Calcutta State Transport Corporation & Ors. v. Ashit Chakraborty & Ors.

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 challenge d 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. It is a case in which the respondent no.1 was appointed as a Conductor with the appellant Corporation. At that time there wa s no pension scheme in force, only 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 th e previous sanction of the State Government, framed The Calcutta State Transport Corporation Employees’ Service (Death cum R etirement 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 205 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. 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 cla im 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 shar e 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 suc h 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. 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. Th e 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 CALCUTTA STATE TRANSPORT CORPORATION v. ASHIT CHAKRABORTY [RAJESH BINDAL, J.] 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. 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 b e made to suffer on that account. Whatever amount was p aid to the respondent no.1 on his retirement, he accepted the same consi dering that the same may be due on his retirement. He did not know t hat the Corporation will not pay pension to him and some other amount ha s been paid in excess. It was the fault of the Corporation only. I t is only after the retirement of respondent no.1 that he came to know t hat 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 balanced. The amount, which was not due to the respondent no.1, has been directed to be refunded to th e 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 w as allowed, it was immediately after his retirement. H owever, 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 pa per 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 unde r 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 paid to him, however, no pension was paid to him for which he had exercised the option. He filed a representation 207 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 wa s being deducted from his salary in terms of the membership in the CPF scheme to which he never objected. Further, the plea was sought t o be raised that there are large number of similarly situated employee s 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 th at the Corporation was at fault in not acting upon the option exercised by the respondent no.1. Finally, direction was given to the respondent no.1 to refund the employer share of provident fund as well as the amo unt of gratuity paid in excess to the Corporation along with interest @ 6% per annum within two weeks. On receipt of the amount, the Corpora tion 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 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. T here CALCUTTA STATE TRANSPORT CORPORATION v. ASHIT CHAKRABORTY [RAJESH BINDAL, J.] 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, 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 yea r 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, c annot 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 petiti on 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. Rat her 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 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 Hi gh Court. The appeal is accordingly dismissed. Divya Pandey Appeal dismissed. (Assisted by : Roopanshi Virang, LCRA) 1 (2021) 10 SCC 401