RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS versus GOVERDHAN LAL SONI AND ANR. on 9 September 2020

SUPREME COURT REPORTS

[2020] 10 S.C.R.

ARAJASTHAN STATE ROAD TRANSPORTCORPORATION AND OTHERS

v.

GOVERDHAN LAL SONI AND ANR.

B(Civil Appeal No. 1789 of 2020)

SEPTEMBER 09, 2020

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Pension – Rajasthan State Road Transport CorporationEmployees Pension Regulations, 1989 – The State GovernmentCclosed the Rajasthan State Agro Industries Corporation Limited anddeclared all its employees as surplus – The surplus employees wereabsorbed in different Corporations – The State issued a circular on02.07.1991 containing guidelines for absorption of surplusemployees – The respondent no. 1 was absorbed in appellant-DRajasthan State Road Transport Corporation – The respondent wasgiven an option to opt for either CPF scheme or the GPF and pensionscheme – The respondent opted for the pension scheme underRegulations, 1989 – Pursuant to the option opted by the respondentno. 1, the appellant-Corporation directed for transfer of amount –

The contribution of employees as well as contribution of employerEdeposited with the Provident Fund Commissioner was transferredto the appellant-Corporation – However, the Rajasthan AgroIndustries Corporation Limited informed that pension scheme beingnot applicable in Agro Industries Corporation, capital value, amountin regard to absorbed employee is not due to the appellant-FCorporation – Respondent filed writ petition – The High Court heldthat respondent-writ petitioner was entitled to get pension – Inanother civil appeal, the other respondent after absorption alsogave an option for opting for GPF and pension scheme – Not beinggiven the benefit of GPF and pension, writ petition was filed by him– The writ petition was allowed – Both the appeals having raisedGsimilar issues are before the Supreme Court – Held: The regulation43 of the Regulations, 1989 makes it clear that except thoseemployees who have opted for continuing to CPF, employer’s shareshall be transferred to the appellant-Corporation Pension Fundand the employees share with interest shall be transferred toH

appellant-Corporation GPF Fund – For the employees who wereentitled to grant of pension there is mention of only two funds thatis pension fund and GPF fund – The employer’s share was to betransferred to Pension Fund and employee’s share shall betransferred to GPF Fund – Further, clause 11(b) of circular dated02.07.1991 makes it clear that when the respondent was absorbedin appellant-Corporation the balance in CPF Account of the surplusemployees would be transferred in GPF Account and the PensionFund respectively – Since, the Certificate issued by the RegionalProvident Fund Commissioner makes it clear that the contributionof employee and employer was transferred to the appellant-Corporation – Thus, it was the obligation of the appellant-Corporation to credit the amount in Pension fund and GPF fund –Neither Regulations, 1989 nor circular dated 02.07.1991 refers toany capital amount – There was no obligation of erstwhile employerof the respondent to transfer any capital amount – Neither any suchcapital amount was contemplated by 1989 Regulations or by schemeof absorption dated 02.07.1991 – There was no justifiable groundfor the appellant for not sanctioning the claim of Pension of therespondent after his retirement – Therefore, the High Court did notcommit any error in allowing the claim of the respondent for pension.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The contention which has been pressed by thecounsel for the appellant before this Court is that there was notransfer of capital amount of the erstwhile employer of respondent.The counsel for the appellant has relied and refer to the letterdated 18.09.1998 issued by the Rajasthan State Agro IndustriesCorporation Limited. This has been brought on record asAnnexure-P/1. A perusal of Annexure-P/1 indicates that appellant-Rajasthan State Road Transport Corporation by letter dated29.07.1998 requested the Rajasthan State Agro IndustriesCorporation Limited for transferring capital value amount inregard to the respondent. The erstwhile employer of therespondent informed the appellant that capital value amount inregard to the absorbed employees is not due to the appellant-Corporation. The appellant was informed that contribution ofProvident Fund amount is deposited in the account ofCommissioner, Provident Fund, Government of India which can AB

C

D

E

F

G

H

Abe got transferred. The question to be answered is as to whetherapart from transfer of employee’s contribution and employer’scontribution deposited in the account of Commissioner, ProvidentFund, there is any other amount which required to be transferredto the appellant for the purpose of making the respondent eligiblefor the benefit of pension. Regulation 43 of the Rajasthan StateBRoad Transport Pension Regulations, 1989 is the provision oftransfer of Pension Fund by Corporation. The Regulation makesit clear that except those employees who have opted for continuingto CPF, employer’s share shall be transferred to the appellant-Corporation Pension Fund and the employees share with interestCshall be transferred to appellant-Corporation GPF Fund. For theemployees who were entitled to grant of pension there is mentionof only two Funds that is Pension Fund and GPF Fund. Theemployer’s share was to be transferred to Pension Fund andemployee’s share shall be transferred to GPF Fund. Clause 11sub-clause (b) of Circular dated 02.07.1991 also refers to onlyDtwo accounts i.e. GPF Account and Pension Fund. As per clause11(b) in an Enterprise having pension scheme, the balance inCPF Account of surplus employees would be transferred toabsorbing Enterprise for credit to the GPF Account of theemployees and the Pension Fund in proportion of employees ownEsubscription and organisation’s contribution respectively. Thus,employee’s contribution shall go to the GPF Account andemployer’s proportion should be credited to the Pension Fund.Clause 11(b) makes it clear that when the respondent wasabsorbed in appellant-Corporation, the balance in CPF Accountof the surplus employees would be transferred in GPF AccountFand the Pension Fund respectively. The certificate issued by theRegional Provident Fund Commissioner which has been filed atAnnexure R-8 makes it clear that contribution of employeeRs.92504/- and contribution of employer Rs.101282/- have beentransferred to the appellant-Corporation which was the amountGcredited with Regional Provident Fund Commissioner. The entireamount having been transferred to the appellant-Corporation itwas the obligation of the appellant-Corporation to credit theaforesaid amount in respect of Pension Fund and GPF Fund.Neither Regulations, 1989 nor Circular dated 02.07.1991 refersto any capital amount. There was no obligation of erstwhileH

employer of the respondent to transfer any capital amount.Neither any such capital amount was contemplated by 1989Regulations or by Scheme of absorption dated 02.07.1991. TheCircular dated 02.07.1991 is in conformity with the Regulations,1989 and a reading of Regulation 43 of Regulations 1989 as wellas Circular dated 02.07.1991 makes it abundantly clear that forbenefit of Pension Scheme what was required to be transferredby the erstwhile employer was the employees contribution whichwas to get transferred into the GPF Account and the employer’scontribution to be credited in the Pension Fund. Nothing morewas required to be done by the respondent or erstwhile employerfor fulfilling any condition or statutory requirement with regardto the respondent’s claim of pension. After transfer of the amountaforesaid, the respondent having given option regarding optingthe pension scheme, it was statutory obligation of the appellantto credit both the aforesaid amounts and thereafter continues todeposit 10% in the Pension Fund and after retirement calculatesthe pension accordingly. [Para 38][253-G-H; 254-A-H; 255-A-D]

2. The notification dated 12.02.1997 specially Clause 2(vi)on which reliance has been placed by the counsel for the appellantalso does not refer to any sum as a capital amount which needs tobe transferred to the appellant for making employee eligible forPension. The circular dated 09.02.1999 filed by the appellant asAnnexure-P/2 does refer to capital amount but it relies onnotification dated 12.02.1997 specifically on Clause 2(vi). Clause2(vi) of notification dated 12.02.1997 does not refer to any capitalamount. Thus, the statement in Circular dated 09.02.1999 thatonly upon receipt of capital amount from Rajasthan State AgroIndustries Corporation Limited employees were entitled to getbenefit of Corporation Pension is unfounded and without any basis.Clause 2(vi) contemplates that those employees who give theiroption under Employee Pension Scheme, 1989 their deductedProvident Fund Contribution amount of earlier service onreceiving back from P.F. Commissioner Office by their employerwill be forwarded to Corporation. This Court has already noticedthat both employee’s contribution and employer’s contributionwhich were deposited with Provident Fund Commissioner Officewas transferred to Corporation. Thus, what was contemplated byClause 2(vi) of notification dated 12.02.1997 was complied with.[Para 39][255-E-H]

A

B

C

D

E

F

G

H

A3. This Court is satisfied that there was no justifiable groundfor the appellant for not sanctioning the claim of pension of therespondent after his retirement. [Para 40][256-A]

Pepsu Road Transport Corporation, Patiala versusMangal Singh and Others (2011) 11 SCC 702 : [2011]B6 SCR 564 – relied on.

Mahaveer Prasad Jain v. Jaipur Vidhyut Vitran NigamLtd. (SB Civil Writ Petition No. 3116 of 2004); JaipurVidhyut Vitran Nigam Ltd. through its Chairman andAnr. v. Mahaveer Prasad Jain 2008 (2) WLN 337 –Creferred to.

Case Law Reference

[2011] 6 SCR 564relied onPara 32

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1789of 2020.D

From the Judgment and Order dated 05.03.2018 of the High Courtof Judicature at Rajasthan, Bench at Jaipur in D.B. Special Appeal WritNo. 1799 of 2017.

WithECivil Appeal No. 1812 of 2020

Dr. Ritu Bhardwaj, Sachin Mittal, P.B. Suresh, Vipin Nair, KarthikJayshankar, Rishabh Sancheti, K. Paari Vendhan, Advs. for the appearingparties.

FThe Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. These appeals have been filed by Rajasthan Road TransportCorporation and others (hereinafter referred to as Corporation)challenging the judgments dated 05.03.2018 and 30.08.2018 respectivelyGof the Division Bench of Rajasthan High Court dismissing the D.B.SpecialAppeals filed by the appellants. Both the appeals having raised similarissues it shall be sufficient to refer the facts and pleadings in Civil AppealNo.1789 of 2020 for deciding both the appeals.

2. Goverdhan Lal Soni, the respondent No.1 was appointed asHJunior Assistant on 02.04.1974 in Rajasthan State Agro Industries Corporation Limited. The State Government closed the Rajasthan StateAgro Industries Corporation Limited and declared all its employees asSurplus. The State Government took a decision to absorb services of allsurplus employees in different Corporations. The Bureau of PublicEnterprises, Government of Rajasthan issued a Circular on 02.07.1991containing guidelines of absorption of surplus employees in publicenterprises. The guidelines also contained provisions for various benefitsto be extended to the absorbed employees. The Respondent No.1 inpursuance of Circular dated 02.07.1991 was absorbed by Rajasthan StateRoad Transport Corporation vide order dated 03.10.1996. TheCorporation issued a notification dated 12.02.1997 in relation to theabsorbed employees laying down the procedure for the employees, whowant to opt either C.P.F Scheme or the G.P.F. and Pension Scheme.

3. The respondent gave his option on 22.03.1997 for Pension underRajasthan State Road Transport Pension Regulations, 1989. In RajasthanState Agro Industries Corporation Limited, the respondent No.1 wasgoverned by Contributory Provident Fund Scheme and the PensionScheme was not applicable in Rajasthan State Agro Industries CorporationLimited. The Corporation on 29.07.1997 noticing that the respondentNo.1 after coming to the service of Corporation has given option ofPension directed for transfer of amount deposited in Provident FundAccount and family pension so that same can be deposited in the accountof General Provident Fund as well as pension fund.

4. Rajasthan Agro Industries Corporation Limited wrote a letterdated 18.08.1998 to Financial Advisor of the Corporation referring to aletter of the corporation dated 29.07.1998 informing that Pension beingnot applicable in Agro Industries Corporation, Capital Value, amount inregard to absorbed employee is not due to corporation. The lettermentioned that in the Agro Industries Corporation, Provident FundScheme was applied in which regard contribution of Provident Fund isdeposited in office of Commissioner, Provident Fund, Government ofIndia, which amount can be transferred at the level of Corporation.Regional Provident Fund Commissioner transferred the contribution ofEmployees as well as contribution of Employer deposited with theProvident Fund Commissioner to the Corporation. Certificate of accounttransfer was issued transferring the aforesaid amount to the corporation.

5. A circular dated 09.02.1999 was issued by the corporationreferring to earlier circular dated 12.02.1997 mentioning that those AB

C

D

E

F

G

H

Aemployees who produce their option letter to get benefit of RajasthanState Road Transport Corporation Employees Corporation PensionRegulations, 1989, only upon receipt of capital amount from RajasthanState Agro Industries Corporation Limited, they shall be entitled to getbenefit of Corporation Pension.

B6. The respondent, who had joined the corporation on 10.10.1996,wrote a letter dated 06.07.2010 to the Finance Advisor and Chief AccountsOfficer of the Corporation praying for approval of pension. Letter alsomentioned that in compliance of letter of Chief Manager dated 19.02.1997,CPF amount has been received by Corporation. The respondent No.1sent several reminders with regard to approval of his pension. TheCrespondent was superannuated on 30.06.2012. A writ petition No. 8847of 2012 was filed by the respondent No.1 in the High Court of Rajasthan,Bench at Jaipur, praying for following reliefs: - “(i) By issuing an appropriate writ, order or direction to theRespondents to consider the case of petitioner for extendingDthe benefits of the GPF and Pension Scheme of 1989 in thelight of the condition No.11(b) of the Circular dated02.07.1991 by taking note of his option form for the same.

(ii) Hon’ble High Court may kindly quash and set aside thecircular dated 09.02.1999 (Annexure-8) issued in the garbEof Notification dated 12.02.1997.

(iii) Hon’ble High Court may kindly direct the respondent togrant pension to the petitioner if petitioner gets retired duringthe pendency of the writ petition.”

F7. Learned Single Judge of the High Court by judgment dated05.07.2017 after noticing the submission of writ petition as well as thecorporation, held that writ petitioner had already opted for Pension, hiscase cannot be distinguished from an earlier judgment of High Courtdated 24.05.2007, Mahaveer Prasad Jain Versus Jaipur VidhyutVitran Nigam Ltd. SB Civil Writ Petition No. 3116 of 2004. LearnedGSingle Judge allowed the writ petition directing that writ petitioner betreated to be entitled to get pension, however, the same would be subjectto petitioner returning the amount under the CPF Scheme. The appellantaggrieved by the judgment of learned Single Judge filed D.B.SpecialAppeal(writ) No.1799 of 2017 before the Division Bench which appealwas dismissed on 05.03.2018. This appeal has been filed challenging theHjudgment of the Division Bench dated 05.03.2018.

8. In Civil Appeal No.1812 of 2020, the respondent Mangla RamAanwala was also initially appointed in Rajasthan State Agro IndustriesCorporation Limited and in pursuance of circular dated 02.07.1991, hewas also absorbed in the corporation by order dated 03.10.1996 on thepost of Junior Accountant. Respondent also gave an option on 25.02.1997for opting for GPF and Pension Scheme. On 30.06.2012, the respondentalso attained the age of Superannuation. Not being given the benefit ofGPF and Pension, S.B.Civil Writ Petition No.8100 of 2017 was filed bythe respondent which was allowed by learned Single Judge on 29.11.2007in terms of judgment of the learned Single Judge in writ petition ofGoverdhan Lal Soni(Supra). The appellant filed Special Appeal WritNo.1314 of 2018 which has been dismissed on 30.08.2018 against whichCivil Appeal No.1812 of 2020 has been filed.

9. We have heard Mrs. Ritu Bhardwaj for the appellant and ShriRishabh Sancheti and Shri P.B.Suresh for the respondents.

10. Learned Counsel for the appellant submits that respondentwas absorbed from Rajasthan State Agro Industries Corporation Limitedwhere Pension Scheme was not applicable and the respondent wasgoverned only by Contributory Provident Fund (CPF) Scheme. It issubmitted that the absorption of Employees in Rajasthan State RoadTransport Corporation was on the terms and conditions as laid down incircular dated 02.07.1991 of Bureau of Public Enterprises, Governmentof Rajasthan. The Agro Industries Corporation from where therespondent had come on absorption in Rajasthan State Road TransportCorporation was covered only by CPF Scheme, hence, for availing thebenefits of Pension Scheme the former Organization of the respondentwas liable to transfer not only the balance in CPF Account but PensionFund in proportion of Employees own subscription and Organization’scontribution respectively.

11. The Rajasthan State Agro Industries Corporation Limited videletter dated 18.08.1998 having refused to transfer the capital value amountregarding absorbed employee, the conditions under para 11(b) of Circulardated 02.07.1991 were not fulfilled and the corporation cannot undertakethe liability of payment of pension.

12. It is submitted that on retirement of the respondent, entirebenefit under the CPF Scheme as well as Gratuity of Rs.10 Lakhs andother benefits were taken by the respondent. It is submitted thatrespondent is already getting the pension from Employees Provident ABC

DEF

G

H

AFund Organization. The respondent has also availed the benefit of Loanof amount of more than Rs.18 Lakhs from the Corporation which waspossible only due to the reason that the respondent was member of CPFScheme and he can avail loan out of contribution of the employees aswell as the contribution of the Employer.

B13. It is further submitted that both learned Single Judge andDivision Bench had not adverted to mandatory conditions as given inparagraph 11(b) and without recording any satisfaction and finding thatthe mandatory condition has been fulfilled, direction has been issued forgrant of Pension. The respondent who has already availed the benefitunder CPF Scheme cannot be directed to given the benefit of PensionCwhich shall amount to extending the double benefits.

14. Learned counsel appearing for the respondents in both theappeals have refuted the submission of the counsel for the appellant andsubmits that the entire contribution of the respondent which was creditedwere transferred by the Regional Provident Fund Commissioner withDregard to which a certificate of account transfer has also been issued byRegional Provident Fund Commissioner which has been brought alongwith the counter Affidavit filed on behalf of respondent No.1, GoverdhanLal Soni. Regional Provident Fund Commissioner having transferred theentire amount to the corporation, nothing more was due to be transferred.

E

15. The respondent has exercised the option of Pension benefitwithin the period prescribed i.e. before 31.03.1997. The case of therespondent was fully covered by the judgment of the Rajasthan HighCourt dated 05.07.2017 in Mahaveer Prasad Jain’s Case. He submitsthat the judgment of learned Single Judge dated 05.07.2017 was alsoFaffirmed by the Division Bench vide judgment dated 19.12.2007 in JaipurVidhyut Vitran Nigam Ltd. through its Chairman versus MahaveerPrasad Jain, which appeal was dismissed on 19.12.2007.

16. It is submitted that Special Leave Petition against the DivisionBench judgment dated 19.12.2007 has also been dismissed by this CourtGvide its order dated 09.05.2008 in Special Leave to Appeal (Civil)No.10904 of 2008. The case of Mahavir Prasad Jain was also a case ofabsorption from Rajasthan State Agro Industries Corporation Limitedinto Rajasthan State Electricity Board (Jaipur Vidhyut Vitran Nigam Ltd.).

17. The notification dated 12.02.1997 laid down procedure to beadopted in relation to absorbed employees. Subsequent circular datedH

09.02.1999 informing that only on transfer of Capital amount from theconcerned department benefit of Pension can be extended was notapplicable on the respondent No.1 since he was already covered by1991 circular and has exercised his option on 22.03.1997 with regard toreceiving of payment under GPF Scheme as well as Gratuity. With regardto Pension under CPF Scheme it is submitted that the said pension hasbeen accepted since the respondent had no option. The gratuity amountwas paid directly in account of the respondent.

18. It is further submitted that both the Rajasthan State AgroIndustries Corporation Limited as well as Rajasthan State Road TransportCorporation are two arms of the Government and it was the Stateresponsibility to ensure that the respondent No.1 could have receivedthe Pension in pursuance of his option exercised on 22.03.1997.

19. Learned counsel for the parties have relied on severaljudgments of this Court and Rajasthan High Court which shall be referredto while considering the submission in detail.

20. From the pleadings of the parties and materials on record,following undisputed facts have emerged:-

i)the respondents in these appeals were employees of AgroIndustries Corporation who were declared surplus after theAgro Industries Corporation was closed.

ii)Bureau of Enterprises issued guidelines dated 02.07.1991 forabsorption of surplus employees of the State Public Enterprises.The guidelines enumerated the benefits and mechanism forreceiving the benefits by the absorbed employees.

iii) that by order dated 03.10.1997, the respondents wereabsorbed in Rajasthan State Road Transport Corporation. Therespondents while working under the Rajasthan State AgroIndustries Corporation Limited were covered by only CPFScheme.

iv) Both Employees and Employer’s contributions towards theProvident Fund were deposited with the Regional ProvidentFund Commissioner. The Regional Provident FundCommissioner transferred both Employees contribution ofProvident Fund as well as Employer’s contribution ofProvident Fund to the Rajasthan State Road Transport A

B

C

D

E

F

G

H

ACorporation and certificate of account transfer was also issuedby office of Regional Provident Fund Commissioner, certifyingthe above said transfer. After the absorption, respondent optedfor the Pension Scheme within the prescribed period i.e.31.03.1997.

Bv)The respondent in Rajasthan State Road Transport Corporationwere continued in the CPF Scheme and the contribution ofthe Employees and Employers were deposited and afterretirement of the respondent, the entire amount accumulatedhas been paid to the respondent with gratuity and other benefits.

C21. The corporation has both CPF and Pension Scheme. ThePension Scheme which is applicable in the Corporation is RajasthanState Road Transport Corporation Employees’ Pension Regulations 1989.Regulation 3 of the Regulations, 1989 provides for exercise of option bythe existing regular employees for pensionary and gratuity benefits.Bureau of Public Enterprises, Government of Rajasthan, had issuedDguidelines dated 02.07.1991 under which surplus employees of StatePublic Enterprises were to be absorbed in other Public Enterprises.

22. Before we enter into the submissions raised by the counsel ofthe parties it is necessary to notice the relevant statutory Regulationsapplicable in the RSRTC and the Circular dated 02.07.1991 by whichEBureau of Public Enterprises, State Enterprises Department, Governmentof Rajasthan issued terms and conditions for absorption of surplusemployees of State Public Enterprises. The Rajasthan State RoadTransport Corporation Employees Pension Regulations, 1989 have beenframed in exercise of power under Section 45 of the Road TransportFCorporation Act, 1950. Regulation 3(l) defines ‘option’ which is to thefollowing effect:

“3(l) “Option” means a written consent of the existing regularemployee for pensionary and gratuity benefits alongwith theadoption of the General Provident Fund Regulations 1989 or toGcontinue as member of the existing CPF scheme covered underthe BPF Act, 1952 within a period of 90 days from the date ofpublication of RSRTC Pension Regulations. Any existing employeewho does not exercise the option within specified period of 90days shall be deemed to have exercised option in favour of thePension & CPF Regulations.”

H

23. Regulation 3(k) has defined “existing employee” as meaning‘an employee who is in service of the Corporation as on 01.04.1989’.The option under Regulation 3(l) was contemplated from existingemployee.

24. Several employees including the respondent who becamesurplus in their earlier employment were absorbed by Rajasthan StateRoad Transport Corporation vide order dated 03.10.1996. TheCorporation issued a notification dated 12.02.1997 with regard to 30employees who had come from Rajasthan State Agro IndustriesCorporation Limited, out of whom some employees wanted to takebenefit of Contribution Provident Fund and some employees wanted totake benefit of Corporation Pension Scheme. The notification containednecessary instructions with regard to the above. Learned counsel forthe appellant has relied and referred to Clause 2(vi) of the notificationwhich is relevant with regard to the respondent. Clause 2(vi) is as follows:

“2(vi) Those employees who give their option under EmployeePension Scheme, 1989, their deducted Provident FundContribution amount of earlier service on receiving backfrom P.F. Commissioner office by their employer will beforwarded to Corporation as per instructions given byR.S.R.T. Corporation about pension, gratuity, P.F. and Leaveencashment etc. For receiving the above contribution afterediting by Accounts Department (Establishment), HeadOffice, this amount will be received. After receiving amount,concerned amount of pension to Manager (Pension) andconcerned amount of General Provident Fund to A.G.M.(G.P.F.) will be forwarded.”

25. After issuance of notification dated 12.02.1997, the Corporationasked for option from employees who were absorbed in the Corporationto give their option. As noted above, the option under Regulation 3(l)was to be taken from the ‘existing employees’ but after absorption ofemployees in the Corporation from Rajasthan State Agro IndustriesCorporation Limited, the Corporation adopted same statutory mode withregard to the absorbed employees as per statutory scheme. Hence, optionwas asked from absorbed employees. The respondent gave option on27.03.1997, i.e., before 31.03.1997 which was last date for option.

26. Another Regulation which needs to be noted is Regulation 43of Regulations, 1989 which deals with transfer to pension fund byCorporation. Regulation 43 is as follows:

A

B

C

D

E

F

G

H

A“43. TRANSFER TO PENSION FUND BYCORPORATION

The Corporation shall transfer the pension contributions @10% on the basic wages plus D.A. to the R.S.R.T.C. pensionFund latest by 10[th] of succeeding month.

B

The employer’s share with interest except for those existingemployees as on 01.04.1989, who have opted for continuing theC.P.F. benefits shall be transferred to the R.S.R.T.C. PensionFund and the employee’s share with interest shall be transferredto the R.S.R.T.C. GPF Fund.”

C

27. The second part of Regulation 43 as extracted abovecontemplates transfer of employer’s share for existing employees whohave opted for Pension Fund and employees’ share with interest in theG.P.F. Fund.

28. Clause 2(vi) of notification dated 12.02.1997 as extracted aboveDis also in the same line as of Regulation 43.

29. The respondent having opted for pension, Regulation 43 readwith notification dated 12.02.1997 becomes relevant and applicable withregard to the respondent.

30. Now, we come to the Circular dated 02.07.1991 issued by theEBureau of Public Enterprises, Government of Rajasthan, which is theguidelines for absorption of surplus employees of State Public Enterprises.We had heard this appeal earlier and reserved the judgment. At the timeof preparation of judgment we found ambiguity in the record of the appealpertaining to correct wordings of clause 11(b) of Circular datedF02.07.1991. By our orders dated 29.07.2020 we directed both the partiesto bring on record correct clause 11(b) of Circular dated 02.07.1991. Inpursuance of our order dated 29.07.2020 both the parties have filed theiraffidavits. In the affidavit filed in application I.A.No.76182 of 2020 filedby the respondent, the copy of Circular dated 02.07.1991 has been broughton record. At the time of hearing on 14.08.2020, learned counsel for theGpetitioner has also not disputed the correctness of the copy of the Circulardated 02.07.1991 as brought on the record by respondent. Clause 11 ofthe Circular dated 02.07.1991 which is relevant for the present casebrought on record by I.A.No.76182 of 2020 is to the following effect:

“11. In case the surplus employees covered under CPF Scheme,Hon absorption:- RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]

(a) In an enterprise having CPF Scheme, the balance in CPFaccount of the surplus employees shall be transferred to theabsorbing enterprise. On absorption the surplus employees wouldbe governed by CPF Scheme and rules of the absorbing enterprise.

(b) In an enterprise having pension scheme, the balance in CPFAccount of surplus employees would be transferred to absorbingenterprise for credit to the GPF Account of the employees andthe Pension Fund in proportion of employees own subscriptionand organisation’s contribution respectively. The eligible period ofservice rendered in relieving enterprise would be considered asqualifying service under pension scheme of absorbing enterprise.”

31. The petitioner also filed affidavit on 14.08.2020 and has notdisputed the correctness of clause 11 as brought on record by therespondent.

32. Both CPF and Pension Schemes are beneficial Schemes forthe employees which are of different nature. In a Contributory ProvidentFund Scheme Employer makes matching contributions to the Employeescontribution and both are kept in separate account and on retirement ofemployees both are released to the employee along with the interest.The Pension is a periodic payment to the employee after the retirementfrom the service by the Employer. Payment of Pension is made underscheme floated by Employer. Pension Scheme contemplates a fund outof which the pension is payable to an employee. The payment of pensionis dependent on various considerations and conditions. This Court inPepsu Road Transport Corporation, Patiala versus Mangal Singhand others, (2011) 11 SCC 702, while considering Pension Schemeand contributory Provident Fund Scheme under Pepsu Road TransportCorporation Employees’ Pension/Gratuity and General Provident FundRegulations, 1992 made following observations in paragraph 34:-

“34. Pension is a retirement benefit partaking of the characterof regular payment to a person in consideration of the pastservices rendered by him. We hasten to add that althoughpension is not a bounty but is claimable as a matter of right,yet the right is not absolute or unconditional. The personclaiming pension must establish his entitlement to such pensionin law. The entitlement might be dependent upon variousconsiderations or conditions. In a given case, (sic whether)the retired employee is entitled to pension or not depends on A

B

C

D

E

F

G

H

Athe provisions and interpretation of the rules and regulations.The contributory provident fund appears to be a simplemechanism where an employee is paid the total amount whichhe has contributed along with the equal contribution madeby the employer ordinarily at the time of retirement of anemployee. In short, we quote what was repeatedly said byBthis Court that “pension is payable periodically as long asthe pensioner is alive whereas CPF is paid only once onretirement.” Therefore, conceptually, pension and CPF areseparate and distinct.”

33. Now reverting to the facts of the present case, we need toCfirst consider as to what were the conditions which were to be fulfilledby the respondent for receiving the pension. As noted above, paragraph11(b) of guidelines dated 02.07.1991 was applicable in the present casewith which both the parties are in agreement. It is the case of both theparties that it is clause 11(b) which is applicable in the case of theDrespondent.

34. Clause 11 begin with the words “in case surplus employeeswere covered under CPF scheme on absorption;”- in an Enterprise havingPension Scheme, (i) the balance in CPF account of surplus employeewill be transferred to absorbing Enterprise for credit of CPF account ofEthe employee, and (ii) the pension fund in proportion of employees’ ownsubscription and organization’s contribution respectively; (iii) the eligibleperiod of service rendered in relieving Enterprise would be consideredas qualifying service under Pension Scheme of absorbing Enterprise.

35. The circular dated 02.07.1991 provided for absorption fromFone State Public Enterprise to another Public Enterprise. All PublicEnterprises were not governed by common CPF and Pension Scheme,for example, Rajasthan Agro Industries Corporation Limited did not havea pension scheme for its employees whereas Rajasthan State RoadTransport Corporation ltd. has Pension Scheme. When an employeewho is governed by CPF Scheme in his erstwhile employment opts forGCPF Scheme in absorbing Enterprise, the balance amount in CPF accountis transferred and the employees continue in CPF Scheme. There canbe two categories of surplus employees, one category may have in itserstwhile Employment Pension Scheme and another category may haveonly CPF Scheme. In a case where in erstwhile employment employeeHis governed by Pension Scheme and he opts for Pension Scheme in the RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]

absorbing Enterprise, there is no difficulty in implementing of PensionScheme since balance in CPF account as well as Pension Fund shall betransferred in corresponding accounts in absorbing Enterprise.

36. In this context, we refer to Clause 12 of Circular dated02.07.1991 which is to the following effect:

“(12)In case the surplus employees were covered by pensionscheme, on absorption:- (a)In an enterprise having pension scheme the relieving enterprisewould transfer the balance of GPF Account of the employee andhis share in the Pension Fund of the relieving organisation to theabsorbing organisation for credit to GPF Account and PensionFund respectively.

(b) In an enterprise having CPF Scheme, the balance of GPFAccount and share in Pension Fund would be transferred to theabsorbing enterprise for credit to the CPF Account. On absorption,the surplus employees would be governed by CPF Scheme andrules of the absorbing enterprise.”

37. The respondent in his earlier employment was covered by theCPF Scheme and both employee’s contribution as well as employer’scontribution were deposited in the Provident Fund. Alongwith affidavitfiled by the respondent in this appeal Certificate of Accounts Transfer,issued by the Regional Provident Fund Commissioner, Jaipur has beenbrought on record. The total deposit of respondent No.1 with the RegionalProvident Fund Commissioner, Jaipur was (a) contribution of employeeRs.92,504/-; (b) contribution of employer Rs.1,01282/-. Both the aboveamounts were transferred to the Rajasthan Road State TransportCorporation after the respondent was absorbed in the Rajasthan StateRoad Transport Corporation.

38. The contention which has been pressed by the learned counselfor the appellant before us is that there was no transfer of capital amountof the erstwhile employer of respondent. Learned counsel for the appellanthas relied and refer to the letter dated 18.09.1998 issued by the RajasthanState Agro Industries Corporation Limited. This has been brought onrecord as Annexure-P/1. A perusal of Annexure-P/1 indicates thatRajasthan State Road Transport Corporation by letter dated 29.07.1998requested the Rajasthan State Agro Industries Corporation Limited fortransferring capital value amount in regard to the respondent. The A

BCDE

F

GH

A

BCDE

F

GH

Aerstwhile employer of the respondent informed the appellant that capitalvalue amount in regard to the absorbed employees is not due to theRajasthan State Road Transport Corporation. The appellant was informedthat contribution of Provident Fund amount is deposited in the accountof Commissioner, Provident Fund, Government of India which can begot transferred. The question to be answered is as to whether apartBfrom transfer of employee’s contribution and employer’s contributiondeposited in the account of Commissioner, Provident Fund, there is anyother amount which required to be transferred to the appellant for thepurpose of making the respondent eligible for the benefit of pension.Regulation 43 of the Regulations, 1989 is the provision of transfer ofCPension Fund by Corporation. The Regulation makes it clear that exceptthose employees who have opted for continuing to CPF, employer’sshare shall be transferred to the Rajasthan State Road TransportCorporation Pension Fund and the employees share with interest shallbe transferred to Rajasthan State Road Transport Corporation GPF Fund.For the employees who were entitled to grant of pension there is mentionDof only two Funds that is Pension Fund and GPF Fund. The employer’sshare was to be transferred to Pension Fund and employee’s share shallbe transferred to GPF Fund. Clause 11 sub-cause (b) of Circular dated02.07.1991 also refers to only two accounts i.e. GPF Account and PensionFund. As per clause 11(b) in an Enterprise having pension scheme, theEbalance in CPF Account of surplus employees would be transferred toabsorbing Enterprise for credit to the GPF Account of the employeesand the Pension Fund in proportion of employees own subscription andorganisation’s contribution respectively. Thus, employee’s contributionshall go to the GPF Account and employer’s proportion should be creditedto the Pension Fund. Clause 11(b) makes it clear that when the respondentFwas absorbed in Rajasthan State Road Transport Corporation, the balancein CPF Account of the surplus employees would be transferred in GPFAccount and the Pension Fund respectively. The certificate issued bythe Regional Provident Fund Commissioner which has been filedat Annexure R-8 makes it clear that contribution of employeeGRs. 92504/- and contribution of employer Rs.101282/- have beentransferred to the Rajasthan State Road Transport Corporation whichwas the amount credited with Regional Provident Fund Commissioner.The entire amount having been transferred to the Rajasthan State RoadTransport Corporation it was the obligation of the Rajasthan State RoadTransport Corporation to credit the aforesaid amount in respect of PensionH

Fund and GPF Fund. Neither Regulations, 1989 nor Circular dated02.07.1991 refers to any capital amount. There was no obligation oferstwhile employer of the respondent to transfer any capital amount.Neither any such capital amount was contemplated by 1989 Regulationsor by Scheme of absorption dated 02.07.1991. The Circular dated02.07.1991 is in conformity with the Regulations, 1989 and a reading ofRegulation 43 of Regulations 1989 as well as Circular dated 02.07.1991makes it abundantly clear that for benefit of Pension Scheme what wasrequired to be transferred by the erstwhile employer was the employeescontribution which was to get transferred into the GPF Account and theemployer’s contribution to be credited in the Pension Fund. Nothing morewas required to be done by the respondent or erstwhile employer forfulfilling any condition or statutory requirement with regard to therespondent’s claim of pension. After transfer of the amount aforesaid,the respondent having given option regarding opting the pension scheme,it was statutory obligation of the appellant to credit both the aforesaidamounts and thereafter continues to deposit 10% in the Pension Fundand after retirement calculates the pension accordingly.

39. The notification dated 12.02.1997 specially Clause 2(vi) onwhich reliance has been placed by the learned counsel for the appellantalso does not refer to any sum as a capital amount which needs to betransferred to the appellant for making employee eligible for Pension.The circular dated 09.02.1999 filed by the appellant as Annexure-P/2does refer to capital amount but it relies on notification dated 12.02.1997specifically on Clause 2(vi). Clause 2(vi) of notification dated 12.02.1997does not refer to any capital amount. Thus, the statement in Circulardated 09.02.1999 that only upon receipt of capital amount from RajasthanState Agro Industries Corporation Limited employees were entitled toget benefit of Corporation Pension is unfounded and without any basis.Clause 2(vi) contemplates that those employees who give their optionunder Employee Pension Scheme, 1989 their deducted Provident FundContribution amount of earlier service on receiving back from P.F.Commissioner Office by their employer will be forwarded to Corporation.We have already noticed that both employee’s contribution andemployer’s contribution which were deposited with Provident FundCommissioner Office was transferred to Corporation. Thus, what wascontemplated by Clause 2(vi) of notification dated 12.02.1997 wascomplied with.

AB

C

D

E

F

G

H

A40. We are satisfied that there was no justifiable ground for theappellant for not sanctioning the claim of pension of the respondent afterhis retirement.

41. Learned counsel for the appellant has emphasized that therespondent continued to receive pension under the CPF Scheme whichBfact has not been denied by the respondent. The respondent’s case wasthat the said amount was accepted by the respondent since he had nooption his pension having not been sanctioned by the appellant. We areof view that it was open for the Corporation-appellant while sanctioningthe pension to the respondent to deduct the amount of pension receivedby him under CPF Scheme and the pension could have been accordinglyCfixed by reducing the pension amount already received by the respondentwhich respondent was getting under CPF Scheme but that could nothave been a reason for denying pension to the respondent. The paymentof gratuity to the respondent was also made of Rs. 10 lakh which waspaid in the account of the respondent.D42. Learned Single Judge allowing the writ petition filed by therespondent for grant of pension has put a condition that said entitlementis subject to refund of the amount received by him under the CPF Scheme.Learned Single Judge has also rightly directed that neither the appellantnor the respondent shall be entitled for any interest meaning thereby thatEwhatever amount was received by the respondent he was to refund itwithout any interest accrued on it and whatsoever amount was to bereceived by the respondent under his entitlement to pension he was notto receive any interest. It is useful to refer to direction of the learnedSingle Judge contained in paragraph 5 which is to the following effect:

F“5. In the circumstances, the writ petition is allowed. It is directedthat the petitioner shall be treated to be entitled to get pension.However, the same would be subject to his returning/ refundingthe amount received by him under the CPF Scheme. In view ofthe aforesaid direction, neither the petitioner nor the respondentswould be entitled to any interest. The exercise may be conductedGby the respondents within fifteen days of the amount of CPF isrefunded/returned to them.”

43. Counsel for the respondent has placed reliance on the judgmentof Rajasthan High Court in the writ petition of Mahaveer Prasad Jain.The Division Bench judgment of Rajasthan High Court in D.B. SpecialH

Appeal(writ) No.1326 of 2007 decided on 19.12.2007 in Jaipur VidhyutVitran Nigam Ltd. through its Chairman and Anr. versusMahaveer Prasad Jain, reported in 2008 (2) WLN 337,need to benoticed in some detail.

44. In the above case decided by the Division Bench the surplusemployee was an employee of Rajasthan State Agro IndustriesCorporation Limited who was absorbed in Jaipur Vidhyut Vitran Nigam.The case of pension of the employee was allowed by the learned SingleJudge against which Special Appeal was filed against the judgment ofLearned Single Judge. The appellant accepted that respondent would begoverned by the pension scheme and his case is covered by clause 11(b)of Circular dated 02.07.1991. The Division Bench has held that employeebeing not covered by Pension Scheme in his earlier employment, hiscase is governed by clause 11 of Circular dated 02.07.1991. In paragraph6 Rajasthan High court made the following observation:

“6. We now advert to the second contention. The counsel for theappellant informed us that the Rajasthan State Electricity Board(as it then was) had both the Central Provident Fund Scheme aswell as Pension Scheme for its employees. According to thecounsel the employees of the Board were given option to eitheropt for CPF Scheme or Pension Scheme. On the absorption ofthe original petitioner (respondent No. 1 herein), his CPF Accountwas closed and instead GPF Account was opened by the Boardon 02.08.2001. Moreover he was asked to deposit employee’sshare of CPF amount which he did. A perusal of the paragraph 13of the guidelines would show that it is in two parts. Clause (a)thereof applies where the employee was covered under CPFScheme and absorbing enterprise also has CPF Scheme. Clause(a) provides that the balance in the CPF Account of surplusemployee shall be transferred to the absorbing enterprise and onabsorption the surplus employee would be governed by the CPFScheme and the rules of absorbing enterprise while Clause (b) ofPara 11 provides that where the absorbing enterprise is havingCPF Scheme, the balance in the CPF account of the surplusemployees shall be transferred to the absorbing enterprise forcredit to the CPF Account of the employees and the PensionFund in proportion of employees and the pension fund in proportionof the employees subscription and organisation’s contribution A

B

C

DE

F

G

H

Arespectively. It further provides that the eligible period of servicerendered in relieving enterprise would be considered as qualifyingservice under pension scheme of absorbing enterprise. In view ofthe admitted fact that the CPF account of the present respondentwas closed after he was absorbed in the RSEB and that he wascalled upon to deposit employees’ share of CPF amount which heBdid, it is apparent that the present appellants accepted that therespondent would be governed by the pension scheme and thathis case is covered by Clause 11(b). In this view of the matter, therejection of the petitioner’s claim for pension was not legally proper.Merely because the respondent No. 1 had withdrawn the entireCCPF amount prior to his absorption would not make any differencebecause the CPF account was closed by the Board on theemployee’s absorption.”

45. In the above case also the balance of C.P.F. amount wasdeposited in absorbing organization even though in the said case theDemployee has withdrawn the entire C.P.F. amount prior to his absorptionin the subsequent employment. In the present case the respondent hasnot withdrawn any amount and both the employees and employercontributions were transferred to the Rajasthan State Road TransportCorporation by Regional Provident Fund Commissioner. Against thejudgment of the Division Bench of the Rajasthan High Court datedE19.12.2007, Special Leave Petition (C)No.10904 of 2008 was also filedby Jaipur Vidyut Vitran Nigam Ltd. which was dismissed by this Courton 09.05.2008.

46. In view of the foregoing discussion, we are of the consideredopinion that respondent had made out a case for grant of pension by theFappellant and both the learned Single Judge and the Division Bench didnot commit any error in allowing the claim of the respondent for pension.

47. The direction of learned Single Judge in paragraph 5 as statedabove amply protected the interest of the appellant.

G48. We may also notice that the respondent, who attainted theage of superannuation on 31.10.2012, immediately filed the writ petitionin the year 2012 itself being Writ Petition No.8847 of 2012 which writpetition was entertained and direction was issued by the learned SingleJudge. No delay was caused by the respondent in approaching the HighCourt for relief of Pension. Before filing the writ petition the respondentH

has also sent representation in the year 2010 raising his claim for Pensionwhich ought to have alerted the appellant to take appropriate steps.

49. There being an interim order passed by this Court on 13.08.2018in this appeal, the impugned judgment of the High Court could not begiven effect by the appellant. Learned Single Judge while allowing thewrit petition of the respondent although directed the appellant to returnthe benefit received by him under the CPF Scheme but had not fixedany time for deposit. In ends of justice we allow a period of two monthsfrom this order to the respondent to refund the entire amount under theC.P.F. Scheme including excess gratuity. On such deposit being madeby the respondent, the Rajasthan State Road Transport Corporation shallsanction the pension to the respondent and take steps regarding paymentof pension but without any interest thereon.

50. But looking to the facts of the present cases, to balance equitiesbetween the parties ends of justice be served in directing the Corporationto pay pension to the respondents only with effect from the date onwhich deposit is made by respondents. The pension received byrespondents under CPF Scheme shall be allowed to be retained by therespondents. This means that the amount received as pension under theCPF need not be given back by the respondents and the same shall notbe deducted when the pension is computed and paid by the appellant tothe respondents. Subject to above modifications in the impugned judgmentof the High Court, we dismiss both the appeals.

Ankit Gyan

Appeals dismissed.

AB

C

DE

F

G

H

SUPREME COURT REPORTS

[2020] 10 S.C.R.

A

UMESH KUMAR SHARMA

v.

STATE OF UTTARAKHAND & ORS.

(Transfer Petition (Criminal) Nos. 534-536 of 2019)

B

OCTOBER 16, 2020

[HRISHIKESH ROY, J.]

Code of Criminal Procedure, 1973 – s. 406 – Supreme CourtRules – Or. XXXIX – Transfer Petitions – Petitioner sought transferof three criminal cases pending before different Courts in DehradunCto competent courts in Delhi or some other courts outside the Stateof Uttarakhand – The petitioner apprehended threat to his life –The basic premise for such apprehension was that on account ofhis work as an investigative journalist against the Rulingdispensation, the State was targeting the petitioner for vindictiveDprosecution – Held: It is established law that the transfer poweru/s. 406 of the Code is to be invoked sparingly – Only when fairjustice is in peril, a plea for transfer might be considered – TheCourt, however, will have to be fully satisfied that impartial trial isnot possible – Equally important is to verify that the apprehensionof not getting a level playing field, is based on some credible materialEand not just conjectures and surmises – Further, while consideringa plea for transfer, the convenience of parties would be a relevantconsideration – In the instant case, the petitioner failed todemonstrate that because of what he endured, it is not possible forthe Courts in the State to dispense justice objectively and withoutFany bias – The petitioner was involved in several cases in the Stateof Uttrakhand and it is difficult to accept that justice for the petitionercan only be ensured by transfer of three cases mentioned in thepetitions – When relative convenience and difficulties of all theparties involved in the process are taken into account, the petitionerhas again failed to make out a credible case for transfer of trial toGalternative venues outside the State – Further, when the nature ofthree cases are examined, it is seen that two of the cases are propertyand Will related matters – One of this case is pending for last overa decade – Therefore, this Court finds it difficult to accept that thecases are on account of journalistic activities of the petitioner – InHfact credibility of the journalistic activity of the petitioner is itself questioned, by a member of his sting operation team, in the thirdcase – In such circumstances, the prosecution in the concerned threecases can’t prima facie be said to be on account of maliciousprosecution.

Dismissing the transfer petitions, the Court HELD:1. The legal enunciations make it amply clear thattransfer power under section 406 of the Code is to be invokedsparingly. Only when fair justice is in peril, a plea for transfermight be considered. The court however will have to be fullysatisfied that impartial trial is not possible. Equally important isto verify that the apprehension of not getting a level playing field,is based on some credible material and not just conjectures andsurmises. [Para 20][270-G; 271-A]

2. While assurance of a fair trial needs to be respected, theplea for transfer of case should not be entertained on mereapprehension of a hyper sensitive person. In his pleadings andarguments, the petitioner in my assessment has failed todemonstrate that because of what he endured in 2018, it is notpossible for the courts in the state to dispense justice objectivelyand without any bias. It can’t also be overlooked that the petitioneris involved in several cases and this year itself has generatedfew on his own in the state of Uttarakhand. Therefore, it is difficultto accept that justice for the petitioner can only be ensured bytransfer of three cases mentioned in these petitions. [Para 21][271-B-C]

3. While considering a plea for transfer, the convenience ofparties would be a relevant consideration. It can’t just be theconvenience of the petitioner but also of the Complainant, theWitnesses, the Prosecution besides the larger issue of trial beingconducted under the jurisdictional Court. When relativeconvenience and difficulties of all the parties involved in theprocess are taken into account, it is clear that the petitioner hasfailed to make out a credible case for transfer of trial to alternativevenues outside the State. [Para 22][271-C-D]

4. When the nature of the three cases are examined, it isseen that two of the cases are property and Will related matters.One of this case is pending for last over a decade. Therefore, A

BC

DE

F

G

H

Athis court finds it difficult to accept that the cases are on accountof journalistic activities of the petitioner. In fact the credibility ofthe journalistic activity of the petitioner is itself questioned, by amember of his sting operation team, in the third case. In suchcircumstances, the prosecution in the concerned three cases can’tprima facie be said to be on account of malicious prosecution.B[Para 24][271-F-H]

Sidhartha Vashisht v. State (NCT of Delhi) (2010) 6 SCC1 : [2010] 4 SCR 103; Maneka Sanjay Gandhi v. RaniJethmalani (1979) 4 SCC 167 : [1979] 2 SCR 378;Abdul Nazar Madan v. State of T.N. & Anr. (2000) 6CSCC 204 : [2000] 3 SCR 1028; R. Balakrishna Pillaiv. State of Kerala (2000) 7 SCC 129 : [2000] 3 Suppl.SCR 26; Captain Amrinder Singh v. Prakash SinghBadal & Ors. (2009) 6 SCC 260 : [2009] 9 SCR 194;Nahar Singh Yadav & Others v. Union of India & Ors.D(2011) 1 SCC 307 : [2010] 13 SCR 851; Harita SunilParab v. State (NCT of Delhi) & Ors. (2018) 6 SCC358 : [2018] 3 SCR 732 – relied on.

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Transfer Petition(Criminal) Nos.534-536 of 2019.G

Petitions filed u/s.406 of the CrPC, 1973 read with Order XXXIXfor Transfer of Case No. 207 of 2007, Case Crime No. 2208 of 2019and Case Crime No. 3588 of 2019.

Kapil Sibal, Anupam Lal Das, Sr. Advs, Arunabh Chowdhury,Ankur Chawla, Adit Subramanian Poojary, Jayant Mohan, Ms. RuchiraH

Gupta, Kuldeep Parihar, Jaswant Singh Rawat, Vikas Singh Negi,Ms. Ikshita Parihar. Ms. Pallavi Langar, Anirudh, R. K. Mohit Gupta,Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Ms. NeenaShukla, Advs. for the appearing parties.

The Judgment of the Court was delivered by HRISHIKESH ROY, J.

1. The present petitions are filed under Section 406 of theCode of Criminal Procedure, 1973 (for short “the CrPC”) read withOrder XXXIX of the Supreme Court Rules seeking transfer of threecriminal cases pending before different courts in Dehradun to competentcourts in Delhi by or some other courts outside the State of Uttarakhand.

2. Mr. Kapil Sibal, the learned Senior Counsel submits that thepetitioner apprehends threat to his life and will be prejudiced in conductinghis defense in the courts at Dehradun. The basic premise for suchapprehension is that on account of his work as an investigative journalistagainst the Ruling dispensation, the State is targeting the petitioner forvindictive prosecution. It is pointed out that as a journalist the petitionerhas conducted sting operations against the Chief Minister, his relativesand associates in the State of Uttarakhand and therefore he is beingtargeted for malicious prosecution within the State. Moreover, besidesthe three cases for which transfer is sought, many false cases are foistedagainst the petitioner. As such, the petitioner has a genuine and justifiableapprehension that justice will not be done if the trials are conducted inthe courts within the State of Uttarakhand. Therefore, those cases betransferred either to the courts in Delhi or to any other competent courts,out of Uttarakhand.

3. Representing the State of Uttarakhand, Ms. Ruchira Gupta,the learned counsel however submits that the petitioner has failed todemonstrate how and in what manner, he will be prejudiced if the trialscontinue in the courts at Dehradun. According to her, the effort of thepetitioner is filed only to delay the proceedings. Since investigation in allthree cases are concluded and charge sheet has been filed, theapprehension of interference in the cases by the State administration iscontended to be wholly unfounded. The government counsel then refersto the large number of witnesses in the cases to point out that all of themare residents of the State of Uttarakhand and therefore it will be whollyirrational to transfer the trials only on the basis of unsubstantiated A

B

C

D

E

F

G

H

Aapprehension by the accused. Rebutting the contention that the petitioner’slife is endangered within the State of Uttarakhand, Ms Ruchira Gupta,the learned government counsel submits that these petitions are confinedto only three cases whereas the petitioner is accused in several othercases pending in the State. Moreover, he has himself filed five PILs inthe year 2020 itself in the High Court of Uttarakhand and this demonstratesBthat the petitioner is conducting his affairs without any impediment. Thegovernment advocate then submits that the transfer of criminal casesshould be rare and exception since it impacts the credibility of the Courtsin Uttarakhand. Ms. Gupta submits that some of the criminal cases againstthe petitioner have been closed and the charges of extortion have beenCdropped. This according to the learned government counsel would clearlydemonstrate the unbiased approach of the State Government and theincorrect and bald allegation made by the petitioner.

4. Representing the Complainant (Ayush Gaur) in the FIR No.100/2018, Mr. Arvind Kumar Shukla, learned counsel points out that his clientDduring his service with the petitioner learned that the petitioner is usingthe cover of journalism to grab property inasmuch as none of the so-called sting operations carried out by the petitioner has led to prosecutionof anyone in the State of Uttarakhand. The counsel submits that in mostof the 29 cases pending against the petitioner, the primary charge isgrabbing of property, and accordingly, the counsel argues that theEpetitioner has put forth a non-bonafide plea, in order to delay the trialagainst him.

5. Insofar as the FIR No. 100/2018 is concerned, the Complainant’slawyer points out that although the so called investigation and stingoperations were carried out, the petitioner never had any intention ofFactually exposing corruption in high places. The sting operationscommenced in January 2018, but there was no attempt made by thepetitioner to telecast the video recordings and only then Complainantrealized that the video footage collected with secret camera will be usedby the petitioner to blackmail people. That is why on 10.08.2018, theGComplainant who was one of the team members under the accused,was constrained to file the FIR to expose the nefarious design of thepetitioner. The counsel then argues that the petitioner has failed to indicateas to how the trial would be prejudiced if they are to be conducted in thecourts at Dehradun.

H

6. Mr. Anupam Lal Das, the learned Counsel appearing for theco-accused in the FIR No.100/2018, however, joins the petitioner inseeking transfer of the said criminal case from the Courts in Uttarakhand.

7. Before proceeding any further, it would be appropriate to referto the list of cases pending against the petitioner. Out of those cases, 17cases relate to the State of Uttarakhand, 4 cases are from the State ofUttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases arefrom Delhi out of which one is under investigation of the CBI, and anotherone at Ranchi, Jharkhand.

8. Whether those cases are without merit or otherwise, can bedetermined only through trial. However, the numbers do suggest that thepetitioner is not an ordinary person. It is also important to note that theState has withdrawn prosecution in many cases filed against the petitioner.

9. We also notice that one of the FIR that is being sought to betransferred i.e. FIR No.16/2007 was filed long back in 2007, when thepresent ruling dispensation in the State of Uttarakhand, was nowhere inpicture. The contents of the allegations in the FIR No.16/2007 (registeredon 9.2.2007) relates to a property dispute involving the Will (dated20.1.1995), of a family member of the petitioner.

10. The next FIR No.128/2018 (registered on 01.11.2018) relatesto forcible land grabbing attempts, on the basis of purportedly fake ofdocuments.

11. Perhaps only the FIR 100/2018 (dated 10.08.2018) is relatableto journalistic activity where the allegation of a core member of theinvestigative journalism team is that the petitioner in the guise of stingoperation (by video recording activities of powerful elements), does notair them and the concerned footages are utilized for extraneous purposes.

12. Let us now examine the arguments of the petitioner’s counselabout the petitioner being targeted for malicious prosecution. Todemonstrate this aspect the learned senior counsel refers to the pro-active steps taken by the public prosecutor to arrest the petitioner byrepeatedly approaching the magistrate and then the High Court. Whetherthe public prosecutor followed the legal process or it was a case ofoverenthusiasm is an issue, which may not be very relevant for thepurpose of these transfer petitions. This is because the incident happenednearly two years back when the FIR 100/2018 was first registered.More importantly the charge sheet is already filed and the case is AB

C

D

E

F

GH

Ascheduled to go for trial in the Dehradun Court. Therefore, the role ofthe State will now be limited to prove the prosecution case before theTrial Court. In such Court controlled proceeding, the prosecution willhave to marshal their evidence which is to be evaluated by the PresidingOfficer of the concerned Court. Therefore, the apprehension of maliciousprosecution because of the steps taken by the public prosecutor againstBthe petitioner in 2018, is not acceptable. I may also add that our courtsare capable of deciding cases on the merits of the evidence.

13. On the above aspect the following ratio will have a bearing.In Sidhartha Vashisht vs. State (NCT of Delhi)[1], Justice P. Sathasivam,as he then was, while writing for the Division Bench discussed the roleCof public prosecutor and conducting of investigation and his observationsin the present case, will be apposite.

“187. Therefore, a Public Prosecutor has wider set of duties thanto merely ensure that the accused is punished, the duties of ensuringfair play in the proceedings, all relevant facts are brought beforeDthe court in order for the determination of truth and justice for allthe parties including the victims. It must be noted that these dutiesdo not allow the Prosecutor to be lax in any of his duties as against the accused……………………………………………

198…………………………The law in relation to investigationEof offences and rights of an accused, in our country, has developedwith the passage of time. On the one hand, power is vested in theinvestigating officer to conduct the investigation freely andtransparently. Even the courts do not normally have the right tointerfere with the investigation. It exclusively falls in the domainFof the investigating agency. In exceptional cases the High Courtshave monitored the investigation but again within a very limitedscope. There, on the other a duty is cast upon the Prosecutor toensure that rights of an accused are not infringed and he gets afair chance to put forward his defence so as to ensure that aguilty does not go scot-free while an innocent is not punished.GEven in the might of the State the rights of an accused cannot beundermined, he must be tried in consonance with the provisionsof the constitutional mandate. The cumulative effect of thisconstitutional philosophy is that both the courts and the investigating UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND[HRISHIKESH ROY, J.]

agency should operate in their own independent fields whileensuring adherence to basic rule of law.”

14. In Maneka Sanjay Gandhi vs. Rani Jethmalani[2], for thethree Judge Bench, Justice V.R. Krishna Iyer enunciated the law ontransfer under Section 406 CrPC with the following observation: - “2. Assurance of a fair trial is the first imperative of the dispensationof justice and the central criterion for the court to consider whena motion for transfer is made is not the hypersensitivity or relativeconvenience of a party or easy availability of legal services or likemini-grievances. Something more substantial, more compelling,more imperilling, from the point of view of public justice and itsattendant environment, is necessitous if the Court is to exerciseits power of transfer. This is the cardinal principle although thecircumstances may be myriad and vary from case to case. Wehave to test the petitioner’s grounds on this touchstone bearing inmind the rule that normally the complainant has the right to chooseany court having jurisdiction and the accused cannot dictate when-the case against him should be tried. Even so, the process ofjustice should not harass the parties and from that angle the courtmay weigh the circumstances.

3. One of the common circumstances alleged in applications fortransfer is the avoidance of substantial prejudice to a party orwitnesses on account of logistics or like factors, especially whenan alternative venue will not seriously handicap the complainantand will mitigate the serious difficulties of the accused. In thepresent case the petitioner claims that both the parties reside inDelhi and some formal witnesses belong to Delhi; but the meat ofthe matter, in a case of defamation is something different. Themain witnesses are those who speak to having read the offendingmatter and other relevant circumstances flowing therefrom. Theybelong to Bombay in this case and the suggestion of the petitioner’scounsel that Delhi readers may be substitute witnesses and thecomplainant may content herself with examining such persons istoo presumptuous for serious consideration.”

A

B

C

D

EF

G

H

A15. In Abdul Nazar Madan vs. State of T.N. & Anr.[3], JusticeR.P. Sethi speaking for the Division Bench discussed the scope of powerunder Section 406 CrPC and observed:-

“7. The purpose of the criminal trial is to dispense fair and impartialjustice uninfluenced by extraneous considerations. When it isBshown that public confidence in the fairness of a trial would beseriously undermined, any party can seek the transfer of a casewithin the State under Section 407 and anywhere in the countryunder Section 406 CrPC. The apprehension of not getting a fairand impartial inquiry or trial is required to be reasonable and notimaginary, based upon conjectures and surmises. If it appearsCthat the dispensation of criminal justice is not possible impartiallyand objectively and without any bias, before any court or even atany place, the appropriate court may transfer the case to anothercourt where it feels that holding of fair and proper trial is conducive.No universal or hard and fast rules can be prescribed for decidingDa transfer petition which has always to be decided on the basis ofthe facts of each case. Convenience of the parties including thewitnesses to be produced at the trial is also a relevant considerationfor deciding the transfer petition. The convenience of the partiesdoes not necessarily mean the convenience of the petitioners alonewho approached the court on misconceived notions ofEapprehension. Convenience for the purposes of transfer meansthe convenience of the prosecution, other accused, the witnessesand the larger interest of the society.”

16. In R. Balakrishna Pillai vs. State of Kerala[4], Justice M.B.Shah in another case for transfer under Section 406 CrPC, made theFfollowing pertinent observation:- “9. ……. we would further state that in this country there iscomplete separation of the judiciary from the executive and Judgesare not influenced in any manner either by the propaganda oradverse publicity. Cases are decided on the basis of the evidenceGavailable on record and the law applicable. Granting suchapplication and transferring the appeal from the High Court ofKerala to the High Court of Karnataka would result in castingunjustified aspersion on the Court having jurisdiction to decide the 3 (2000) 6 SCC 204H4 (2000) 7 SCC 129

appeal on the assumption that its judicial verdict is consciously orsubconsciously affected by the popular frenzy, official wrath oradverse publicity, which is not the position qua the judicialadministration in this country. We would also mention that at thetime of hearing the learned counsel has not raised this contention.

17. In Captain Amrinder Singh Vs. Prakash Singh Badal &Ors.[5], Justice P. Sathasivam, as he then was, speaking for the threejudge Bench, on the issue of transfer of criminal cases, observed asfollows: - “48. The analysis of all the materials, the transfer of the case assought for, at this stage, is not only against the interest of prosecutionbut also against the interest of the other accused persons, theprosecution witnesses and the convenience of all concerned inthe matter.

**** **** **** ****

**** **** **** ****

51. We have already pointed out that a mere allegation that thereis an apprehension that justice will not be done in a given casealone does not suffice. Considering the totality of all thecircumstances, we are of the opinion that in a secular, democraticGovernment, governed by the rule of law, the State of Punjab isresponsible for ensuring free, fair and impartial trial to the accused,notwithstanding the nature of the accusations made against them.In the case on hand, the apprehension entertained by the petitionerscannot be construed as reasonable one and the case cannot betransferred on a mere allegation that there is apprehension thatjustice will not be done.”

18. Let us now examine another precedent on transfer of criminalcases. In Nahar Singh Yadav & Others vs. Union of India & Ors.[6],Justice D.K. Jain writing for the three Judge Bench discussed the scopeof transfer under Section 406 CrPC in the following terms: - “22. It is, however, the trite law that power under Section 406CrPC has to be construed strictly and is to be exercised sparinglyand with great circumspection. It needs little emphasis that a prayer 5 (2009) 6 SCC 260

6 (2011) 1 SCC 307

A

B

C

D

E

F

G

H

Afor transfer should be allowed only when there is a well-substantiated apprehension that justice will not be dispensedimpartially, objectively and without any bias. In the absence ofany material demonstrating such apprehension, this Court will notentertain application for transfer of a trial, as any transfer of trialfrom one State to another implicitly reflects upon the credibility ofBnot only the entire State judiciary but also the prosecuting agency,which would include the Public Prosecutors as well.”

19. On the same line is the decision in Harita Sunil Parab vs.State (NCT of Delhi) & ors[7], where Justice Navin Sinha, enunciatedthe law on transfer jurisdiction in the following terms:-C

“8. The apprehension of not getting a fair and impartial enquiry ortrial is required to be reasonable and not imaginary, based uponconjectures and surmises. No universal or hard-and-fast rule canbe prescribed for deciding a transfer petition, which will alwayshave to be decided on the facts of each case. Convenience of aDparty may be one of the relevant considerations but cannot overrideall other considerations such as the availability of witnessesexclusively at the original place, making it virtually impossible tocontinue with the trial at the place of transfer, and progress ofwhich would naturally be impeded for that reason at the transferredEplace of trial. The convenience of the parties does not mean theconvenience of the petitioner alone who approaches the court onmisconceived notions of apprehension. Convenience for thepurposes of transfer means the convenience of the prosecution,other accused, the witnesses and the larger interest of the society.The charge-sheet in FIR No. 351 of 2016 reveals that of the 40Fwitnesses, the petitioner alone is from Mumbai, two are fromGhaziabad, and one is from Noida. The charge-sheet of FIR No.1742 of 2016 is not on record. A reasonable presumption can bedrawn that the position would be similar in the same also.”

20. The above legal enunciations make it amply clear that transferGpower under Section 406 of the Code is to be invoked sparingly. Onlywhen fair justice is in peril, a plea for transfer might be considered. Thecourt however will have to be fully satisfied that impartial trial is notpossible. Equally important is to verify that the apprehension of not getting H7 (2018) 6 SCC 358

a level playing field, is based on some credible material and not justconjectures and surmises.

21. While assurance of a fair trial needs to be respected, the pleafor transfer of case should not be entertained on mere apprehension ofa hyper sensitive person. In his pleadings and arguments, the petitionerin my assessment has failed to demonstrate that because of what heendured in 2018, it is not possible for the courts in the state to dispensejustice objectively and without any bias. It can’t also be overlooked thatthe petitioner is involved in several cases and this year itself has generatedfew on his own in the state of Uttarakhand. Therefore, it is difficult toaccept that justice for the petitioner can only be ensured by transfer ofthree cases mentioned in these petitions.

22. While considering a plea for transfer, the convenience ofparties would be a relevant consideration. It can’t just be the convenienceof the petitioner but also of the Complainant, the Witnesses, theProsecution besides the larger issue of trial being conducted under thejurisdictional Court. When relative convenience and difficulties of all theparties involved in the process are taken into account, it is clear that thepetitioner has failed to make out a credible case for transfer of trial toalternative venues outside the State.

23. The learned senior counsel for the petitioner made it clear thatthe petitioner is not pointing any fingers towards the courts and hisapprehension is based only on the action taken by the State. The transferof trials from one state to another would inevitably reflect on the credibilityof the State’s judiciary and but for compelling factors and clear situationof deprivation of fair justice, the transfer power should not be invoked.This case is not perceived to be one of those exceptional categories.

24. When the nature of the three cases are examined, it is seenthat two of the cases are property and Will related matters. One of thiscase is pending for last over a decade. Therefore, this court finds itdifficult to accept that the cases are on account of journalistic activitiesof the petitioner. In fact the credibility of the journalistic activity of thepetitioner is itself questioned, by a member of his sting operation team, inthe third case. In such circumstances, the prosecution in the concernedthree cases can’t prima facie be said to be on account of maliciousprosecution.

AB

C

D

E

F

G

H

A25. In view of the forgoing, these Transfer Petitions are dismissed.However, it is made clear that the observations in this judgment is onlyfor disposal of these petitions and should have no bearing for any otherpurpose.

B

Ankit Gyan

Transfer petitions dismissed.

C

D

E

F

G

H