D.T.C. vs Balwan Singh

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 1 held not entitled to salary. In D.T.C. v. Lillu Ram,1 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’s2 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.

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.

Extraordinary leave taken on other grounds is treated as non- 9 qualifying and, therefore, a definite entry is to be made in the service records to that effect. Entries regarding service being qualifying or otherwise are required to be made simultaneously with the event. Even where this is not done, it should still be possible to rectify the omission during the period allowed for preparatory action, i.e., from two years in advance of the retirement date up to eight months before retirement. At the end of that period, however (i.e., when the actual preparation of the pension papers is taken in hand), no further enquiry into past events or check of past records should be undertaken. Specific entries in the service records regarding non-qualifying periods will be taken note of and such periods excluded from the service. All spells of extraordinary leave not covered by such specific entries will be deemed to be qualifying service.”

Such orders should be noted in the Service Book. Unless otherwise shown in the Service Book, it will be presumed that the orders of Competent Authority have been obtained and the periods of extraordinary leave and periods preceding break in service will 11 count for pension.

…. …. …. …. …. ….”

24. We have, thus, no hesitation in coming to the conclusion that to avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules. In the present case, the respondents unfortunately do not do so, as the period which is sought to be excluded from their qualifying service is one where they have admittedly not been paid leave salary. The qualifying period for the VRS would have to be governed by that 15 Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules. We see no conflict in this, apart from the fact that the Pension Rules came into force actually much later, though the intention was announced just before the VRS. The respondents were governed prior to that by the Employees Contributory Provident Fund Scheme.

25. We may, however, notice here that while the result may be the same as in Lillu Ram’s7 case, our reasoning is slightly different from that view.

26. We, thus, allow the appeal and set aside the impugned order, leaving the parties to bear their own costs.

27. However, to avoid any grave hardship, if any payments have been made to the respondents, especially in view of the interim order dated 23.7.2014, the appellant-Corporation will not claim any refund of such amount already paid.

February 26, 2019.