CALCUTTA STATE TRANSPORT CORPORATION & ORS.versusASHIT CHAKRABORTY & ORS.

                        [2023] 6 S.C.R. 203                             203


  CALCUTTA STATE TRANSPORT CORPORATION & ORS.                           A
                                 v.
                ASHIT CHAKRABORTY & ORS.
                  (Civil Appeal No. 3462 of 2023)
                           MAY 8, 2023                                  B
        [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Calcutta State Transport Corporation Employees’ Service
(Death cum Retirement Benefits) Regulations, 1990 – Respondent
no.1 was appointed in the Corporation as conductor in 1981 when
                                                                        C
there was no pension scheme in force, only Contributory Provident
Fund (CPF) Scheme was applicable – The 1990 Regulations were
framed in 1991 providing for pension scheme for the employees,
effective from 01.04.1984 – Existing employees were to give an
option to avail benefit under the 1990 Regulations – Respondent
no.1 submitted his option within time – He sought voluntary             D
retirement in 2017 – Apart from certain retiral benefits, no pension
was paid to him – Representation made by Respondent no.1, not
considered – Filed writ petition, allowed by the Single Judge – Order
upheld by Division Bench – Held: No merit in the argument raised
by the appellant regarding the waiver of the right to receive pension
                                                                        E
by the Respondent no.1 – There was no conscious abandonment of
right to receive pension by the respondent no.1 to deprive him of
his pension – Respondent no.1 exercised his right to receive pension
under the 1990 Regulations in the year 1991 – Thereafter, it was
the duty of the Corporation to have given effect to the same – Merely
because there were some wrong deductions from his salary and he         F
was treated as member of the CPF Scheme, cannot be a ground to
defeat his rightful claim – Corporation was at fault in implementing
the 1990 Regulations in the cases of number of employees though
these were notified on 04.01.1991 and were given retrospective
effect from 01.04.1984 – For any fault on the part of the
                                                                        G
Corporation, the employees cannot be made to suffer – No error in
the orders passed by the High Court– Road Transport Corporation
Act, 1950–s.45.
      Kalpraj Dharamshi and Another v. Kotak Investment
      Advisors Limited and Another (2021) 10 SCC 401 –
      referred to.                                                      H
                             203
204             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A                              Case Law Reference
      (2021) 10 SCC 401                  referred to               Para 10
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3462
      of 2023.
B           From the Judgment and Order dated 05.03.2021 of the High Court
      at Calcutta in FMA No. 692 of 2019.
            Sanjay R Hegde, Sr. Adv., Adeel Ahmed, Raja Chatterjee, Piyush
      Sachdev, Aditya Pathak, Md Sharuk Ali, Raghav Gupta, Advs. for the
      Appellants.
C          Subhashish Bhowmick, Manas Kumar Ghos, Ms. Susmita Dey,
      Ms. Manisha Pandey, Rahul Kushwaha, John Thomas Arakal, Ms. Mani
      Mala Roy, Harsh Gupta, H. K. Naik, Ms. Tanvi Singh, Bhanu Mishra,
      Ms. Astha Sharma, Advs. for the Respondents.
            The Judgment of the Court was delivered by
D
            RAJESH BINDAL, J.
            Leave granted.
            1. The order dated 5.3.2021 passed in F.M.A. No. 692 of 2019 by
      the Division Bench of the High Court at Calcutta has been challenged
E     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 was no
      pension scheme in force, only Contributory Provident Fund Scheme was
F     applicable. In 1991, in exercise of powers conferred under Section 45 of
      the Road Transport Corporation Act, 1950, the Corporation, with the
      previous sanction of the State Government, framed The Calcutta State
      Transport Corporation Employees’ Service (Death cum Retirement
      Benefits) Regulations, 1990 (for short, “the 1990 Regulations”). The
      aforesaid Regulations came into force with retrospective effect from
G     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.
H     The 1990 Regulations also provided that it shall be optional to the existing
       CALCUTTA STATE TRANSPORT CORPORATION                                    205
       v. ASHIT CHAKRABORTY [RAJESH BINDAL, J.]

employees, however, it shall be binding upon the new entrants on and           A
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/-         B
towards gratuity, ` 2,58,012/- towards VRS Compensation and a sum of
` 2,409/- towards leave salary. As no pension was paid to the respondent
no.1, he made a representation on 8.5.2018. As his claim was not
considered, he filed writ petition, which was allowed by the Single Judge
vide order dated 17.8.2018. The operative part of the order reads as
under:                                                                         C

      “I direct the petitioner to refund the employer’s share of the
      provident fund as well as the amount of gratuity paid in excess of
      the pensionable amount to the Corporation with interest @ 6%
      per annum within a period of two weeks. Upon receipt of such
      payment, the respondents shall release the pension in favour of          D
      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      E
      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-     F
      up calculation for each monthly instalment.”
      The order was challenged by the Corporation in appeal. The
Division Bench of the High Court upheld the order passed by the Single
Bench.
       4. Learned counsel for the appellant submitted that no doubt the        G
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
                                                                               H
206             SUPREME COURT REPORTS                         [2023] 6 S.C.R.


A     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
B     his option for availing the pension scheme. Thereafter, it was the duty of
      the employer, namely, the appellant to have properly calculated his salary
      and the deductions required to be made therefrom under different heads.
      In case any error was committed by the Corporation, he should not be
      made to suffer on that account. Whatever amount was paid to the
      respondent no.1 on his retirement, he accepted the same considering
C     that the same may be due on his retirement. He did not know that the
      Corporation will not pay pension to him and some other amount has
      been paid in excess. It was the fault of the Corporation only. It is only
      after the retirement of respondent no.1 that he came to know that the
      pension was not being paid to him. As the representation made by him
D     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 the
      appellant Corporation along with interest and same interest is required
      to be paid to him on release of arrears of pension. In fact, when the
E     respondent no.1 approached the High Court and the writ petition was
      allowed, it was immediately after his retirement. However, the
      Corporation has wasted about five years’ time in avoidable litigation and
      deprived the respondent no.1 of his rightful claim.
              6. Heard learned counsel for the parties and perused the paper
F     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
G     employees were to give an option to avail benefit under the 1990
      Regulations. Prior to this Contributory Pension Scheme was in force. It
      is not in dispute that the respondent no.1 had submitted his option within
      time. He sought voluntary retirement on 21.7.2017, w.e.f. 31.07.2017.
      Certain retiral benefits were paid to him, however, no pension was paid
H     to him for which he had exercised the option. He filed a representation
       CALCUTTA STATE TRANSPORT CORPORATION                                 207
       v. ASHIT CHAKRABORTY [RAJESH BINDAL, J.]

on 8.5.2018. No action was taken thereon. Hence, he filed writ petition     A
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     B
in the year 1991 immediately after the 1990 Regulations were notified.
The claim of the respondent no.1 was sought to be defeated on the
ground that even after exercising the option, contribution was being
deducted from his salary in terms of the membership in the CPF scheme
to which he never objected. Further, the plea was sought to be raised
that there are large number of similarly situated employees who will        C
raise this claim.
       9. However, the aforesaid arguments were not found to be
meritorious, hence rejected by the High Court. It was found that the
Corporation was at fault in not acting upon the option exercised by the
respondent no.1. Finally, direction was given to the respondent no.1 to     D
refund the employer share of provident fund as well as the amount of
gratuity paid in excess to the Corporation along with interest @ 6% per
annum within two weeks. On receipt of the amount, the Corporation
was directed to release the pension within two weeks from August 2018
onwards. As far as arrears of pension from August 2017 to July 2018         E
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       F
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          G
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. There        H
208               SUPREME COURT REPORTS                          [2023] 6 S.C.R.


A     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:-
B              “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
C              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 year 1991.
      Thereafter, it was the duty of the Corporation to have given effect to the
D     same. Merely because there were some wrong deductions from his
      salary and he was treated as member of the CPF Scheme, cannot be
      permitted to be raised as a ground to defeat his rightful claim. The pension
      was to start after retirement of the respondent. When the same was not
      released to him, immediately representation was made by him. As no
E     response was received from the appellant, the writ petition was filed.
      The argument that there are number of similarly situated employees
      who will also stake their claims, will not deter this Court in granting the
      relief to the respondent, which is legitimately due to him. Rather this
      argument shows that the Corporation was at fault in implementing the
      1990 Regulations in the cases of number of employees though these
F     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 High
G     Court. The appeal is accordingly dismissed.

      Divya Pandey                                                  Appeal dismissed.
      (Assisted by : Roopanshi Virang, LCRA)

      1
H         (2021) 10 SCC 401