Case: Dtc Retired Employees'Association  Vs. Delhi Transport Corporation

employment. An experienced workman is capable of securing another employment with better emoluments. He can also be tempted by other employers with more lucrative salary. The exist of an experienced workman would surely be a loss for his employer. In British Paints (India) Ltd. v. Workmen, AIR 1966 SC 732 , it was held that “a longer minimum in the case of voluntary retirement or resignation makes it probable that the workmen would stick to the company where they are working. That is why gratuity schemes usually provide for a longer minimum in the case of voluntary retirement or resignation”. 19. In Ahmedabad Municipal Corporation Workmen v. Ahmedabad Municipal Corporation, 1955 LAC 155, it was held as under : “The fundamental principle in allowing gratuity is that it is a retirement benefit for long services, a provision for old age and the trend of the recent authorities as borne out from various awards as well as the decision of this Tribunal is in favour of double benefit......We are, therefore, of the considered opinion that provident fund provides a certain measure of relief only and a portion of that consists of the employee’s wages, that he or his family would ultimately receive, and that this provision in the present day conditions is wholly insufficient relief and two retirement benefits when the finances of the concern permit ought to be allowed”. 20. 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 relief given to them for the longer service rendered by them. The appellants cannot have the benefit of both the Pension and Gratuity. The appellants relied on a decision reported in State Government Pensioners’ Association & Ors. v. State of Andhra Pradesh, 1986 (3) SCR 383 and contended for the position that the gratuity is a one-time payment and once it has been paid the transaction is completed and closed and the same cannot be reopened at a later date. It was argued that in view of that decision, the appellants cannot be asked to refund the same. That is a case where the appellants therein were Government employees who retired before April 1, 1978. They contended that Gratuity is a part and parcel of the pension and the same cannot be looked separately from other pensionary reliefs and therefore they are entitled to the benefit of Gratuity “retrospectively” at the enhanced rate, as they had been paid Gratuity at the time of retirement at the then prevailing rate. This plea was not accepted and it was held that upward revision of Gratuity takes effect from the specified date with “prospective” effect only. This decision also is of no assistance to the appellants. 21. Yet another decision relied on by the appellants is Janpad Panchayat & Zila Panchayat Karamchari Sangh & Ors. v. State of M.P. & Ors., 1998 (8) SCC 568. This decision, though apparently seems to support the appellant’s case, does not really do so. In this case, the question arose whether the employees of Panchayat and Zila Parishad were entitled to pension and gratuity. While interpreting the Madhya Pradesh Panchayat Act, 1962, it was observed that Sections 75, 147 and 189 of that Act enabled the employees to get gratuity and pension subject to the previous approval of the Competent Authority. These observations were made in view of the specific provisions contained in the relevant Statutes. Whereas 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. 22. Learned Counsel for the petitioners in the Writ Petition No. 499 of 2000 contended that the petitioners had initially opted for the Pension Scheme in 1992, but as they were apprehensive regarding DTC’s ability to implement the Pension Scheme, they were compelled to opt out of the Pension Scheme. It is submitted that in 1995 only under the threat of contempt notice from this Court, the DTC came forward to implement the Pension Scheme, but no fresh option was given to the employees. It is also argued that DTC had not communicated to all its employees that they were going to implement the Scheme. It is also submitted that Pension is neither a bounty nor a charity. Therefore, all the retired employees should have been given the benefit of the Pension Scheme. 23. 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 of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government 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 February, 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. 24.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is also important to note that as per Claus 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 thethe retired employees had utilised the money received to their advantage. Therefore, they are bound not return the same alongwith interest; otherwise, a section of the employees would be unduly benefitedother employees. Therefore, we do not think that such a clause in the Scheme is irrational or illegal. We do not find any infirmity in the findings recorded by the High Court.It was argued that in view of(5) of Section 4, the employees can receive better terms of gratuity under any award or agreement or contract with the employer and as the provisions contained in the Payment of Gratuity Act itself contemplate better terms of gratuity or other payment than what is permissible under the Act, the present Pension Scheme could only be construed as an award or agreement for better terms.It was argued that in view ofthat circumstance, the appellants are not liable to refund thein 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.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 of fill up pension option form is concerned, the letter dated 23.11.1992 conveyed by the Government 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 February, 1993. Therefore, the retired employees had, in fact, more than onetime 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 ofProvident 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.