advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, January 10, 2017

CPF benefit as well as pension scheme which was never contemplated by the Regulations.= it is well settled that the notice inviting option need not to be personally served to the employees unless the Regulation or any instruction so provides. The Regulations 1992 which are being considered in the present case had already been interpreted in PEPSU Road Transport Corporation vs. Mangal Singh as noticed above. This Court having already held that Regulations 1992 do not contemplate any personal service of notice to employees the finding in the judgment of the courts below holding otherwise for decreeing the suit of the plaintiff are unsustainable. From the facts of the present case it is clear that although Regulations were in force from 1992, plaintiff retired on 30th November, 2011 and after retirement received CPF benefits without any protest and at no point of time before retirement he has raised any grievance. The benefit which was available to him under CPF scheme was received by the plaintiff, he cannot be allowed to another benefit flowing from the pension scheme which he never opted. Extending benefit of the pension scheme to the plaintiff shall be extending double benefits- CPF benefit as well as pension scheme which was never contemplated by the Regulations. In any view of the matter, the issue in the present case is covered by the judgment in PEPSU Road Transport Corporation vs. Mangal Singh (supra) and we do not propose to take any different view in the matter. Learned counsel for the respondents has also contended that in so far as the outstanding amount of CPF is concerned the said amount could have been deducted by virtue of Regulation 24 and which amount is to be adjusted against death- cum-retirement gratuity. In the present case the plaintiff having not opted for pension scheme, the requirement from refunding the advance taken from CPF within six months is not attracted. More so, in the present case as has been stated by the appellant in the written statement in the suit even after retirement an amount of Rs.4999/- was due from the advance taken by the respondents from his CPF amount.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO.3842 OF 2011

PEPSU  ROAD TRANSPORT CORPORATION,
PATIALA                                                  … APPELLANT

                       VERSUS

AMANDEEP SINGH & ORS.                              … RESPONDENTS



                               J U D G M E N T

ASHOK BHUSHAN, J.

      This appeal has  been  filed  by  PEPSU  Road  Transport  Corporation,
Patiala against the judgment and order of  Punjab  and  Haryana  High  Court
dated 1st December, 2006 by which judgment the Regular Second  Appeal  filed
by the appellant has been dismissed affirming the judgments  and  orders  of
the Appellate Court and Trial Court. This  appeal  has  arisen  out  of  the
original suit filed by the Balwant Singh the predecessor in interest of  the
respondents.
2.    The brief facts of the case necessary to be  noted  for  deciding  the
appeal are :
      Balwant Singh, the plaintiff had been working  as  driver  with  PEPSU
Road Transport  Corporation.  The  statutory  Regulation  has  been  framed,
namely, PEPSU Road  Transport  Corporation  Employees/Pension  Gratuity  and
General  Provident  Fund  Regulations  1992  (hereinafter  referred  to   as
“Regulations 1992”), which came into force w.e.f. 15th  January,  1992.  The
Regulations were made applicable to the employees  of  the  Corporation  who
were appointed on or after the date of issue of  Regulations  on  whole-time
and regular basis and those who were working immediately before the date  of
issue of Regulations and opt for these Regulations.  The exercise of  option
for pension scheme was to be made within six months from the date  of  issue
of Regulations. Those employees who opted for Regulations and  had  obtained
advance from the Corporation out of the  Contributory  Provident  Fund  were
required to refund the same within a period of  six  months.  The  plaintiff
did not submit an option under the Regulations 1992 and attained the age  of
superannuation on  30th  November,  2000.  After  retirement  plaintiff  was
released the entire amount of Contributory  Provident  Fund(CPF)  which  was
received by the plaintiff. Plaintiff filed Civil Suit No.1044  of  2003  for
declaration to the  effect  that  plaintiff  is  entitled  for  pension  and
commuted pensions and  other  benefits  attached  with  the  same  alongwith
interest @ 18% on the delayed payment. The plaintiff’s case was  that  after
retirement the defendant only released the  contributed  fund  and  has  not
released the full pension. The defendants filed  written  statement  stating
that plaintiff had  never   opted  for  pension  as  per  Regulations  1992.
Plaintiff had received all his  dues  and  no  dues  against  defendants  is
pending. Plaintiff had obtained loan of Rs.12,000/- from CPF  out  of  which
Rs. 4999/- is yet to be recovered. The Trial Court  vide  its  judgment  and
order dated 26th March, 2005 decreed the suit declaring  that  plaintiff  is
entitled to pension, commuted pension  and  other  benefits  and  defendants
would issue demand notice to the plaintiff within one month as to  how  much
amount of CPF should be paid by him(plaintiff) so as to  avail  the  benefit
of pension scheme. The Trial Court held that although the plaintiff  was  to
give option as per Regulation 1992 and he had to deposit the amount  of  CPF
but Pension cannot be declined on the  technical  ground  that  he  had  not
refunded the loan amount.
3.    The Corporation aggrieved by the judgment of the Trial Court filed  an
appeal being C.A.D. No.21 of 2005 which was dismissed by learned  Additional
District Judge, Bathinda vide judgment dated 29th August, 2005.
4.    The Appellate Court took the view that it was obligatory on  the  part
of the defendants to have led cogent  reasons  that  the  scheme  under  the
Regulations 1992 was circulated between the  employees  of  the  Corporation
and they were made to note the same so as to opt  within  specified  period.
It was further held that plaintiff had never opted out of  the  Regulations.
With the above finding the appeal was dismissed by the  Additional  District
Judge.
5.    Aggrieved by the judgment  of  the  Appellate  Court,  Regular  Second
Appeal was filed by the Corporation in the Punjab and  Haryana  High  Court.
The High Court also dismissed the appeal  by  observing  that  there  is  no
evidence that pension scheme was circulated within  the  employees  and  got
noted by them.  Relying on judgment of Punjab and Haryana  High  Court,  the
appeal was dismissed.
6.    Aggrieved by the above judgment,  Corporation  has  come  up  in  this
appeal.
7.    Learned  counsel  for  the  Corporation  in  support  of  the   appeal
contended that the view taken by the courts below that notice  for  inviting
options have to be personally served to the employees is  erroneous.  It  is
submitted that Regulations being statutory in nature, it was obligatory  for
the employees to opt for pension scheme within six months from the  date  of
issue of the Regulations failing which they will  deem  to  have  opted  and
continued with the CPF. The Regulations  having   sent  to  be  put  on  the
notice board in  the  Head  Office  and  all  Depots  and  large  number  of
employees submitted their options, plaintiff cannot  complain  that  he  was
not personally served the notice. It was further submitted that he  had  not
refunded the loan even  after  his  retirement.  He  was  not  entitled  for
pension in any manner. The plaintiff had  received  the  entire  CPF  amount
after his retirement without any protest. He cannot claim  pension.  Learned
counsel for the respondents refuting the submission of the  learned  counsel
for the appellant contended that the courts below had taken correct view  of
the matter that the plaintiff having not been  served  the  notice  inviting
option personally, the plaintiff’s  rights  to  receive  pension  cannot  be
denied.  It is submitted that had plaintiff aware of that he had to  deposit
outstanding amount of loan to avail the pension, he  would  have  definitely
deposited the outstanding amount of loan and in any view of the  matter  the
appellant could have  deducted  the  outstanding  amount  from  his  retiral
benefits before finalizing the pension. Learned counsel for the  respondents
has placed reliance on various judgments of this Court.   While  considering
the submissions in detail we will refer the same.
8.    We have considered the submissions of  the  parties  and  perused  the
records.
9.    The employees of the Corporation were  governed  by  the  Contributory
Provident Fund Scheme prior to  the  enforcement  of  the  Regulations  1992
w.e.f. 15th June, 1992.  The  pension  scheme  was  introduced  w.e.f.  15th
June, 1992. Counter-affidavit has been filed in this  appeal  by  Respondent
No.1.  Copy  of  the  PEPSU  Road  Transport  Corporation  Employees/Pension
Gratuity and General Provident Fund Regulations 1992  has  been  brought  on
record as  Annexure  R-3  by  the  respondents  themselves.   A  perusal  of
Annexure  R-3  indicates  that  the  Regulations  have  been  sent  by   the
Corporation to the following :
      “The General Manager,
PEPSU Road Transport Corporation,
Patiala, Patiala-II, Bhatinda-I, Bhatinda-II, Faridkot,  Budhlada,  Barnala,
Sangrur,  Kapurthala, Ludhiana & Chandigarh.”


10.   Further the Regulations were also endorsed and copy  of  it  forwarded
to several authorities for information  and  necessary  action.  Apart  from
various  officers  of  the  Corporation,  it  was  also  forwarded  to   the
following:
“8. Ad/Officer, Notice Board in the Head Office & in Depots.
9. CAO/FA, CAE, Dy.C.F. & A and all other Officers in H.O.”

11.   Regulation 3 deals with application as follows:
“Regulation-3: Application
These Regulations shall apply to the employees of the PEPSU  Road  Transport
Corporation who:

were/are appointed on or after the date of issue of  Regulations  on  whole-
time and regular basis, and
were working immediately before the date of issue  of  Regulations  and  opt
for these Regulations.

 These Regulations shall not apply to the employees who:
   Opt out of these Regulations.
 On deputation with the  Corporation.
are paid out of contingencies.
Are work charged employees.
Are  employed  on  contract  basis,  except  when  the   contract   provides
otherwise.
Are re-employed after superannuation.
Are specifically excluded wholly or partially from the  operation  of  these
regulations and
Opt for the P.R.T.C. Employees   Pension/Gratuity  and  Regulations  General
Provident Fund, 1992 but failed to refund the amount of  advance  taken  out
of the Employees share  of  the  Contributory   Provident  Fund  along  with
interest thereon within the stipulated period.”

12.   Regulation 4 deals with  the  exercise  of  option  which  is  to  the
following effect:
“4. Exercise of Option:- The option under  clause (ii) of the  Sub-Rule  (1)
of Regulation shall be exercised in duplicate in writing in Form No.1 so  as
to reach the Managing Director as forwarded by General Manager  in  case  of
depots and Administrative Officer in  the  case  of  headquarters  with  his
countersignature within a period of six months from the  date  of  issue  of
these Regulations.
Provided that:
(i)   in  the  case  of  an  employee,  who  on  the  date  of  issue  these
regulations abroad or leave, the option shall be exercised within  a  period
of six months from the date of taking the charge of his post.

(ii)  Where an employee is under suspension, on the date of issue  of  these
regulations, the option shall be exercised within a  period  of  six  months
from the date of his joining the duty:

    (iii) An option once exercised shall  be  final  provide  the  concerned
employee deposit the Corporation’s share of C.P. Fund  received  by  him  in
advance if any, within, a period of six months from the  date  of  issue  of
regulations and if a person fails to exercise  his  option  under  the  said
regulations within the specified period  referred  to  above,  it  shall  be
deemed  that  he  has  opted  to  continue  for  the  existing  Contributory
Provident Fund benefit.

    (iv) An  employee  who  dies  on  or  after  the  date  of  issue  these
Regulations and who could not exercise his option the  legal  heir  of  such
employee, who have entitled to receive retirement benefits  under  the  said
regulations, shall exercise option subject to the condition that  the  legal
heir shall have to deposit the amount of Corporation’s share  of  C.P.  Fund
received by the deceased employee or by him, as the case may  be,  within  a
period of six months.


    (v) The employees recruited  after  the  introduction  of  said  Pension
Regulations will be covered under these regulations.



13.   A perusal of  the  Regulations  indicates  that  the  Regulations  are
applicable to the following two categories of employees i.e. :
Who were/are appointed on or after the  date  of  issue  of  Regulations  on
whole-time and regular basis, and

Who were working immediately before the date of  issue  of  Regulations  and
opt for these Regulations.

14.    The applicability of Regulations to the employees  who  were  working
immediately before the date of issue of Regulations  i.e.  15th  June,  1992
was dependent on the opting for Regulations within a period  of  six  months
from the date of issue of Regulations as provided under Regulation 4.
15.   Further as per Regulation 4  (iii)  if  an  option  is  not  exercised
within a period of six months from the date  of  issue  of  Regulations,  it
shall be deemed  that  the  employee  has  to  continue  with  the  existing
Contributory Provident Fund benefit, thus in the event  of  non-exercise  of
option within the period prescribed, the employee is deemed to  continue  in
the existing CPF benefit. The deeming clause has been  incorporated  in  the
statutory provisions for achieving a purpose  i.e.  those  who  do  not  opt
within six months new scheme,  they  shall  continue  in  the  existing  CPF
benefit.  There are no exceptions engrafted in the  deeming  provisions  and
the deeming is a legal fiction which embraces all the employees who  do  not
opt for new pension scheme.  The  suit  filed  by  the  plaintiff  had  been
decreed mainly on the ground  that  notice  inviting  option  has  not  been
personally served on the  plaintiff.   Whether  notice  is  required  to  be
personally served to  an  employee  before  the  period  of  six  months  as
provided in Regulation 4 may start running is the question to  be  answered.
A plain reading of the Regulations does not  indicate  that  period  of  six
months which is provided for submitting an option is dependent  on  personal
service of notice. Although,  as  noticed  above  the  Regulation  has  been
forwarded on 15th June, 1992 itself  to  the  General  Manager  of  all  the
Depots and other places  and  the  letter  dated  15th  June,  1992  further
contemplates putting on the notice board in the Head Office and the  Depots,
 the Corporation has thus taken care of circulation  of  Regulation  to  all
concerned including the Head Office and all the Depots.
16.   Learned counsel for the respondents has placed reliance  on   judgment
of this Court in Dakshin Haryana Bijli Vitran Nigam and  others  vs.  Bachan
Singh, (2009) 14 SCC 793. In the above case  a Circular was  issued  by  the
Dakshin Haryana Bijli Vitran Nigam  for  grant  of  benefit  of  work-charge
service towards pensionary benefits   dated  6th  August,  1993  which  also
provided for option in paragraph 5 of the judgment. The  Circular  has  been
extracted which is to the following effect:
“5. The appellants had issued instructions dated 6.8.1993 for the  grant  of
benefit of work-charge service towards pensionary benefits. The said  letter
of 6.8.1993 is reproduced as under:-

“From : The Additional Secretary, Haryana State  Electricity  Board  (HSEB),
Panchkula Memo No. Ch.9/Pen/G-G-43(93) Dated 6.8.93 Sub:  Amendment  in  the
Punjab CSR Vol.II-Adoption of State Govt.  Notification  The  Haryana  State
Electricity Board  in  its  meeting  held  on  23.6.1993  has  approved  the
adoption of Haryana Govt. Notification No.1/2 (55)-88-2 FR-II  dated  4.2.92
(copy enclosed for ready reference) with regard to the counting  of  service
rendered by the workers in the  work  charged  capacity  towards  pensionary
benefit scheme. 2. However, most of the Board’s  workcharged  employees  are
members of Employees Provident Fund (EPF). As such, the  pensionary  benefit
would be subject to the following conditions:-  i)  On  regularization  from
workcharged to regular employee,  the  employee  has  to  submit  an  option
within a period of 3 months from the date  of  regularization  or  from  the
date of issue of this circular, whichever is  later  as  to  whether  he/she
intends to count the period  of  workcharged  service  rendered  by  him/her
towards pensionary benefits or intends to continue to be a  member  of  EPF.
The option is  required  to  be  furnished  in  writing  to  his  drawing  &
Disbursing Officer who  will  authenticate  and  record  its  entry  in  the
service book of the employee and also paste the same in the service book  so
as to form a  permanent  record  for  future  reference.  The  Drawing  &  4
Disbursing Officer will also inform about his/her option to  the  appointing
authority immediately. ii) The option once exercised will be final  and  not
to be allowed to be changed in any circumstances.  In  case  option  is  not
given within the stipulated period of three  months,  it  will  be  presumed
that he/she intends to continue to be a member of EPF. iii) In case,  he/she
opts for pensionary benefits, he/she has to  refund  the  entire  amount  of
employee’s contribution along with interest thereon, towards  their  EPF  in
lumpsum for  crediting  to  the  Board’s  account,  Employee’s  contribution
alongwith interest is to be  deposited  with  the  Board  for  crediting  to
his/her GPF account. 3. Similarly, the above benefit will also be  available
to the pensioners/recipients of family pension of  the  Board  on  the  same
terms and conditions with the exception that they will have to  deposit  the
amount contributed by the  Board  as  Employee’s  contribution  towards  EPF
alongwith interest thereon, in lumpsum. The pensioners/recipients of  family
pension will have to give an Affidavit to the  fact  that  he/she  will  not
claim any interest  on  the  arrear  of  pensionary  benefits  which  become
payable   due   to   adoption   of   the   State   Govt.    circular.    The
pensioners/recipient of family pension will submit  their  option  within  3
months from the date of issue of  this  circular,  for  availing  pensionary
benefits, to  the  Head  of  the  office  last  attended.  The  option  once
exercised will be final. In case, option is not given within the  stipulated
period of 3 months, it will be presumed that he/she intends to  continue  to
be a member of EPF. 4. These instructions may please be got noted  from  all
the employees  and  acknowledge  and  receipt  of  the  letter.  Sd/-  Under
Secretary (PW) For Additional Secretary, HSEB, Panchkula”


17.   The period for option was further  extended.  Certain  circulars  were
further issued on 9th  August,  1994.  The  respondent  in  the  above  case
contended that he had no knowledge about the instructions,  hence  he  could
not exercise  his  option  for  grant  of  pensionary  benefits  within  the
prescribed time-limit.  The  writ  petition  filed  by  the  respondent  was
allowed by the Punjab and Haryana High Court by  recording  a  finding  that
appellant had failed to produce any record  showing  that  the  instructions
dated 6.8.1993 and 9.8.1994 were actually got  noted  in  writing  from  the
respondent. The said finding has been recorded in paragraph 13   is  to  the
following effect:
“13. The Division Bench of the Punjab and Haryana High Court, after  hearing
the learned counsel  for  the  parties  at  length,  came  to  the  definite
conclusion that the appellants had failed  to  produce  any  record  showing
that the instructions dated 6.8.1993 and 9.8.1994 were  actually  got  noted
in writing from the respondent. The High Court further observed that in  the
absence of any such material, it can well be inferred  that  the  respondent
had no knowledge about the options called by the appellants  vide  circulars
dated 6.8.1993 and 9.8.1994. The High Court also observed that it  would  be
unreasonable to deny pensionary benefits to the respondent despite the  said
circulars issued by the appellants.”


18.   Ultimately, this Court dismissed the appeal relying on the finding  of
the High Court that the appellant had failed to produce any  record  showing
that  the  instructions  were  actually  got  noted  in  writing  from   the
respondent.
19.   The above case was decided on the strength  of  specific  instructions
contained  in  Circulars  dated  6.8.1993  and  9.8.1994.  Both  the   above
instructions  contained  following  as   one   of   the   clauses:    “These
instructions may please be got noted from all the employees and  acknowledge
and receipt of the letter.”  Thus, noting by the employees  and  acknowledge
and receipt was a condition incorporated in  the  instructions  itself   and
due to breach of the said instructions benefit was given to  the  respondent
in the said case. The above case has no application  in  the  facts  of  the
present case where the Regulations do not contain any  such  requirement  of
personal service of notice whereas Annexure R-3 indicates  that  Corporation
on the same day by letter dated 15th June, 1992 has  circulated  Regulations
to all the General Managers with endorsement to be  put  it  on  the  Notice
Board. The Corporation had taken due care to  inform  all  its  Headquarters
and Depots and all concerned about the Regulations.
20.   The above judgment in Dakshin Haryana  Bijli  Vitran  Nigam  came  for
consideration before  this  Court   in  PEPSU  Road  Transport  Corporation,
Patiala vs. Mangal Singh and others, (2011)  11  SCC  702,   in  which  same
Regulations 1992 applicable to the PEPSU  Road  Transport  Corporation  came
for consideration. In which case facts of one of the cases being Civil  Writ
Petition No.14562 of 2004 titled as Jagjit Singh v. PEPSU RTC  were  similar
to the present case where respondent did not submit an  option  within  time
and after retirement filed a suit for declaration.  Facts  were  noticed  in
paragraph 13 to 18 to the following effect:
“13. In Civil Appeal No. 3846 of 2010- PEPSU Road Transport Corporation  and
Another v. Jagroop Singh (hereinafter referred to  as  “Jagroop’s  appeal”),
the respondent had served the Corporation as a driver and was subscriber  of
C.P.F.  and  gratuity.  Subsequently,   on   15.06.1992,   the   Corporation
introduced  the  Pension  Scheme  for  its  employees  and  also  made   the
Regulations in order to regulate the said scheme.

14. The  Pension  Scheme  in  terms  of  Regulation  4  of  the  Regulations
envisages the condition for exercise of the option on or before  15.12.1992,
by an employee in order to avail the pensionary benefits under  the  scheme.
Subsequently, the  Corporation  had  also  extended  this  period  by  three
months. It is not in dispute that  the  respondent  had  not  exercised  any
option for availing the benefits under the pension scheme.

15. On 30.11.2000, the 8 respondent took  pre-mature  voluntary  retirement.
On 08.06.2001, the respondent received all the retrial  benefits  under  the
C.P.F Scheme  and  gratuity  without  any  objection  or  protest.  However,
01.06.2002, after nearly 10years from his retirement, the  respondent  filed
a suit for declaration for the entitlement to pension and other benefits  in
the Court of Civil Judge Senior Division, Bathinda.

16. The learned Civil  Judge  had  passed  the  judgment  and  decree  dated
01.03.2006 in favor of the respondent on the ground that the respondent  was
never informed about the option available under the Regulations and he  came
to know about this Scheme only at the time of his  retirement.  The  learned
Civil Judge further directed the Corporation to release  pensionary  benefit
to the respondent along with  interest  @9%  per  annum  till  the  date  of
realization.

17. Being aggrieved  by  the  judgment  and  decree  dated  01.03.2006,  the
Corporation filed a Regular Second Appeal in the Court  of  District  Judge,
Bathinda, the same was allowed vide Judgment and order dated  27.04.2006  on
the ground that respondent is estopped from claiming any pensionary  benefit
by his act of receiving all the retrial benefits under the C.P.F. Scheme  at
the time of his retirement and failing to exercise the option in terms 9  of
Regulation 4 of the Regulations in order to avail  the  benefits  under  the
pension scheme.

18.  Aggrieved  by  this  order  of  the  Additional  District  Judge  dated
27.04.2006, the respondent filed a Regular Second Appeal in the High  Court,
the same was allowed vide order and  judgment  dated  23.12.2008.  The  High
Court has followed its earlier Judgment in Civil Writ Petition No. 14562  of
2004 titled as ‘Jagjit Singh v.  Managing  Director,  Pepsu  Road  Transport
Corporation and another’ dated 03.12.2008, wherein, the appeal  was  allowed
on the ground that the pension scheme was never circulated nor was  informed
to the employees of the Corporation and mere non-refund of  the  loan  taken
from the C.P.F. account would not  disentitle  the  employee  from  claiming
pension under the scheme.”


21.   This Court  considered  the  Regulations  and  held  that  it  is  not
necessary  to  the  Corporation  to  give  an  individual  notice   to   the
respondents for exercising of option.  Judgment  of  Dakshin  Haryana  Bijli
Vitran Nigam was noticed and distinguished. It is  useful  to  mention  here
paragraphs 53 and 54 and 56 which are relevant and extracted as follows:
“53. The learned counsel for the respondents in support of their  contention
for want of knowledge of  the  Pension  Scheme  due  to  35  non-service  of
individual notices relied on the decision of this Court in  Dakshin  Haryana
Bijli Vitran Nigam v. Bachan Singh, (2009) 14 SCC 793. The said decision  is
clearly distinguishable on facts.  In  that  case,  the  appellant,  Haryana
State Electricity  Board,  had  issued  instructions  dated  23.06.1993  and
circular dated 09.08.1994 in order to provide an  option  to  the  employees
for pensionary benefits in lieu  of  their  work  charged  service  with  an
express condition of noting of  instructions  from  all  the  employees  and
acknowledging the receipt of the letter. In these appeals, before us,  there
is no such condition of noting from  the  employees  or  serving  individual
notices in the Pension Scheme or Regulations.  Therefore,  in  our  opinion,
Bachan Singh decision will not assist the respondents.

54.  In our view, in the facts and circumstances of the present case and  in
view of absence of such condition in the scheme, it  is  not  necessary  for
the Corporation to give an individual notice to respondents  for  exercising
of option for pension Scheme and also for asking respondent  to  refund  the
employers contribution of C.P.F. at each stage. Furthermore, when notice  or
knowledge 36 of the Pension Scheme can be reasonably  inferred  or  gathered
from the conduct of the respondents in their  ordinary  course  of  business
and from surrounding circumstances, then, it will  constitute  a  sufficient
notice in the eye of law.

56. The Regulation 4 (iii) of the Regulations is a deeming provision to  the
effect: firstly, if an employee  fails  to  exercise  his  option  within  a
period of 6 months  from  the  date  of  issue  of  these  Regulations  and;
secondly, even on exercise of option, if an employee  fails  to  refund  the
amount of advance taken from employers contribution of the C.P.F.  within  6
months from the date of issue of these Regulations, then it shall be  deemed
that employee has  opted  to  continue  for  the  existing  C.P.F.  benefit.
Therefore, the failure on the  part  of  the  respondents  to  opt  for  the
Pension  Scheme  and  refund  the  advance   taken   from   the   employer’s
contribution of C.P.F. will disentitle them from  38  claiming  any  benefit
under the Pension Scheme. Therefore, we  cannot  sustain  the  Judgment  and
order passed by the High Court.”

      This Court in the above case set aside the judgment and orders  passed
by the High Court and allowed the appeals.
22.   In another subsequent judgment in Rajasthan Rajya Vidyut Vitran  Nigam
Limited vs. Dwarka Prasad  Koolwal  and  others,  (2015)  12  SCC  51,  both
Dakshin Haryana Bijli Vitran Nigam and PEPSU Road Transport Corporation  vs.
Mangal Singh came to be considered. The question as to  whether  the  notice
inviting option to be served personally to  the  employees  for  option  was
also considered by this Court. After noticing the  aforesaid  cases  it  was
laid down in paragraphs 42 to 46:
“42. Ultimately the issue boils  down  to  the  overall  assessment  of  the
awareness level of the employees of the RSEB based on  the  available  data.
Based on the facts presented before us, on a composite consideration of  the
facts and taking a  pragmatic  view  of  the  situation,  a  reasonable  and
legitimate inference can be drawn that the respondents  were  aware  of  the
notices issued for the exercise of the switch-over  option  but  they  chose
not to exercise that option either for personal reasons or  perhaps  because
it did not suit them. The position changed in the second half  of  1997,  by
which time it was too late for them to do a rethink.

43. One of the contentions urged by the respondents as writ  petitioners  in
the High Court was that each employee should have been  individually  served
with each notice  inviting  the  switch-over  option.  That  contention  was
accepted by the High Court by relying  upon  Dakshin  Haryana  Bijli  Vitran
Nigam and Others v. Bachan Singh1 but was not directly canvassed before  us.
In any event the decision relied upon by the High Court was  considered  and
distinguished in PEPSU Road Transport Corporation, Patiala v.  Mangal  Singh
and Others. The contention in this regard is a bit  collateral,  and  it  is
this: the switch-over option form was required  to  be  filled  up  by  each
employee clearly indicating the option exercised – either to  continue  with
the CPF Scheme or to switch to the Pension and GPF Regulations.  This  could
be done only if the option form was made available to each employee.

44. In Dakshin Haryana Bijli Vitran Nigam the instructions relating  to  the
exercise of the switch-over option specifically mentioned that: (SCC  p.797,
para5)

“(4) These instructions may please be got noted from all the  employees  and
acknowledge the receipt of the letter.”

The appellants therein were  unable  to  show  that  the  instructions  were
actually got  noted  in  writing  by  the  respondent.  It  is  under  these
circumstances that it was inferred that  the  respondent  had  no  knowledge
about the options called by the  appellants.  Consequently,  the  denial  of
pension benefits to the respondent was held bad.

45. In PEPSU RTC v. Mangal Singh the decision rendered  in  Dakshin  Haryana
Bijli Vitran Nigam was distinguished on facts  since  in  the  PEPSU  appeal
there was no condition of noting from the employees  or  serving  individual
notices in the Pension Scheme or Regulations. This Court  went  on  to  say:
(PEPSU RTC case, SCC p.723, para54)

 “54. Furthermore, when notice or knowledge of the  Pension  Scheme  can  be
reasonably inferred or gathered from  the  conduct  of  the  respondents  in
their ordinary course of business and from surrounding circumstances,  then,
it will constitute a sufficient notice in the eye of the law.”

46.  The fact situation in the present appeals is somewhat similar. In  this
context, we may infer that under such  circumstances,  it  was  equally  the
responsibility of the respondents to  collect  the  option  forms  from  the
concerned  authority,  fill  them  up  and  submit  them  to  the  competent
authority. It is too much to expect that even though it  was  not  necessary
for each individual employee to be served with each notice, yet there was  a
duty cast on the RSEB to ensure that each employee is furnished  a  copy  of
the option form. If such  a  contention  is  accepted,  it  will  amount  to
circuitously accepting that, though the employees need not  individually  be
served the notices, yet they would have to be  individually  served  with  a
copy of the option form.”



23.   In view of the above, it is well  settled  that  the  notice  inviting
option need not  to  be  personally  served  to  the  employees  unless  the
Regulation or any instruction so provides. The Regulations  1992  which  are
being considered in the present case had already been interpreted  in  PEPSU
Road Transport Corporation vs. Mangal Singh  as noticed  above.  This  Court
having already held that Regulations 1992 do not  contemplate  any  personal
service of notice to employees the finding in the  judgment  of  the  courts
below  holding otherwise  for  decreeing  the  suit  of  the  plaintiff  are
unsustainable. From the facts of the present case it is clear that  although
Regulations were in force from 1992,  plaintiff retired  on  30th  November,
2011 and after retirement received CPF benefits without any protest  and  at
no point of time before retirement he has raised any grievance. The  benefit
which was available to him under CPF scheme was received by  the  plaintiff,
he cannot be allowed to another benefit  flowing  from  the  pension  scheme
which he never opted.  Extending  benefit  of  the  pension  scheme  to  the
plaintiff shall be extending  double  benefits-   CPF  benefit  as  well  as
pension scheme which  was never contemplated  by  the  Regulations.  In  any
view of the matter, the  issue  in  the  present  case  is  covered  by  the
judgment in PEPSU Road Transport Corporation vs. Mangal  Singh  (supra)  and
we do not propose to take any different view in the matter. Learned  counsel
for the respondents has also contended that in so  far  as  the  outstanding
amount of CPF is concerned the said  amount  could  have  been  deducted  by
virtue of Regulation 24 and which amount is to be  adjusted  against  death-
cum-retirement gratuity.  In the  present  case  the  plaintiff  having  not
opted for pension scheme, the requirement from refunding the  advance  taken
from CPF within six months is not attracted. More so, in  the  present  case
as has been stated by the appellant in the written  statement  in  the  suit
even after retirement an amount of Rs.4999/- was due from the advance  taken
by the respondents from his CPF amount.
24.   In view of the foregoing, we are of view that  the  judgments  of  the
courts below are unsustainable. The suit of the  plaintiff  deserved  to  be
dismissed. In the result the appeal is allowed. The judgments  of  the  High
Court as well as First Appellate Court and Trial Court  are  set  aside  and
the suit of the plaintiff stands dismissed. The  parties  shall  bear  their
own costs.


                                                     .....................J.
( S.A. BOBDE )


                                                     .....................J.
   ( ASHOK BHUSHAN )
NEW DELHI,
JANUARY 03, 2017.




















No comments:

Post a Comment

Note: Only a member of this blog may post a comment.