Raj Pal vs Delhi Transport Corporation

By filing this OA, the applicant is seeking the following reliefs:-

"a) direct the respondent to set aside the order dated 07.10.2014 and give pension to the applicant w.e.f. 01.09.2014.

b) pay to the applicant arrears of pension w.e.f. 01.09.2014 till he is given his monthly pension.

c) May also pass any further order(s) as may be deemed just and property to meet the ends of justice."

Brief facts of the case, as stated by the applicant, are that he was appointed as Driver with the respondent - DTC on 14.5.1984 and in March, 1994, his services were terminated by the respondent, which was impugned by him by raising Industrial Dispute (ID No.291/08/96). However, during the pendency of the Industrial Dispute settlement reached in the mediation between the applicant and the respondent and the said Industrial Dispute disposed of the competent authority vide Award dated 3.8.2009 in terms of the settlement arrived at between the parties in following terms manner:-

"a) That the workman will be reinstated in the service of the corporation with immediate effect provided he is found medically fit by the DTC Medical Board and he is possessed valid licence.

b) That he will not be paid any back wages for the intervening period i.e. from the date of termination till his reinstatement and that the said intervening period will not be treated as break in service and will not count for extending any benefits such as seniority for promotion/ACP, pay fixation, gratuity and pension etc.

....."

Thereafter respondents moved an application for correction in the said Award and the Industrial Tribunal vide order dated 30.8.2009 made the correction in the said Order as follows:-

"b) That he will not be paid any back wages for the intervening period i.e., from the date of termination till his reinstatement and that the said intervening period will be treated as break in service and will not count for extending any benefits such as seniority for promotion/ACP, pay fixation, gratuity and pension etc."

Thereafter applicant reinstated and the applicant worked with the respondents regularly from the year 2009 till he reached the age of superannuation on 30.8.2014. The applicant was also informed earlier vide letter dated 6.3.2014 that he has opted for pension scheme and thus he was entitled to the pensionary benefits.

2.1 Thereafter the respondents issued impugned letter dated 7.10.2014 to the applicant stating that his claim for pension has been rejected as his qualifying service is less than 10 years. Being aggrieved by this letter, applicant sent a legal notice dated 7.11.2014 to the respondent for payment of pensionary benefits.

2.2 Being aggrieved by impugned order dated 7.10.2014 and inaction on the part of the respondent on his legal notice, he has filed this OA seeking the reliefs as quoted above.

During the course of hearing, learned counsel for the applicant submitted that applicant was appointed as Driver in the year 1984. However, after serving more than nine years of satisfactory service, he was awarded major penalty of termination from service on account of unauthorized absence in March 1994, which order was assailed by the applicant by raising Industrial Dispute and finally the said ID was disposed of in view of mediation arrived at between the applicant and the respondent. Consequently, applicant was reinstated in service in terms of conditions of mediation vide order dated 25.9.2009 and thereafter the applicant worked satisfactorily till the age of his superannuation, i.e., 31.8.2014 and that the respondents have admitted that the applicant has opted for pension scheme and the total service from 23.4.1984 to March 1994 and from 2009 to 31.8.2014 rendered by the applicant is more than 14 years and as per rules minimum 10 years service is required for grant of pension. As such the impugned order dated 7.1.2014 is liable to be quashed and the respondent be directed to give pension to the applicant w.e.f. 01.09.2014 and also arrears of pension w.e.f. 01.09.2014 till he is given his monthly pension.

On the other hand, learned counsel for the respondents submitted that initial appointment of the applicant on 12. 8.1984 was only on daily wage basis as "Retainer Crew" Driver. However, he was subsequently brought on M.R. (Monthly Rate) Driver on 5.3.1986 and as such he was on regular establishment of respondent from 5.3.1986 and not from 12.8.1984. Counsel further submitted that applicant was earlier also dismissed from service vide order dated 24.3.1988 and subsequently he was employed as a Driver vide letter dated 17.11.1989 (Annexure R1).

4.1 Counsel further pointed out that applicant was again removed from service vide Memo dated 5.3.1993 on account of unauthorized absence of the applicant for 173 days (from 1.10.1991 to 31.3.1992) in accordance with Clause 15(2)(4) of DRTA (Condition of Appointment and Services) Regulations Act, 1952. Thereafter he was reinstated in service vide Memo dated 25.9.2009 in compliance of Awards dated 3.8.2009/20.8.2009 which was passed in terms of mediation arrived at between the applicant and the respondent.

4.2 Counsel also submitted that as per the guidelines of Pension Department of DTC, it is clear that a Government servant, who retires from the service with a qualifying service of less than 10 years, is not entitled for payment of pension. Counsel emphasized that qualifying service of the applicant is less than 10 years, which is evidently clear from the calculation/table, which is reproduced below:-

S.No.

Particulars

Days

Months

Year

1.

Date of Retirement

30

08

2014

2.

Date of appointment (MAR)

05

03

1986

3.

Total Service

26 days

05 months

28 years

4.

Less of LWP (7929 days)

04 days

08 months

21 years

5.

Net Qualifying service

02 days

09 months

06 years

Heard learned counsel for the parties and perused the pleadings available on record. So far as the claim of the applicant that he was appointed on 12.8.1984 as Driver with the respondent is concerned, it is evident that on 12.8.1984, he was appointed only as a daily wage employee and was subsequently appointed on monthly rate as a Driver w.e.f. 5.3.1986. Therefore, his qualifying service has to be counted from 5.3.1986 when he came in the regular establishment of the respondent.

Further there is no rebuttal to the fact that applicant was dismissed on 4.3.1988 and thereafter, he was employed as Driver on 17.11.1989 as is evident from Annexure R1 of the additional counter affidavit. It is also an admitted fact that although his services were again terminated on 5.3.1993 on account of unauthorized absence of the applicant for 173 days (from 1.10.1991 to 31.3.1992) in accordance with Clause 15(2)(4) of DRTA (Condition of Appointment and Services) Regulations Act, 1952 but he was reinstated in service vide Memo dated 25.9.2009 in compliance of Awards dated 3.8.2009/20.8.2009, which is based on the terms of mediation arrived at between the applicant and the respondent, as noted above. In the said Award, it has specifically mentioned that the intervening period will be treated as break in service and will not count for extending any benefits such as seniority for promotion/ACP, pay fixation, gratuity and pension etc." So the period from 5. 3.1993 to 24.9.2009 has rightly not been taken into consideration by respondent while calculating his qualifying service.

In view of the above factual position and having regard to the calculation/table of qualifying service as pointed out of the respondents supra, this Tribunal does not find any merit in the claim of the applicant as it is clearly evident that applicant did not have the minimum 10 years of qualifying service, which is a mandatory condition for grant of pension and pensionary benefits to a Government employee. Therefore, the present OA is dismissed. There shall be no order as to costs.