CALCUTTA STATE TRANSPORT CORPORATION & ORS. versus ASHIT CHAKRABORTY & ORS. on 8 May 2023

1. The order dated 5.3.2021 passed in F.M.A. No. 692 of 2019 bythe Division Bench of the High Court at Calcutta has been challengedEbefore this Court wherein order dated 17.8.2018 passed by the SingleBench 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 aConductor with the appellant Corporation. At that time there was nopension scheme in force, only Contributory Provident Fund Scheme wasFapplicable. In 1991, in exercise of powers conferred under Section 45 ofthe Road Transport Corporation Act, 1950, the Corporation, with theprevious sanction of the State Government, framed The Calcutta StateTransport Corporation Employees’ Service (Death cum RetirementBenefits) Regulations, 1990 (for short, “the 1990 Regulations”). Theaforesaid Regulations came into force with retrospective effect fromG1.4.1984. The 1990 Regulations mandated that in order to get the benefitof the said scheme, existing employees of the Corporation will have tosubmit written option within six months from the date of publication ofthe 1990 Regulations expressing their willingness to switch over to thesaid pension scheme instead of maintaining their status as C.P.F. holder.HThe 1990 Regulations also provided that it shall be optional to the existing

employees, however, it shall be binding upon the new entrants on andafter 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 Corporationand he retired on 31.7.2017. On his retirement the respondent no. 1 waspaid 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 respondentno.1, he made a representation on 8.5.2018. As his claim was notconsidered, he filed writ petition, which was allowed by the Single Judgevide order dated 17.8.2018. The operative part of the order reads asunder:

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

So far as the arrear pension is concerned, i.e. from August, 2018to July 2018, the respondents are directed to liquidate the same inthree equal monthly instalments, the first of which shall be paid bySeptember 15, 2018. The arrear of pension shall carry an interest@ 6% per annum to be evenly distributed in three instalments. Incase 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. TheDivision Bench of the High Court upheld the order passed by the SingleBench.

4. Learned counsel for the appellant submitted that no doubt therespondent no.1 submitted his option in 1991 for the pension scheme interms of the 1990 Regulations. However, thereafter repeated conductof 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 AB

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Ait. 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. 1submitted that the requirement under the 1990 Regulations was to submitan option within the prescribed time. The respondent no.1 had submittedBhis option for availing the pension scheme. Thereafter, it was the duty ofthe employer, namely, the appellant to have properly calculated his salaryand the deductions required to be made therefrom under different heads.In case any error was committed by the Corporation, he should not bemade to suffer on that account. Whatever amount was paid to therespondent no.1 on his retirement, he accepted the same consideringCthat the same may be due on his retirement. He did not know that theCorporation will not pay pension to him and some other amount hasbeen paid in excess. It was the fault of the Corporation only. It is onlyafter the retirement of respondent no.1 that he came to know that thepension was not being paid to him. As the representation made by himDwas not considered, he had to approach the High Court. There is noerror in the orders passed by the Single Judge and Division Bench of theHigh Court. Equities have been balanced. The amount, which was notdue to the respondent no.1, has been directed to be refunded to theappellant Corporation along with interest and same interest is requiredto be paid to him on release of arrears of pension. In fact, when theErespondent no.1 approached the High Court and the writ petition wasallowed, it was immediately after his retirement. However, theCorporation has wasted about five years’ time in avoidable litigation anddeprived the respondent no.1 of his rightful claim.

6. Heard learned counsel for the parties and perused the paperFbook.

7. The undisputed facts are that the respondent no.1 wasappointed in the Corporation as conductor on 6.7.1981. The 1990Regulations were framed providing for pension scheme for the employees,which was effective from 1.4.1984. In terms thereof, the existingGemployees were to give an option to avail benefit under the 1990Regulations. Prior to this Contributory Pension Scheme was in force. Itis not in dispute that the respondent no.1 had submitted his option withintime. 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 paidHto him for which he had exercised the option. He filed a representation on 8.5.2018. No action was taken thereon. Hence, he filed writ petitionbefore the High Court.

8. Initially the stand taken before the Single Judge was that therespondent 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 backin the year 1991 immediately after the 1990 Regulations were notified.The claim of the respondent no.1 was sought to be defeated on theground that even after exercising the option, contribution was beingdeducted from his salary in terms of the membership in the CPF schemeto which he never objected. Further, the plea was sought to be raisedthat there are large number of similarly situated employees who willraise this claim.

9. However, the aforesaid arguments were not found to bemeritorious, hence rejected by the High Court. It was found that theCorporation was at fault in not acting upon the option exercised by therespondent no.1. Finally, direction was given to the respondent no.1 torefund the employer share of provident fund as well as the amount ofgratuity paid in excess to the Corporation along with interest @ 6% perannum within two weeks. On receipt of the amount, the Corporationwas directed to release the pension within two weeks from August 2018onwards. As far as arrears of pension from August 2017 to July 2018was concerned, direction was given to liquidate the same in three equalmonthly instalments from September 15, 2018 onwards. The arrearswere also to carry interest @ 6% per annum. The amount was to betransferred in the bank account of respondent no.1. Despite the legallysustainable and equitable order passed by the learned Single Judge, theCorporation filed intra-court appeal. Vide order dated 25.6.2019, theDivision Bench stayed the operation of the order passed by the learnedSingle Judge. On consideration of the application filed by the respondentno.1 for vacation of the interim stay, the appeal itself was heard anddecided finally vide impugned judgment. The only argument raised beforethe Division Bench was regarding waiver. However, the same was notaccepted. This principle could be applied in case there was consciousabandonment of existing legal right.

10. We do not find any merit in the same argument raised by thecounsel for the appellant as was rejected by the High Court, namely, thewaiver of the right to receive pension by the respondent no.1. There AB

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Awas no conscious abandonment of right to receive pension by therespondent no.1 to deprive him of his pension. Reference can be madeto judgment of this Court in Kalpraj Dharamshi and Another v. KotakInvestment Advisors Limited and Another[1]. Relevant para 119 thereofis extracted below:- B“119. For considering, as to whether a party has waived its rightsor not, it will be relevant to consider the conduct of a party. Forestablishing waiver, it will have to be established, that a partyexpressly or by its conduct acted in a manner, which is inconsistentwith the continuance of its rights. However, the mere acts ofindulgence will not amount to waiver. A party claiming waiverCwould also not be entitled to claim the benefit of waiver, unless ithas altered its position in reliance on the same.”

11. It is not in dispute that the respondent no.1 had exercised hisright to receive pension under the 1990 Regulations in the year 1991.Thereafter, it was the duty of the Corporation to have given effect to theDsame. Merely because there were some wrong deductions from hissalary and he was treated as member of the CPF Scheme, cannot bepermitted to be raised as a ground to defeat his rightful claim. The pensionwas to start after retirement of the respondent. When the same was notreleased to him, immediately representation was made by him. As noEresponse was received from the appellant, the writ petition was filed.The argument that there are number of similarly situated employeeswho will also stake their claims, will not deter this Court in granting therelief to the respondent, which is legitimately due to him. Rather thisargument shows that the Corporation was at fault in implementing the1990 Regulations in the cases of number of employees though theseFwere notified on 4.1.1991 and were given retrospective effect from1.4.1984. Technical objections are sought to be raised, which are nottenable. For any fault on the part of the Corporation, the employeescannot be made to suffer.

12. We do not find any error in the orders passed by the HighGCourt. The appeal is accordingly dismissed.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal dismissed.

H1 (2021) 10 SCC 401