IMPORTANT POINT
To avail of benefit of Pension Rules, an employee must qualify in terms of Rules.

JUDGMENT :

SANJAY KISHAN KAUL, J.

1. The respondents are all ex-employees of the appellant/Delhi Transport Corporation (for short ‘DTC’), who availed of the Voluntary Retirement Scheme (for short ‘VRS’). The respondents have, however, been held disentitled to pension on account of exclusion of period when they remained absent without authorisation for which period they were held not entitled to salary. In D.T.C. v. Lillu Ram, (2017) 11 SCC 407 such exclusion was upheld with the consequence that the ex-employees would not get pensionary benefits, having not completed 10 years of qualifying service. In the present appeal, two Hon’ble Judges of this Court, after examining Lillu Ram’s[(supra)] case opined that a reconsideration by a larger Bench, of that view, was required. As a sequitur, the present appeal has been placed before us.

2. A perusal of the reference order dated 9.11.2016, shows that the disagreement with the view taken in Lillu Ram[(supra)] case emanated on various accounts: (a) if the employee has been sanctioned leave without pay, why such period should be treated as a period of unauthorised absence; (b) non-consideration of relevant rules such as Rules 27 & 28 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the ‘Pension Rules’) and FR 17-A of the Fundamental Rules; (c) no adverse effect should be visited on the employee to receive pension, unless given notice by the appropriate authority, by an entry in the service book or through other notice, that his absence will be treated as unauthorised absence and will not be counted towards qualifying service for pension; (d) the VRS is permissible only on completion of 10 years of service and, thus, it may be unjust and harsh to inflict the employee with adverse consequences, in the absence of such notice.

3. The relevant facts for determination of the issue before us are that the employees of the appellant-Corporation were governed by the Employees Contributory Provident Fund Scheme. In terms of Office Order No.16 dated 27.11.1992, the introduction of a pension scheme in DTC as applicable to the Central Government employees was announced, on sanction having been obtained from the Central Government. This pension scheme was to be operated by the LIC on behalf of DTC and the date of effect of the pension scheme was retrospective, w.e.f. 3.8.1981, with the option to the existing employees and those who retired w.e.f. 3.8.1981 to opt for this pension scheme or continue to be governed by the Employees Contributory Provident Fund Scheme. Prospectively, the pension scheme was to apply compulsorily. The retired employees, however, were required to refund the employer’s share under the Employees Provident Fund Act, in the event of their opting for the pension scheme.

4. It appears that despite all intentions, the scheme that had to be operated by LIC was not implemented till 1995, when it was implemented by the appellant-Corporation itself. The other development in proximity to the announcement of the scheme was the announcement of the VRS on 3.3.1993. In order to avail of this Scheme, the eligibility conditions required an employee to have completed 10 years of service in the appellant-Corporation, or completed 40 years of age. Sub-clause (g) of Clause 4 of the Scheme provided for pensionary benefits as per Office Order No.16 dated 27.11.1992.

5. It appears that considerable litigation ensued in respect of both these aspects, on various accounts, inter alia on the issue of the eligibility for pension for persons who had put in 10 years or more of qualifying service, but less than 20 years. All these different issues have been settled in proceedings before the Delhi High Court or before this Court. Suffice to say that there is no controversy now, in view of the judicial pronouncements that there is no embargo in the pension rules that an employee having put in more than 10 years of service but less than 20 years would earn pro rata pension if he avails o