Scheme. All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Opted for CPF
Pay Slip "Z".
5
Sat Pal
1978-2012
The applicant vide his option form dated 25.01.1993 did not opt for DTC-Pension Scheme.
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Pension not opted.
Retirement Memo: Not opted for DTC Pension Pay Slip "Z"
6
Hari Kishan
1981-2014
The applicant vide his option form dated 15.01.1993 did not opt for DTC-Pension Scheme. All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Pension not opted.
Retirement
Memo: Not opted DTC-Pension
Pay Slip "Z"
7
Siri Bhagwan
20.04.1976- 31.08.2014
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Pension Scheme not opted.
Retirement Memo: Not opted for DTCPension
Pay Slip "Z"
8
Ranvir Singh
1977-2014
The applicant vide his option form dated 15.01.1993 did not opt for DTC-Pension Scheme.
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Pension not opted.
Retirement Memo: Not opted Pension
Pay Slip "Z".
9
Ram Niwas
04.07.1981- 31.05.2017
The applicant retired in the year 2017 and was released all his retiral benefits including gratuity. The applicant was an EPS Pension opted employee.
Service Book: Pension not opted.
Pay Slip "Z".
10
Late Sh. Satish Kumar through Smt. Veena Devi
29.11.1984 - 13.11.2011
All his retiral dues including gratuity, both shares of CP Fund were released to his wife at the time of his death/clearance.
Service Book: Opted for CPF.
Retirement Memo: Not opted Pension
Pay Slip "E".
11
Balbir Singh
14.10.1970- 31.05.2008
The applicant vide his option form dated 13.01.1993 did not opt for DTC-Pension Scheme.
All his retiral dues including gratuity, both shares of CP Fund have been released at the time of his retirement treating him as DTC-Pension non optee.
Service Book: Opted for CPF.
Retirement Memo: Not opted DTC- Pension
Pay Slip "Z".
12
Chander Bhan
18.03.1967- 31.12.1993
All his retirement benefits were released to him on his retirement.
Service Book: Pension not opted
13
Sri Krishna
1982-1993
The applicant opted for VRS and was retired from the services w.e.f. 31.05.1993. He also gave his option form dated 24.12.1992 whereby he stated that he did not wish to opt for DTC-Pension Scheme. All his retiral dues including CPF, gratuity, ex-gratia etc. were released to him in the year 1995 itself.
Option Form: Pension not opted
Service Book: Pension not opted.
14
Rati Ram
1977-2008
The applicant vide his option form specifically opted not to be a member of DTC-Pension Scheme. He was released all his retiral dues including gratuity. The applicant vide his representation dated 14.08.2000 had approached the answering respondent requesting to change his option from CPF to DTC Pension Scheme.
Option Form: Do not opt.
Service Book: Pension not opted.
15
Samey Ram
1984-2008
The applicant retired in the year 2008. He was paid his both shares of PF, gratuity and other retiral dues at the time of his retirement in the year 2008 itself.
He is a member of EPS95 Scheme. (admitted as per annexure A/5: page 69 of OA)
Service Book: Pension not opted.
Pay Slip "Z"
16
Gajraj Singh
1979-1995
The Applicant opted for VRS and was retired from the services w.e.f. 31.03.1995. His dues including CPF, gratuity, ex-gratia etc. were released to him in the year 1995 itself.
Service Book: Pension not opted Retirement Memo: Pension not-optee.
Pay Slip "Z"
17
Ram Niwas Sharma
03.12.1968- 23.06.2004
Not opted for DTC Pension Scheme and all his retiral dues were released to him on his retirement.
Service Book: Pension not opted.
Retirement Memo: Pension non-optee
18
Jagmal Singh
01.12.1972- 31.01.2008
The applicant vide his option form dated 15.01.1993 specifically opted not to be a member of DTC-Pension Scheme. All his retiral dues were released to him on his retirement.
Service Book: Pension not opted. Retirement Memo: Pension non-optee. Pay Slip "Z"
19
Puran Chand
18.08.1981-till date serving
The applicant is still serving in the Respondent Corporation. The Applicant vide his option form dated 14.01.1993 specifically opted not to be a member of the DTC-Pension Scheme.
Service Book: Pension not opted
Pay Slip : "E" as per OA
From the above table it is clear that none of the applicants opted for the Pension Scheme, some of them specifically opted for CPF Scheme/EPS and some of them specifically opted out of the pension scheme, and continued to be covered by the CPF Scheme. Further they received not only their contribution but also the employer's contribution at the time of their retirement/VRS etc. This was done with full knowledge and consent under no protest at all. This, along with other facts mentioned in para 7 would clearly distinguish their case from that of B.R.Khokha's case (supra).
As has already been discussed above, Hon'ble Supreme Court in the case of DTC Retired Employees Association & Ors. Vs. DTC & Ors. (supra) did not hold the DTC Employees Association Members as entitled to get pension. Hon'ble High Court of Delhi in DTC Workers Union's case (supra) also did not uphold the claim of the DTC Workers Union.
Hon'ble High Court of Delhi in batch matters disposed off by a common judgment in Madhu Bhushan Anand's case (supra) took the view that the petitioners must approach the Court or the Tribunal within a maximum period of three years being the limitation prescribed to file a suit. Relevant portion whereof is extracted hereunder:-
"They are not entitled to plead that right to receive pension is a continuous cause of action, for the reasons, in law either pension can be received or benefit under the CPF account. If the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach the Court or the Tribunal within a maximum period of 3 years being the limitation prescribed to file a suit."
The present case has been filed more than 2½ decades after introduction of the Pension Scheme of 1992.
In light of the above discussion, I find no merit in the OA. The OA is accordingly dismissed. There shall be no order as to costs.