IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No. 14562 of 2004
Date of decision: 3rd December, 2008
Jagjit Singh
... Petitioner
Versus
Managing Director, Pepsu Road Transport Corporation
and another
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. R.S. Chauhan, Advocate for the petitioner.
Mr. R.S. Ahluwalia, Advocate for the respondents.
KANWALJIT SINGH AHLUWALIA, J.
By way of this common Judgment, ten cases viz. (1) CWP
No.14562 of 2004 titled ‘Jagjit Singh v. Managing Director, Pepsu Road
Transport Corporation, Patiala (hereinafter referred to as ‘PRTC’); (2) CWP
No. 14714 of 2004 titled ‘Gurnam Singh v. Managing Director, PRTC and
another’ (3) CWP No. 7844 of 2004 titled ‘Manohar Lal v. PRTC and
others’ (4) CWP No. 5552 of 2004 titled ‘Kapoor Singh v. PRTC and others’
(5) CWP No. 13017 of 1999 titled ‘Harchand Singh and others v. State of
Punjab and another’ (6) CWP No.14738 of 2004 titled ‘Kartar Singh v.
Managing Director, PRTC and another’ (7) CWP No. 8052 of 1999 titled
‘Sukhdev Ram and others v. PRTC’ (8) CWP No. 13441 of 2005 titled
‘Mohinder Singh v. Managing Director, PRTC and another’ (9) CWP No.
14577 of 2004 titled ‘Sher Chand v. Managing Director PRTC and another’
and (10) CWP No. 482 of 2006 titled ‘Sukhbir Kaur v. Managing Director
PRTC and another’ will be decided together. As the legal issue involved
and the controversy raised on the broad facts is similar, therefore, for
facility reference facts are being taken from Civil Writ Petition No.14562 of
Civil Writ Petition No. 14562 of 2004 2
2004 ‘Jagjit Singh v. Managing Director, PRTC’. However, as and where on
minor details facts differ they will also be noticed in this judgment qua each
writ petition.
PRTC is a Government corporation operating a State transport
undertaking on the national state highways and on other notified routes in
notified areas. It has a fleet of many buses and for that, it has employed
staff of drivers, conductors, other establishment staff and mechanical staff
in the workshops.
CWP No.14562 of 2004 has been preferred by Jagjit Singh
seeking a writ in the nature of certiorari seeking quashing of order dated
13th July, 2004 (Annexure P-5), whereby pension was declined and he was
disbursed Contributory Provident Fund, on the ground that the impugned
order (Annexure P-5) is erroneous, arbitrary and discriminatory and against
the principle of fair play and has been passed in order to deprive lawful
retiral/ pensionary benefits to the petitioner. A further direction has been
sought that a writ in the nature of mandamus be issued directing the
respondents to release pension to the petitioner and grant pensionary
benefits in terms of Regulation framed by the PRTC on 15th June, 1992
(Annexure P-2).
The case set out by the petitioner is that he joined PRTC on
09.04.1964 as a Conductor on regular basis. He was promoted to the post
of Chief Inspector on 24th April, 2000. Petitioner claimed that his work and
conduct remained satisfactory to the expectations of the employer and he
earned no adverse remarks. After putting in service for 37 years, with an
unblemished service record, he attained the age of superannuation and
retired from service of PRTC on 31.12.2001. Petitioner, in order to build his
case, has placed reliance and invoked various provisions of Pepsu Road
Transport Corporation Employees Pension/ Gratuity & General Provident
Civil Writ Petition No. 14562 of 2004 3
Fund Regulations, 1992. These Regulations have been attached as
Annexure P-2. Since in the various other connected writ petitions,
Annexures will be different therefore hereinafter they will be called
‘Regulations 1992’. These Regulations with the previous sanction of the
State Government were enacted for grant of retiral benefits to the
employees of PRTC.
As per Clause 1 of Chapter 1, these Regulations were to come
into force w.e.f. 15th June, 1992. Definition Clause 2 (a) defines the
Average Emoluments to mean ‘average calculated upon the emoluments of
the last ten months of qualifying service’. Competent authority has been
described as ‘Managing Director of the Corporation’. As per Clause 2 (d),
fund means (i) Pension and Gratuity fund and (ii) General Provident Fund.
Clause 2(h) defines pension and it has been stated that pension, gratuity
and other retirement benefits will be admissible to the employees of PRTC
on Government pattern. As per Clause 3 of Chapter 2, these Regulations
have been made applicable to the employees of PRTC, who were/ are
appointed on or after the date of issue of Regulations on whole time and
regular basis and important being for the Court is ‘who were working
immediately before the date of issue of Regulations and opt for these
Regulations’. As per Chapter 2 Clause 3 Sub-clause (2), these
Regulations were not to apply to the employees, who opt out of these
Regulations and various other categories, which, for the Court, are not
material. Since the dispute in these writ petitions revolves around
exercising the option, therefore those limited portions are being noticed.
Chapter 2 Clause 4 gives mode of exercise of option. Therefore, it will be
apposite here to reproduce the same, which reads as under:
“4. Exercise of option: The option under clause (ii) of
the sub-rule (1) of Regulation 3 shall be exercised in duplicate
in writing in Form-I so as to reach the Managing Director as
Civil Writ Petition No. 14562 of 2004 4forwarded by General Manager in case of depots and
Administrative Officer in the case of headquarter with his
counter-signatures within a period of six months from the date
of issue of these Regulations.Provided that:
(i) in the case of an employee, who on the date of issue of
these Regulations was abroad or on leave, the option shall be
exercised within a period of six months from the date of taking
the charge of his post.(ii) where an employee is under suspension, on the date of
issue of these regulations the option shall be exercised within
a period of six months from the date of his joining the duty.(iii) an option once exercised shall be final provide the
concerned employee deposit the Corporation’s share of C.P.
fund received by him/taken in advance, if any, within a period
of six months from the date of issue of Regulations and if a
person fails to exercise his option under the said regulations,
within the specified period referred to above, it shall be
deemed that he has opted to continue for the existing
Contributor Provident Fund benefit.(iv) an employee who dies on or after the date of issue of
these regulations and who could not exercise his option the
legal heir of such employee, who is entitled to receive
retirement benefits under the said regulations, shall exercise
option, subject to the condition that the legal heir shall have to
deposit the amount of Corporation’s share of C.P. Fund
received by the deceased employee.(v) The employee recruited after the introduction of said
Pension Regulations will be covered under these regulations.”A perusal of Clause 2, reproduced above, makes it
abundantly clear that an employee has to exercise his option within six
months from the date of issuance of Regulations or in case of any disability
which he suffers, within six months from the date on which disability is
cured. Option is also dependent upon the fact that an employee has to
deposit Corporation’s share of Contributory Provident Fund received by
Civil Writ Petition No. 14562 of 2004 5him or taken as advance within a period of six months from the date of
issuance of Regulations. Importantly, it says that in case an employee fails
to exercise his option, he shall be deemed to have opted to continue for the
existing Contributory Provident Fund benefit.
Till these Pension Regulations were enacted, employees of
the PRTC were governed by Contributory Provident Fund. Minimum
statutory portion of the salary was to be deducted for contribution towards
provident fund (employee may deposit more voluntarily) and PRTC being
employer, has also to contribute its share. In this manner, the corpus of
fund for each employee was created for the benefit of that employee, which
was to be paid to him on the date of superannuation and he was not
entitled to any pension. In the Pension Regulations Scheme, those who
opted to forego a lumpsum amount at the time of retirement in shape of
CPF, were to be given pension as per the 1992 Regulations.
It can be noticed that for becoming a member of the Pension
Scheme, an employee was called upon to do following two things:
(i) To exercise his option within six months or within the time
extended from time to time.
(ii) To deposit back any amount taken by him from the PRTC out
of Contributory Provident Fund as advance out of
Corporation’s share.
These Regulations also give procedure, method and formula
regarding calculation of pension and gratuity for the retiring employee.
Another important Clause to be noticed for us is Clause 20, which reads as
under:
"20. Subscription and maintenance of General Provident Fund Accounts: Civil Writ Petition No. 14562 of 2004 6 (1) The employees, who were appointed on or afterthe commencement of these regulations and also to the other
existing employees, who opt for those regulations shall
contribute towards the General Provident Fund at the rate
prescribed by the Punjab Government for their employees. An
employee may, however, subscribe voluntarily at higher rate
than that prescribed by the Punjab Government. The fund
shall be regulated in accordance with the rules and procedure
to be prescribed by the Punjab Government from time to time.(2) The date of switchover for the existing employees
to General Provident Fund shall be date of issue of these
Regulations. The Corporation shall maintain the General
Provident Fund Accounts Head Office level.(3) An employee may be sanctioned an advance out
of his own share (General Provident Fund) for transfer to
Pension and Gratuity Fund to meet with his liability of advance
taken by him out of the Employer’s share of Contributory
Provident Fund.”Clause 20, Sub-clause (3) states that an employee can be
sanctioned advance out of his own share of GPF for transfer to pension
and gratuity fund to meet his liability of advance taken by him out of the
employer’s share of Contributory Provident Fund. Chapter 6 contain Clause
24 regarding adjustment of recovery of dues, which reads as under:
“24. Adjustment and Recovery of dues:
(1) The competent authority shall take steps to
assess the dues outstanding against the employees two years
before the date on which he is due to retire on
superannuation.(2) The assessment of the outstanding dues against
the employees shall be completed by the competent authority
eight months prior to the date of his retirement.(3) The dues as assessed including those dues
which come to the notice subsequently and which remain
outstanding till the date of retirement of the employee, shall be
Civil Writ Petition No. 14562 of 2004 7adjusted against the amount of death-cum-retirement gratuity
becoming payable to the employee on his retirement.(4) When an employee retires from service, an office
order shall be issued to that effect by the competent authority.”Present petitioner has averred that he served a legal notice
(Annexure P-3) on 28th November, 2003 upon PRTC. It is stated therein
that he had exercised his option and the same was submitted through the
General Manager, Bathinda Depot, where he was working in 1992-93. it
has been further stated that he was called upon to deposit an amount of
Rs.13,000/-, the amount of provident fund advance, which stood drawn out
of PRTC’s share of Contributory Provident Fund during the months of
August and October, 1990. It was further stated that he had requested the
authorities that since there is a balance of just equal amount of Rs.13,000/-
on account of his share of Contributory Provident Fund, as per the return
issued by the PRTC in 1993, the whole amount be adjusted against the
permanent advance. In the notice he further averred that he has been
made to understand that he has not been made member of the Pension
Scheme because he has not refunded the amount and had failed to
deposit the balance. It further states that notice (Annexure P-3) was not
considered and petitioner was compelled to file Civil Writ Petition No.7483
of 2004 and the same was disposed off by passing the following order:
"Present: Mr. R.S. Chauhan, Advocate for the petitioner.Learned counsel for the petitioner states that he would
be satisfied if respondent No.1 is directed to decide the legal
notice (Annexure P-3) sent to him by the Advocate of the
petitioner.The writ petition is disposed of with a direction to
respondent No.1 to take a decision on the legal notice
(Annexure P-3), by passing a speaking order in accordance
Civil Writ Petition No. 14562 of 2004 8with law within a period of two months of the receipt of a
certified copy of this order.Copy of this order be given Dasti to the learned counsel
for the petitioner.Sd/- S.S. Nijjar
JudgeSd/- J.S. Narang
Judge
13.5.2004″In pursuance of the above reproduced order (Annexure P-4),
the Corporation decided the claim of the petitioner vide impugned order
(Annexure P-5). In Annexure P-5, it has been stated that period for
exercising the option was extended time and again on the demand of the
Union of employees and finally, it was extended upto 28th April, 1993. Since
the petitioner failed to deposit the amount of employer’s share taken as a
non-refundable advance along with upto date interest, even during the
extended period, therefore, his option for pension was not considered valid
and was rejected, and this fact was conveyed to the employee on 15th
February, 1993. The relevant para of the impugned order, due to which
employee was not included as member of the pension scheme, reads as
under:
“Shri Jagjit Singh Inspector failed to deposit the amount
of Employers share taken as Non Refundable Advance along
with upto date interest even during the extended period. No
doubt Shri Jagjit Singh, Inspector opted the PRTC Pension
Scheme, 1992, but, he failed to deposit the amount of
Advance of Rs.8889/- (i.e. Amount of Advance + interest
accrued thereon upto 12/92 – Amount of CPF his own share
standing at his credit) Rs.13000 + 4535 – 8646 = Rs.8889,
which was mandatory as per Sub Rule-III of Regulations 4 and
Regulations 3(2)(h) of said Regulations of 1992.”Civil Writ Petition No. 14562 of 2004 9
In the writ petition, petitioner has relied upon the case of one
Hari Singh, Driver, who according to the petitioner had filed a civil suit
claimed pensionary benefits w.e.f. 15th June, 1992. Petitioner has relied
upon a judgment of a District Judge given in favour of Hari Singh
(Annexure P-6). A perusal of the judgment (Annexure P-6) shows that
District Judge drew support from two judgments viz. Smt. Usha Dogra v.
Central Bank of India, 2002 (4) SCT 583 and Sridhar Malik v. Haryana
State Electricity Board, 2002 (3) SCT 1096, wherein, in a similar issue,
an employees were called to deposit the amount and the Corporation was
held entitled to charge interest @ 9 percent per annum, which the
petitioners in those writ petitions were required to pay and the District
Judge concluded as under:
“The respondents would issue demand notice to the
appellant within one month from the date of receipt of the copy
of this judgment as to how much amount of C.P. Fund
(Corporation share) should be paid by him (appellant) so as to
avail the benefit of pension scheme. They would be at liberty
to charge interest on that amount at the rate of 9% per annum,
which the appellant is supposed to pay. On receipt of the
demand notice, the appellant will deposit the amount as
mentioned in the demand notice within one month along with
option and on receipt of the amount and option, the
respondents would give the benefit of pensionary scheme to
the appellant and take a decision within three months
thereafter.”Petitioner further relied that like Hari Singh’s case, one
Balwant Singh had also filed a civil suit and the trial Court directed Balwant
Singh plaintiff to refund the share of Contributory Provident Fund with 9
percent interest. Aggrieved against the same, the Corporation had filed a
Regular Second Appeal and the same was dismissed. Reliance has also
been placed upon a judgment of this Court in PRTC v. Balwant Singh,
Civil Writ Petition No. 14562 of 2004 10reported in 2007 (1) SCT 828, wherein the judgments of two courts below,
giving directions that plaintiff would refund the employer’s share of
Contributory Provident Fund with 9 percent interest, were upheld. Petitioner
further states that case of Hari Singh Driver has attained finality. Petitioner
has also relied upon another judgment of this Court in Baldev Singh,
retired driver v. PRTC, CWP No. 2911 of 1997, decided on August 11,
1997. Besides, petitioner has also placed reliance on PRTC v. Sant Ram
Fitter, RSA No. 2173 of 2004, decided on 25th May, 2004, wherein it was
held that no notice was given to Sant Ram Fitter, therefore, he could not
exercise his option and was unable to make repayment of non-refundable
advance. In the Regular Second Appeal so decided, it was observed as
under:
“The amount of the advance could even be deducted
from the Provident Fund of the plaintiff, which was still lying
with the Corporation, Clause 24 of the Regulations states
about the “adjustments and recovery of dues”. In sub-clause
(3), it has been mentioned that where any amount remained
outstanding till the date of retirement of the employee, the
same shall be adjusted in the Death-cum-Retirement Gratuity
becoming payable to the employee on his retirement.”This judgment has been attached as Annexure P-8. It has
been stated that when this judgment became final, the SLP preferred by
the PRTC, bearing No. 19752 of 2004 titled as ‘PRTC v. Sant Ram and
others’, was dismissed by the Hon’ble Apex Court on 01.10.2004. A
fleeting mention has been made to the judgments as in the petition,
reliance has been placed upon them. Case law, their ratio and facts shall
be considered later. No written statement has been filed in CWP No. 14562
of 2004 ‘Jagjit Singh v. Managing Director, PRTC’. During the course of
arguments, it has been admitted that Jagjit Singh, on retirement had
Civil Writ Petition No. 14562 of 2004 11received the entire amount of Contributory Provident Fund after the
retirement.
Civil Writ Petition No. 14714 of 2004
‘Gurnam Singh v. Managing Director, PRTC’Similar prayer, as made by Jagjit Singh, has been renewed in
this writ petition. Petitioner herein has stated that he was appointed as
conductor on 20.05.1965 on regular basis. He was promoted to the post of
Inspector on 25.01.1994 and he retired on 30.04.2003 on attaining the age
of superannuation. Petitioner has served legal notice on 10.02.2004
(Annexure P-3), placing reliance upon 1992 Regulations. In the legal
notice, it was stated that he had exercised his option through the General
Manager, Sangrur Depot, to opt for Pension Scheme. He was called upon
to deposit Rs.30,000/-, the amount of permanent advance, which he had
drawn out of PRTC’s share of Contributory Provident Fund. In the reply
thereto, he requested PRTC that balance of equal amount of Rs.30,000/-
on account of the share, as far as Contributory Provident Fund is
concerned, as per the return 1992-93, be adjusted. Legal notice was not
decided, therefore, petitioner also filed Civil Writ Petition No.7509 of 2004.
A direction was given to decide the legal notice. The Corporation, vide
impugned order (Annexure P-5) stated that Gurnam Singh had failed to
deposit the amount of employer’s share taken as non-refundable advance
along with upto date interest, even during the extended period. It held that
even though the employee has opted for PRTC Pension Scheme, but he
failed to deposit the amount of advance of Rs.9845/-. No written statement
has been filed. During the course of arguments, it has been admitted that
Gurnam Singh, on retirement had received the entire amount of
Contributory Provident Fund after the retirement.
Civil Writ Petition No. 7844 of 2004
Civil Writ Petition No. 14562 of 2004 12‘Manohar Lal v. PRTC and others’
This writ petition has been preferred by Manohar Lal with a
similar prayer. In this case, petitioner was appointed as Conductor on 2nd
February, 1971 and he retired voluntarily w.e.f. 31st May, 2001.
Petitioner was denied the pensionary benefits on the ground
that he had failed to deposit Rs.500/- taken by him as non-refundable loan
in July 1986. It has been stated in the writ petition that though the petitioner
had duly informed the respondents to deduct the said amount from his
salary, as at that time he was in service, but said amount was not adjusted.
It is further stated that petitioner was asked to give option under 1992
Regulations (Annexure P-2) and in response thereto, petition has given his
option for pensionary benefits under Regulations 1992.
Civil Writ Petition No. 5552 of 2004
‘Kapoor Singh v. PRTC and others’This writ petition has been filed by Kapoor Singh. A similar
prayer has been renewed by him also.
Case of the petitioner is that he retired as Inspector in PRTC,
Faridkot Depot. He has been denied pensionary benefits vide order dated
03.01.2003 (Annexure P-1), as he had failed to deposit Rs.14,000/- along
with interest, taken by him before coming into force of the scheme, as a
loan. Petitioner claimed that he is also entitled to become a member of
Pension Scheme as per Pension Regulations 1992. Date of retirement of
the petitioner is 24th April, 2001. Petitioner seeks quashing of order dated
03.01.2003 (Annexure P-1), wherein he was denied the benefit of Pension
Scheme 1992 on the ground that he had to return the amount with interest
upto 14.12.1992, which was received by him as non-refundable loan.
Petitioner has also relied upon a Division Bench Judgment rendered in
Civil Writ Petition No. 14562 of 2004 13Baldev Singh’s case, on which mention has been made while noticing the
facts of Jagjit Singh’s case.
Civil Writ Petition No. 13017 of 2004
‘Harchand Singh and others v. State of Punjab and another’This writ petition has been filed by eight employees of PRTC.
They have also prayed for grant of Pension as per Regulations 1992. Like
other cases, petitioners herein had also taken loan for building house and
some other purposes, against the amount in their provident funds. Their
case is that after retirement, Contributory Provident Fund has been paid to
them after deducting the amount of loan, thus, on the date of retirement no
loan was due from them. These petitioners have retired in the years 1995,
1996, 1998 and 1999. They are aggrieved against the order (Annexure P-
2), wherein it was stated that they were liable to return the amount of loan
upto the share of PRTC out of the Contributory Provident Fund with interest
within six months from the enforcement of Regulations upto 14.12.1992.
They have failed to do so, hence they were not entitled to Pension
Scheme. PRTC had filed written statement, in which it has been stated that
since they failed to deposit the amount of advance taken by them out of the
employer’s share of Contributory Provident Fund along with interest
thereon within the stipulated period, therefore, they are not entitled to
pension under the Pension Scheme framed by PRTC in year 1992.
Petitioners herein have also been paid the entire amount of Contributory
Provident Fund when they retired.
Civil Writ Petition No. 14738 of 2004
‘Kartar Singh v. Managing Director, PRTC and another’This writ petition has been preferred by Kartar Singh son of
Chander Singh. Like Jagjit Singh, whose facts have been given
Civil Writ Petition No. 14562 of 2004 14hereinbefore, Kartar Singh also seeks the same relief. He joined PRTC as
Conductor in 15.12.1967 on regular basis. He was promoted to the post of
Inspector on 18.09.2000. After rendering 32 years of service, he retired on
26.12.2001. He has also placed reliance on Pension Regulations 1992. He
had also served a legal notice (Annexure P-3), which was ordered to be
decided by this Court, vide order (Annexure P-4). His claim has been
declined by the PRTC on the ground that he failed to deposit the amount of
arrears on the share taken as non-refundable advance along with upto date
interest even during the extended period. It was stated that even though he
opted for PRTC Pension Scheme 1992, he failed to deposit the amount of
advance of Rs.10068/-. He has also placed reliance upon Hari Singh’s
case, Baldev Singh’s case, Sant Ram Fitter’s case and dismissal of SLP.
Written statement has been filed, wherein it has been stated that he
received total amount of Contributory Provident Fund amounting to
Rs.3,39,609/- on 19.03.2002 vide a cheque issued by PRTC. He share of
employee was Rs.1,94,204/- and the share of PRTC was Rs.1,45,405/-.
Civil Writ Petition No. 8052 of 1999
‘Sukhdev Ram and others v. PRTC’This writ petition has been preferred by 66 employees. They
are also aggrieved against the action of PRTC in rejecting their option and
holding that they are not eligible to become members of Pension Scheme
1992. A Chart (Annexure P-1) has been attached, wherein the date of
appointment and amount of loan has been mentioned. They have been
also denied pension on the ground that they failed to deposit non-
refundable advance along with interest before the specified date. Written
statement has been filed, wherein it was stated that these employees were
under the legal obligation to refund the amount of loan taken from the
employer’s share along with upto date interest within the stipulated period.
Civil Writ Petition No. 14562 of 2004 15It has been stated that in view of the judgment rendered by this Court in
Executive Engineer HSEB v. Dharam Singh and others, 2005 (2) RSJ
364, they cannot become members of PRTC Pension Scheme 1992. It has
been stated that these all employees have received the amount of their
Contributory Provident Fund Pension Scheme after their retirement.
Civil Writ Petition No. 13441 of 2005
‘Mohinder Singh v. Managing Director, PRTC and another’This writ petition has been filed by Mohinder Singh against the
Managing Director, PRTC. His grievance is that even though he had
deposited Rs.20,000/- of advance along with interest, he has not been
extended benefit of Pension Scheme. Mohinder Singh petitioner stated that
he joined PRTC in year 1974 as a driver on regular basis. After putting in
26 years of service, he retired after attaining the age of superannuation on
31.01.2001. It is stated that he had exercised the option to become
member of Pension Scheme and also deposited Rs.20,000/-, the amount
taken by him as Contributory Provident Fund advance. Therefore, he states
that he is entitled to pension as per Regulations 1992 (Annexure P-2). He
has also served legal notice (Annexure P-3). No written statement has
been filed by PRTC.
Civil Writ Petition No. 14577 of 2004
‘Sher Chand v. Managing Director PRTC and another’This writ petition ,has been preferred by Sher Chand. He
seeks quashing of order dated 13.07.2004 (Annexure P-4). He has
renewed the same prayer as by Jagjit Singh. His case is that he was
appointed as Conductor on regular basis on 01.05.1970. He was promoted
as Sub Inspector on 27.11.2001 and after putting in 32 years of service, he
retired on 30.06.2002. He had served a legal notice. This Court directed to
Civil Writ Petition No. 14562 of 2004 16decide the legal notice as claim had been rejected vide Annexure P-4 on
the ground that he failed to deposit the amount of non-refundable advance
along with upto date interest, even during the extended period. It was
stated that he failed to deposit the advance of Rs.12,511/-. In the written
statement filed, it has been stated that he has not deposited the amount of
advance along with interest upto 28.04.2003, therefore, he is not entitled to
become a member of Pension Scheme.
Civil Writ Petition No. 482 of 2006
‘Sukhbir Kaur v. Managing Director PRTC and another’Petitioner herein also renewed the same prayer that he be
granted pensionary benefits in terms of Regulations 1992, as her husband
Balbir Singh had joined the service of PRTC as Conductor in the year 1965
and he was promoted as Inspector and Balbir Singh had retired in
September, 2001 and died on 08.06.2003. A perusal of the averments
made in the writ petition reveals that the amount of Contributory Provident
Fund has been received by the husband of the petitioner.
I have heard counsel for the petitioner and counsel for the
respondent PRTC. Number of writ petitions and regular second appeals
have been filed by the similarly situated employees of PRTC. A common
feature in the judgments already rendered in writ petitions and the regular
second appeals, relied upon by the counsel for the petitioner are that the
employees of PRTC were not individually got noted the scheme, the fact
that they had to exercise the option, to refund the amount of non-
refundable advance taken by them out of the Corporation’s share. Taking
these to be material flaw, it was ordered that all employees, whose cases
have been decided, will refund the amount along with Contributory
Provident Fund received by them with 9 percent interest and will be
granted pension.
Civil Writ Petition No. 14562 of 2004 17
Numerous judgments of Division Bench, Single Bench in
regular second appeals including a case of Sant Ram Fitter, in which SLP
was dismissed by the Hon’ble Apex Court, have been noticed by a
Coordinate Bench of this Court in PRTC v. Balwant Singh, 2007 (1) SCT
828, in which it has been held as under:
“5. After considering the aforesaid regulations the trial
court decreed the suit of the plaintiff taking a view that grant of
pension was fulfillment of constitutional promise and pension
therefore could not be denied on technical objections. The trial
court placed reliance on a Division Bench judgment of this
Court in Smt. Usha Dogra v. Central Bank of India,
reported as 2002(4) SCT 583 and a Single Bench judgment
of this Court in the case of Sridhar Malik v. Haryana State
Electricity Board, reported as 2002(3) SCT 1096 wherein
under similar circumstances directions had been given to
grant pension to the petitioners in those cases. Accordingly
the trial court decreed the suit and held the plaintiff entitled to
pension, commuted pension and other benefits subject to the
condition that the plaintiff would refund the amount of
Contributory Provident Fund (Corporation’s share) along with
interest at the rate of 9% per annum. This was to be done
after the defendants had served a notice on the plaintiff
quantifying the amount payable by him. On receipt of the
notice the plaintiff would deposit the amount as also an option
for receipt of pension and the Corporation would then give
benefit of pension under the Pension Regulations to the
plaintiff. This judgment of the trial court was affirmed by the
lower appellate court.6. Shri Arun Nehra, learned counsel appearing for the
appellant contends that the plaintiff is not entitled for pension
under the Pension Regulations as firstly he had never opted
for the same by exercising a valid option. Secondly referring to
Clause 3(2)(h) the learned counsel contends that he did not
even deposit the balance amount of advance taken by him
from out of the Employees’ share of the Contributory Provident
Civil Writ Petition No. 14562 of 2004 18Fund along with interest and thus was not entitled for pension
on this ground also.7. I however find no merit in this contention. It has come in
the evidence of DW-1 Raj Kumar that notice regarding
exercise of option was not served personally on the plaintiff.
This is so recorded by the trial court in Para 9 of the judgment
and the relevant observation is as hereunder :-‘…..He further stated that the plaintiff is now drawing his
pension which is known as CPF pension. In his cross-
examination DW1 Raj Kumar admitted that notice
regarding exercising the option was not served
personally on the plaintiff.’8. The lower appellate court also on examination of
evidence concluded that the defendants had not led any
cogent and convincing evidence to show that the pension
scheme had been circulated amongst the employees of the
Corporation and they were made to understand and note the
same so as to exercise their option. The relevant observations
of the lower appellate court to this effect are as hereunder :-‘…..It was therefore, obligatory on the part of the
defendants to have led some cogent and convincing
evidence that the scheme of the pension under the
Regulations was circulated amongst the employees of
the PRTC and they were made to note the same so as
to exercise the option within the specified period, in the
absence of which the averments made by the plaintiff in
the plaint and the same having not been controverted
by the defendants and further a statement in this regard
having been made by the plaintiff as PW1 in his sworn
affidavit, EX.PI, cause the court to hold that the plaintiff
had made exercise of the option of the pension but the
defendants failed to take the necessary action on the
same so as to provide the benefit of the superannuation
pension as provided under Regulation 3 of the
Regulations. It is also important to note that under Sub-
Clause (ii) of Regulation 3, the Regulations had not to
be applied to the employees who opt out of these
regulations. Again there is no evidence to have been led
Civil Writ Petition No. 14562 of 2004 19by the defendants that the plaintiff had opted out of the
Regulations.’9. In the face of this statement and findings I am of the
opinion that since there is no evidence on the record that the
pension scheme had been circulated amongst the employees
and got noted from them the Corporation cannot deny the
benefit of pension under the Pension Regulations to the
plaintiff merely on account of the fact that he had not opted for
the same. In this view of mine I am fortified by the
observations made by a Division Bench of this Court in Ram
Dia and others v. Uttar Haryana Bijli Vitran Nigam Ltd.,
and another reported as 2005(4) SCT 387 which are as
hereunder :-‘…..The learned counsel for the respondents failed to
show any material that the circular dated 6.8.1993 was
actually got noted in writing from the petitioners. In the
absence of any such material, it can well be inferred
that the petitioner had no knowledge about the options
called by the respondents vide the aforesaid circular.
Therefore, it is unreasonable to deny the pensionary
benefits to the petitioners.10. Accordingly, the writ petition is allowed. The order at
Annexure P4, dated 13.2.2004 is quashed. The
respondents are directed to allow the petitioners to
exercise their option in accordance with their circular
dated 6.8.1993 within a period of one month of receipt
of a certified copy of this order and give them the
consequential benefits within two months thereafter
subject to their fulfilling the conditions of eligibility for
being governed under the aforesaid circular dated
6.8.1993.’10. Similar view has been taken by another Division Bench
of this Court in Ram Kumar and others v. Uttar Haryana
Bijlli Vitran Nigam Ltd., and others reported as 2006(3)
SCT 628 which is as hereunder :-‘The question regarding changing the option after the
time fixed has lapsed has been considered and
necessary permission to change the option has been
Civil Writ Petition No. 14562 of 2004 20granted by this Court in other cases. A Division Bench
of this Court in Mahinder Singh v. Executive Engineer
and another, 2005(4) SCT 633, to which once of us
(S.S. Nijjar, J.) was a member, held that unless it is
established that the circular issued for exercise of option
was brought to the notice of the employee he cannot be
denied from exercising the same in the time merely
because he did not do so immediately when the circular
was issued. In the case of Lalu Ram v. State of
Haryana, (C.W.P. No. 2476 of 1997), decided on
9.10.1997, a Division Bench of this Court considered
the case where the employee had not given his option
for adopting the pensionary scheme and had failed to
comply with the conditions imposed therein, that is,
depositing the employer’s share of contribution towards
G.P.F. with upto date interest. It was held by this Court
that the respondents therein had not placed any
material on record to show that the instructions issued
had been got noted in writing from the petitioner in the
said case. In the absence of any such material it was
held that it cannot be assumed that the petitioner while
in service knew about the contests of the instructions
that had been issued. It was noticed that the circular in
question specifically provided that “these instructions
may please be got noted from the employees and
acknowledge the receipt of the letter”. In Hakam Singh,
Driver v. Executive Engineer and another, CWP No.
12758 of 2000), decided on 29.5.2002, another
Division Bench directed the respondents to allow the
petitioners therein to avail the benefit of pensionary
scheme as there was no proof that they were ever
served on the basis of instructions regarding switching
over to the pensionary scheme. In Darshan Singh v.
Chief Accounts Officer, (CWP No. 2402 of 1997),
decided on 27.8.1997, another Division Bench of this
Court allowed the writ petition for computation of the
service rendered by the petitioner therein towards retiral
benefits. The claim of the petitioner was resisted as he
Civil Writ Petition No. 14562 of 2004 21had not exercised his option to claim the benefit of
service towards pension. It was, however, held that the
amount deposited by the employer from the date of the
appointment of the petitioner therein till his retirement
along with interest shall be refunded by the petitioner. In
the case in hand also there is no material on record to
show that the circulars dated 6.8.1993 (Annexure P.1)
and 9.8.1994 (Annexure P.2) were brought to the notice
of the petitioners. Therefore, the declining of pension
scheme to the petitioners on account of the fact that
they failed to exercise their option is without basis. The
petitioners would, however, be required to refund the
amount deposited by the employer from the date of their
respective appointments till retirement along with
interest.’11. Similar view has been taken by another Division Bench
of this Court in Mahinder Singh v. Executive Engineer and
another, 2005(4) SCT 633, Dilwar Singh v. Haryana Power
Generation Corporation Ltd. and others, 2006(3) SCT 412
and by a learned Single Judge in Sridhar Malik v. Haryana
State Electricity Board, reported as 2002(3) SCT 1096. In
view of the authoritative pronouncements referred to herein
above I am of the opinion that since no evidence has been
brought on record by the appellant-Corporation to show that
the pension scheme had been got circulated amongst the
employees and got noted from them, pension cannot be
denied to the plaintiff merely on account of the fact that he had
not opted under the Pension Regulations.12. In the light of the aforesaid findings since the pension
scheme was never circulated and got noted by the plaintiff he
cannot be denied pension on account of the fact that he had
not deposited the balance amount of loan taken by him from
out of his Contributory Provident Fund. Had it been brought to
his notice he would certainly have deposited a sum of Rs.
4,999/- outstanding against him. In any case under somewhat
similar circumstances this court in the case of Pepsu Road
Transport Corporation and another v. Sant Ram Fitter,
(Retd.) (RSA No. 2173 of 2004, decided on 25.05.2004) has
Civil Writ Petition No. 14562 of 2004 22taken a view that rejection of the claim of plaintiff therein for
pension under this very pension scheme on the ground that
advance from out of GPF was not deposited by the plaintiff in
the light of the fact that no notice was served on the plaintiff
for the same, was arbitrary and illegal. Thus I do not find that
the plaintiff can be denied the benefit of pension on this
ground as well.13. Even otherwise I am of the opinion that the grant of
pension to the citizens and employees is fulfillment of a
constitutional promise under as much as it partakes the
character of public assistance in old age. The pension scheme
thus fulfills this constitutional mandate. The Hon’ble Supreme
Court in the case titled Deokinandan Prasad v. State of
Bihar, AIR 1971 Supreme Court page 1409 affirmed the
decision of the Full Bench of this Court in the case of K.R.
Erry v. State of Punjab, AIR 1967 Punjab Page 279 holding
that pension is not to be treated as a bounty payable on the
sweet will and pleasure of the Government and that the right
to superannuation pension including its amount is a valuable
right vesting in a government servant. This has been the
settled legal position. The Hon’ble Supreme Court in Subrata
Sen v. Union of India, 2001(4) SCT 424 (SC) : 2001(8)
Supreme Court Cases 71 observed as under :-‘Payment of pension does not depend upon Pension
Fund. It is the liability undertaken by the Company
under the Rules and whenever becomes due and
payable, is to be paid. As observed in Nakara case
pension is neither a bounty, or a matter of grace
depending upon the sweet will of the employer, nor an
ex gratia payment. It is a payment for the past services
rendered. It is a social welfare measure rendering
socioeconomic justice to those who is they heyday of
their life ceaselessly toiled for the employ on an
assurance that in their old age they would not be left in
the lurch.’14. Therefore I am of the opinion that in the facts and
circumstances of this case the plaintiff who is a driver in the
Civil Writ Petition No. 14562 of 2004 23Corporation cannot be denied the benefit of pension under the
Pension Regulations.15. At this stage I may also consider two other contentions
raised by the learned counsel for the appellant. Learned
counsel submits that the claim of the plaintiff should be
dismissed on the ground of limitation. In this regard I may
notice that an issue was framed as to whether the suit is
barred by limitation being issue No. 7. This issue was decided
against the appellant by the trial court. Before the lower
appellate court the findings of the trial court on this issue were
not even challenged. The relevant observations of the lower
appellate court are as hereunder :-‘No argument was raised by the Ld. Counsel for the
appellants with regard to the findings returned by the
Ld. Trial Court on issues Nos. 3, 6 and 7. Apparently,
the plaintiff being entitled to the benefit of the pension
on superannuation, he had the locus-standi to file the
suit. There is nothing on record to show that the plaintiff
had ever foregone his right of pension on
superannuation by any of his Act and conduct. The
cause of action to file the suit regarding the claim of the
pension being recurring one it could not be argued that
the suit is barred by limitation. I, therefore, affirm the
findings of the trial Court on issues Nos. 3, 6 and 7.’16. Even otherwise the plaintiff had retired from service on
30.11.2000. He filed the suit on 8.12.2003. The suit was filed
within a period of 38 months. Thus even if the arrears of
pension payable were to be curtailed to a period of three years
and two months prior to the filing of the suit they would be
payable from the date of superannuation of the plaintiff as the
said date falls within 38 months from the filing of the suit. I
thus find no merit in this contention of the learned counsel for
the appellant as well.17. Learned counsel for the appellant then contends that
the plaintiff is estopped from filing the suit as he had already
taken the Contributory Provident Fund. Again I may notice that
an issue to this effect was framed by the trial court being issue
No. 6. The said issue was decided against the appellant by
Civil Writ Petition No. 14562 of 2004 24the trial court. Before the lower appellate court no argument
was raised on this issue. Even otherwise I am of the opinion
that the plaintiff cannot be denied the benefit of pension under
the Pension Regulations merely on this ground. The trial court
has already given a direction that the plaintiff would refund the
employees’ share of the Contributory Provident Fund with 9%
interest. To substantiate this plea learned counsel for the
appellant has relied upon a judgment of this Court in
Executive Engineer, Haryana State Electricity Board v.
Dharam Singh and others, 2005(2) SCT 87 : 2005(2) RSJ364. I have gone through the said judgment. The controversy
in that case primarily was as to whether the employees could
be allowed to shift from the EPF Scheme to the pension
scheme of the Board. The Board in that case had given
opportunity to all the members to shift to the said scheme up
to a particular date in the year 1988. The petitioners therein
had not opted to shift. The judgment records that as
hereunder :-‘…..The petitioner should have well opted for the same
at the relevant time and deposited the entire
contribution of the Board towards EPF, thus, facilitating
the respondent-Board to give him the pensionary
benefits. He did not do so while in service and
continued to enjoy the benefit as it was available to him
at that time. The petitioner even got all the benefits of
EPF Scheme encashed consequent upon his retirement
on 31.8.1991 on attaining the age of superannuation.He made representation for switching over from EPF
Scheme to GPF Scheme for the first time on 18.6.1997
wherein, he had also shown his willingness to deposit
the entire amount of EPF.’
It was in those peculiar facts and circumstances of that case
that relief was denied to the employees therein. The factual
position in this case is totally different. Thus I find no merit in
this contention raised by the learned counsel as well.”Civil Writ Petition No. 14562 of 2004 25
There is another writ petition titled Bachittar Singh v. PRTC
and another, CWP No.10285 of 1998 decided by this Court on August 9,
2007, in which it has been held as under:
“4. The petitioner’s plea, advocated before this Court,
is that the refund obtained by him being non-refundable in
character, the denial of pensionary benefits to him on account
of the non-refund of employer’s share is invalid. A plea, raised
in the alternative, is that the respondents could adjust the
amount recoverable from him from out of the total amount
payable to him. There is also a plea that the respondents
cannot be heard to insist upon the averred premise (for denial
of the pensionary benefits to him) as he was never called
upon to refund the employer’s share of the advance obtained
by him from CPF.5. As against it, the plea canvassed on behalf of the
respondents is that a list containing the names of employees
who had obtained non-refundable advance had been put on
the notice board and circulated and if the petitioner did not
notice it, he has to thank his own stars for the consequences
which flow from the non-refund of the employer’s share of the
advance obtained by him from out of his CPF.6. The controversy agitating the parties is squarely
covered by a decision dated 25.5.2004, rendered by a learned
Singe Judge of this Court in RSA No. 2173 of 1994 (Pepsu
Road Transport Corporation and another Versus Sant Ram
Fitter). The following observations made by this Court in that
authority shall prove to be clincher in adjudication of the
controversy:‘Still further, even for the sake of argument if it is
presumed that any notice was served upon the plaintiff,
even then the notice issued to the plaintiff was against
the rules as the plaintiff was asked to refund the amount
within one week from the receipt of the notice, whereas
the stipulated period for refund of the advance was six
months. The amount of the advance could even be
deducted from the Provident Fund of the plaintiff, which
was still lying with the Corporation. Clause 24 of the
Civil Writ Petition No. 14562 of 2004 26Regulations states about the “adjustments and recovery
of dues”. In sub-clause (3), it has been mentioned that
where any amount remained outstanding till the date of
retirement of the employee, the same shall be adjusted
in the Death-cum-Retirement Gratuity becoming
payable to the employee on his retirement.All these factors go to show that the rejection of
the claim of the plaintiff for the grant of the retiral
benefits under the scheme floated by the Corporation
was an arbitrary and illegal act on the part of the
Corporation.’7. No law taking a contrary view of facts sought
before this Court.”
It is not disputed that when the 1992 Regulations were
notified, petitioners were employees of PRTC. The pension is being denied
to them on the ground that even though they had exercised the option, but
they had failed to deposit the amount of advance taken by them before the
stipulated date. Counsel for the petitioner has relied upon Regulation 24
given in Chapter 6, where the provision regarding adjustment and recovery
of dues has been made. It has been stated therein that a competent
authority shall take steps to assess the dues outstanding against the
employees, two years before the date, on which he is due to retire on
superannuation. It has further been held therein that the assessment of
outstanding dues against the employees shall be completed by the
competent authority eight months prior to the date of his retirement.
Petitioners are being denied benefit of pension scheme on the
ground that within the stipulated period, they had not paid the advance
taken by them. This Court cannot loose sight of the fact that Regulations
1992 were enacted to grant pension to employees being a beneficial
measure. Till the employee retires, Contributory Provident Fund remains
with the Corporation. As per Clause 24, they can make the assessment two
years before the retirement and outstanding amount can be deducted,
Civil Writ Petition No. 14562 of 2004 27
especially when the petitioner had opted for Pension Scheme. Therefore,
on a simple ground that the amount has not been refunded by the
employee when sufficient amount was lying in his account for adjustment
as per Clause 24, denial on this score will be too hypertechnical. Once the
employee has given his option to become a member of the pension
scheme 1992, then it was incumbent upon the Corporation to adjust the
amount as per Clause 24 out of the provident fund share before the
retirement and to make the employee member of the pension scheme.
Since it has been noticed in the various regular second
appeals and the writ petitions preferred by the employees of the
Corporation that the scheme and the amount due was not got noted
individually to the employees, therefore it can be safely assumed that the
averments made by the petitioners in these writ petitions that the amount
was not disclosed to them before the stipulated date, is to be accepted.
Had the employees made aware of the amount, which is due, they would
have paid the amount before the stipulated date. It will be apposite here to
make reference to Clause 20 Sub-clause (3), which says that an employee
may be sanctioned an advance out of his own share of General Provident
Fund for transfer to pension and gratuity fund to meet his liability of
advance taken by him out of the employer’s share of Contributory
Provident Fund. Therefore, an employee, in view of Clause 20 (3) and
Clause 24 had not necessarily to refund the amount by depositing the
same from his own pocket. Exercising the option that he intend to become
a member of the pension scheme is sufficient. It was for the Corporation to
apply Clause 20 (3) and Clause 24 for adjustment of the amount, which an
employee had to refund.
Counsel appearing for PRTC has relied upon no other
judgment except the judgment of this Court rendered in Executive
Engineer, Haryana State Electricity Board v. Dharam Singh, 2005(2)
Civil Writ Petition No. 14562 of 2004 28
RSJ 364. This judgment has been dealt with by a Single Bench of this
Court in Balwant Singh’s case (supra).
In view o f the matter having been settled in various judgments
of this Court, I do not find to take any contrary view. Hence it is ordered
that PRTC shall issue a notice to each petitioner calling upon him to refund
the amount, which was standing as a loan against that employee and entire
Contributory Provident Fund received at the eve of retirement along with
interest of 9 percent per annum and such notice shall be served upon the
petitioners within three months from the receipt of certified copy of this
order. Thereafter, within two months, as ordered above, each employees
shall deposit the amount, which was taken by him as non-refundable
advance with interest @ 9 percent per annum and entire amount of
Contributory Provident Fund received by him along with interest @ 9
percent per annum to PRTC. Once the employee, as per directions of this
Court, deposits the entire amount, he shall be paid pension from the date,
he became entitled to the same.
With these observations, aforementioned ten writ petitions are
disposed off.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
December 03, 2008
rps