IMPORTANT POINT
All retired employees are not entitled to get pension under the 1992 Pension Scheme of DTC. Only those employees who retired on or after 3.8.1981 but before 27.11.1992 and had exercised their option within the stipulated period or within the extended period are entitled to pension provided they refund the gratuity and employer s contribution of P.F. as held by High Court.

Headnote:(i) DTC Office Order No. 16 dated 27.11.92-Main features of pension scheme-It is retrospective from 3.8.1981-Option given-If not exercised it shall be deemed to have opted for pension scheme benefits-High Court holding that the employees who retired on or after 3.8.1981 but before 27.11.1992 and had not exercised their option within the stipulated period or within the extended period, are not entitled to pension under the scheme-Whether correct? (Yes).
       Held : It is to be noted that those who had retired by the time the Pension Scheme was introduced must have definitely availed of the benefit under the Provident Fund Scheme and as per the Pension Scheme they were liable to refund the employer s share of provident fund with interest thereon, if they wanted to opt for the Pension Scheme. On the contrary, some such retired employees might not have been interested in refunding the money received by them and having utilised such amount would also find it difficult to raise the funds for repayment. It cannot be assumed that they are bound by the Scheme and would automatically come under its purview. The Pension Scheme cannot be thrust upon such employees even if it may, prima facie, be beneficial to them. As regards the existing employees as on 27.11.1992, the employer could always ask them to exercise their option within a stipulated period and if they failed to exercise their option, the deeming provision can be invoked and it could be said that they are covered by the Scheme. It is also important to note that as per Clause 4 of the Scheme, those employees who joined DTC with effect from 23.11.1992 are compulsorily covered by the Scheme. Therefore, the Division Bench is perfectly justified in holding that the employees who retired on or after 3.8.1981 but before 27.11.1992 and had not exercised their option within the stipulated period or within the extended period, are not entitled to pension under the Scheme. (Para 15)
       (ii) Payment of Gratuity Act, 1972-Section 4-Payment of Gratuity-Excess gratuity paid than under Section 4-Refund in case of opting for pension-Whether hit by Section 4(5) of Gratuity Act? (No) (Para 17)-Whether refund of gratuity on opting for pension is illegal? (No) (Paras 21 and 22)-Whether all the retired employees should be given benefit of pension scheme? (No) (Para 34)-Result all the appeals and the writ petition are dismissed-Case law considered.
       Held : The argument advanced on behalf of the appellants is without any merit. Sub-clause (5) of Section 4 is an exception to the main section under which gratuity is payable to the employee. In all welfare legislations, the amount payable to the employees or labourers is fixed at the minimum rate and there will not be any prohibition for the employer to give better perquisites or amounts than what is fixed under law. The employer, who is more concerned with industrial peace and better employer-employee relations, can always give benefit to the employees irrespective of any statutory minimum prescribed under law in respect of such reliefs. Therefore, the provision contained in Sub-clause (5) of Section 4 is of no assistance to the appellants. (Para 19)
       The appellants were paid gratuity for their long service, but at the time of receipt of this amount, they were not entitled to get Pension. Now the appellants have opted for Pension. That is a similar reliefgiven to them for the longer service rendered by them. The appellants cannot have the benefit of both the Pension and Gratuity. (Para 23)
       In the present case the appellants received gratuity at the time of their exit from the service, subsequently they opted for pension which had never been a part of their service conditions, it is a condition precedent that in order to get the benefit of the Pension Scheme, they have to refund the gratuity received by them. It is neither illegal nor unjust. (Para 24)
       Held further : It is true that there was some delay in implementing the Scheme, but all the retired employees were given sufficient opportunity to exercise their option. In paragraph 9 of the counter affidavit filed on behalf of DTC it is stated that as far as the time to fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Govt. of India, Ministry of Surface Transport, contained that the DTC shall obtain option from its employees within 30 days from the date of issue of circular. However, the DTC, in fact, extended the time twice, namely, firstly upto 15th January, 1993, and secondly upto 1st Feburary, 1993. Therefore, the retired employees had, in fact, more than one month s time to exercise their option. We do not think that sufficient time was not given to the employees to exercise their option for the Pension Scheme. Those employees who had received the benefit of employer s provident fund scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. The Pension Scheme was implemented on the basis of certain guidelines; it is not for the Court to interfere with the same. The Division Bench has rightly taken the view that those who had not exercised their option are not entitled to get Pension. The appeals and the writ petition are without any merit and these are dismissed without, however, any order as to costs. (Para 26)

JUDGMENT

K.G. Balakrishnan, J.-Leave granted.

2. In all these appeals, the judgment of the Division Bench of the Delhi High Court passed on 16.3.2000 in L.P.A. Nos. 294/97, 297/97 and 13/99, is challenged by DTC Retired Employees Association and others. Writ Petition No. 499 of 2000 is filed by a separate group of retired employees of the Delhi Transport Corporation.

3. The Delhi Transport Corporation (for short, "DTC") introduced a Pension Scheme on 27.11.1992 for its retired employees. The Central Govt. sanctioned this scheme and it was to be operated by the Life Insurance Corporation of India on behalf of DTC. As per the scheme, all employees of DTC retiring on or after 3.8.1981 were to be covered for the purpose of pension benefit. The existing employees and those who retired on or after 3.8.1981 had to exercise their option for the Pension scheme. The retired employees opting for the Pension Scheme had to refund the employer s share of provident fund received by them under the Employees Provident Fund Act with interest thereon. Those employees, who joined the service of DTC with effect from 27.11.1992 and thereafter, had no option but to be compulsorily covered under the Pension Scheme.

4. It seems that because of certain financial difficulties, the Pension Scheme could not be implemented in time. The various employees associations filed writ petitions before the Delhi High Court seeking implementation of the Pension Scheme. In addition, some retired employees of the DTC also filed writ petitions before the Delhi High Court praying that the Pension Scheme should be made applicable to those employees also who had retired under the Voluntary Retirement Scheme. The High Court accepted that plea and held that the Pension Scheme be extended to them also provided they refund the employer s share of provident fund received by them under the E.P.F. Act at the time of retirement, with interest thereon. A yet another set of employees also filed a writ petition contending that while exercising their option, they were not liable to pay interest on the employer s share of provident fund. This writ petition was dismissed by the High Court.

5. L.P.A. No. 33 of 1998 was an appeal filed before the Delhi High Court by DTC. Along with all other connected matters, the said L.P.A. was heard and a common judgment was passed on 16.3.2000 in all the matters, including those giving rise to the present appeals. Before the Division Bench of the High Court, various questions were raised by the parties. The DTC Retired Employees Association contended that DTC was not entitled to charge interest on the amount of employer s share of provident fund which is required to be refunded by the retired employees while exercising option to avail the Pension Scheme. The Employees Association also contended that the excess amount of gratuity received by them was not liable to be returned and even if it is to be returned, they were not liable to pay interest on such gratuity. Some of the retired DTC employees had not exercised their option within the stipulated period. They contended that in view of Clause 9 of the Scheme even if they had not exercised their option, they would be deemed to have exercised their option in favour of the Scheme and thus they are entitled to get pension.

6. In the writ petition filed by the retired employees under Article 32 of the Constitution, it is alleged that even though the Central Govt. had approved the Pension Scheme, no steps were taken by DTC to implement the same and the DTC Workers Union had to file a writ petition before this Court seeking implementation of the Scheme and pursuant to the orders passed by this Court, the scheme was initiated, but the DTC later failed to implement the Scheme and the Life Insurance Corporation also withdrew its co-operation in implementing the Scheme. The employees who had retired and opted for pension had not collected their share of employer s provident fund and other bene

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2001 Supreme(SC) 873

Cases Referred (3)