Case: D.T.C Vs. BALWAN SINGH

2. A perusal of the reference order dated 9.11.2016, shows that the disagreement with the view taken in Lillu Ram (2017) 11 SCC 407 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 servicefor 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 notice3. 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 employers share under the Employees Provident Fund Act, in the event of their opting for the pension scheme4. 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 27.11.19925. 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 of the VRS6. Insofar as the present controversy is concerned, it appears that the Delhi High Court opined in favour of the employees and SLPs were dismissed leaving the question of law open till the appellant-Corporation pointed out that the question of law needed to be settled, in view of a large number of cases coming up on this aspect.

Court's reasoning:
20. In our view, the only aspect which is required to be considered is the requirement of the specific rule of the Pension Rules, which provides for admissibility of pension. No one, including the respondents can be permitted to plead that they would be unaware of the Pension Rules, which have a statutory force and whose benefit they seek to avail. In fact, the VRS itself, more specifically clause (g), makes these very Rules applicable. Rule 21 is quite clear in its terms, i.e., all leave during service for which leave salary is payable would count. The corollary is that if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension. Rule 3(1)(q), while defining qualifying service provides for service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules. Thus, the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations. It is a well settled principle of interpretation that when the words of a statute are clear and unambiguous, there cannot be a recourse to any principle of interpretation other than the rule of literal construction .SwedishSecurities and Exchange Board, India AIR (2004) SC 4219  21. The endeavour to refer to Rules 27 & 28 of the Pension Rules is of no avail, as those are dealing with the effect of interruption in service which may result in forfeiture of past service. In the present case, there has been no forfeiture of past service22. Insofar as the Government decision dated 28.2.1976 is concerned, that elucidates the requirement of a prompt entry into the service record, but this certainly cannot supersede the Rule. The position would be no different for SR 200, SR 202 and the other Government of India Order dated 24.6.1966.23. In the given facts of the present case, we will have to take note of an important aspect, i.e., the respondents were not governed by these Rules, but by the Employees Contributory Provident Fund Scheme. The Pension Scheme was sought to be introduced only couple of months before the VRS, and that too was not implemented till 1995. Not only that, it was not implemented through the LIC but ultimately by the appellant-Corporation itself, much later in 1995. Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied. There may have been some significance to these aspects if the Pension Rules were already applicable over a period of time and entries had not been made, though, even there, it would not be in supersession of the plain language of the Rule24. 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 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 Scheme25. We may, however, notice here that while the result may be the same as in Lillu RamsSwedish Match AB v.Securities and ExchangeBoard, India AIR (2004) SC 4219  case, our reasoning is slightly different from that view.