Single judge allowed DTC's appeal and dismissed employee's cross appeal holding that voluntary retirement does not automatically imply surplus status, barring Rule 29 benefits. Interest claim rejected as discretion already exercised below.
Pensionary benefits calculated on 15.5 years without five years added service; 24% interest claim dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
*** HIGH COURT OF DELHI AT NEW DELHI**
Pronounced on: 16th May, 2016
DTC ..... Appellant Through: Mrs. Avnish Ahlawat, Adv. with Ms. Latika Choudhary, Adv.
versus
OM PRAKASH SHARMA ..... Respondent Through: Mr. Ved Prakash Sharma, Advocate with Ms. Amrit Kaur Oberoi, Advocate & Mr. Kunal Dutt, Advocate
OM PRAKASH SHARMA ..... Appellant Through: Mr. Ved Prakash Sharma, Advocate with Ms. Amrit Kaur Oberoi, Advocate & Mr. Kunal Dutt, Advocate
versus
DELHI TRANSPORT CORPORATION ..... Respondent
Through: Mrs. Avnish Ahlawat, Adv. with Ms. Latika Choudhary, Adv.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
RSA 68/2009 & 178/2010 Page 1 of 21
10.02.2009 passed by the learned Senior Civil Judge by virtue of which the judgment and the decree passed by the learned Civil Judge on 20.10.2007 was affirmed.
RSA 68/2009 & 178/2010 Page 2 of 21
par with the Central Government employees vide office order which is Ex.PW-1/1 which reads as under:-
“No.Adm1-5(41)/92 Dated: 27-11-92
OFFICE ORDER NO.16
Sub:- Introduction of Pension Scheme in DTC as applicable to the Central Govt. Employees.
The introduction of Pension Scheme for the employees of the D.T.C. has been sanctioned by the Central Govt. and conveyed by the M.O.S.T. vide letter No.RT-12019/21/88TAG dated 23.11.1992 as on the same pattern as for the Central Govt. employees, subject to the following conditions:-
RSA 68/2009 & 178/2010 Page 3 of 21
Application forms for exercising option would be available with the Unit officers and all employees including retired employees wishing to exercise option, should do so with the unit of their present 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 exemployees, 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 DPF and Gratuity from the Ex-employees before forwarding their applications as mentioned above.
RSA 68/2009 & 178/2010 Page 4 of 21
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.
Sd/(L.C. GOYAL) DY. CHIEF GENERAL MANAGER (P)”
“DELHI TRANSPORT CORPORATION (A GOVT. OF INDIA UNDERTAKING) I.P. ESTATE: NEW DELHI
No. Adml-5(41)/93 Dated: 3.3.1993 Subject: Voluntary Retirement of Employees of Delhi Transport Corporation.
The matter pertaining to the introduction of Voluntary retirement Scheme for the employees has been under consideration of Delhi Transport Corporation. Salient features of the proposed voluntary retirement scheme are as under:
1. Applicability:
The scheme will be applicable to all regular employees of the Corporation, i.e. workers and executives who are appointed against regular vacancies in the Corporation.
2. Eligibility:
An employee must have completed ten years of service in this Corporation or completed 40 years of age to qualify for consideration under the Scheme. For this purpose, period of deputation/retention of lien in the
RSA 68/2009 & 178/2010 Page 5 of 21
parent office in lieu of deputation prior to absorption in the regular service of the Corporation will be excluded.
3. Conditions governing voluntary retirement:
4. Benefits under the Scheme:
An employee who takes voluntary retirement will be eligible to the following refunds/payments:
RSA 68/2009 & 178/2010 Page 6 of 21
All amounts due to the Corporation will be adjusted against the payments under (d) & (e) above and the employee concerned should clear any outstanding dues/advances taken before the date of effect of voluntary retirement.
Employees working on the post of Conductor in the Corporation are proposed to be covered under the Voluntary Retirement Scheme in the first instance. Such Conductors who are desirous of seeking voluntary retirement in the proposed scheme may give their option in the prescribed proforma through proper channel within 15 days to the concerned unit officers who will forward the same to the Secretary, DTC Board.
This issues with the approval of competent authority.
Sd/3.3.93 (A.K. SHARMA) DY. CHIEF GENERAL MANAGER (IR)”
RSA 68/2009 & 178/2010 Page 7 of 21
“DELHI TRANSPORT CORPORATION (A GOVT. OF INDIA UNDERTAKING) I.P. ESTATE: NEW DELHI
No. Adml-5(41)/93 Dated: 16.3.1993
Subject: Voluntary Retirement of Employees of Delhi Transport Corporation.
Salient features of the proposed Voluntary Retirement Scheme were announced vide this office circular of even number dated 3.3.1993 (copy enclosed). Initially the coverage of this scheme was applicable only to the employees working on the post of Conductor.
Now, it has been decided to cover all the employees of the Corporation under the proposed Voluntary Retirement Scheme. Such employees who are desirous of seeking voluntary retirement in the proposed Scheme may give their option in the prescribed proforma through proper channel within 15 days to the concerned Unit Officers, who will forward the same to the Secretary, DTC Board.
This issue with the approval of the competent authority.
Sd/16.3.93 (A.K. SHARMA) DY. CHIEF GENERAL MANAGER (IR)”
RSA 68/2009 & 178/2010 Page 8 of 21
circular. It is the case of Mr.Sharma that he exercised his option for VRS which was accepted by DTC vide acceptance letter dated 29.04.1994 which is Ex.PW-1/4. The respondent retired from the service of the Cooperation w.e.f. 30.4.1994. Further, It has been stated that the incumbent had completed 15 ½ years of qualified service at the time of acceptance of his option of VRS. Certain benefits were released to Mr.Sharma vide letter dated 29.04.1994 Ex.PW-1/5 which were received by him under protest as certain benefits under VRS in respect of salary and encashment of leave were not properly calculated. This question of having received the benefits “under protest” is disputed by the DTC and even the photocopies of the original record which were shown in the court also does not show any protest having been lodged by the incumbent at the time of acceptance although an argument in this regard is being made. Mr.Sharma was found eligible to get pension and in terms of VRS Scheme Para 4 (g) of Ex.PW-1/2 it was alleged that the DTC withheld its share towards contributory provident fund. After about two years of acceptance of VRS in 1996, Mr.Sharma was intimated that he was not entitled to any pension as he had not completed 20 years of service. He served a legal notice dated 17.06.1996 Ex.PW-1/8 which was followed up by him, allegedly by several reminders which did not yield and result finally culminating into filing of a suit for declaration in September, 1998 and mandatory injunction to the effect that he was entitled to pensioner benefits including computation of pension and
RSA 68/2009 & 178/2010 Page 9 of 21
arrears after giving benefits under Rule 20 and 30 of CCS (Pension Rules) with interest @ 24% per annum.
RSA 68/2009 & 178/2010 Page 10 of 21
the provident fund which DTC had decided to recovery from him which the DTC had released in 1996.
2. Whether the plaintiff is entitled for the interest on the pensionery benefit, if so, at what rate and for what period? OPP.
3. Relief?”
RSA 68/2009 & 178/2010 Page 11 of 21
The first Appellate Court upheld the said judgment and the decree vide its judgment dated 10.02.2009. Thus, there was a concurrent finding of fact by the learned Civil Judge and by the first Appellate Court that Mr.Sharma was declared surplus and was entitled to benefit of Rule 29 of the CCS (Pension) Rules.
“(i) Whether the post of Legal Advisor which the respondent in the instance case was holding at the time of seeking voluntary retirement was declared surplus or redundant, if so, to what effect?
(ii) If the answer to question (i) is in affirmative, whether Rule 29 of CCS (Pension) Rules would be applicable to him?
(iii) Whether the respondent had been granted voluntary retirement under clause-3 of the VRS Scheme vide Circular No.AdmI-5(41)/93 dated 3.3.1993?”
RSA 68/2009 & 178/2010 Page 12 of 21
he is not in possession of any order to indicate that he was ever declared as surplus or redundant. Accordingly, it is contended since respondent himself has admitted that he was not declared as surplus, therefore, he could not be given the benefit of five added years service for the calculation of his pensionary benefits. The exact words which have been used by Mr. Om Prakash Sharma in his cross-examination are reproduced as under:-
“… It is correct to suggest that I was not issued any such letter showing therein myself as a surplus employee.”
“3 (a) Voluntary retirement will be normally allowed only in cases of incumbents of the posts which have been declared surplus or redundant. However, voluntary retirement scheme could also be allowed in other cases depending on the merits of each case and in the interest of the corporation.”
RSA 68/2009 & 178/2010 Page 13 of 21
in this regard. It was stated that the appellant/defendant in the written statement had taken the plea that Om Prakash Sharma is not entitled to pension because Rule 48-A of the Pension Rules because he had not completed 20 years of service.
“14. That at the time of retirement, the plaintiff was having 15½ years of qualifying service at his credit, and in addition to this, as per provisions of Rule 29 and 30 of the CC Pension Rules, the plaintiff was further entitled to an additional benefits of about 10 years under the said Rules i.e. five years under Rule 29 and five years under Rule 30, as he was given voluntary retirement after he was declared surplus, because the said voluntary retirement scheme was meant only for surplus staff and further when he joined the defendant/Corporation, as Law Officer as per R.Rs. for the said post, he was having more than 10 years of service at his credit. …..
Para 14 of WS
14. Contents of para No.14 of the plaint are wrong and denied, it is denied that the case of the plaintiff comes under the provision of Rule 29 and 30 of the CC Pension Rules, it is submitted that Rules 29 and 30 of CC Pension Rules related to those employee, who was declared surplus by the DTC, but in this case the plaintiff himself applied for VRS and accordingly his request has acceded to by the management. So the case of the plaintiff comes under Rule 48-A.”
RSA 68/2009 & 178/2010 Page 14 of 21
RSA 68/2009 & 178/2010 Page 15 of 21
work of the organization. While as no such inspection in the instant case has been done internally or even externally to show that the post which the respondent was holding was surplus. Therefore, merely because respondent was granted voluntary retirement, it cannot be presumed that his post was surplus. Moreover, it is a matter of fact that the respondent was holding the post of a Law Officer and was promoted as a Legal Advisor and he applied for VRS in the capacity of Legal Advisor. There was not more than one post of Law Officer / Legal Advisor while as there may be number of posts of lower categories of law officers or Assistant Law Officers or Junior Law Officers. Where a particular post is only one in number, whether it is of Deputy Law Officer or Law Officer or Legal Advisor itself, how could such one post be treated as having become surplus, because in such an event the entire decision making process in the organization would crumble. 25. Mr. Sharma, the learned counsel for the respondent has drawn my attention to some documents which is a note put to the Director and to the Board where the total strength of the legal Department has been given. It has been stated in the note that the respondent who was Law Officer at the relevant time and was permitted to take VRS. It has been further stated that till date the Law Officer has not been recruited and his function are being attended to by the Assistant Law Officer or Additional Law Officer. That cannot be a ground to assume that he has been declared surplus or that he was granted VRS because of this reason.
RSA 68/2009 & 178/2010 Page 16 of 21
RSA 68/2009 & 178/2010 Page 17 of 21
Vs. Delhi Transport Corporation; 1997 VI AD(Delhi)1001 had upheld the validity of Rule 29 and granted pension to the employees of the DTC after completion of ten years does not help the respondent in any manner because it is not an authority with regard to addition of five years because of VRS.
RSA 68/2009 & 178/2010 Page 18 of 21
respondent in support of his contention on grant of interest has relied upon the judgments wherein such rate of interest has been granted on account of belated payment of pensionary benefit to the incumbent.
1. Bank of India & Anr. vs. K. Mohandas & Ors; 2009(4)SCALE576
2. Gurdev Kaur & Ors. vs Kaki &Ors;JT 2006 (5) SC 72
These judgments which have been relied upon by the learned counsel for the respondent are distinguishable from the facts of the present case. In the present case the issue was as to whether the respondent was to be granted benefit of five years of added service to his actual service of 15½ years and thereby the pension to be sanctioned to him. It is a matter of fact that the respondent had put in only 15 years of service and applied for VRS and all the benefit except a portion of which was released to him which was accepted by the respondent without prejudice. Though the learned counsel for the respondent had stated that the payment was accepted subject to reservation or without prejudice. However, it has not been shown on original record by the respondent that such a payment was ever accepted by him without prejudice. On the contrary, this was a belated plea taken by the respondent to further his own interest. Once the payment is accepted by an incumbent without reservation, he cannot retrace his steps and then say that he has accepted the payment without prejudice. Only a fraction of some
RSA 68/2009 & 178/2010 Page 19 of 21
benefits were to be released to him because there was a confusion with regard to reversing of the incumbent from Contributory Provident Fund Scheme to the Pension Scheme and certain contributions were to be re-adjusted or repaid to the employer.
RSA 68/2009 & 178/2010 Page 20 of 21
voluntary retirement as he was declared surplus and therefore, he was given the benefit of five years of service is based on no evidence and to that extent the judgment and the decree deserves to be modified. Ordered accordingly. Parties to bear their own costs. Pending applications, also stand disposed of.
V.K. SHALI, J.
MAY 16, 2016 vk
RSA 68/2009 & 178/2010 Page 21 of 21
3 issues framed by the court
Whether an employee permitted to take voluntary retirement is prima facie declared surplus or redundant for the purpose of claiming benefits under Rule 29 of CCS Pension Rules?
Whether the benefit of five years added service can be granted for calculation of pension to an employee who opted for voluntary retirement?
Whether interest at 24% per annum should be granted on delayed payment of a small fraction of pensionary benefits?
Colour shows how this judgement treated each authority
Jagpal Singh vs Delhi Transport CorporationDistinguished¶28
Jagpal Singh Vs. Delhi Transport Corporation; 1997 VI AD(Delhi)1001
Bank of India and Anr. vs K. Mohandas and Ors.Distinguished¶34
Bank of India & Anr. vs. K. Mohandas & Ors; 2009(4)SCALE576
Gurdev Kaur and Ors. vs Kaki and Ors.Distinguished¶34
Gurdev Kaur & Ors. vs Kaki &Ors;JT 2006 (5) SC 72 · Who else cites this
2 provisions across 2 enactments
DELHI TRANSPORT CORPORATION
OM PRAKASH SHARMA
V.K. SHALI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
