Calcutta State Transport Corporation vs Ashit Chakraborty

Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

[REPORTABLE]

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.3462 of 2023 (Arising out of SLP(C) No. 11991/2021

Calcutta State Transport Corporation & Ors. …Appellants

Versus

Ashit Chakraborty & Ors. …Respondents

JUDGMENT

Rajesh Bindal, J.

Leave granted.

1. The order dated 5.3.2021 passed in F.M.A. No. 692

of 2019 by the Division Bench of the High Court at Calcutta

has been challenged before this Court wherein order dated

17.8.2018 passed by the Single Bench in Writ Petition bearing

W.P. No. 6808 (W) of 2018 was upheld.

2. Signature Not Verified It is a case in which the respondent no.1 was Digitally signed by Anita Malhotra Date: 2023.05.08

appointed as a Conductor with the appellant Corporation. At 16:19:51 IST Reason:

that time there was no pension scheme in force, only Page 1 of 11 Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

Contributory Provident Fund Scheme was applicable. In

1991, in exercise of powers conferred under Section 45 of the

Road Transport Corporation Act, 1950, the Corporation, with

the previous sanction of the State Government, framed The

Calcutta State Transport Corporation Employees’ Service

(Death cum Retirement Benefits) Regulations, 1990 (for

short, “the 1990 Regulations”). The aforesaid Regulations

came into force with retrospective effect from 1.4.1984.

The 1990 Regulations mandated that in order to get the

benefit of the said scheme, existing employees of the

Corporation will have to submit written option within six

months from the date of publication of the 1990 Regulations

expressing their willingness to switch over to the said pension

scheme instead of maintaining their status as C.P.F. holder.

The 1990 Regulations also provided that it shall be optional

to the existing employees, however, it shall be binding upon

the new entrants on and after the date of Notification of the

1990 Regulations.

3. The respondent no.1 opted for pension scheme.

On 21.7.2017, he opted for voluntary retirement, which was

accepted by the Corporation and he retired on 31.7.2017.

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Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

On his retirement the respondent no. 1 was paid an amount

of ₹13,28,495/- towards CPF contribution, ₹ 7,44,265/-

towards gratuity, ₹ 2,58,012/- towards VRS Compensation

and a sum of ₹ 2,409/- towards leave salary. As no pension

was paid to the respondent no.1, he made a representation

on 8.5.2018. As his claim was not considered, he filed writ

petition, which was allowed by the Single Judge vide order

dated 17.8.2018. The operative part of the order reads as

under:

“I direct the petitioner to refund the employer’s share of the provident fund as well as the amount of gratuity paid in excess of the pensionable amount to the Corporation with interest @ 6% per annum within a period of two weeks. Upon receipt of such payment, the respondents shall release the pension in favour of the petitioner within two weeks for the month of August 2018 and shall go on paying the monthly pension as per the usual practice with the Corporation.

So far as the arrear pension is concerned, i.e. from August, 2018 to July 2018, the respondents are directed to liquidate the same in three equal monthly instalments, the first of which shall be paid by September 15, 2018.

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The arrear of pension shall carry an interest @ 6% per annum to be evenly distributed in three instalments. In case the pension amount is sent to the bank account of the petitioner, the respondent authorities shall the petitioner a copy of the break-up calculation for each monthly instalment.”

The order was challenged by the Corporation in appeal. The

Division Bench of the High Court upheld the order passed by

the Single Bench.

4. Learned counsel for the appellant submitted that

no doubt the respondent no.1 submitted his option in 1991

for the pension scheme in terms of the 1990 Regulations.

However, thereafter repeated conduct of the respondent no.1

shows that he in fact was not interested in that. There were

regular deductions from his salary towards provident fund.

The statements were being sent to him. However, he never

objected to it. He raised the issue only after his retirement.

In such circumstances, he should not be allowed to avail the

benefit of the pension scheme.

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Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

5. On the other hand, learned counsel for the

respondent no. 1 submitted that the requirement under the

1990 Regulations was to submit an option within the

prescribed time. The respondent no.1 had submitted his

option for availing the pension scheme. Thereafter, it was

the duty of the employer, namely, the appellant to have

properly calculated his salary and the deductions required to

be made therefrom under different heads. In case any error

was committed by the Corporation, he should not be made to

suffer on that account. Whatever amount was paid to the

respondent no.1 on his retirement, he accepted the same

considering that the same may be due on his retirement. He

did not know that the Corporation will not pay pension to him

and some other amount has been paid in excess. It was the

fault of the Corporation only. It is only after the retirement of

respondent no.1 that he came to know that the pension was

not being paid to him. As the representation made by him

was not considered, he had to approach the High Court.

There is no error in the orders passed by the Single Judge and

Division Bench of the High Court. Equities have been

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balanced. The amount, which was not due to the respondent

no.1, has been directed to be refunded to the appellant

Corporation along with interest and same interest is required

to be paid to him on release of arrears of pension. In fact,

when the respondent no.1 approached the High Court and

the writ petition was allowed, it was immediately after his

retirement. However, the Corporation has wasted about five

years’ time in avoidable litigation and deprived the

respondent no.1 of his rightful claim.

6. Heard learned counsel for the parties and perused

the paper book.

7. The undisputed facts are that the respondent no.1

was appointed in the Corporation as conductor on 6.7.1981.

The 1990 Regulations were framed providing for pension

scheme for the employees, which was effective from

1.4.1984. In terms thereof, the existing employees were to

give an option to avail benefit under the 1990 Regulations.

Prior to this Contributory Pension Scheme was in force. It is

not in dispute that the respondent no.1 had submitted his

option within time. He sought voluntary retirement on

21.7.2017, w.e.f. 31.07.2017. Certain retiral benefits were

Page 6 of 11 Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

paid to him, however, no pension was paid to him for which

he had exercised the option. He filed a representation on

8.5.2018. No action was taken thereon. Hence, he filed writ

petition before the High Court.

8. Initially the stand taken before the Single Judge

was that the respondent no.1 had not submitted his option

within the stipulated time. However, on perusal of the

various documents produced before the Court, it was found

that the respondent no.1 had submitted his option way back

in the year 1991 immediately after the 1990 Regulations

were notified. The claim of the respondent no.1 was sought

to be defeated on the ground that even after exercising the

option, contribution was being deducted from his salary in

terms of the membership in the CPF scheme to which he

never objected. Further, the plea was sought to be raised

that there are large number of similarly situated employees

who will raise this claim.

9. However, the aforesaid arguments were not found

to be meritorious, hence rejected by the High Court. It was

found that the Corporation was at fault in not acting upon the

option exercised by the respondent no.1. Finally, direction

Page 7 of 11 Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

was given to the respondent no.1 to refund the employer

share of provident fund as well as the amount of gratuity paid

in excess to the Corporation along with interest @ 6% per

annum within two weeks. On receipt of the amount, the

Corporation was directed to release the pension within two

weeks from August 2018 onwards. As far as arrears of

pension from August 2017 to July 2018 was concerned,

direction was given to liquidate the same in three equal

monthly instalments from September 15, 2018 onwards. The

arrears were also to carry interest @ 6% per annum. The

amount was to be transferred in the bank account of

respondent no.1. Despite the legally sustainable and

equitable order passed by the learned Single Judge, the

Corporation filed intra-court appeal. Vide order dated

25.6.2019, the Division Bench stayed the operation of the

order passed by the learned Single Judge. On consideration

of the application filed by the respondent no.1 for vacation of

the interim stay, the appeal itself was heard and decided

finally vide impugned judgment. The only argument raised

before the Division Bench was regarding waiver. However,

the same was not accepted. This principle could be applied

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in case there was conscious abandonment of existing legal

right.

10. We do not find any merit in the same argument

raised by the counsel for the appellant as was rejected by the

High Court, namely, the waiver of the right to receive pension

by the respondent no.1. There was no conscious

abandonment of right to receive pension by the respondent

no.1 to deprive him of his pension. Reference can be made

to judgment of this Court in Kalpraj Dharamshi and

Another v. Kotak Investment Advisors Limited and

Another1. Relevant para 119 thereof is extracted below:-

“119. For considering, as to whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. However, the mere acts of indulgence will not amount to waiver. A party claiming waiver would also not be entitled to claim the benefit of waiver,

1 (2021) 10 SCC 401

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unless it has altered its position in reliance on the same.”

11. It is not in dispute that the respondent no.1 had

exercised his right to receive pension under the 1990

Regulations in the year 1991. Thereafter, it was the duty of

the Corporation to have given effect to the same. Merely

because there were some wrong deductions from his salary

and he was treated as member of the CPF Scheme, cannot be

permitted to be raised as a ground to defeat his rightful

claim. The pension was to start after retirement of the

respondent. When the same was not released to him,

immediately representation was made by him. As no

response was received from the appellant, the writ petition

was filed. The argument that there are number of similarly

situated employees who will also stake their claims, will not

deter this Court in granting the relief to the respondent,

which is legitimately due to him. Rather this argument shows

that the Corporation was at fault in implementing the 1990

Regulations in the cases of number of employees though

these were notified on 4.1.1991 and were given retrospective

effect from 1.4.1984. Technical objections are sought to be Page 10 of 11 Civil Appeal No. of 2023 (Arising out of SLP(C) No. 11991/2021

raised, which are not tenable. For any fault on the part of the

Corporation, the employees cannot be made to suffer.

12. We do not find any error in the orders passed by

the High Court. The appeal is accordingly dismissed.

_____________, J.

(Abhay S. Oka)

____________, J.

(Rajesh Bindal) New Delhi May 8, 2023

// NR, PM //

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