* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 1080/2008 GOPI CHAND ..... Petitioner Through Ms. Ranjana Pattanayak, Advocate. versus D.T.C. & ANR. ..... Respondents Through Ms. Manisha Tyagi, Advocate. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 29.05.2008 1. The petitioner, Mr. Gopi Chand, joined employment with the respondent Delhi Transport Corporation as a driver on 10th November, 1971. 2. By letter dated 5th March, 1993 the petitioner was removed from service. This order of removal was challenged by the petitioner before the Labour Court. 3. The petitioner and the respondent corporation entered into an agreement and pursuant thereto, the petitioner was reinstated in service by Memo dated 17th April, 2003. Copy of the memorandum of settlement/agreement has been placed on record. The relevant Clauses of the said settlement are as under:- “1. That Shri Gopi Chand will be reinstated on the post in the same pay-scale but without wages from the date of his termination / removal / dismissal till he reports for duty. The intervening period shall be treated as dies-non. 2. XXXXX 3. That the period of absence from duty of Shri Gopi Chand from the date of termination /removal/dismissal till he reports for duty, will be treated as leave without pay & without any other service/monetary benefit. 4. XXXXX 5. That the workman will, however, retain his notional seniority in the cadre of Driver but the intervening period will not be taken into account for the purpose of earning increments, leave benefits, bonus and other ancillary benefits etc. 6. XXXXX 7. XXXXX 8. Gratuity and CPF etc. paid to him under the provisions of said Acts at the time of termination/removal/dismissal of his services shall be deposited back by him with interest with the DTC before resuming duty otherwise the said amount will be adjusted at the time of retirement without giving any benefits for the intervening period & shall be treated as fresh appointment for purpose of gratuity, pension & other retiral dues.” 4. Employees of the respondent corporation were earlier covered by Contributory Provident Fund Scheme. The respondent corporation, however, by Office Order No. 16, dated 27th November, 1992 had introduced Pension Scheme. The said Scheme was compulsory for all new employees with effect from 23rd November, 1992. The employees already working had option to join the Pension Scheme. The Pension Scheme, however, could not be operationalised and there was delay. In these circumstances, the respondent corporation had extended time for the employees to opt for the Pension Scheme. It appears that the last date for obtaining option from the employees as per the circular dated 23rd November, 1992 was 30 days but the same was extended twice, firstly, upto 15th January, 1993 and then, secondly, upto 1st February, 1993. 5. The petitioner before his termination on 5th March, 1993 by letter dated 5th January, 1993 had opted out of the Pension Scheme to be covered by the Contributory Provident Fund Scheme. The option was never changed. 6. After the petitioner re-joined the respondent corporation, he retired from service on 30th June, 2007. The petitioner claims that he is entitled to pension under the Pension Scheme dated 27th November, 1992. The petitioner along with the writ petition has filed letter dated 18th September, 2006 written by the Depot Manager. The letter records that the petitioner stands reinstated in services of the respondent corporation with effect from 17th April, 2003 and is now covered under the DTC Pension Scheme. It also records that the petitioner had filed an application on 4th May, 2006 wherein he had conveyed his intention to deposit the respondent corporation’s share along with interest of the provident fund, which was paid to him at the time of his removal on 5th August, 1993. The petitioner also deposited the share of the respondent corporation of Rs.34,625.32 along with interest amounting to Rs.1,15,989.02 in the bank account of the respondent corporation on 21st April, 2006. 7. By another letter dated 4th July, 2006 the petitioner was informed that pursuant to his reinstatement the petitioner had resumed duties and had also deposited the respondent corporation’s share of provident fund, which was earlier released to him on his removal in 1993. The gratuity amount of Rs.26,029.61 was also repaid by the petitioner along with interest @ 12% per annum and penal interest equal to Rs.1,15,184.21. The letter further records that the petitioner would be covered by the DTC Pension Scheme after reinstatement in service. 8. After retirement of the petitioner on 30th June, 2007, the petitioner was neither paid contributory provident fund nor pension. The petitioner made oral representations and requested for payment of pension. By letter dated 3rd December, 2007, the respondent corporation informed the petitioner that his case had been forwarded to the pension department and payment of dues was being expedited. Thereafter also the petitioner did not receive any response in spite of his another communication dated 31st January, 2008. 9. Aggrieved, on 7th February, 2008 the petitioner filed the present writ petition. The stand taken by the respondent corporation in their counter affidavit is that due to bona fide error and mistake, the petitioner was shown as a pensioner in his service book and in fact the petitioner had himself opted for Contributory Provident Fund by his letter dated 12th January, 1993. Since the error was made and the petitioner was wrongly described as a pensioner, the mistake has been rectified. 10. It may be noted here that the petitioner had only deposited the respondent corporation’s share towards provident fund, which was paid to him pursuant to the order of removal in 1993 along with interest. The petitioner had also refunded the gratuity amount paid to him in 1993 along with interest. 11. The petitioner was removed from service on 5th March, 1993 by which date last date for exercise of option for Pension Scheme had already expired on 1st February, 1993. The petitioner specifically opted out of the Pension Scheme. Deposit of the employer’s contribution and the gratuity amount is not co-relatable to exercise of option by the petitioner to get benefit under the Pension Scheme. The petitioner’s contribution was retained by him in spite of re-instatement. The said amount had to be repaid in terms of clause 8 of the settlement. No doubt respondent DTC has written letters dated 18th September, 2006 and 4th July, 2006 but it has been explained that these letters were written by mistake due to wrong entry made in the petitioner’s service book. It may be noted here that at the time of removal the petitioner was treated as an employee, who was covered by Contributory Provident Fund Scheme. In these circumstances, the claim of the petitioner that he is entitled to pension under the Pension Scheme dated 27th November, 1992 cannot be accepted. 12. The other question which requires examination is whether petitioner should be awarded interest for the delay in payment of the provident fund and gratuity, which was due and payable to the petitioner immediately on his retirement. The amount under the provident fund and gratuity was not paid to the petitioner till the filing of the present writ petition. An amount of Rs.2,47,000.25 was deposited towards provident fund in the account of the petitioner on 5th May, 2008. The gratuity amount has not yet been deposited. Accordingly, I feel the petitioner should be paid interest @ 12% per annum with effect from 1st July, 2007 till 5th May, 2008 on the capital amount standing in the account of the petitioner. The respondents will also pay gratuity amount within a period of four weeks along with interest @ 12% per annum with effect from 1st July, 2007 till payment is made. The petitioner will be also entitled to costs of Rs.5,000/-. The writ petition is accordingly disposed of. SANJIV KHANNA, J. MAY 29, 2008 VKR