Suraj Pal Singh vs Delhi Transport Corporation & Anr.

“ 2. The issue in controversy is short, but recurring. Till 27 November 1992, all employees of the DTC were covered by the Contributory Provident Fund Schemes. Vide Office Order dated 27 November 19926, the DTC introduced the GPF -cum-Pension Scheme⁵. The respondent claims that, by virtue of para 9 of the 1992 Office Order, he is deemed to have switched over from the CPF to the Pension Scheme. The DTC does not dispute this argument on principle, but submits that, as the respondent continued to pay his contribution towards CPF, and the DTC, too, paid its share of the CPF contribution, the benefits of which have been reaped by the respondent on his retirement, he cannot now claim the benefit of the Pension Scheme.

3.

The Tribunal has allowed the respondent's claim. The DTC is aggrieved thereby.

6.

To our mind, though there was some amount of flux in the legal position as on the date of rendition by the Tribunal of the impugned orders, the legal position now stands crystalized by the judgment of the Supreme Court in University of Delhi v Shashi Kiran'. The Supreme Court has, in clear and unequivocal terms, held that failure, on the part of the employee, to exercise his option to continue under the CPF Scheme within the period stipulated in the Office Order/Notification would result, ipso facto, in his being deemed to have switched over to the Pension Scheme. This being an express legal consequence envisaged by para 9 of the 1992 Office Order of the DTC, the fact that such a non-optee availed CP benefits thereafter, would make no difference. At the highest, the establishment - in the present case, the DTC - could require the employee to return the CPF benefits availed by him. The mandate of para 9 of the 1992 Office Order has been held to be clear and inexorable.

9.

At the time when the respondent joined service, there was no Pension Scheme applicable in the DTC. All employees were covered by the CPF Scheme, which was in operation and whereunder contributions were made to the CPF account of the employee by the employee and the organization (i.e. the DTC), which would enure to the benefit of the employee at the time of his superannuation. There is no dispute about the fact that the respondent and the DTC were paying their respective contributions to the CPF account of the respondent during his entire service career.

10.

While the respondent was in service with the DTC, the DTC issued the 1992 Office Order, introducing the Pension Scheme for its employees, as had already been introduced in respect of Central Government Employees. The Office Order deserves to be reproduced in extenso thus :

"No.Adm-1-5(4)/92 Dated 27.11.92

Sub: Introduction of Pension Scheme in DTC as applicable to the Central Govt. Employees

The introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Govt. and conveyed by the M.O.S.T. vide letter No.RT-12019/21/88-TAG dated 23.11.92 as the same pattern as for the Central Govt. employeessubject to the following conditions:

1.

The Pension Scheme would be operated by the LIC on behalf of DTC.

The date of effect of Pension Scheme would be 3.8.1981.

3.

All the existing employees including those retired w.e.f. 3.8.1981 onwards would have the option to opt for the Pension Scheme or the Employees Contributory Provident Fund as at present, within 30 days from the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt. of India.

4.

The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23.11.92, the date of sanction of the Scheme.

5.

The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF A/c of the DTC employees, who opt for Pension Scheme would be transferred to the LIC, for operating.

6.

The employees who have retired on or after 3rd August 1981 and the existing 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 Pension Scheme. The total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share.

7.

Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them before any benefit under the Scheme, is granted to them.

8.

A due and drawn statement would be prepared in respect of retired employees opting for Pension Scheme and the amount to be paid/refunded, would be worked out by the concerned unit, wherefrom the employee had retired from service.

9.

If any of the employee of DTC. who does not exercise any option within the prescribed period of 30 days or quits service or dies without exercising an option or whose option is incomplete or conditional or ambiguous, heshall be deemed to have opted the Pension Scheme Benefits.

Application forms for exercising option would be available with the Unit Officers and all employees holding so ved che lyces ishi pr sent working where from they retired, within a period of 30 days from the date of issue of this Office Order.

The Unit Officers, after receiving the options from the ex-employees, will take further necessary action for getting the necessary forms completed, which will be supplied to them by the LIC for pension, etc. They will also ensure the recovery of EPF and Gratuity from the ex-employees before forwarding their applications as mentioned above. The cases of all officers will be dealt with at Headquarters.

The options received from the existing employees for not opting Pension may be kept in their Personal file and entry made in their Service Book."

(Emphasis supplied)

11.

Admittedly, the respondent did not exercise any option, one way or the other, that is, to continue under the CPF Scheme or to switch over to the Pension Scheme, within the period of 30 days, envisaged in the 1992 Office Order.

26.8

This position of law, we may respectfully observe, is unexceptionable. If there is an affirmative "opting out", of the Pension Scheme, or an affirmative exercise of option to continue under the CPF Scheme by the employee, he cannot later resile from this stand and seek the benefit of the Pension Scheme.

27.2

S.L. Verma is clear and categorical in its import. In the first place, it has to be noted that the Office Memorandum dated 1 May 198721 issued by the Government was, to all intents and purposes, pari materia with the 1992 Office Order of the DTC. Clause 3.2 of the 1987 OM provided employees an option to continue under the CPF scheme, despite the introduction of the Pension Scheme. It required the option to be exercised on or before 30 September 1987 and further stipulated that, if no option, to continue under CPF scheme, was received by the employee by that date, the employee would be deemed to have switched over to the Pension Scheme. In a sense, therefore, Clause 3.2 of the 1987 OM was a conflation of paras 3 and 9 of the 1992 Office Order of the DTC.

27.3

The Supreme Court has, in para 7 of the decision in S.L. Verma, held, in clear, unambiguous and unmistakable terms, that the only circumstance in which an employee would not become a member of the Pension Scheme was where he consciously opted to continue with the CPF scheme on or before the cut off date of 30 September 1987. Like the present respondent, the respondents before the Supreme Court in S.L. Verma did not exercise any such option on or before 30 September 1987. The Supreme Court holds that, in that view of the matter, they ipso facto became members of the Pension Scheme.

27.4

Most significantly, the Supreme Court further notes that, at a later stage, the employees opted to continue with the CPF scheme. However, as they had, by operation of the legal fiction engrafted in para 3.2 of the 1987 OM - and, in our case, to be found in para 9 of the 1992 Office Order of the DTC - become members of the Pension Scheme, they would continue in that capacity, and could not later seek to revert to the CPF scheme.

27.5

Thus, S.L. Verma is a clear authority for the proposition that, if the employee exercises no option to continue with the CPF scheme on or before the stipulated cut off date, he ipso facto switches to the Pension Scheme, and there is no comeback.”

“ Conclusion

36.. We, therefore, are of the firm opinion that after the judgment of the Supreme Court in Shashi Kiran, no scope remains for debate on the issue in controversy in the present case. An employee who fails to exercise the option, as envisaged in Clause 3 of the DTC Office Order dated 27 November 1992, on or before 1995, ipso facto, switches over to the Pension Scheme, by operation of para 9 of the said Notification. There is no possible comeback. The mere fact that the employee as well as the DTC continue to contribute to the CPF and the employee may have even earned the benefits of such contribution at the time of his retirement would make no difference. The employee would, nonetheless, be entitled to claim to be a deemed pension-optee in terms of para 9 of the DTC Office Order dated 27 November 1992. The employee would, however, not be entitled to retain the CPF benefits drawn by him at the time of his retirement, but would have to return the said amount to the DTC, with interest. Further, the employee would be entitled to arrears only for a period of 3 years prior to his moving the Tribunal.

37.

We, therefore, sustain the impugned judgement of the Tribunal, subject to the modification that the arrears to which the respondent would be entitled would be restricted to a period of 3 years prior to his moving the Tribunal.

38.

To avoid confusion, we clarify that the operative directions would be as under:

(i)

The decision of the Tribunal to treat the respondent as a deemed pension optee, in view of his not having exercised any option in terms of the 1992 Office Order, is affirmed and upheld.

(ii)

The respondent would, therefore, be entitled to receive, and to continue to receive, pension, in accordance with the Pension Scheme put in place by the 1992 DTC Office Order, from the date of his superannuation, with interest thereon @ 6% p.a. till the date of payment.

(iii)

Arrears of pension, with interest, would, however, be paid to the respondent only for a period of 3 years prior to his instituting OA 31/2015 before the Tribunal.

(iv)

The respondent would also have to return to the DTC, the . entire CPF benefits credited to his account at the time of his superannuation, with interest thereon @ 6% p.a., till the date of payment. The entitlement of the respondent to the amount envisaged in (i) to (iii) supra would be subject to the said payment being made by him to the DTC.

(v)

Payments, by DTC to the respondent and by the respondent to DTC, in accordance with the above directions, would positively be made within a period of 3 months from the date of pronouncement of this judgment.

39.

The writ petition stands disposed of, in the above terms, with no orders as to costs.”

“ 2. As per Office Order No.16 No.ADM-I-5(4)(41)/92 dated 27.11.1992 option for pension was called within one month. The applicant did not give any consent so he was treated as Pension optee and Pension Opted stamp was put by PPG Depot in his service Book. Thereafter on 15.01.1993 he gave in writing that he do not Opt DTC Pension. After getting approval stamp was put in his service book "Pension not opted" by Shahdara Depot-2. They have also informed the Pension Cell accordingly. But due to oversight his contribution of P.F. under EPS, 95 was not deducted SHD-II and there is indication of S in his pay slip. On 15.01.1993 he gave in writing that he do not Opt DTC Pension. So, the applicant is not entitled for DTC Pension. He attained the age of superannuation i.e. 60 years on 31.01.2018. He retired from the services of this Corporation on 31.01.2018 vide memo No. NOD/PFC(Cond) /Retire/ 2017/4075 dated 27.09.2017. As per service record he has not opted D.T.C. Pension. His qualifying service was 34 years 07 month and 22 days i.e. 35 years.

3.

After getting necessary approval a sum of Rs.12,46,514/- in respect of Sh. Suraj Pal Singh, Ex Cond., T.No.41672 has been transferred to his P.F. Trust vide letter No.PC/Bank/ECS/2018/224 dated 9.03.2018, so the applicant is not entitled for the DTC Pension. The memo releasing the P.F. (Both shares - Employee as well as emplov.er) has been issued vide memo No. NOD/Settlement (Ex Cond)/2018/1417 dated 05.04.2018.

4.

The applicant in his application dated 13.10.2017 addressed to DM-Noida Depot requested for DTC Pension. On 08.02.2018 the applicant submitted application addressed to CMD-DTC for not releasing his, P.F. share and requested for DTC Pension.

5.

In the pay slip of the application S is pension instead of N and no deduction towards EPF contribution was made. For changing for pension not opted, a meeting of DTC Employee Pension Trust was held on 30.01.2018 and the pension case of the applicant was considered and Pension Trust considered him Pension not opted. So, Memo No.NOD/Settlement/Ex Cond/2018/1417 dated 05.04.2018 was issued releasing letter with respect to his (both contributions Employee & Employers). The applicant was informed accordingly vide memo No.NOD/POFC(Cond)/18/4530 dated 07.09.2018.