Full Judgment Text
Civil Appeal No. of 2023
(Arising out of SLP(C) No. 11991/2021
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.3462 of 2023
(Arising out of SLP(C) No. 11991/2021
Calcutta State Transport Corporation
& Ors. …Appellants
Versus
Ashit Chakraborty & Ors. …Respondents
J U D G M E N T
Rajesh Bindal, J.
Leave granted.
1. The order dated 5.3.2021 passed in F.M.A. No. 692
of 2019 by the Division Bench of the High Court at Calcutta
has been challenged before this Court wherein order dated
17.8.2018 passed by the Single Bench in Writ Petition bearing
W.P. No. 6808 (W) of 2018 was upheld.
2. It is a case in which the respondent no.1 was
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.05.08
16:19:51 IST
Reason:
appointed as a Conductor with the appellant Corporation. At
that time there was no pension scheme in force, only
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Civil Appeal No. of 2023
(Arising out of SLP(C) No. 11991/2021
Contributory Provident Fund Scheme was applicable. In
1991, in exercise of powers conferred under Section 45 of the
Road Transport Corporation Act, 1950, the Corporation, with
the previous sanction of the State Government, framed The
Calcutta State Transport Corporation Employees’ Service
(Death cum Retirement Benefits) Regulations, 1990 (for
short, “the 1990 Regulations”). The aforesaid Regulations
came into force with retrospective effect from 1.4.1984.
The 1990 Regulations mandated that in order to get the
benefit of the said scheme, existing employees of the
Corporation will have to submit written option within six
months from the date of publication of the 1990 Regulations
expressing their willingness to switch over to the said pension
scheme instead of maintaining their status as C.P.F. holder.
The 1990 Regulations also provided that it shall be optional
to the existing employees, however, it shall be binding upon
the new entrants on and after the date of Notification of the
1990 Regulations.
3. The respondent no.1 opted for pension scheme.
On 21.7.2017, he opted for voluntary retirement, which was
accepted by the Corporation and he retired on 31.7.2017.
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(Arising out of SLP(C) No. 11991/2021
On his retirement the respondent no. 1 was paid an amount
of ₹ 13,28,495/- towards CPF contribution, ₹ 7,44,265/-
towards gratuity, ₹ 2,58,012/- towards VRS Compensation
and a sum of ₹ 2,409/- towards leave salary. As no pension
was paid to the respondent no.1, he made a representation
on 8.5.2018. As his claim was not considered, he filed writ
petition, which was allowed by the Single Judge vide order
dated 17.8.2018. The operative part of the order reads as
under:
“I direct the petitioner to refund the employer’s
share of the provident fund as well as the
amount of gratuity paid in excess of the
pensionable amount to the Corporation with
interest @ 6% per annum within a period of two
weeks. Upon receipt of such payment, the
respondents shall release the pension in favour
of the petitioner within two weeks for the
month of August 2018 and shall go on paying
the monthly pension as per the usual practice
with the Corporation.
So far as the arrear pension is concerned, i.e.
from August, 2018 to July 2018, the
respondents are directed to liquidate the same
in three equal monthly instalments, the first of
which shall be paid by September 15, 2018.
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The arrear of pension shall carry an interest @
6% per annum to be evenly distributed in three
instalments. In case the pension amount is
sent to the bank account of the petitioner, the
respondent authorities shall the petitioner a
copy of the break-up calculation for each
monthly instalment.”
The order was challenged by the Corporation in appeal. The
Division Bench of the High Court upheld the order passed by
the Single Bench.
4. Learned counsel for the appellant submitted that
no doubt the respondent no.1 submitted his option in 1991
for the pension scheme in terms of the 1990 Regulations.
However, thereafter repeated conduct of the respondent no.1
shows that he in fact was not interested in that. There were
regular deductions from his salary towards provident fund.
The statements were being sent to him. However, he never
objected to it. He raised the issue only after his retirement.
In such circumstances, he should not be allowed to avail the
benefit of the pension scheme.
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(Arising out of SLP(C) No. 11991/2021
5. On the other hand, learned counsel for the
respondent no. 1 submitted that the requirement under the
1990 Regulations was to submit an option within the
prescribed time. The respondent no.1 had submitted his
option for availing the pension scheme. Thereafter, it was
the duty of the employer, namely, the appellant to have
properly calculated his salary and the deductions required to
be made therefrom under different heads. In case any error
was committed by the Corporation, he should not be made to
suffer on that account. Whatever amount was paid to the
respondent no.1 on his retirement, he accepted the same
considering that the same may be due on his retirement. He
did not know that the Corporation will not pay pension to him
and some other amount has been paid in excess. It was the
fault of the Corporation only. It is only after the retirement of
respondent no.1 that he came to know that the pension was
not being paid to him. As the representation made by him
was not considered, he had to approach the High Court.
There is no error in the orders passed by the Single Judge and
Division Bench of the High Court. Equities have been
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Civil Appeal No. of 2023
(Arising out of SLP(C) No. 11991/2021
balanced. The amount, which was not due to the respondent
no.1, has been directed to be refunded to the appellant
Corporation along with interest and same interest is required
to be paid to him on release of arrears of pension. In fact,
when the respondent no.1 approached the High Court and
the writ petition was allowed, it was immediately after his
retirement. However, the Corporation has wasted about five
years’ time in avoidable litigation and deprived the
respondent no.1 of his rightful claim.
6. Heard learned counsel for the parties and perused
the paper book.
7. The undisputed facts are that the respondent no.1
was appointed in the Corporation as conductor on 6.7.1981.
The 1990 Regulations were framed providing for pension
scheme for the employees, which was effective from
1.4.1984. In terms thereof, the existing employees were to
give an option to avail benefit under the 1990 Regulations.
Prior to this Contributory Pension Scheme was in force. It is
not in dispute that the respondent no.1 had submitted his
option within time. He sought voluntary retirement on
21.7.2017, w.e.f. 31.07.2017. Certain retiral benefits were
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Civil Appeal No. of 2023
(Arising out of SLP(C) No. 11991/2021
paid to him, however, no pension was paid to him for which
he had exercised the option. He filed a representation on
8.5.2018. No action was taken thereon. Hence, he filed writ
petition before the High Court.
8. Initially the stand taken before the Single Judge
was that the respondent no.1 had not submitted his option
within the stipulated time. However, on perusal of the
various documents produced before the Court, it was found
that the respondent no.1 had submitted his option way back
in the year 1991 immediately after the 1990 Regulations
were notified. The claim of the respondent no.1 was sought
to be defeated on the ground that even after exercising the
option, contribution was being deducted from his salary in
terms of the membership in the CPF scheme to which he
never objected. Further, the plea was sought to be raised
that there are large number of similarly situated employees
who will raise this claim.
9. However, the aforesaid arguments were not found
to be meritorious, hence rejected by the High Court. It was
found that the Corporation was at fault in not acting upon the
option exercised by the respondent no.1. Finally, direction
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was given to the respondent no.1 to refund the employer
share of provident fund as well as the amount of gratuity paid
in excess to the Corporation along with interest @ 6% per
annum within two weeks. On receipt of the amount, the
Corporation was directed to release the pension within two
weeks from August 2018 onwards. As far as arrears of
pension from August 2017 to July 2018 was concerned,
direction was given to liquidate the same in three equal
monthly instalments from September 15, 2018 onwards. The
arrears were also to carry interest @ 6% per annum. The
amount was to be transferred in the bank account of
respondent no.1. Despite the legally sustainable and
equitable order passed by the learned Single Judge, the
Corporation filed intra-court appeal. Vide order dated
25.6.2019, the Division Bench stayed the operation of the
order passed by the learned Single Judge. On consideration
of the application filed by the respondent no.1 for vacation of
the interim stay, the appeal itself was heard and decided
finally vide impugned judgment. The only argument raised
before the Division Bench was regarding waiver. However,
the same was not accepted. This principle could be applied
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in case there was conscious abandonment of existing legal
right.
10. We do not find any merit in the same argument
raised by the counsel for the appellant as was rejected by the
High Court, namely, the waiver of the right to receive pension
by the respondent no.1. There was no conscious
abandonment of right to receive pension by the respondent
no.1 to deprive him of his pension. Reference can be made
to judgment of this Court in Kalpraj Dharamshi and
Another v. Kotak Investment Advisors Limited and
1
Another . Relevant para 119 thereof is extracted below:-
“119. For considering, as to whether a
party has waived its rights or not, it will be
relevant to consider the conduct of a
party. For establishing waiver, it will have
to be established, that a party expressly or
by its conduct acted in a manner, which is
inconsistent with the continuance of its
rights. However, the mere acts of
indulgence will not amount to waiver. A
party claiming waiver would also not be
entitled to claim the benefit of waiver,
1 (2021) 10 SCC 401
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unless it has altered its position in reliance
on the same.”
11. It is not in dispute that the respondent no.1 had
exercised his right to receive pension under the 1990
Regulations in the year 1991. Thereafter, it was the duty of
the Corporation to have given effect to the same. Merely
because there were some wrong deductions from his salary
and he was treated as member of the CPF Scheme, cannot be
permitted to be raised as a ground to defeat his rightful
claim. The pension was to start after retirement of the
respondent. When the same was not released to him,
immediately representation was made by him. As no
response was received from the appellant, the writ petition
was filed. The argument that there are number of similarly
situated employees who will also stake their claims, will not
deter this Court in granting the relief to the respondent,
which is legitimately due to him. Rather this argument shows
that the Corporation was at fault in implementing the 1990
Regulations in the cases of number of employees though
these were notified on 4.1.1991 and were given retrospective
effect from 1.4.1984. Technical objections are sought to be
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raised, which are not tenable. For any fault on the part of the
Corporation, the employees cannot be made to suffer.
12. We do not find any error in the orders passed by
the High Court. The appeal is accordingly dismissed.
_____________, J.
(Abhay S. Oka)
____________, J.
(Rajesh Bindal)
New Delhi
May 8, 2023
// NR, PM //
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