Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 24 January 2025
Pronounced on : 18 March 2025
+ W.P.(C) 2966/2016
DELHI TRANSPORT CORPORATION .....Petitioner
Through: Mrs. Avnish Ahlawat, Standing
Counsel with Mr. Nitesh Kumar Singh, Adv.
versus
ANIL LUTHRA .....Respondent
Through: Mr. Yudhvir Singh Chauhan
and Mr. Aditya Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE AJAY DIGPAUL
JUDGMENT
% 18.03.2025
C. HARI SHANKAR, J.
The Issue
1
1. The Delhi Transport Corporation , by this writ petition,
2
challenges orders dated 23 December 2015 in OA 31/2015 and order
3
dated 8 February 2016 in RA 32/2016 , passed by the Central
4
Administrative Tribunal .
1
“DTC”, hereinafter
2
Anil Luthra v DTC
3
DTC v Anil Luthra
4
“the Tribunal”, hereinafter
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2. The issue in controversy is short, but recurring. Till 27
November 1992, all employees of the DTC were covered by the
5
Contributory Provident Fund Scheme . Vide Office Order dated 27
6 7
November 1992 , the DTC introduced the GPF -cum-Pension
8
Scheme . 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.
4. This Court is, therefore, only required to decide whether the
respondent is entitled to the benefit of the Pension Scheme or would
continue to be governed by the CPF Scheme.
5. The Tribunal has held the respondent to be entitled to the
benefit of the Pension Scheme on the basis of para 9 of the 1992
Office Order issued by the DTC which stipulated that, if an employee
did not exercise his option for continuing under the CPF Scheme
5
“CPF Scheme”, hereinafter
6
“the 1992 Office Order” hereinafter
7
General Provident Fund
8
“the Pension Scheme” hereinafter
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within 30 days of the Office Order, he would be deemed to have
switched over to the Pension Scheme. The contention of the DTC is
that even in the case of such a non-optee, if the employee continued to
contribute to the CPF and, on his retirement, availed CPF benefits, he
could not claim to be a deemed pension-optee thereafter. The plea,
therefore, is essentially one of acquiescence and estoppel.
Our View
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
9
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 CPF 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.
7. With this brief prefatory recital, we may turn to the controversy
in issue.
9
(2022) 15 SCC 325
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Facts
8. The respondent Anil Luthra joined the services of the DTC on 2
June 1969 and retired on 30 September 2011, after rendering 42 years
of service.
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-I-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. employees
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subject to the following conditions:
1. The Pension Scheme would be operated by the LIC
on behalf of DTC.
2. 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, he
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shall be deemed to have opted the Pension Scheme Benefits.
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 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.
12. Ms. Ahlawat, learned Counsel for the DTC, pointed out that the
implementation of the Pension Scheme in the DTC was undertaken by
10
the Life Insurance Corporation and that, as there was some hiccup
on that front, the date for exercising option in terms of para 9 of the
1992 Office Order was extended till 1995. It is not in dispute,
however, that, even till 1995, the respondent did not exercise any
option in terms of the 1992 Office Order.
10
“the LIC”, hereinafter
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11
13. On 28 October 2002 , the DTC, once again, invited options
from persons who wished to switch over from the CPF Scheme to the
Pension Scheme. The Office Order read thus :
DELHI TRANSPORT CORPORATION
GOVT. OF N.C.T. OF DELHI
I.P. ESTATE: NEW DELHI
No./Pen.Cell/Option/2002/440 Dated: 28.10.2002
OFFICE ORDER
In compliance of the orders conveyed by Sh. Abhijit Sarkar,
Secretary to Minister (Transport), Tourism and Power, Govt. of
N.C.T. of Delhi vide letter No. PA/MOTTP/2002/11117 dated
4.10.2002, it has been decided that the option from all the existing
employees including those who are covered under the RPFC
Scheme may obtain in the following conditions:
i) All the existing employees who are not covered
under the existing DTC Pension Scheme may exercise their
option in writing in case desire to opt DTC Pension
Scheme.
ii) The 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 DTC Pension Scheme. The total amount to be refunded
by the employees would be the amount that would have
accrued, had they not withdrawn the employer's share.
iii) Inviting/exercising option shall be provisional and
subject to exemption from the RPFC and refund the amount
held with them. In case, no exemption is received from
RPFC, this option shall become redundant, and the status of
an employee shall be the same as is before the issue of
these orders.
iv) The Unit Officers / Depot Managers after receiving
the Options, shall send the list of existing employees who
exercised their option in favour of DTC Pension Scheme to
the Pension Cell within a week of closing the date of
option.
11
“the 2002 Office Order” hereinafter
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v) All employees who are roll of the Corporation on
the date of issue of this Office Order shall be eligible to opt
DTC Pension Scheme and to exercise their option within 30
days from the date of issue of this Circular.
After receiving the list of employees exercising their option in
favour of DTC Pension Scheme, the matter would be examined.
The decision of management shall be final.
Sd/-
(Ramesh Chander)
Addl. Chief Accounts Officer”
14. Within the time provided in the 2002 Office Order, the
respondent exercised his option to switch over to the Pension Scheme.
One of the issues that would arise for consideration is whether the
exercise of this option has any meaning at all, if the respondent was
already a deemed pension optee by virtue of para 9 of the 1992 Office
Order.
15. DTC, however, contends, as would be noted hereinafter, that
the 2002 Office Order remained in an inchoate stage, and was never
implemented.
16. As already noted, the respondent superannuated on 30
September 2011.
17. Prior thereto, on 1 August 2011, the respondent addressed the
following communication to the Senior Manager (PLD), DTC:
“Sr. Manager (PLD)
DTC, I.P. Estate,
New Delhi
Sub: Application for the grant of withdrawal of 90% from the C.P.
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Fund under para 68NN.
Madam,
You are requested to sanction 90% of C.P.F. contribution as
per the notification issued by the Admn. Deptt. vide No. AdmI-
5(41)/96 dated 2.12.1996. May particulars are given hereunder:
1. Name : Anil Luthra
2. Father Name : Shri J.R. Luthra
3. Designation : Deputy Manager (Pers.)
4. Token No. : 290
5. Date of Birth : 07.09.1951
6. Date of Appointment : 02.06.1969
7. Date of Retirement : 30.09.2011
8 . Pension Opted/Not Opted : Not Opted
9. Date of last non-refundable advance drawn : 08.10.2010
10. Date of last refundable advance drawn: ----
I declare that the above particulars are true to be best of my
knowledge and I will abide by the conditions governing to the
grant of withdrawal under DTC EPF Amendment Scheme 1996.
Encl: Photocopies of Pay Slip & Cheque
Sd/-
Signature of the applicant”
(Emphasis supplied)
18. In these circumstances, the respondent approached the Tribunal
by way of OA 31/2015, praying for a direction to DTC to release, to
the respondent, pensionary entitlements under the Pension Scheme,
along with commutation of pension from the date of his
superannuation, and interest. It was contended, in the said OA, that,
as the respondent had never opted out of the Pension Scheme, and had
exercised his option for being extended the benefit of the Pension
Scheme within the period envisaged in the 2002 Office Order, the
respondent was entitled to pension. It was further submitted that, on
his superannuation, the respondent had requested the DTC not to
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release the Management’s share of the CPF, but that the DTC had
nonetheless credited the amount to the respondent’s account. In any
event, submitted the respondent, the 1992 and 2002 Office Orders
provided that, if the employee had withdrawn, wholly or in part, the
management’s share of the CPF, he would have to deposit the amount
with interest, in the event of pension being granted to him.
The Impugned Orders dated 23 December 2015 in OA 31/2015 and
dated 8 February 2016 in RA 32/2016
19. Before the Tribunal, the DTC submitted that, as the respondent
had not opted for the Pension Scheme pursuant to the 1992 Office
Order, he was not entitled to its benefit. On his superannuation, the
DTC had paid, to the respondent, the DTC’s share of CPF.
20. The Tribunal holds, in the impugned order dated 23 December
2015 in OA 31/2015 that, as the respondent had not exercised the
option to continue under the CPF Scheme within the period envisaged
in the 1992 Office Order, the respondent, by operation of para 9
thereof, was deemed to have switched over to the Pension Scheme.
Prior to his retirement, the respondent, on 19 September 2011,
represented to the DTC, requesting that pension be released to him.
Without deciding this representation, the DTC deposited, in the
respondent’s account, the DTC’s share of the repsondent’s CPF. In
these circumstances, the Tribunal held that the respondent could not
be denied the benefit of the Pension Scheme. Following these
conclusions, the Tribunal has directed the DTC to pay, to the
respondent, pension in accordance with the Pension Scheme, from the
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date following his retirement, with arrears, and has directed the
respondent to refund, to the DTC, DTC’s share in the respondent’s
CPF, which stands credited to the respondent’s account, within two
months.
21. The DTC filed RA 32/2016 seeking review of the order dated
23 December 2015 passed in OA 31/2015. By order dated 8 February
2016, the Tribunal dismissed RA 32/2016, holding that no case for
review was made out.
22. Aggrieved thereby, the DTC has approached this Court by
means of the present writ petition.
Rival Contentions
23. We have heard Ms. Avnish Ahlawat, learned Counsel for the
DTC and Mr. Yudhvir Singh Chauhan, learned Counsel for the
respondent at length.
24. Mrs. Ahlawat has made following submissions, in support of
the writ petition:
(i) The Tribunal erred in adjudicating on the respondent’s
OA on the basis of the 1992 Office Order, whereas the OA was
entirely predicated on the subsequent 2002 Office Order. The
respondent never set up a case, in his OA, of being entitled to be
treated as a deemed pension optee under the 1992 Office Order.
(ii) Reliance was placed, in this context, on the letter dated 1
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August 2011, addressed by the respondent to the Senior
Manager (PLD), DTC, reproduced supra . Mrs. Ahlawat points
out that, in the said letter, the respondent had admitted that he
had not opted for pension. He could not, therefore, now seek to
contend that he was a deemed pension optee. In fact, according
to Mrs. Ahlawat, this letter indicated that the respondent had
opted out of the Pension Scheme.
(iii) Reliance is also placed, by Mrs. Ahlawat, in this context,
on an entry made in the respondent’s service book, reading “not
opted”. Though she is unable to inform the Court regarding the
person who made the said entry, she submits that the entry
would also indicate that the respondent was not a pension optee.
(iv) There was no averment, in the OA filed by the
respondent, asserting that he was a deemed pension optee under
the 1992 Office Order. He, in fact, claimed to be a pension
optee in terms of the 2002 Office Order, which itself belies his
case that he was a deemed pension optee under the 1992 Office
Order. The 2002 Office Order was merely provisional and was
never implemented. As such, the respondent had no enforceable
right in law to be treated as a deemed pension optee.
(v) If the respondent was, in fact, a deemed pension optee
under the 1992 Office Order, there was no cause for him again
opting for the Pension Scheme in terms of the 2002 Office
Order.
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(vi) In support of her submissions, Mrs. Ahlawat places
reliance on the judgment of the Full Bench of this Court in RD
12
Gupta v DTC , para 10 of the judgment of the Division Bench
13
of this Court in DTC v Madhu Bhushan Anand , the judgment
14
of this Court Rati Bhan v DTC and the judgment of this Court
15
in Tungal Giri v UOI . She also points out that the SLP
preferred against the decision in Rati Bhan was also dismissed
by the Supreme Court.
(vii) Mr. Chauhan submits, per contra, that the case of the
respondent is fully covered by the judgment of the Division
16
Bench of this Court in B.R. Khokha v DTC . He points out
that the SLP preferred against this judgment was also dismissed
by the Supreme Court. Mr. Chauhan further submits that the
respondent had never opted for continuing in the CPF scheme
and, therefore, was a deemed pension optee in terms of the 1992
Office Order.
Analysis
25. To adjudicate on the present lis , one need refer only to three
judgments – the judgment of the Full Bench of this Court in R.D.
Gupta and the judgments of the Supreme Court in UOI v S.L.
17
Verma and Shashi Kiran .
12
2011 SCC OnLine Del 4008
13
172 (2010) DLT 668 (DB)
14
2011 SCC OnLine Del 4394
15
Judgement dated 29 November 2022 in WP (C) 1871/2019
16
MANU/DE/3455/2016
17
(2006) 12 SCC 53
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26. R.D. Gupta
26.1 R.D. Gupta was a judgment of the Full Bench of this Court,
authored by Dipak Misra, Chief Justice (as he then was). The
reference to the Full Bench arose because of the view, held by a
Division Bench of this Court, that there was an irreconcilable conflict
between the judgments of Division Benches of this Court in DTC v
18
Kishan Lal Sehgal and Madhu Bhushan Anand . The Division
Bench referred the following question for the determination by a Full
Bench of this Court:
“What is the effect of receipt of payment including higher ex-gratia
amount and employer's share of provident fund to employees who
had applied and opted for voluntary retirement under the VRS
1993, though the said employees were entitled to pension as per
th
officer order No. 16 dated 27 November, 1992?”
26.2 There is no wishing away the fact that R.D. Gupta specifically
dealt with the 1992 Office Order of the DTC. The Full Bench notes
the fact that, owing to reasons with which it was not concerned, the
1992 Office Order could not be implemented till 1995.
26.3 During the said period, the DTC introduced a Voluntary
19
Retirement Scheme on 3 March 1993. This was followed by two
more VRSs in 1994 and 1995. The VRSs of 1994 and 1995
incorporated the following stipulation:
“It is also notified for information of all such employees who opt
for VRS that they would not be entitled to join Pension Scheme if
they are allowed retirement under VRS. Other salient features of
the proposed VRS will remain the same as announced earlier vide
18
145 (2007) DLT 99 (DB)
19
“VRS” hereinafter
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this officer circular dated 03.03.1993.”
26.4 The Full Bench noted, therefore, that, while the 1993 VRS
stipulated that pensionary benefits would be available to the person
seeking voluntary retirement under the said Scheme in terms of the
1992 Office Order, the 1994 and 1995 VRSs contained an express
stipulation to the effect that employees who opted for voluntary
retirement would not be entitled to join the Pension Scheme. The Full
Bench noted, however, that it was concerned only with the 1993 VRS
and not with the 1994 or 1995 VRSs. At this juncture, it becomes
necessary to reproduce para 8 of the judgment of the Full Bench, thus:
“The present intra-Court appeal is concerned with the VRS 1993
and not with the VRSs 1994 and 1995 and, therefore, we shall
restrict our advertence to the VRS 1993. As noticed, Clause 4(g) of
the VRS 1993 had stipulated that the pensionary benefits as per the
th
Office Order No. 16 dated 27 November, 1992 would apply.
There was a stipulation that all amounts due to the Corporation
would be adjusted against the payments under sub-clause (d) & (e)
of the Clause 4 and the employee concerned should clear any
outstanding dues/advances taken before the date of effect of
voluntary retirement. If the said clause is appositely understood in
th
the context of the Office Order dated 27 November, 1992 which
we have reproduced hereinbefore, it would convey that the
employees who had opted for VRS under the 1993 scheme would
be entitled to pension benefits except in cases where an employee
th
had specifically opted under the office order dated 27 November,
1992 to remain outside the Pension Scheme. However, another
aspect which luminously arises to the forefront requiring
consideration is that the said scheme became operational only in
1995. The appellants in the present appeal, as the factual matrix
st
would reveal, were offered retirement with effect from 31 May,
1993. They were not paid any pensionary benefits as the Pension
Scheme had not become operational till 1995 and was in an
inchoate stage. The appellants were paid retiral benefits under the
Contributory Provident Fund Scheme. It needs special emphasis to
state that the retirement benefits included higher amount of
gratuity, payment made ex-gratia and the employer's share of
provident fund. Be it noted, even after 1995, the appellants were
not extended the benefit of pension.”
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26.5 The appellants before the Full Bench, R.D. Gupta etc.
contended that they were entitled to be treated as deemed pension
optees, as they had not exercised any option to continue under the
CPF scheme in terms of Clause 3 of the 1992 Office Order. By
operation of Clause 9 of the said Office Order, therefore, it was
contended that R.D. Gupta etc were deemed pension optees.
26.6 The Full Bench decided the issue thus, in para 19 of the report:
“19. From the aforesaid pronouncement of law in the field by
various Division Benches, it is noticed that the decision rendered in
Kishan Lal Sehgal (supra) did not take note of the earlier decision
20
rendered in DTC Retired Employees Association (supra) . The
said decision was rendered prior in point of time. It is well settled
principle of law that earlier Division Bench decision is a binding
precedent on the later Division Bench. As is evincible, the
decisions rendered in Kishan Lal Sehgal (supra) and Vir Bhan
(supra) have laid emphasis on Clause 9 of the Office Order dated
th
27 November, 1992. The concept of ‘deemed to have opted the
Pension Scheme benefits’ has been accepted on the foundation that
the same is binding on the DTC. If the language of Clause 9 is
appositely understood, it would convey that if an employee does
not exercise any option or quits service or dies without exercising
an option or whose option is incomplete or conditional or
ambiguous, he shall be deemed to have opted the Pension Scheme
benefits. It does not lay down that if an employee deliberately
applies for getting the benefit under the Contributory Provident
Fund scheme and avails the benefits, then it would come under the
realm of opting out of the Pension Scheme. It is an affirmative act
to opt for the Contributory Provident Fund Scheme and to avail
other benefits attached to it. The said benefits are higher ex gratia
amount and the employer's provident fund contribution. There is
subtle distinction between deemed inclusion to be under the
pension benefit scheme but it would be an anathema to hold that
even if an employee has voluntarily opted out and availed the
benefits still he can take a somersault and claim to be brought
within the Pension Scheme. As has been in the case of Madhu
Bhushan Anand (supra) the same amounts to novation of contract
20
DTC Retired Employees Association v DTC , judgment dated 17 April 2002 in LPA 330/2002
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of volition. To hold that who had applied and opted for the
voluntary retirement under VRS 1993 and received all payments
would still be entitled to pension regard being had to Clause 9 of
the Office Order dated 27.11.1992 would result in placing a
farfetched interpretation on Clause 9 . In the case of DTC Retired
Employees Association (supra) the Division Bench has clearly
opined that such employees have no right to switch back to the
Pension Scheme after they have opted out of the Pension Scheme.
As we have indicated earlier, the decision in Madhu Bhushan
Anand (supra) and DTC Retired Employees Association (supra)
have not been interfered with by their Lordships of the Apex Court.
In our considered opinion, Clause 9 of the scheme cannot be
carried so far as to have an absurd impact on the scheme. Once the
said benefits are availed of, the principle of opting out has to be
made applicable. The concept of switch on and switch off has to be
ostracized. When an employee accepts the benefits out of his own
volition without any coercion, he cannot take a somersault and
claim to have the benefits taking recourse to Clause 9 that he is
deemed to be within the Pension Scheme. Thus analyzed, we are of
the considered opinion that the decision in Madhu Bhushan
Anand (supra) lays down the law correctly. The law laid down in
Kishan Lal Sehgal (supra) and Vir Bhan (supra) is not correct
and, accordingly, the said decisions and the decisions on the said
lines are overruled.”
(Emphasis supplied)
26.7 When one reads para 19 of the judgment of the Full Bench, it
becomes apparent that ,in the initial part of the said paragraph, the Full
Bench has held that Clause 9 of the 1992 Office Order, “appositely
understood”, would indicate that, if an employee did not exercise any
option, i.e. to continue under the CPF scheme or switch over to the
Pension Scheme, he would be a deemed pension optee. However, if
the employee “ deliberately applies for getting the benefit under the
contributory provident fund scheme and avails the benefits, then it
would come under the realm of opting out of the Pension Scheme”.
This is further clarified in the very next sentence which reads such an
act of the employee as “ an affirmative act to opt for the contributory
provident fund scheme and to avail other benefits attached to it”. The
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passage further goes on to observe that there was “subtle distinction
between deemed inclusion to be under the pension benefit scheme but
it would be an anathema to hold that even if an employee has
voluntarily opted out and availed the benefits still he can take a
somersault and came to be brought within the Pension Scheme”. The
Full Bench further relies, in the same paragraph, on the judgment of
the Division Bench of this Court in DTC Retired Employees
Association , in which it was held that once an employee had opted out
of the Pension Scheme, he had no right to switch back to the Pension
Scheme. These observations, as contained in para 19 of the judgment
of the Full Bench in R.D. Gupta , would indicate that the Full Bench
was addressing a situation in which the concerned employee either
voluntarily opted out of the Pension Scheme or affirmatively opted for
continuing with the CPF scheme and, thereafter, attempted a volte face
and sought to be included in the Pension Scheme. The Full Bench has
held that, once an employee thus affirmatively opts out of the Pension
Scheme or positively opts to continue under the CPF scheme , he
cannot switch back to the Pension Scheme.
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.
26.9 Mrs. Avnish Ahlawat, however, relies on the following words
which follow in the same paragraph from the judgment of the Full
Bench:
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“In our considered opinion, Clause 9 of the scheme cannot be
carried so far as to have an absurd impact on the scheme. Once the
said benefits are availed of, the principle of opting out has to be
made applicable. The concept of switch on and switch off has to be
ostracized. When an employee accepts the benefits out of his own
volition without any coercion, he cannot take a somersault and
claim to have the benefits taking recourse to Clause 9 that he is
deemed to be within the Pension Scheme”
If the afore-extracted words from para 19 of the judgment of the Full
Bench are to be read in isolation, they would seem to support Mrs.
Ahlawat’s contention that the very act of acceptance of the CPF
scheme benefits ipso facto disentitles the employee from claiming to
be a deemed pension optee. We have our doubts, however, whether
para 19 of the judgment of the Full Bench, holistically read, actually
elucidates such an absolute proposition.
26.10 Even if para 19 of the judgment of the Full Bench in RD Gupta
is to be read as holding that the very act of availing the benefits under
the CPF scheme ipso facto disentitles an employee to be considered as
a deemed pension optee in terms of para 9 of the 1992 Office Order ,
that position, in our view, cannot sustain any more, in view of the
judgments of the Supreme Court in S.L. Verma and Shashi Kiran ,
which clearly hold to the contrary, and to which we proceed to
presently allude.
27. S.L. Verma
27.1 This is a short judgment and may, therefore, be reproduced in
extenso , thus:
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“1. Respondents 1 to 13 were employees of the Bureau of
Indian Standards. The said authority was created under the Bureau
of Indian Standards Act, 1986. Although a statutory authority, it is
said to be under the administrative control of Ministry of
Consumer Affairs. Respondents 1 to 13 were members of
Contributory Provident Fund Scheme (CPF Scheme). Respondent
14 i.e. the Bureau of Indian Standards, which is an autonomous
body, pursuant to and in furtherance of an office memorandum
dated 1-5-1987 issued by the Government of India asked its
employees to give their option whether to continue under the
Provident Fund Scheme or not. The said office memorandum dated
1-5-1987 assumes importance in view of the language used therein
to which we intend to immediately advert to. The office
memorandum is prefaced with calling for repeated options in the
past asking the employees to switch over to the Pension Scheme. It
was mentioned that such option had been asked for on 6-6-1985.
The Central Government notices that despite the same, some of the
employees still continued in the CPF Scheme. It further notices the
recommendations of the Fourth Central Pay Commission to the
effect that CPF beneficiaries in service on 1-1-1986 would be
deemed to have switched over to the Pension Scheme on that date
unless they specifically opt out to continue under the CPF Scheme.
It is not in dispute that the said recommendations of the Fourth
Central Pay Commission had been accepted by the Central
Government and the same is applicable to the employees of
Respondent 14, Bureau of Indian Standards. Para 3 and para 3.2 of
the said office memorandum read as under:
“3. All CPF beneficiaries, who were in service on 1-1-1986
and who are still in service on the date of issue of these
orders will be deemed to have come over to the Pension
Scheme.
*
3.2. The employees of the category mentioned above will,
however, have an option to continue under the CPF
Scheme, if they so desire. The option will have to be
exercised and conveyed to the Head of the Office
concerned by 30-9-1987 in the form enclosed if the
employees wish to continue under the CPF Scheme. If no
option is received by the Head of the Office by the above
date the employees will be deemed to have come over to
the Pension Scheme.”
2. Pursuant to and in furtherance of the said Scheme of the
Central Government, Respondent 14 made regulations known as
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“Bureau of Indian Standards (Terms and Conditions of Service of
Employees) Regulations, 1988”. Regulation 16 thereof reads as
under:
“16. Pension. —The employees shall be governed by the
Central Civil Services (Pension) Rules, 1972:
Provided that the employees who had specifically elected
to be governed by the Contributory Provident Fund Rules
(India), 1962, immediately before the date of
commencement of these Regulations shall continue to be
governed under the Contributory Provident Fund
Scheme.”
3. Despite the clear intent and purport of the said office
memorandum dated 1-5-1987, Respondents 1 to 13 herein
continued to be treated as if they had still been continuing under
the CPF Scheme.
4. The Central Government as also Respondent 14 Bureau of
Indian Standards have proceeded on some legal misconception that
it was obligatory on the part of the said employees to give a
positive option for the said purpose. For the first time on 2-2-1999,
Respondent 14 requested the Union of India for grant of another
chance to the respondents to switch over to Pension Scheme stating
that they purported to have exercised their option for CPF Scheme
on the cut-off date.
5. The said request of Respondent 14 was not acceded to by
the Ministry of Finance. It was, however, accepted by Respondent
14 that only 19 employees were left out and the total financial
implication therefor would come to about Rs 7.20 lakhs per annum,
if all the employees were allowed to switch over to the Pension
Scheme. It was made clear that for the said purpose Respondent 14
would not depend upon the government grants. Although the
Ministry of Consumer Affairs, Food and Public Distribution agreed
with the aforesaid suggestion of Respondent 14, it appears that the
Ministry of Finance did not agree thereto stating:
“… In view of the above, we have been advising
autonomous bodies under various Ministries/Departments
of the Government of India to continue to follow the CPF
Scheme or the autonomous bodies, if they so desire, may
work out an annuity scheme through Life Insurance
Corporation of India based on voluntary contributions by
the employees and without any contribution from the
Government or the employees may join the Pension
Scheme introduced by the Ministry of Labour for the PF
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subscribers. It may please be noted that introduction of
Pension Scheme on GOI pattern to the employees of
autonomous bodies should not be agreed to as a rule, any
exception in this regard should be referred to this
Department.”
6. At that juncture, Respondents 1 to 13 approached the High
Court. Whereas the learned Single Judge allowed the writ petition
directing that the same would not be subject to any liability on the
part of the Union of India, but on an appeal preferred by the Union
of India, by reason of the impugned judgment, the Division Bench
modified the said order directing as follows:
“Impugned writ court order dated 22-10-2003 shall stand
modified to the extent that the appellants shall consider
passing of a conditional approval stipulating that they shall
not incur any liability in case Respondent 14 fails to satisfy
the pension liability of Respondents 1 to 13 and pass
appropriate orders within two months from today. These
respondents on their part shall remain bound by all other
terms of the writ court order including the undertaking to
be executed by them.”
7. The Central Government, in our opinion, proceeded on a
basic misconception. By reason of the said office memorandum
dated 1-5-1987 a legal fiction was created. Only when an employee
consciously opted for to continue with the CPF Scheme, he would
not become a member of the Pension Scheme. It is not disputed
that the said respondents did not give their options by 30-9-1987.
In that view of the matter Respondents 1 to 13 in view of the legal
fiction created, became the members of the Pension Scheme. Once
they became the members of the Pension Scheme, Regulation 16 of
the Bureau of Indian Standards (Terms and Conditions of Service
of Employees Regulations, 1988) had become ipso facto applicable
in their case also. It may be that they had made an option to
continue with the CPF Scheme at a later stage but if by reason of
the legal fiction created, they became members of the Pension
Scheme, the question of their reverting to the CPF would not arise.
Respondent 14 has correctly arrived at a conclusion that an
anomaly would be created and in fact the said purported option on
the part of Respondents 1 to 13 was illegal when a request was
made by Respondent 14 to the Union of India for grant of approval
so that all those employees shall come within the purview of the
Pension Scheme. In our opinion, the Ministry of Finance proceeded
on a wrong premise that the Pension Scheme was not in existence
and it was a new one. Two legal fictions, as noticed hereinbefore,
were created, one by reason of the memorandum, and another by
reason of the acceptance of the recommendations of the Fourth
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Central Pay Commission with effect from 1-1-1986. In terms of
such legal fictions, it will bear repetition to state, Respondents 1 to
13 would be deemed to have switched over to the Pension Scheme,
which a fortiori would mean that they no longer remained in the
CPF scheme.
8. In that view of the matter the Single Judge was correct in
allowing the writ petition filed by the private respondents herein
with a rider that thereby the Union of India would not be liable to
financial liability but the Division Bench could not have modified
the same, as was sought to be done, by its order dated 16-9-2004.
9. Subject to the aforementioned observations, the appeal is
dismissed. There shall be no order as to costs.”
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
21
1987 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
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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.
27.6 We may note that this directly answers to Mrs. Ahlawat’s
contention predicated on the letter dated 1 August 2011 addressed by
the respondent to the Senior Manager (PLD), DTC. The issue of
whether the respondent switched over or did not switch over to the
Pension Scheme, has to be determined on the basis of para 9 of the
1992 Office Order of the DTC. If he did, he would ipso facto be a
deemed pension optee, and even if he were to declare from the roof
tops that he was not a deemed pension optee, or that he was a CPF
21
“the 1987 OM” hereinafter
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beneficiary, it would make no difference. There is no estoppel against
the law.
28. Shashi Kiran
28.1 Prior to the introduction of the Pension Scheme in the DTC by
Office Order dated 27 November 1992, the Pension Scheme had been
introduced in respect of other Central Government employees, who
were earlier covered by the CPF Scheme, by Notification dated 1 May
1987.
22
28.2 Paras 3.1 and 3.2 of the OM dated 1 May 1987 read thus :
3.1. All CPF beneficiaries, who were in service on 1-1-1986, and who are
still in service on the date of issue of these orders viz. 1-5-1987 will be
deemed to have come over to the Pension Scheme.
3.2. The employees of the category mentioned above will, however, have
an option to continue under the CPF Scheme, if they so desire. The option
will have to be exercised and conveyed to the Head of Office concerned by
30-9-1987, in the form enclosed if the employees wish to continue under
the CPF Scheme. If no option is received by the Head of Office by the
above date the employees will be deemed to have come over to the
Pension Scheme.
28.3 It is immediately apparent that paras 3.1 and 3.2 of the OM
dated 1 May 1987 are, to all intents and purposes, pari materia with
para 9 and 3 of the OM dated 27 November 1992 of the DTC.
23
28.4 The University of Delhi , with which the Supreme Court was
concerned in Shashi Kiran , issued Notification dated 25 May 1987 by
22
Also referred to as “the 1987 OM” hereinafter, though there is a slight difference between the Clause in
this OM and that which was under consideration in S.L. Verma
23
“the University”, hereinafter
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way of extension, to the University, of the Pension Scheme as
introduced in the case of Central Government employees by the 1987
OM. Para 5 of the Notification dated 25 May 1987 of the University
read thus:
“5. Pensionary benefits to temporary employees . –
Temporary employees, who retire on superannuation or on being
declared permanently incapacitated for further service by the
appropriate medical authority after having rendered temporary
service of not less than 10 years, shall be eligible for grant of
superannuation/invalid pension, retirement gratuity and family
pension on the same scale as admissible to permanent employees.
Further it has also been decided by the Government of
India that pensioners who have commuted a portion of their
pension and on 1-4-1985 or thereafter have completed or will
complete 15 years from their respective dates of retirement will
have their commuted portion of pension restored.
It was also recommended by the Pay Commission that all
CPF beneficiaries who are in service on 1-1-1986 should be
deemed to have come over to the pension scheme on that dates
unless they specifically opt out to continue under the CPF Scheme.
This recommendation has also been accepted by the Government
of India.
Keeping in view the revised pensionary benefits, it has
been approved by the Vice-Chancellor that the above decision of
the Government of India regarding option also be adopted in the
University. It has, therefore, been decided that all Contributory
Provident Fund beneficiaries who are in service on 1-1-1986 in the
University should be deemed to have come over to the pension
scheme under Statute 28-A Appendix ‘A’ unless they specifically
opt out to continue under CPF Scheme (Statute 28-A, Appendix
‘B’).
It has further been decided that in respect of Categories B,
C & D beneficiaries for whom the revised grades have been
announced and implemented, they be given three months' time
from the date of this notification for opting out to continue under
CPF Scheme (Statute 28-A Appendix ‘B’). For Category A —
CPF beneficiaries the period of three months' time for the same
purpose will be reckoned from the date of adoption by the
University of the revised pay scales based on the IVth Pay
Commission's recommendations, UGC committee's Report.
Employees who have already opted for the scheme under Statute
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28-A Appendix ‘A’ will not be eligible for any further option.
These orders ‘would also be applicable to the employees of the
colleges affiliated to the University of Delhi and receiving
maintenance grant from ‘the ‘University Grants Commission. The
contents of this notification shall be brought to the notice of each
employee and his/her acknowledgment for having noted these
orders obtained and opt in the office record.”
28.5 11 extensions were granted by the University for its employees
to exercise the option in terms of para 5 of the Notification dated 25
May 1987, with the last cut-off date for exercise of such option being
fixed as 31 January 1999. This provoked the University Grants
24
Commission to issue a communication to the University on 25 May
1999, stating that the option for remaining in the CPF scheme,
provided by the OM dated 1 May 1987, could be exercised only till 30
September 1987 and that if no option was exercised on or before 30
September 1987, the employee was deemed to have switched over to
the pension Scheme. The UGC, therefore, opined that the University
could not, of its own accord, extend the time available for exercise of
option and that the 11 extensions granted by the University were
illegal.
28.6 Various employees approached this Court by means of writ
petitions, claiming varied reliefs. This Court, by order dated 21 May
2012, divided the employees before it into three categories, as is
noticed in paras 14 and 14.1 to 14.3 of the judgment of the Supreme
Court thus:
14. In these circumstances, writ petitions were filed in the High
Court claiming diverse reliefs. These petitions, by order dated 21-
24
“UGC” hereinafter
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25
5-2012 in N.C. Bakshi v Union of India passed by the learned
Single Judge of the High Court, were categorised into three
categories:
14.1. Employees who had not exercised any option at all and thus
by virtue of the deeming provisions contemplated in the
Notification dated 1-5-1987, were deemed to have “come over” to
GPF; but having continued to make contributions under the old
CPF scheme were being treated to be under CPF. This batch was
subsequently referred to as “ R.N. Virmani batch of cases ” in the
decisions rendered by the High Court.
14.2. Employees who had not exercised the option by the cut-off
date contemplated under the Notification dated 1-5-1987 and were
thus deemed to have “come over” to GPF; however, such
employees had exercised the option to remain under CPF scheme
during first two extensions granted by the University between 1-
10-1987 to 29-2-1988; and were now praying that they be allowed
to be under GPF. This batch of cases was described to be “ N.C.
Bakshi batch of cases ” in the decisions rendered by the High
Court.
14.3. Employees who had exercised positive option by 30-9-
1987 i.e. by the original cut-off date contemplated under
Notification dated 1-5-1987 and had chosen to remain under CPF
Scheme; but were now demanding that they be given further option
and were therefore praying for extension of the cut-off date to
enable them to “come over” to GPF. This group of matters was
referred to as “ Shashi Kiran batch of cases ” in the decisions
rendered by the High Court.”
28.7 We may note even at this juncture, that the facts of the present
case, would fall within the “R.N. Virmani batch of cases” as
segregated by the High Court. The R.N. Virmani batch dealt with
employees who never exercised their option, one way or the other, as
is the case with the respondent before us. The N.C. Bakshi batch of
cases dealt with the employees who exercised their options, but
beyond the stipulated cut-off date. The Shashi Kiran batch covered
employees who opted, prior to the cut-off date, to remain in the CPF
25
2012 SCC OnLine Del 6512
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Scheme.
28.8 There is no commonality between the employees in the Shashi
Kiran batch and the present respondent before us, as the present
respondent did not exercise any option in terms of para 3 of the 1992
DTC Office Order. He was, therefore, a “non-optee” within the
meaning of para 9 of the said Office Order. His case is, therefore,
identical to that of the employees constituting R.N. Virmani batch of
cases before the High Court and the Supreme Court in Shashi Kiran .
28.9 With respect to the R.N. Virmani batch of cases, the Supreme
Court has observed thus, apropos the decisions of the learned Single
Judge of this Court and of the Division Bench:
With respect to the judgment of the learned Single Judge
“17. The reasoning that weighed with the learned Single Judge
was:
“14. In my view, the answer to the question : as to whether
employees, who had not issued any overt communication
with regard to his/her desire to continue with the CPF
Scheme, stood covered by the Pension Scheme; would
largely depend upon the provisions of OM dated 1-5-1987,
itself.
14.1. It is not in dispute before me that OM dated 1-5-1987
was adopted by the University of Delhi vide Notification
dated 25-5-1987 read with Notification dated 4-6-1987,
pursuant to an approval received in that behalf from its
Vice-Chancellor. Therefore, much would depend, in my
opinion, upon the language of the relevant clause of OM
dated 1-5-1987. The said OM clearly applies to all
employees who were CPF beneficiaries on 1-1-1986.
Clause 3.1 read with Clause 3.2 is plainly indicative of the
fact that all such employees, who are CPF beneficiaries,
shall be deemed, to have, come over to Pension Scheme
unless the employee(s) concerned submitted his or her
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option to continue with the CPF Scheme. This option had
to be submitted in the prescribed form to the Head of Office
concerned by 30-9-1987. In case, no option was received
by the Head of Office by 30-9-1987, employees were
deemed to have come over to the Pension Scheme.
Therefore, by legal fiction once, the deeming clause
kicked-in, those who did not submit their option form for
continuation under the CPF Scheme stood covered by the
Pension Scheme.”
18. To arrive at the conclusion as mentioned above, the learned
Single Judge relied inter alia upon the following passages from the
decision of this Court in Union of India v S.L. Verma :
“4. The Central Government as also Respondent 14
Bureau of Indian Standards have proceeded on some legal
misconception that it was obligatory on the part of the said
employees to give a positive option for the said purpose .
For the first time on 2-2-1999, Respondent 14 requested the
Union of India for grant of another chance to the
respondents to switch over to pension scheme stating that
they purported to have exercised their option for CPF
Scheme on the cut-off date.
*
7. The Central Government, in our opinion, proceeded
on a basic misconception. By reason of the said Office
Memorandum dated 1-5-1987 a legal fiction was created.
Only when an employee consciously opted for to continue
with the CPF Scheme, he would not become a member of
the Pension Scheme. It is not disputed that the said
respondents did not give their options by 30-9-1987. In that
view of the matter Respondents 1 to 13 in view of the legal
fiction created, became members of the Pension Scheme .
Once they became the member of the Pension Scheme,
Regulation 16 of the Bureau of Indian Standards (Terms
and Conditions of Service of Employees Regulations,
1988) had become ipso facto applicable in their case also. It
may be that they had made an option to continue with the
CPF Scheme at a later stage but if by reason of the legal
fiction created, they became members of the Pension
Scheme, the question of their reverting to the CPF would
not arise . Respondent 14 has correctly arrived at a
conclusion that an anomaly would be created and in fact the
said purported option on the part of Respondents 1 to 13
was illegal when a request was made by Respondent 14 to
the Union of India for grant of approval so that all those
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employees shall come within the purview of the Pension
Scheme. In our opinion, the Ministry of Finance proceeded
on a wrong premise that the Pension Scheme was not in
existence and it was a new one. Two legal fictions, as
noticed hereinbefore, were created, one by reason of the
memorandum, and another by reason of the acceptance of
the recommendations of the Fourth Central Pay
Commission with effect from 1-1-1986. In terms of such
legal fictions, it will bear repetition to state, Respondents 1
to 13 would be deemed to have switched over to the
pension scheme, which a fortiori would mean that they no
longer remained in the CPF scheme.”
(emphasis supplied by the learned Single Judge)
19. The argument made by the respondents was dealt with as
under:
“16. The argument raised before me by the respondents,
which veered towards approbation, was based on the fact
that petitioners had continued to contribute under the CPF
Scheme. This submission would not cut much ice with me,
having regard to the plain terms of OM dated 1-5-1987. If,
the cover under the Pension Scheme, gets triggered with
effect from 30-9-1987, the contribution by an employee and
its receipt by the employer clearly proceeds on a
misconception of the provisions of OM dated 1-5-1987.
As a matter of fact, this very argument was repelled
by the Supreme Court, in S.L. Verma , and I think, for good
reason. Consequently, there is no room for entertaining
such an argument. The relevant observations made in para
7, specific to this aspect, are, once again, extracted
hereinafter :
‘7. … It may be that they had made an option to
continue with the CPF Scheme at a later stage but if
by reason of the legal fiction created, they became
members of the Pension Scheme, the question of
their reverting to the CPF would not arise.’ ”
20. It was, therefore, directed:
“20. Having regard to the above discussion, the
respondent University of Delhi/Colleges concerned will be
entitled to recoup their contribution under the CPF Scheme,
if not already recouped, with simple interest @ 8% p.a.”
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The petitions were thus allowed.”
(Italics in original; underscoring supplied)
With respect to the judgment of the Division Bench
“28. R.N. Virmani batch of cases :
“19. This Court is of opinion that the submissions of the
University, the appellant, in regard to the Virmani's order,
have no force. There is no denial and there can be none —
that the nature of the scheme contemplated by 1-5-1987
notification was to ensure that only those wishing to
continue in the CPF scheme had to opt to do so. A default
in that regard, meant that the employee not filling his
option (to continue in CPF) was deemed to have “come
over” or migrated to the Pension Scheme. The University
and the official respondents (UGC, Central Government,
etc.) had urged that the petitioners in the Virmani group are
deemed to have accepted the CPF benefits, because they
allowed deductions from their monthly salaries during the
interregnum and permitting Pension Scheme benefits would
not be fair; in the same breath it was urged that there was
delay. This Court is of opinion that the University — and
the respondents are relying on contradictory pleas. If they
urge that the true interpretation of the 1987 circular meant
that anyone not furnishing an option to continue in the CPF
scheme is deemed to have opted for the Pension Scheme
(as the Virmani group undoubtedly did) there is no way
they can succeed on the ground of laches or estoppel. If
plain grammatical meaning of the language of the May
1987 OM were to be given, all those who do not opt would
automatically be borne in the Pension Scheme. Such being
the position, the argument that the petitioners in Virmani
allowed deduction of CPF amounts from their salary,
cannot be argued against them. CPF schemes typically
require employees to commit greater amounts than in GPF
scheme, on a monthly basis. That these staff members
allowed higher amounts, which were held under a scheme
(and which earned interest), the benefit of which had not
accrued and was not available to them till the date of
superannuation, cannot be urged against them. Likewise,
the question of laches would not arise, because at the most,
pension would not be allowed for the entire period, given
that in matters of pension (see Union of India v Tarsem
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26
Singh ), there is a continuing cause of action. Therefore,
we find no infirmity with the learned Single Judge's order,
in Virmani case .”
(emphasis in original)
The appeals were thus dismissed.”
(Underscoring supplied)
28.10 Thus, the learned Single Judge as well as the Division Bench of
this Court held that an employee who did not opt, one way or the
other, and was, therefore, a “non-optee” would, by virtue of para 3.1
of the OM dated 1 May 1987, be deemed to have switched over to the
Pension Scheme. Once the employee was thus deemed to have
switched over to the Pension Scheme, he could not revert to the CPF
Scheme, and the fact that the employee and the establishment may
have been contributing to the CPF, the benefits of which the employee
may even have reaped at the time of his retirement, could make no
difference.
28.11 Similarly, in respect of the N.C. Bakshi batch of cases, too the
learned Single Judge of this Court, as well as the Division Bench, held
that exercise of option beyond the cut-off date was as good as exercise
of no option, and, therefore, the employees who exercised their option
after the cut-off date had to be treated at par with employees who
never exercised the option at all. The N.C. Bakshi batch was,
therefore, held to be entitled to the same treatment as the R.N.
Virmani batch and, inasmuch as the employees forming subject matter
of the N.C. Bakshi batch had also exercised their option after the cut-
off date, they would also be deemed to have irrevocably switched over
26
( 2008) 8 SCC 648
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to the Pension Scheme.
28.12 In the case of the Shashi Kiran batch, however, as the
employees had exercised their option to continue in the CPF Scheme,
prior to the cut-off date, the learned Single Judge and the Division
Bench of this Court held that they could not later seek the benefit of
the Pension Scheme. By exercising their option to continue under the
CPF Scheme prior to the cut-off date, they remained CPF-optees and
could not regard themselves as pension-optees.
28.13 The Supreme Court found the view of the learned Single Judge
and the Division Bench of this Court to be unexceptionable. Paras
34.4 and 35 of the judgment of the Supreme Court merit reproduction:
“34.4. The Division Bench was, therefore, justified in setting aside
the view taken by the learned Single Judge of the High Court
in Shashi Kiran batch of cases but affirming the view in other two
batches.
35. The common thread which ran through the decisions of the
learned Single Judge pertaining to three batches of cases, was that
the text of the Notification dated 1-5-1987 was clear that if no
option was exercised by the employees concerned before the cut-off
date, they would be deemed to have “come over” to GPF. It was
only a positive option exercised by the employees to continue to be
under CPF which could have departed from such deeming
provision. Once exercised, the option was final and as such, there
could be no switch over from those who had consciously opted to
be under CPF. Further, relying on the decision in S.L. Verma , it
was observed that any exercise of option after the deadline or the
cut-off would be inconsequential. It was on this premise that the
cases in R.N. Virmani batch of cases and N.C. Bakshi batch of
cases were allowed by the learned Single Judge. As regards Shashi
Kiran batch of cases, the learned Single Judge observed, that once
the conscious decision was taken and option was exercised to
continue to be under CPF, there was “ no room for any come back
situation ”. The cases in the third batch were therefore, rejected.”
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(Emphasis supplied)
28.14 As we have already noted, we are basically concerned with the
R.N. Virmani batch and to a lesser extent, the N.C. Bakshi batch of
cases before the Supreme Court in Shashi Kiran . The conclusion of
the Supreme Court with respect to these two batches are to be found in
paras 38 and 39 of the judgment of the Supreme Court, which read as
under:
“38. According to the Notification dated 1-5-1987 two situations
were contemplated. First, the deeming provision in terms of which
the employee concerned was taken to have “come over” to GPF.
The second situation being where a conscious option was exercised
before the cut-off date to continue to be under CPF. R.N.
Virmani batch of cases was therefore rightly allowed by the
learned Single Judge and the Division Bench of the High Court, as
no conscious option was exercised by the cut-off date.
Consequently, the employees concerned must be deemed to have
“come over” to GPF. Logically, it would be immaterial whether
the employee concerned continued to make contribution assuming
himself to be covered under CPF, even though contributions were
made by the authorities concerned . The benefit was therefore
rightly granted in favour of the employees and the entire
contribution was directed to be refunded. The University has
chosen not to appeal against that decision and thus the matter has
attained finality.
39. Theoretically, extension of the same principle would be
that if no option was exercised before the cut-off date, but an
option was exercised after the cut-off date was extended; and if no
switch over could be allowed after the cut-off date, the decisions
rendered by the learned Single Judge and the Division Bench
in N.C. Bakshi batch of cases were also quite correct.
Consequently, irrespective of the fact that the employees
concerned had exercised the option to continue to be under CPF,
such exercise of option would be non est in the eye of the law. That
in fact is the ratio of the decision in S.L. Verma . Thus, both these
batches of cases were rightly decided by the learned Single Judge
and the Division Bench. We, therefore, dismiss the appeal in N.C.
Bakshi batch of cases.”
(Emphasis supplied)
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28.15 It is apparent that the dispute in the present petition is squarely
covered by Shashi Kiran. Inasmuch as Shashi Kiran is a judgment
rendered by the Supreme Court in 2022, all prior enunciations of law,
whether it be by the Division Bench or by the Full Bench of this
Court, have to cede place to Shashi Kiran . While the Full Bench in
R.D. Gupta may seem to have expressed the view that, after having
contributed to CPF and, at the time of his retirement, also availed the
benefits of his own as well as the establishment’s contributions, the
employee could not seek to contend that he should be treated as a
pension-optee, we are unable to follow that view, in the light of
Shashi Kiran . The judgement of the Supreme Court has to prevail
over the decision of the Full Bench of this Court. Shashi Kiran
makes it clear, beyond any shadow of doubt, that the mere drawing of
CPF benefits cannot efface the effect of the failure on the part of the
employee to exercise his option within the time stipulated in the
OM/Office Order. In the case of the 1987 OM which was under
consideration before the Supreme Court, the consequence of non-
option was contained in Clause 3.1, whereas, in the case of the 1992
DTC Office, the consequence is to be found in para 9. The clauses
are, to all intents and purposes, identical.
28.16 Ms. Ahlawat valiantly sought to contend that Shashi Kiran
dealt with the Delhi University whereas Madhu Bhushan Anand and
R.D. Gupta specifically dealt with the DTC. The law that applies in
the DTC would, therefore, according to her, be that declared by the
Full Bench in R.D. Gupta . Moreover, she submits that Shashi Kiran
was a case in which 11 extensions for exercise of option had been
provided by the University and declared illegal by the UGC. This,
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according to her, is a factor which distinguishes Shashi Kiran from
the present case.
28.17 We are unable to agree with either of these submissions. The
law cannot change, organization to organization, where the applicable
legal provisions are identical. The parent Notification introducing the
Pension Scheme for Central Government employees in place of the
earlier CPF Scheme was the 1987 OM. Various autonomous
organizations only went on to extend the benefit of the said Scheme in
their respective establishments. The Delhi University was one such
organization and the DTC is another. Shashi Kiran dealt with the
employees of the University and the present case deals with the
employees of the DTC. In either case, the relevant clauses of the
applicable Notifications are, to all intents and purposes, identical to
Clauses 3.1 and 3.2 of the Notification dated 1 May 1987 with which
Shashi Kiran was concerned. The principle laid down by the Supreme
Court that a person who failed to exercise his option, one way or the
other, within the period stipulated in the Notification, would be
deemed to have switched over to the Pension Scheme and that
subsequent contributions to the CPF or reaping of the benefits of such
contributions would not alter this position, would apply across the
board to all organizations, the Office Orders/Circulars issued by which
contained similar clauses while introducing the Pension Scheme.
28.18 There is no justification whatsoever, in law, to insulate the DTC
from the effect of the judgment in Shashi Kiran , which dealt with an
identical dispensation in the Central Government, as adopted by the
Delhi University.
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28.19 The reliance by Ms. Ahlawat on the fact that the University had
granted 11 extensions for employees to exercise their options, as a
distinguishing factor, is obviously misplaced. The judgment in Shashi
Kiran did not turn one way or the other on the 11 extensions granted
by the University. The law declared in Shashi Kiran is not affected, in
any way, by the said extensions.
29. Cumulative impact of S.L. Verma and Shashi Kiran
29.1 Thus, after S.L. Verma and Shashi Kiran , there can be no
doubt about the legal position that, if an employee does not exercise
any option to continue under the CPF scheme within the time
stipulated in that regard, whether it was under the 1987 OM or the
1992 Office Order of the DTC, he would ipso facto be a deemed
pension optee. The availment of CPF benefits by him, thereafter, is
irrelevant and he can, at the highest, be directed to return the CPF
benefits, if necessary with interest. Further, even if he were to refer to
himself as a CPF beneficiary thereafter, or even if he were to state, in
a written communication, that he was not a pension optee, it would
make no difference, as the character of the employee as a deemed
pension optee is by operation of law, in terms of para 9 of the 1992
DTC Office Order. A consequence which arises by inexorable
operation of law cannot be wished away by assertions to the contrary.
29.2 In view of this position, even if it were to be presumed that para
19 of the judgment of the Full Bench of this Court in R.D. Gupta
treats the acceptance, by the employee, of CPF benefits, as sufficient
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to disentitle him to the benefits of the Pension Scheme, that position
can no longer be said to hold good in view of the decisions in S.L.
Verma and Shashi Kiran . Shashi Kiran , we may note, is a recent
decision, rendered as late as in 2022, and there was no occasion,
therefore, for the position of law enunciated in Shashi Kiran to have
been within the knowledge of the Full Bench when it decided R.D.
Gupta, or the Division Bench of this Court when it decided Madhu
Bhushan .
30. In that view of the matter, it is not necessary for us to refer to
B.R. Khokha or any of the other decisions cited at the Bar.
31. Tungal Giri
31.1 We may, however, briefly advert to the decision of this Court in
Tungal Giri, as it is also a comparatively recent decision of this Court,
rendered on 29 November 2022, and has been cited by Ms. Ahlawat.
Paras 3, 7 and 8 of the said decision, on which Ms. Ahlawat places
emphasis, read thus (omitting the reference to judicial authorities in
para 8):
“3. The case of the respondent before the Tribunal was, the
petitioner retired from DTC on October 31, 2012. He was issued
retirement memo on April 17, 2012 in which it was clearly stated
that he is not a pension optee. Thereafter, his entire contributory
fund was released on October 26, 2012 and all his unpaid dues,
such as, salary, LTC claim, Medical claim, leave salary, bonus, DA
arrear, HRA difference and over time allowance etc. were released
on June 19, 2013. In other words, all the dues were accepted by the
petitioner without any demur.
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7. On the other hand, the learned counsel for the respondents
has drawn our attention to the scheme issued by the DTC on
November 27, 1992. He has also drawn our attention to the
relevant page of the service book wherein it has been clearly noted
that the petitioner had not opted for pension.
8. That apart, he has also drawn our attention to Annexure R-6
which is the salary slip wherein an amount ₹541 was deducted
from the salary of the petitioner as a contribution to the provident
fund. It is his submission that the Pension Scheme clearly
contemplated that for an employee to be governed by the Pension
Scheme, has to necessarily opt for the same. That apart, the
petitioner having been issued the salary slip every month was
aware of the fact that he was making contribution to the provident
fund. At no point of time the petitioner had agitated the fact that he
has not been covered under the Pension Scheme.”
31.2 Significantly, on merits, the Division Bench did not accept the
submissions of the DTC. After reproducing the 1992 Office Order in
para 10, the Division Bench goes on to observe, thus, in paras 11 to 14
of its judgment:
“11. The office order also contemplated that for the purpose of
getting pension, the application forms for exercising option were
made available with the unit officers and the same was required to
be opted within a period of 30 days from the date of issue of the
office order.
12. It is the case of the petitioner that he had not opted for the
pension at all. On this plea of the petitioner, the conclusion of the
Tribunal is that, this stand of the petitioner was immediately after
the petitioner had made an RTI application seeking from the
respondents his application exercising option. On this, the case of
the respondents was that no such application is on record.
13. Be that as it may, there is one issue which needs to be dealt
with, which issue has not been looked into by the Tribunal, i.e., the
effect of clause 9 of the order dated November 27, 1992 which we
have reproduced above. The said clause came up for consideration
before the Supreme Court in the case of DTC Retired Employees’
27
Association v. DTC &Ors. , wherein the Supreme Court in
paragraph 14 held that as regards the employees as of November
27
(2001) 6 SCC 61
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27, 1992, the employer can always ask them to exercise their
option within the stipulated period and if they fail to exercise their
option, the deeming provision can be invoked and it can be said
that they are covered by the scheme .
14. On the strength of the aforesaid conclusion, it can be
argued that the deeming provision shall come into play in the case
of the petitioner herein. But what is to be seen is, as stated above,
the petitioner who continued to be governed by the CPF Scheme
was making contribution under the said Scheme every month from
1992 till his retirement. The first representation laying a claim on
the pension was made in the year 2007 and thereafter in the years
2009-2010.”
(Emphasis supplied)
Thus, it is clear from a reading of the afore-extracted paragraphs from
Tungal Giri that, on merits, the Division Bench was clearly of the
view that, as Tungal Giri, the employee before it, had not exercised
any option in terms of para 3 of the 1992 Office Order, he would be
deemed to have switched over to the Pension Scheme in terms of para
9 thereof. On merits, therefore, this decision is clearly against Mrs.
Ahlawat.
31.3 Having so observed, the Division Bench proceeds to uphold the
judgment of the Tribunal on the ground that the OA filed by the
Tungal Giri before the Tribunal was barred by delay and laches.
31.4 We have seriously deliberated on the effect of the judgment of
Tungal Giri on the lis before us. Quite clearly, the decision does not
make out any case for interference, by us, with the impugned
judgment of the Tribunal on merits, as the Division Bench in Tungal
Giri has also held that the failure to exercise any option in terms of
para 3 of the 1992 Office Order would result in the employee being a
deemed pension optee, in view of para 9 thereof. The only question
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that we have to address is whether Tungal Giri would require us to
reverse the impugned judgment of the Tribunal on the ground that the
OA filed by the respondent was barred by delay and laches.
31.5 There are several reasons why we cannot reject the respondent’s
OA before the Tribunal on the ground of delay and laches.
31.6 The first, and most obvious, reason, is that the learned Single
Judge of this Court who decided the R.K. Virmani batch of cases
rejected the plea of delay and laches on the ground that the right to
pension is a continuing cause of action, relying on Tarsem Singh , and
the view of the learned Single Judge stands expressly approved by the
Supreme Court in Shashi Kiran . Tarsem Singh is clear on the point.
Para 7 of the decision reads thus:
.
“ 7 To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where remedy
is sought by filing a writ petition) or limitation (where remedy is
sought by an application to the Administrative Tribunal). One of
the exceptions to the said rule is cases relating to a continuing
wrong. Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the
continuing wrong commenced, if such continuing wrong creates a
continuing source of injury . But there is an exception to the
exception. If the grievance is in respect of any order or
administrative decision which related to or affected several others
also, and if the reopening of the issue would affect the settled
rights of third parties, then the claim will not be entertained. For
example, if the issue relates to payment or refixation of pay or
pension, relief may be granted in spite of delay as it does not
affect the rights of third parties . But if the claim involved issues
relating to seniority or promotion, etc., affecting others, delay
would render the claim stale and doctrine of laches/limitation will
be applied. Insofar as the consequential relief of recovery of
arrears for a past period is concerned, the principles relating to
recurring/successive wrongs will apply. As a consequence, the
High Courts will restrict the consequential relief relating to
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arrears normally to a period of three years prior to the date of
filing of the writ petition .”
(Emphasis supplied)
Once, following Tarsem Singh , the Supreme Court has, in Shashi
Kiran , approved the decision of the learned Single Judge of this
Court, in respect of the R.K. Virmani batch of cases, not to reject the
claims of the employees on the ground of delay and laches, Article
141 of the Constitution of India obligates us to follow suit. Tungal
Giri , we may note, does not consider either Tarsem Singh or Shashi
Kiran .
31.7 Secondly, in Tungal Giri , the Division Bench has noted, in para
15 thus:
“Even after his retirement he got legal notices issued but had never
approached the Tribunal till the year 2016, i.e., after four years of
his retirement. In fact, on retirement, in the year 2012, the
petitioner had been paid all the benefits, like entire contributory
fund, salary, medical claim, LTC claim, DA Arrears, HRA
difference etc., which suggests that he knowingly accepted those
benefits and enjoyed the same for four years till 2016, when he
approached the Tribunal. He continued to enjoy the said benefits
for a further period of six years, till date.”
This indicates that, in Tungal Giri , the Division Bench was persuaded
by the fact that Tungal Giri had knowingly accepted and enjoyed the
benefits available to him under the CPF scheme for four years after
retirement, and it was only thereafter that he approached the Tribunal.
As against that, in the present case, it is specifically pleaded by the
respondent Anil Luthra, thus, in Ground 6 in the OA:
“6. Because on his superannuation, the applicant has
requested for not to release the management share of provident
fund', but the management of DTC deliberately and intentionally
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released the same and credited to his account without intimating to
him, ignoring that the matter is pending before the Court of Law.
However, there is provision in the circulars dated 27.11.1992 and
28.10.20Snhat if any of the employee who have withdrawn party or
wholly the management share of provident fund, will have to
deposit the same with interest in the event of granting pension to
him.”
In the counter-affidavit filed by way of response to the OA, there is no
specific denial of the aforesaid assertion in Ground 6. More
specifically, there is no specific denial of the respondent’s contention
that he had requested, on his retirement, that the CPF benefits be not
credited to his account and, despite this request, the DTC, of its own
volition, did so. In response to paras 6 and 7 of the Grounds, the DTC
merely states that the contents thereof are “untenable in law and
facts”. This cannot be regarded as refuting the assertion of the
respondent, in Ground 6, that the crediting of his CPF benefits to his
account by the DTC was contrary to his own request and that it was
done by the DTC of its own volition. The facts in the present case are,
therefore, to that extent, distinguishable from those which presented
themselves before the Division Bench in Tungal Giri .
31.8 The third reason is that the Division Bench was, in Tungal Giri ,
deciding a writ petition, under Article 226 of the Constitution of India,
directed against the judgment of the Tribunal rejecting the claim of
Tungal Giri . We, on the other hand, are deciding a writ petition which
has allowed the claim of the respondent Anil Luthra. Article 226
jurisdiction is fundamentally discretionary in nature. The High Court,
under Article 226, while dealing with a judgment of the Tribunal
exercises certiorari jurisdiction. The limits of certiorari jurisdiction
stand delineated by the following passages from the judgment of the
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28
Supreme Court in Syed Yakoob v K.S. Radhakrishnan .
“7. The question about the limits of the jurisdiction of High
Courts in issuing a writ of certiorari under Article 226 has been
frequently considered by this Court and the true legal position in
that behalf is no longer in doubt. A writ of certiorari can be issued
for correcting errors of jurisdiction committed by inferior courts or
tribunals: these are cases where orders are passed by inferior
courts or tribunals without jurisdiction, or is in excess of it, or as a
result of failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on it, the Court
or Tribunal acts illegally or in properly, as for instance, it decides
a question without giving an opportunity to be heard, to the party
affected by the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural justice. There
is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it
is not entitled to act as an Appellate Court. This limitation
necessarily means that findings of fact reached by the inferior
Court or Tribunal as result of the appreciation of evidence cannot
be reopened or questioned in writ proceedings. An error of law
which is apparent on the face of the record can be corrected by a
writ, but not an error of fact, however grave it may appear to be.
In regard to finding of fact recorded by the Tribunal, a writ of
certiorari can be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to admit admissible
and material evidence, or had erroneously admitted inadmissible
evidence which has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be regarded as
an error of law which can be corrected by a writ of certiorari. In
dealing with this category of cases, however, we must always bear
in mind that a finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on the ground
that the relevant and material evidence adduced before the
Tribunal was insufficient or inadequate to sustain the impugned
finding. The adequacy or sufficiency of evidence led on a point and
the inference of fact to be drawn from the said finding are within
the exclusive jurisdiction of the Tribunal, and the said points
cannot be agitated before a writ Court. It is within these limits that
the jurisdiction conferred on the High Courts under Article 226 to
issue a writ of certiorari can be legitimately exercised.
8. It is, of course, not easy to define or adequately describe
what an error of law apparent on the face of the record means.
What can be corrected by a writ has to be an error of law; it must
be such an error of law as can be regarded as one which is
28
AIR 1964 SC 477
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apparent on the face of the record. Where it is manifest or clear
that the conclusion of law recorded by an inferior Court or
Tribunal is based on an obvious mis-interpretation of the relevant
statutory provision, or sometimes in ignorance of it, or may be,
even in disregard of it, or is expressly founded on reasons which
are wrong in law, the said conclusion can be corrected by a writ of
certiorari. In all these cases, the impugned conclusion should be so
plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said
error of law is apparent on the face of the record. It may also be
that in some cases, the impugned error of law may not be obvious
or patent on the face of the record as such and the Court may need
an argument to discover the said error; but there can be no doubt
that what can be corrected by a writ of certiorari is an error of law
and the said error must, on the whole, be of such a character as
would satisfy the test that it is an error of law apparent on the face
of the record. If a statutory provision is reasonably capable of two
constructions and one construction has been adopted by the
inferior Court or Tribunal, its conclusion may not necessarily or
always be open to correction by a writ of certiorari. In our
opinion, it neither possible nor desirable to attempt either to define
or to describe adequately all cases of errors which can be
appropriately described as errors of law apparent on the face of
the record. Whether or not an impugned error is an error of law
and an error of law which is apparent on the face of the record,
must always depend upon the facts and circumstances of each case
and upon the nature and scope of the legal provision which is
alleged to have been misconducted or contravened ."
(Emphasis supplied)
Thus, even if the Tribunal in Tungal Giri did not deem it fit to
interfere with the judgment of the Tribunal, regarding the aspect of
delay and laches, we cannot read that judgment as an authority for the
proposition that, in every case, even where the Tribunal has not
dismissed the application of the applicant on the ground of delay and
laches, the High Court should reverse the decision and do so.
Expressed otherwise, the High Court was, in Tungal Giri , concerned
with whether a case for reversal of the judgment of the Tribunal, to the
extent it held the OA filed by Tungal Giri to be barred by delay and
laches, was made out, whereas we, in the present case, are concerned
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with whether we should reverse the judgment of the Tribunal, which
holds in favour of the respondent, on the ground of delay and laches,
when the Tribunal itself has not done so.
31.9 The fourth significant reason why we are not persuaded to reject
the respondent’s case on the ground of delay and laches in
approaching the Tribunal is because, in Shashi Kiran itself, the
Supreme Court has held that, even if the employee had availed the
CPF benefits, that cannot be a reason to deny him the benefits of the
Pension Scheme, if he was so entitled as a deemed pension optee in
view of para 9 of the 1992 Office Order of the DTC. All that the DTC
would require of the employee would be to return the CPF benefits
availed by him, with interest. The Tribunal has, in the presently
impugned order, specifically directed the respondent to do so. Once
such a direction has been issued, which is in terms of the decision in
Shashi Kiran , we are of the opinion that no case for reversing the
impugned judgment of the Tribunal can be said to exist, on the ground
of delay and laches.
32. Re. submission that the Tribunal decided a case not pleaded by
the respondent before it
32.1 Before parting, we may also address Ms Ahlawat’s argument
that the Tribunal erred in deciding the respondent’s claim to the
benefits of the Pension Scheme on the basis of the 1992 Office Order,
as the respondent had based his claim, in the OA, on the 2002 Office
Order.
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32.2 The submission merely requires submission to merit rejection.
In the first place, the respondent had specifically pleaded, in para 4.4
of the OA, that the 1992 Office Order had been issued, and that he
had not exercised any option in terms of para 3 thereof. This was
admitted by the DTC by its assertion, in the correspondent paragraph
of its counter-affidavit before the Tribunal, that the contents of para
4.4 were a matter of record, and did not need any reply. There is,
therefore, no dispute about the fact that the respondent had not
exercised any option pursuant to the 1992 Office Order. Once this
fact stood pleaded, the legal consequence, in terms of para 9 of the
Office Order, inexorably followed. Facts are required to be pleaded,
not the law. Once the fact that the respondent had not submitted any
option following the 1992 Office Order was admitted, para 9
straightaway applied, and the respondent became, ipso facto , a
deemed pension optee. He did not have to plead so, and his status as a
deemed pension optee being a consequence of application of the law,
was not dependent on any pleading. The facts, which gave rise to the
legal consequence, were not only specifically pleaded by the
respondent, but also admitted by the DTC. Ms Ahlawat is not correct
in her submission, therefore, that the Tribunal decided the OA beyond
the case pleaded by the respondent.
33. Re. note in service book of respondent
This also answers Ms Ahlawat’s reliance on the purported noting, in
the respondent’s service book, that he was a “non optee”. Besides the
fact that any such noting cannot affect the application of the 1992
Office Order, the author of the noting has also remained undisclosed.
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Besides, the noting is as vague as it could be. The reference to the
respondent as a “non optee” could as well be a reference to the fact
that he had not exercised any option pursuant to the 1992 Office
Order. One does not know. In any case, it does not matter.
34. As the respondent was, therefore, a deemed pension optee under
the 1992 Office Order, the exercise, or non-exercise, of option
pursuant to the 2002 Office Order makes no difference. In any case, it
is the respondent’s case, in the writ petition, that the 2002 Office
Order was never implemented.
The Sequitur
35. The sequitur is obvious. Following S.L. Verma and Shashi
Kiran , the law is that, if the employee does not exercise any option for
continuing with the CPF scheme, he ipso facto switches over to the
Pension Scheme. No amount of insistence, by him that he is not a
pension optee or that he continues to be a CPF beneficiary, would
make any difference. Nor is it permissible for the employee, once he
has thus become a deemed pension optee, to switch back to the CPF
scheme. Equally, it is not permissible for the establishment – the DTC
in the present case – to deny, to the employee, the benefits of being a
deemed pension optee. The availment, by the employee, of CPF
benefits, is also irrelevant. All that can be required of the employee,
in such a situation, would be to return the benefits obtained by him
under the CPF scheme, with interest.
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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:
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(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.
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39. The writ petition stands disposed of, in the above terms, with no
orders as to costs.
C. HARI SHANKAR, J
AJAY DIGPAUL, J
MARCH 18, 2025 /yg/ ar
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