IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CASE NO.: CWP No.8899-CAT of 2005 DATE OF DECISION : January 27,2009 RAM CHANDER .......PETITIONER VERSUS UNION OF INDIA AND OTHERS ......RESPONDENTS CORAM : HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: Mr. Mani Ram Verma, Advocate for the petitioner. Mr. P.K. Dutt, Advocate for the respondents. NIRMALJIT KAUR, J. The petitioner was appointed as a Points Man in the department of Railways on 04-12-1952. He continued to serve in the department up to his date of superannuation and retired on 30-06-1984. The petitioner submitted his pension papers on the directions of the department vide letter dated 15-03-1984. His claim was, however, finally rejected vide order dated 17-02-1994 on the ground that he had not opted for pension. The petitioner challenged the rejection of his claim for the grant of pension vide OA No.121-HR of 2005 dated 17-02-2005 before the Central Administrative Tribunal. The O.A. was, however, dismissed on the short ground that as per the record, he was found to be a Provident Fund optee and hence, all his dues stand settled. The petitioner has challenged CWP No.8899-CAT of 2005 -2- the order of the Central Administrative Tribunal, rejecting his claim, in the present writ petition. Learned counsel for the petitioner, before us, has raised two fold arguments. Firstly, the averment of the respondent that he had been paid the Provident Fund, is incorrect as no detail of the Provident Fund amount paid to him, has been detailed. In fact, no contribution of the employee was ever made towards the Provident Fund. Secondly, the petitioner had opted for pension which is evident from his letter Annexure P-1 vide which, he was asked to submit his pension papers. According to him, he was entitled to pension in lieu of Circular Letter No.M/807-D-E/145/Pt.IV/P-14 issued in April 1983. Learned counsel for the respondents, on the other hand, has vehemently argued that the petitioner was an optee for Provident Fund and contribution in lieu thereof was being deducted from his monthly salary which was paid to him on retirement, besides other payments due to the retiree. Annexure P-1 was a routine letter sent to the petitioner to fill up his claim. It was further argued that a Circular letter No.M/807-D-E/145/Pt. IV/P-14 dated April 1983 allegedly issued by Divisional Personnel Officer, New Delhi is not found to have been issued. However, in case, the petitioner had a copy of the same, the department would duly consider the same. We have given our careful consideration to the arguments raised by learned counsel for the parties and also gone through the documents placed on record. A perusal of the written statement as well as Annexure R-4 shows that although, it is mentioned that provident fund was paid vide AB No.29/PIG dated 07-06-1984, no detail of the amount has been mentioned. Even though, the amount of Rs. 10982.75 as Special CWP No.8899-CAT of 2005 -3- Contribution to Provident Fund has been duly mentioned. In case, the share of the employer fund was being deposited in the account, the detail of the said amount would have been definitely mentioned as it has been mentioned in the case of Special Contribution to Provident Fund. The detail of the amount of all other retiral benefits like Leave Encashment, GIS, Special Contribution to Provident Fund has been mentioned but no detail of the Provident Fund and the Provident Fund Bonus has been mentioned. It is strange that the account number of the Provident Fund is available with the Department but the amount in the Provident Fund is missing. No doubt, it appears from the documents attached that the petitioner had claimed for the payment of Provident Fund but there is no proof if the said amount was paid and in case, the said amount was paid, how much was that amount. However, without going into the controversy, whether the Provident Fund was paid or not, we do not think that the pension claim of the petitioner could have been rejected on the short ground that he had not opted for pension while in service. It is admitted that the petitioner had requested vide various representations to grant him the said pension. Learned counsel for the petitioner has also referred to judgment, in the case of Pepsu Road Transport Corporation vs. Balwant Singh reported in 2007 (2) RSJ 518, rendered by this Court, wherein, reliance has been placed on the Division Bench Judgment titled as Ram Dia vs. Uttar Haryana Bijli Vitran Nigam Ltd. 2005(4) SC 387 as well as Ram Kumar vs. Uttar Haryana Bijli Vitran Nigam Ltd. 2006(3) SCT 628, upholding the orders passed by the Civil Court, granting pension even though the plaintiff had already taken the contributory Provident Fund. It was held therein that the CWP No.8899-CAT of 2005 -4- plaintiff cannot be denied the benefit of pension, merely on this ground alone. Similar view has been taken by another Division Bench of this Court in Ram Kumar's case (supra) which is as under :- “ The question regarding changing the option after the time fixed has lapsed, has been considered and necessary permission to change the option has been granted by this Court in other case. A Division Bench of this Court in Mahinder Singh vs. 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 vs. State of Haryana (CWP No.2476 of 1997), decided on 09-10-1997, 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 of 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 vs. Executive Engineer and another CWP CWP No.8899-CAT of 2005 -5- No.12758 of 2000), decided on 29-05-2002, 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 vs. Chief Accounts Officer, (CWP No.2402 of 1997), decided on 27-08-1997, 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 had 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 circular dated 6.8.1993 (Annexure P.1) and 9.8.1984 (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.” Learned counsel for the respondents, at this stage, tried to differentiate the judgment on the ground that the said judgments were rendered, in view of the Regulations/Rules governing the parties in those cases. However, no Rules or Regulations have been brought to our notice even in the present case to show otherwise. CWP No.8899-CAT of 2005 -6- In any case, in view of the judgment rendered in Ram Kumar's case (supra), we deem it proper to allow the present writ petition with a direction to the respondents to calculate the pensionary benefits and pay the same within a period of four months from the date of receipt of a copy of the judgment. The respondents are, however, entitled to deduct the contribution made if any by the Railways towards the E.P.F along with the interest at the rate of which it is payable on GPF w.e.f. one day after the date of retirement. (NIRMALJIT KAUR) JUDGE (ASHUTOSH MOHUNTA) JUDGE January 27, 2009 gurpreet