Supreme Court of India
RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERSversusGOVERDHAN LAL SONI AND ANR.
- Citation
- 2020 INSC 539
- Decided
- 9 September 2020
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
Only the employee’s contribution to the GPF and the employer’s contribution to the pension fund, as transferred by the Provident Fund Commissioner, are required; no additional capital amount is due, and the appellant must grant the pension.
Summary
The Rajasthan State Road Transport Corporation (RSRTC) absorbed surplus employees of the now‑defunct Rajasthan State Agro Industries Corporation (RSAIC) and offered them a choice between the CPF scheme and the RSRTC pension scheme. Respondent Goverdhan Lal Soni opted for the pension scheme, and the employee and employer contributions were transferred to the RSRTC by the Regional Provident Fund Commissioner. RSRTC later claimed that a "capital amount" from RSAIC was required to honor the pension, which RSAIC denied. The Supreme Court examined Regulation 43 of the RSRTC Employees’ Pension Regulations, 1989 and Circular dated 02.07.1991, holding that only the employee’s contribution to the GPF and the employer’s contribution to the pension fund need be transferred; no additional capital sum is mandated. Consequently, the Court found no justification for RSRTC’s refusal to grant pension and affirmed the High Court’s order. The appeals were dismissed, directing RSRTC to credit the transferred amounts and sanction the pension without interest.
Issues considered
- The appellant corporation’s claim that a capital amount from the erstwhile employer is required for pension eligibility.
- Whether the respondent is entitled to pension under RSRTC Employees’ Pension Regulations, 1989 after absorption.
- Interpretation of Regulation 43 and Circular 02.07.1991 clause 11(b) regarding the transfer of funds.
- Whether the High Court erred in allowing the respondent’s pension claim.
Legislation cited
Subjects
pensionabsorption of employeescontributory provident fundemployer contributionRegulation 43Circular 02.07.1991capital amountRSRTC
Judgment
238 [2020]REPORTS
SUPREME COURT 10 S.C.R. 238 [2020] 10 S.C.R.
A RAJASTHAN STATE ROAD TRANSPORT
CORPORATION 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 Corporation
Employees Pension Regulations, 1989 – The State Government
C
closed the Rajasthan State Agro Industries Corporation Limited and
declared all its employees as surplus – The surplus employees were
absorbed in different Corporations – The State issued a circular on
02.07.1991 containing guidelines for absorption of surplus
employees – The respondent no. 1 was absorbed in appellant-
D Rajasthan State Road Transport Corporation – The respondent was
given an option to opt for either CPF scheme or the GPF and pension
scheme – The respondent opted for the pension scheme under
Regulations, 1989 – Pursuant to the option opted by the respondent
no. 1, the appellant-Corporation directed for transfer of amount –
The contribution of employees as well as contribution of employer
E
deposited with the Provident Fund Commissioner was transferred
to the appellant-Corporation – However, the Rajasthan Agro
Industries Corporation Limited informed that pension scheme being
not applicable in Agro Industries Corporation, capital value, amount
in regard to absorbed employee is not due to the appellant-
F Corporation – Respondent filed writ petition – The High Court held
that respondent-writ petitioner was entitled to get pension – In
another civil appeal, the other respondent after absorption also
gave an option for opting for GPF and pension scheme – Not being
given the benefit of GPF and pension, writ petition was filed by him
– The writ petition was allowed – Both the appeals having raised
G
similar issues are before the Supreme Court – Held: The regulation
43 of the Regulations, 1989 makes it clear that except those
employees who have opted for continuing to CPF, employer’s share
shall be transferred to the appellant-Corporation Pension Fund
and the employees share with interest shall be transferred to
H
238
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 239
GOVERDHAN LAL SONI
appellant-Corporation GPF Fund – For the employees who were A
entitled to grant of pension there is mention of only two funds that
is pension fund and GPF fund – The employer’s share was to be
transferred to Pension Fund and employee’s share shall be
transferred to GPF Fund – Further, clause 11(b) of circular dated
02.07.1991 makes it clear that when the respondent was absorbed
B
in appellant-Corporation the balance in CPF Account of the surplus
employees would be transferred in GPF Account and the Pension
Fund respectively – Since, the Certificate issued by the Regional
Provident Fund Commissioner makes it clear that the contribution
of employee and employer was transferred to the appellant-
Corporation – Thus, it was the obligation of the appellant- C
Corporation to credit the amount in Pension fund and GPF fund –
Neither Regulations, 1989 nor circular dated 02.07.1991 refers to
any capital amount – There was no obligation of erstwhile employer
of the respondent to transfer any capital amount – Neither any such
capital amount was contemplated by 1989 Regulations or by scheme
D
of absorption dated 02.07.1991 – There was no justifiable ground
for the appellant for not sanctioning the claim of Pension of the
respondent after his retirement – Therefore, the High Court did not
commit any error in allowing the claim of the respondent for pension.
Dismissing the appeals, the Court
E
HELD: 1. The contention which has been pressed by the
counsel for the appellant before this Court is that there was no
transfer of capital amount of the erstwhile employer of respondent.
The counsel for the appellant has relied and refer to the letter
dated 18.09.1998 issued by the Rajasthan State Agro Industries
Corporation Limited. This has been brought on record as F
Annexure-P/1. A perusal of Annexure-P/1 indicates that appellant-
Rajasthan State Road Transport Corporation by letter dated
29.07.1998 requested the Rajasthan State Agro Industries
Corporation Limited for transferring capital value amount in
regard to the respondent. The erstwhile employer of the G
respondent informed the appellant that capital value amount in
regard to the absorbed employees is not due to the appellant-
Corporation. The appellant was informed that contribution of
Provident Fund amount is deposited in the account of
Commissioner, Provident Fund, Government of India which can
H
240 SUPREME COURT REPORTS [2020] 10 S.C.R.
A be got transferred. The question to be answered is as to whether
apart from transfer of employee’s contribution and employer’s
contribution deposited in the account of Commissioner, Provident
Fund, there is any other amount which required to be transferred
to the appellant for the purpose of making the respondent eligible
for the benefit of pension. Regulation 43 of the Rajasthan State
B
Road Transport Pension Regulations, 1989 is the provision of
transfer of Pension Fund by Corporation. The Regulation makes
it clear that except those employees who have opted for continuing
to CPF, employer’s share shall be transferred to the appellant-
Corporation Pension Fund and the employees share with interest
C shall be transferred to appellant-Corporation GPF Fund. For the
employees who were entitled to grant of pension there is mention
of only two Funds that is Pension Fund and GPF Fund. The
employer’s share was to be transferred to Pension Fund and
employee’s share shall be transferred to GPF Fund. Clause 11
sub-clause (b) of Circular dated 02.07.1991 also refers to only
D
two accounts i.e. GPF Account and Pension Fund. As per clause
11(b) in an Enterprise having pension scheme, the balance in
CPF Account of surplus employees would be transferred to
absorbing Enterprise for credit to the GPF Account of the
employees and the Pension Fund in proportion of employees own
E subscription and organisation’s contribution respectively. Thus,
employee’s contribution shall go to the GPF Account and
employer’s proportion should be credited to the Pension Fund.
Clause 11(b) makes it clear that when the respondent was
absorbed in appellant-Corporation, the balance in CPF Account
of the surplus employees would be transferred in GPF Account
F
and the Pension Fund respectively. The certificate issued by the
Regional Provident Fund Commissioner which has been filed at
Annexure R-8 makes it clear that contribution of employee
Rs.92504/- and contribution of employer Rs.101282/- have been
transferred to the appellant-Corporation which was the amount
G credited with Regional Provident Fund Commissioner. The entire
amount having been transferred to the appellant-Corporation it
was the obligation of the appellant-Corporation to credit the
aforesaid amount in respect of Pension Fund and GPF Fund.
Neither Regulations, 1989 nor Circular dated 02.07.1991 refers
to any capital amount. There was no obligation of erstwhile
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 241
GOVERDHAN LAL SONI
employer of the respondent to transfer any capital amount. A
Neither any such capital amount was contemplated by 1989
Regulations or by Scheme of absorption dated 02.07.1991. The
Circular dated 02.07.1991 is in conformity with the Regulations,
1989 and a reading of Regulation 43 of Regulations 1989 as well
as Circular dated 02.07.1991 makes it abundantly clear that for
B
benefit of Pension Scheme what was required to be transferred
by the erstwhile employer was the employees contribution which
was to get transferred into the GPF Account and the employer’s
contribution to be credited in the Pension Fund. Nothing more
was required to be done by the respondent or erstwhile employer
for fulfilling any condition or statutory requirement with regard C
to the respondent’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 aforesaid amounts and thereafter continues to
deposit 10% in the Pension Fund and after retirement calculates
D
the 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 appellant
also does not refer to any sum as a capital amount which needs to
be transferred to the appellant for making employee eligible for
Pension. The circular dated 09.02.1999 filed by the appellant as E
Annexure-P/2 does refer to capital amount but it relies on
notification dated 12.02.1997 specifically on Clause 2(vi). Clause
2(vi) of notification dated 12.02.1997 does not refer to any capital
amount. Thus, the statement in Circular dated 09.02.1999 that
only upon receipt of capital amount from Rajasthan State Agro F
Industries Corporation Limited employees were entitled to get
benefit of Corporation Pension is unfounded and without any basis.
Clause 2(vi) contemplates that those employees who give their
option under Employee Pension Scheme, 1989 their deducted
Provident Fund Contribution amount of earlier service on
receiving back from P.F. Commissioner Office by their employer G
will be forwarded to Corporation. This Court has already noticed
that both employee’s contribution and employer’s contribution
which were deposited with Provident Fund Commissioner Office
was transferred to Corporation. Thus, what was contemplated by
Clause 2(vi) of notification dated 12.02.1997 was complied with. H
[Para 39][255-E-H]
242 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 3. This Court is satisfied that there was no justifiable ground
for the appellant for not sanctioning the claim of pension of the
respondent after his retirement. [Para 40][256-A]
Pepsu Road Transport Corporation, Patiala versus
Mangal Singh and Others (2011) 11 SCC 702 : [2011]
B 6 SCR 564 – relied on.
Mahaveer Prasad Jain v. Jaipur Vidhyut Vitran Nigam
Ltd. (SB Civil Writ Petition No. 3116 of 2004); Jaipur
Vidhyut Vitran Nigam Ltd. through its Chairman and
Anr. v. Mahaveer Prasad Jain 2008 (2) WLN 337 –
C referred to.
Case Law Reference
[2011] 6 SCR 564 relied on Para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1789
D of 2020.
From the Judgment and Order dated 05.03.2018 of the High Court
of Judicature at Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ
No. 1799 of 2017.
With
E Civil Appeal No. 1812 of 2020
Dr. Ritu Bhardwaj, Sachin Mittal, P.B. Suresh, Vipin Nair, Karthik
Jayshankar, Rishabh Sancheti, K. Paari Vendhan, Advs. for the appearing
parties.
F The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed by Rajasthan Road Transport
Corporation and others (hereinafter referred to as Corporation)
challenging the judgments dated 05.03.2018 and 30.08.2018 respectively
G of the Division Bench of Rajasthan High Court dismissing the D.B.Special
Appeals filed by the appellants. Both the appeals having raised similar
issues it shall be sufficient to refer the facts and pleadings in Civil Appeal
No.1789 of 2020 for deciding both the appeals.
2. Goverdhan Lal Soni, the respondent No.1 was appointed as
H Junior Assistant on 02.04.1974 in Rajasthan State Agro Industries
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 243
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
Corporation Limited. The State Government closed the Rajasthan State A
Agro Industries Corporation Limited and declared all its employees as
Surplus. The State Government took a decision to absorb services of all
surplus employees in different Corporations. The Bureau of Public
Enterprises, Government of Rajasthan issued a Circular on 02.07.1991
containing guidelines of absorption of surplus employees in public
B
enterprises. The guidelines also contained provisions for various benefits
to be extended to the absorbed employees. The Respondent No.1 in
pursuance of Circular dated 02.07.1991 was absorbed by Rajasthan State
Road Transport Corporation vide order dated 03.10.1996. The
Corporation issued a notification dated 12.02.1997 in relation to the
absorbed employees laying down the procedure for the employees, who C
want 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 under
Rajasthan State Road Transport Pension Regulations, 1989. In Rajasthan
State Agro Industries Corporation Limited, the respondent No.1 was
governed by Contributory Provident Fund Scheme and the Pension D
Scheme was not applicable in Rajasthan State Agro Industries Corporation
Limited. The Corporation on 29.07.1997 noticing that the respondent
No.1 after coming to the service of Corporation has given option of
Pension directed for transfer of amount deposited in Provident Fund
Account and family pension so that same can be deposited in the account
of General Provident Fund as well as pension fund. E
4. Rajasthan Agro Industries Corporation Limited wrote a letter
dated 18.08.1998 to Financial Advisor of the Corporation referring to a
letter of the corporation dated 29.07.1998 informing that Pension being
not applicable in Agro Industries Corporation, Capital Value, amount in
regard to absorbed employee is not due to corporation. The letter F
mentioned that in the Agro Industries Corporation, Provident Fund
Scheme was applied in which regard contribution of Provident Fund is
deposited in office of Commissioner, Provident Fund, Government of
India, which amount can be transferred at the level of Corporation.
Regional Provident Fund Commissioner transferred the contribution of G
Employees as well as contribution of Employer deposited with the
Provident Fund Commissioner to the Corporation. Certificate of account
transfer was issued transferring the aforesaid amount to the corporation.
5. A circular dated 09.02.1999 was issued by the corporation
referring to earlier circular dated 12.02.1997 mentioning that those H
244 SUPREME COURT REPORTS [2020] 10 S.C.R.
A employees who produce their option letter to get benefit of Rajasthan
State Road Transport Corporation Employees Corporation Pension
Regulations, 1989, only upon receipt of capital amount from Rajasthan
State Agro Industries Corporation Limited, they shall be entitled to get
benefit of Corporation Pension.
B 6. The respondent, who had joined the corporation on 10.10.1996,
wrote a letter dated 06.07.2010 to the Finance Advisor and Chief Accounts
Officer of the Corporation praying for approval of pension. Letter also
mentioned that in compliance of letter of Chief Manager dated 19.02.1997,
CPF amount has been received by Corporation. The respondent No.1
sent several reminders with regard to approval of his pension. The
C respondent was superannuated on 30.06.2012. A writ petition No. 8847
of 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 the
Respondents to consider the case of petitioner for extending
D the benefits of the GPF and Pension Scheme of 1989 in the
light of the condition No.11(b) of the Circular dated
02.07.1991 by taking note of his option form for the same.
(ii) Hon’ble High Court may kindly quash and set aside the
circular dated 09.02.1999 (Annexure-8) issued in the garb
E of Notification dated 12.02.1997.
(iii) Hon’ble High Court may kindly direct the respondent to
grant pension to the petitioner if petitioner gets retired during
the pendency of the writ petition.”
F 7. Learned Single Judge of the High Court by judgment dated
05.07.2017 after noticing the submission of writ petition as well as the
corporation, held that writ petitioner had already opted for Pension, his
case cannot be distinguished from an earlier judgment of High Court
dated 24.05.2007, Mahaveer Prasad Jain Versus Jaipur Vidhyut
Vitran Nigam Ltd. SB Civil Writ Petition No. 3116 of 2004. Learned
G Single Judge allowed the writ petition directing that writ petitioner be
treated to be entitled to get pension, however, the same would be subject
to petitioner returning the amount under the CPF Scheme. The appellant
aggrieved by the judgment of learned Single Judge filed D.B.Special
Appeal(writ) No.1799 of 2017 before the Division Bench which appeal
was dismissed on 05.03.2018. This appeal has been filed challenging the
H
judgment of the Division Bench dated 05.03.2018.
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 245
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
8. In Civil Appeal No.1812 of 2020, the respondent Mangla Ram A
Aanwala was also initially appointed in Rajasthan State Agro Industries
Corporation Limited and in pursuance of circular dated 02.07.1991, he
was also absorbed in the corporation by order dated 03.10.1996 on the
post of Junior Accountant. Respondent also gave an option on 25.02.1997
for opting for GPF and Pension Scheme. On 30.06.2012, the respondent
B
also attained the age of Superannuation. Not being given the benefit of
GPF and Pension, S.B.Civil Writ Petition No.8100 of 2017 was filed by
the respondent which was allowed by learned Single Judge on 29.11.2007
in terms of judgment of the learned Single Judge in writ petition of
Goverdhan Lal Soni(Supra). The appellant filed Special Appeal Writ
No.1314 of 2018 which has been dismissed on 30.08.2018 against which C
Civil Appeal No.1812 of 2020 has been filed.
9. We have heard Mrs. Ritu Bhardwaj for the appellant and Shri
Rishabh Sancheti and Shri P.B.Suresh for the respondents.
10. Learned Counsel for the appellant submits that respondent
was absorbed from Rajasthan State Agro Industries Corporation Limited D
where Pension Scheme was not applicable and the respondent was
governed only by Contributory Provident Fund (CPF) Scheme. It is
submitted that the absorption of Employees in Rajasthan State Road
Transport Corporation was on the terms and conditions as laid down in
circular dated 02.07.1991 of Bureau of Public Enterprises, Government E
of Rajasthan. The Agro Industries Corporation from where the
respondent had come on absorption in Rajasthan State Road Transport
Corporation was covered only by CPF Scheme, hence, for availing the
benefits of Pension Scheme the former Organization of the respondent
was liable to transfer not only the balance in CPF Account but Pension
Fund in proportion of Employees own subscription and Organization’s F
contribution respectively.
11. The Rajasthan State Agro Industries Corporation Limited vide
letter dated 18.08.1998 having refused to transfer the capital value amount
regarding absorbed employee, the conditions under para 11(b) of Circular
dated 02.07.1991 were not fulfilled and the corporation cannot undertake G
the liability of payment of pension.
12. It is submitted that on retirement of the respondent, entire
benefit under the CPF Scheme as well as Gratuity of Rs.10 Lakhs and
other benefits were taken by the respondent. It is submitted that
respondent is already getting the pension from Employees Provident H
246 SUPREME COURT REPORTS [2020] 10 S.C.R.
A Fund Organization. The respondent has also availed the benefit of Loan
of amount of more than Rs.18 Lakhs from the Corporation which was
possible only due to the reason that the respondent was member of CPF
Scheme and he can avail loan out of contribution of the employees as
well as the contribution of the Employer.
B 13. It is further submitted that both learned Single Judge and
Division Bench had not adverted to mandatory conditions as given in
paragraph 11(b) and without recording any satisfaction and finding that
the mandatory condition has been fulfilled, direction has been issued for
grant of Pension. The respondent who has already availed the benefit
under CPF Scheme cannot be directed to given the benefit of Pension
C which shall amount to extending the double benefits.
14. Learned counsel appearing for the respondents in both the
appeals have refuted the submission of the counsel for the appellant and
submits that the entire contribution of the respondent which was credited
were transferred by the Regional Provident Fund Commissioner with
D regard to which a certificate of account transfer has also been issued by
Regional Provident Fund Commissioner which has been brought along
with the counter Affidavit filed on behalf of respondent No.1, Goverdhan
Lal Soni. Regional Provident Fund Commissioner having transferred the
entire amount to the corporation, nothing more was due to be transferred.
E 15. The respondent has exercised the option of Pension benefit
within the period prescribed i.e. before 31.03.1997. The case of the
respondent was fully covered by the judgment of the Rajasthan High
Court dated 05.07.2017 in Mahaveer Prasad Jain’s Case. He submits
that the judgment of learned Single Judge dated 05.07.2017 was also
F affirmed by the Division Bench vide judgment dated 19.12.2007 in Jaipur
Vidhyut Vitran Nigam Ltd. through its Chairman versus Mahaveer
Prasad Jain, which appeal was dismissed on 19.12.2007.
16. It is submitted that Special Leave Petition against the Division
Bench judgment dated 19.12.2007 has also been dismissed by this Court
G vide 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 of
absorption from Rajasthan State Agro Industries Corporation Limited
into Rajasthan State Electricity Board (Jaipur Vidhyut Vitran Nigam Ltd.).
17. The notification dated 12.02.1997 laid down procedure to be
adopted in relation to absorbed employees. Subsequent circular dated
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 247
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
09.02.1999 informing that only on transfer of Capital amount from the A
concerned department benefit of Pension can be extended was not
applicable on the respondent No.1 since he was already covered by
1991 circular and has exercised his option on 22.03.1997 with regard to
receiving of payment under GPF Scheme as well as Gratuity. With regard
to Pension under CPF Scheme it is submitted that the said pension has
B
been accepted since the respondent had no option. The gratuity amount
was paid directly in account of the respondent.
18. It is further submitted that both the Rajasthan State Agro
Industries Corporation Limited as well as Rajasthan State Road Transport
Corporation are two arms of the Government and it was the State
responsibility to ensure that the respondent No.1 could have received C
the Pension in pursuance of his option exercised on 22.03.1997.
19. Learned counsel for the parties have relied on several
judgments of this Court and Rajasthan High Court which shall be referred
to while considering the submission in detail.
D
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 Agro
Industries Corporation who were declared surplus after the
Agro Industries Corporation was closed. E
ii) Bureau of Enterprises issued guidelines dated 02.07.1991 for
absorption of surplus employees of the State Public Enterprises.
The guidelines enumerated the benefits and mechanism for
receiving the benefits by the absorbed employees.
iii) that by order dated 03.10.1997, the respondents were F
absorbed in Rajasthan State Road Transport Corporation. The
respondents while working under the Rajasthan State Agro
Industries Corporation Limited were covered by only CPF
Scheme.
iv) Both Employees and Employer’s contributions towards the G
Provident Fund were deposited with the Regional Provident
Fund Commissioner. The Regional Provident Fund
Commissioner transferred both Employees contribution of
Provident Fund as well as Employer’s contribution of
Provident Fund to the Rajasthan State Road Transport
H
248 SUPREME COURT REPORTS [2020] 10 S.C.R.
A Corporation and certificate of account transfer was also issued
by office of Regional Provident Fund Commissioner, certifying
the above said transfer. After the absorption, respondent opted
for the Pension Scheme within the prescribed period i.e.
31.03.1997.
B v) The respondent in Rajasthan State Road Transport Corporation
were continued in the CPF Scheme and the contribution of
the Employees and Employers were deposited and after
retirement of the respondent, the entire amount accumulated
has been paid to the respondent with gratuity and other benefits.
C 21. The corporation has both CPF and Pension Scheme. The
Pension Scheme which is applicable in the Corporation is Rajasthan
State Road Transport Corporation Employees’ Pension Regulations 1989.
Regulation 3 of the Regulations, 1989 provides for exercise of option by
the existing regular employees for pensionary and gratuity benefits.
Bureau of Public Enterprises, Government of Rajasthan, had issued
D guidelines dated 02.07.1991 under which surplus employees of State
Public Enterprises were to be absorbed in other Public Enterprises.
22. Before we enter into the submissions raised by the counsel of
the parties it is necessary to notice the relevant statutory Regulations
applicable in the RSRTC and the Circular dated 02.07.1991 by which
E Bureau of Public Enterprises, State Enterprises Department, Government
of Rajasthan issued terms and conditions for absorption of surplus
employees of State Public Enterprises. The Rajasthan State Road
Transport Corporation Employees Pension Regulations, 1989 have been
framed in exercise of power under Section 45 of the Road Transport
F Corporation Act, 1950. Regulation 3(l) defines ‘option’ which is to the
following effect:
“3(l) “Option” means a written consent of the existing regular
employee for pensionary and gratuity benefits alongwith the
adoption of the General Provident Fund Regulations 1989 or to
G continue as member of the existing CPF scheme covered under
the BPF Act, 1952 within a period of 90 days from the date of
publication of RSRTC Pension Regulations. Any existing employee
who does not exercise the option within specified period of 90
days shall be deemed to have exercised option in favour of the
Pension & CPF Regulations.”
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 249
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
23. Regulation 3(k) has defined “existing employee” as meaning A
‘an employee who is in service of the Corporation as on 01.04.1989’.
The option under Regulation 3(l) was contemplated from existing
employee.
24. Several employees including the respondent who became
surplus in their earlier employment were absorbed by Rajasthan State B
Road Transport Corporation vide order dated 03.10.1996. The
Corporation issued a notification dated 12.02.1997 with regard to 30
employees who had come from Rajasthan State Agro Industries
Corporation Limited, out of whom some employees wanted to take
benefit of Contribution Provident Fund and some employees wanted to
take benefit of Corporation Pension Scheme. The notification contained C
necessary instructions with regard to the above. Learned counsel for
the appellant has relied and referred to Clause 2(vi) of the notification
which is relevant with regard to the respondent. Clause 2(vi) is as follows:
“2(vi) Those employees who give their option under Employee
Pension Scheme, 1989, their deducted Provident Fund D
Contribution amount of earlier service on receiving back
from P.F. Commissioner office by their employer will be
forwarded to Corporation as per instructions given by
R.S.R.T. Corporation about pension, gratuity, P.F. and Leave
encashment etc. For receiving the above contribution after
editing by Accounts Department (Establishment), Head E
Office, this amount will be received. After receiving amount,
concerned amount of pension to Manager (Pension) and
concerned 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 Corporation F
asked for option from employees who were absorbed in the Corporation
to give their option. As noted above, the option under Regulation 3(l)
was to be taken from the ‘existing employees’ but after absorption of
employees in the Corporation from Rajasthan State Agro Industries
Corporation Limited, the Corporation adopted same statutory mode with
G
regard to the absorbed employees as per statutory scheme. Hence, option
was asked from absorbed employees. The respondent gave option on
27.03.1997, i.e., before 31.03.1997 which was last date for option.
26. Another Regulation which needs to be noted is Regulation 43
of Regulations, 1989 which deals with transfer to pension fund by
Corporation. Regulation 43 is as follows: H
250 SUPREME COURT REPORTS [2020] 10 S.C.R.
A “43. TRANSFER TO PENSION FUND BY
CORPORATION
The Corporation shall transfer the pension contributions @
10% on the basic wages plus D.A. to the R.S.R.T.C. pension
Fund latest by 10th of succeeding month.
B The employer’s share with interest except for those existing
employees as on 01.04.1989, who have opted for continuing the
C.P.F. benefits shall be transferred to the R.S.R.T.C. Pension
Fund and the employee’s share with interest shall be transferred
to the R.S.R.T.C. GPF Fund.”
C 27. The second part of Regulation 43 as extracted above
contemplates transfer of employer’s share for existing employees who
have opted for Pension Fund and employees’ share with interest in the
G.P.F. Fund.
28. Clause 2(vi) of notification dated 12.02.1997 as extracted above
D is also in the same line as of Regulation 43.
29. The respondent having opted for pension, Regulation 43 read
with notification dated 12.02.1997 becomes relevant and applicable with
regard to the respondent.
30. Now, we come to the Circular dated 02.07.1991 issued by the
E
Bureau of Public Enterprises, Government of Rajasthan, which is the
guidelines for absorption of surplus employees of State Public Enterprises.
We had heard this appeal earlier and reserved the judgment. At the time
of preparation of judgment we found ambiguity in the record of the appeal
pertaining to correct wordings of clause 11(b) of Circular dated
F 02.07.1991. By our orders dated 29.07.2020 we directed both the parties
to bring on record correct clause 11(b) of Circular dated 02.07.1991. In
pursuance of our order dated 29.07.2020 both the parties have filed their
affidavits. In the affidavit filed in application I.A.No.76182 of 2020 filed
by the respondent, the copy of Circular dated 02.07.1991 has been brought
on record. At the time of hearing on 14.08.2020, learned counsel for the
G
petitioner has also not disputed the correctness of the copy of the Circular
dated 02.07.1991 as brought on the record by respondent. Clause 11 of
the Circular dated 02.07.1991 which is relevant for the present case
brought on record by I.A.No.76182 of 2020 is to the following effect:
“11. In case the surplus employees covered under CPF Scheme,
H on absorption:-
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 251
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
(a) In an enterprise having CPF Scheme, the balance in CPF A
account of the surplus employees shall be transferred to the
absorbing enterprise. On absorption the surplus employees would
be governed by CPF Scheme and rules of the absorbing enterprise.
(b) In an enterprise having pension scheme, the balance in CPF
Account of surplus employees would be transferred to absorbing B
enterprise for credit to the GPF Account of the employees and
the Pension Fund in proportion of employees own subscription
and organisation’s contribution respectively. The eligible period of
service rendered in relieving enterprise would be considered as
qualifying service under pension scheme of absorbing enterprise.”
C
31. The petitioner also filed affidavit on 14.08.2020 and has not
disputed the correctness of clause 11 as brought on record by the
respondent.
32. Both CPF and Pension Schemes are beneficial Schemes for
the employees which are of different nature. In a Contributory Provident D
Fund Scheme Employer makes matching contributions to the Employees
contribution and both are kept in separate account and on retirement of
employees both are released to the employee along with the interest.
The Pension is a periodic payment to the employee after the retirement
from the service by the Employer. Payment of Pension is made under
scheme floated by Employer. Pension Scheme contemplates a fund out E
of which the pension is payable to an employee. The payment of pension
is dependent on various considerations and conditions. This Court in
Pepsu Road Transport Corporation, Patiala versus Mangal Singh
and others, (2011) 11 SCC 702, while considering Pension Scheme
and contributory Provident Fund Scheme under Pepsu Road Transport F
Corporation Employees’ Pension/Gratuity and General Provident Fund
Regulations, 1992 made following observations in paragraph 34:-
“34. Pension is a retirement benefit partaking of the character
of regular payment to a person in consideration of the past
services rendered by him. We hasten to add that although G
pension is not a bounty but is claimable as a matter of right,
yet the right is not absolute or unconditional. The person
claiming pension must establish his entitlement to such pension
in law. The entitlement might be dependent upon various
considerations or conditions. In a given case, (sic whether)
the retired employee is entitled to pension or not depends on H
252 SUPREME COURT REPORTS [2020] 10 S.C.R.
A the provisions and interpretation of the rules and regulations.
The contributory provident fund appears to be a simple
mechanism where an employee is paid the total amount which
he has contributed along with the equal contribution made
by the employer ordinarily at the time of retirement of an
employee. In short, we quote what was repeatedly said by
B
this Court that “pension is payable periodically as long as
the pensioner is alive whereas CPF is paid only once on
retirement.” Therefore, conceptually, pension and CPF are
separate and distinct.”
33. Now reverting to the facts of the present case, we need to
C first consider as to what were the conditions which were to be fulfilled
by the respondent for receiving the pension. As noted above, paragraph
11(b) of guidelines dated 02.07.1991 was applicable in the present case
with which both the parties are in agreement. It is the case of both the
parties that it is clause 11(b) which is applicable in the case of the
D respondent.
34. Clause 11 begin with the words “in case surplus employees
were covered under CPF scheme on absorption;”- in an Enterprise having
Pension Scheme, (i) the balance in CPF account of surplus employee
will be transferred to absorbing Enterprise for credit of CPF account of
E the employee, and (ii) the pension fund in proportion of employees’ own
subscription and organization’s contribution respectively; (iii) the eligible
period of service rendered in relieving Enterprise would be considered
as qualifying service under Pension Scheme of absorbing Enterprise.
35. The circular dated 02.07.1991 provided for absorption from
F one State Public Enterprise to another Public Enterprise. All Public
Enterprises were not governed by common CPF and Pension Scheme,
for example, Rajasthan Agro Industries Corporation Limited did not have
a pension scheme for its employees whereas Rajasthan State Road
Transport Corporation ltd. has Pension Scheme. When an employee
who is governed by CPF Scheme in his erstwhile employment opts for
G CPF Scheme in absorbing Enterprise, the balance amount in CPF account
is transferred and the employees continue in CPF Scheme. There can
be two categories of surplus employees, one category may have in its
erstwhile Employment Pension Scheme and another category may have
only CPF Scheme. In a case where in erstwhile employment employee
H is governed by Pension Scheme and he opts for Pension Scheme in the
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 253
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
absorbing Enterprise, there is no difficulty in implementing of Pension A
Scheme since balance in CPF account as well as Pension Fund shall be
transferred in corresponding accounts in absorbing Enterprise.
36. In this context, we refer to Clause 12 of Circular dated
02.07.1991 which is to the following effect:
“(12)In case the surplus employees were covered by pension B
scheme, on absorption:-
(a)In an enterprise having pension scheme the relieving enterprise
would transfer the balance of GPF Account of the employee and
his share in the Pension Fund of the relieving organisation to the
absorbing organisation for credit to GPF Account and Pension C
Fund respectively.
(b)In an enterprise having CPF Scheme, the balance of GPF
Account and share in Pension Fund would be transferred to the
absorbing enterprise for credit to the CPF Account. On absorption,
the surplus employees would be governed by CPF Scheme and D
rules of the absorbing enterprise.”
37. The respondent in his earlier employment was covered by the
CPF Scheme and both employee’s contribution as well as employer’s
contribution were deposited in the Provident Fund. Alongwith affidavit
filed by the respondent in this appeal Certificate of Accounts Transfer, E
issued by the Regional Provident Fund Commissioner, Jaipur has been
brought on record. The total deposit of respondent No.1 with the Regional
Provident Fund Commissioner, Jaipur was (a) contribution of employee
Rs.92,504/-; (b) contribution of employer Rs.1,01282/-. Both the above
amounts were transferred to the Rajasthan Road State Transport F
Corporation after the respondent was absorbed in the Rajasthan State
Road Transport Corporation.
38. The contention which has been pressed by the learned counsel
for the appellant before us is that there was no transfer of capital amount
of the erstwhile employer of respondent. Learned counsel for the appellant
G
has relied and refer to the letter dated 18.09.1998 issued by the Rajasthan
State Agro Industries Corporation Limited. This has been brought on
record as Annexure-P/1. A perusal of Annexure-P/1 indicates that
Rajasthan State Road Transport Corporation by letter dated 29.07.1998
requested the Rajasthan State Agro Industries Corporation Limited for
transferring capital value amount in regard to the respondent. The H
254 SUPREME COURT REPORTS [2020] 10 S.C.R.
A erstwhile employer of the respondent informed the appellant that capital
value amount in regard to the absorbed employees is not due to the
Rajasthan State Road Transport Corporation. The appellant was informed
that contribution of Provident Fund amount is deposited in the account
of Commissioner, Provident Fund, Government of India which can be
got transferred. The question to be answered is as to whether apart
B
from transfer of employee’s contribution and employer’s contribution
deposited in the account of Commissioner, Provident Fund, there is any
other amount which required to be transferred to the appellant for the
purpose of making the respondent eligible for the benefit of pension.
Regulation 43 of the Regulations, 1989 is the provision of transfer of
C Pension Fund by Corporation. The Regulation makes it clear that except
those employees who have opted for continuing to CPF, employer’s
share shall be transferred to the Rajasthan State Road Transport
Corporation Pension Fund and the employees share with interest shall
be transferred to Rajasthan State Road Transport Corporation GPF Fund.
For the employees who were entitled to grant of pension there is mention
D
of only two Funds that is Pension Fund and GPF Fund. The employer’s
share was to be transferred to Pension Fund and employee’s share shall
be transferred to GPF Fund. Clause 11 sub-cause (b) of Circular dated
02.07.1991 also refers to only two accounts i.e. GPF Account and Pension
Fund. As per clause 11(b) in an Enterprise having pension scheme, the
E balance in CPF Account of surplus employees would be transferred to
absorbing Enterprise for credit to the GPF Account of the employees
and the Pension Fund in proportion of employees own subscription and
organisation’s contribution respectively. Thus, employee’s contribution
shall go to the GPF Account and employer’s proportion should be credited
to the Pension Fund. Clause 11(b) makes it clear that when the respondent
F
was absorbed in Rajasthan State Road Transport Corporation, the balance
in CPF Account of the surplus employees would be transferred in GPF
Account and the Pension Fund respectively. The certificate issued by
the Regional Provident Fund Commissioner which has been filed
at Annexure R-8 makes it clear that contribution of employee
G Rs. 92504/- and contribution of employer Rs.101282/- have been
transferred to the Rajasthan State Road Transport Corporation which
was the amount credited with Regional Provident Fund Commissioner.
The entire amount having been transferred to the Rajasthan State Road
Transport Corporation it was the obligation of the Rajasthan State Road
Transport Corporation to credit the aforesaid amount in respect of Pension
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 255
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
Fund and GPF Fund. Neither Regulations, 1989 nor Circular dated A
02.07.1991 refers to any capital amount. There was no obligation of
erstwhile employer of the respondent to transfer any capital amount.
Neither any such capital amount was contemplated by 1989 Regulations
or by Scheme of absorption dated 02.07.1991. The Circular dated
02.07.1991 is in conformity with the Regulations, 1989 and a reading of
B
Regulation 43 of Regulations 1989 as well as Circular dated 02.07.1991
makes it abundantly clear that for benefit of Pension Scheme what was
required to be transferred by the erstwhile employer was the employees
contribution which was to get transferred into the GPF Account and the
employer’s contribution to be credited in the Pension Fund. Nothing more
was required to be done by the respondent or erstwhile employer for C
fulfilling any condition or statutory requirement with regard to the
respondent’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 aforesaid
amounts and thereafter continues to deposit 10% in the Pension Fund
D
and after retirement calculates the pension accordingly.
39. The notification dated 12.02.1997 specially Clause 2(vi) on
which reliance has been placed by the learned counsel for the appellant
also does not refer to any sum as a capital amount which needs to be
transferred to the appellant for making employee eligible for Pension.
The circular dated 09.02.1999 filed by the appellant as Annexure-P/2 E
does refer to capital amount but it relies on notification dated 12.02.1997
specifically on Clause 2(vi). Clause 2(vi) of notification dated 12.02.1997
does not refer to any capital amount. Thus, the statement in Circular
dated 09.02.1999 that only upon receipt of capital amount from Rajasthan
State Agro Industries Corporation Limited employees were entitled to F
get benefit of Corporation Pension is unfounded and without any basis.
Clause 2(vi) contemplates that those employees who give their option
under Employee Pension Scheme, 1989 their deducted Provident Fund
Contribution 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 and G
employer’s contribution which were deposited with Provident Fund
Commissioner Office was transferred to Corporation. Thus, what was
contemplated by Clause 2(vi) of notification dated 12.02.1997 was
complied with.
H
256 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 40. We are satisfied that there was no justifiable ground for the
appellant for not sanctioning the claim of pension of the respondent after
his retirement.
41. Learned counsel for the appellant has emphasized that the
respondent continued to receive pension under the CPF Scheme which
B fact has not been denied by the respondent. The respondent’s case was
that the said amount was accepted by the respondent since he had no
option his pension having not been sanctioned by the appellant. We are
of view that it was open for the Corporation-appellant while sanctioning
the pension to the respondent to deduct the amount of pension received
by him under CPF Scheme and the pension could have been accordingly
C fixed by reducing the pension amount already received by the respondent
which respondent was getting under CPF Scheme but that could not
have been a reason for denying pension to the respondent. The payment
of gratuity to the respondent was also made of Rs. 10 lakh which was
paid in the account of the respondent.
D 42. Learned Single Judge allowing the writ petition filed by the
respondent for grant of pension has put a condition that said entitlement
is subject to refund of the amount received by him under the CPF Scheme.
Learned Single Judge has also rightly directed that neither the appellant
nor the respondent shall be entitled for any interest meaning thereby that
E whatever amount was received by the respondent he was to refund it
without any interest accrued on it and whatsoever amount was to be
received by the respondent under his entitlement to pension he was not
to receive any interest. It is useful to refer to direction of the learned
Single Judge contained in paragraph 5 which is to the following effect:
F “5. In the circumstances, the writ petition is allowed. It is directed
that the petitioner shall be treated to be entitled to get pension.
However, the same would be subject to his returning/ refunding
the amount received by him under the CPF Scheme. In view of
the aforesaid direction, neither the petitioner nor the respondents
would be entitled to any interest. The exercise may be conducted
G by the respondents within fifteen days of the amount of CPF is
refunded/returned to them.”
43. Counsel for the respondent has placed reliance on the judgment
of Rajasthan High Court in the writ petition of Mahaveer Prasad Jain.
The Division Bench judgment of Rajasthan High Court in D.B. Special
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 257
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
Appeal(writ) No.1326 of 2007 decided on 19.12.2007 in Jaipur Vidhyut A
Vitran Nigam Ltd. through its Chairman and Anr. versus
Mahaveer Prasad Jain, reported in 2008 (2) WLN 337,need to be
noticed in some detail.
44. In the above case decided by the Division Bench the surplus
employee was an employee of Rajasthan State Agro Industries B
Corporation Limited who was absorbed in Jaipur Vidhyut Vitran Nigam.
The case of pension of the employee was allowed by the learned Single
Judge against which Special Appeal was filed against the judgment of
Learned Single Judge. The appellant accepted that respondent would be
governed 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 employee C
being not covered by Pension Scheme in his earlier employment, his
case is governed by clause 11 of Circular dated 02.07.1991. In paragraph
6 Rajasthan High court made the following observation:
“6. We now advert to the second contention. The counsel for the
appellant informed us that the Rajasthan State Electricity Board D
(as it then was) had both the Central Provident Fund Scheme as
well as Pension Scheme for its employees. According to the
counsel the employees of the Board were given option to either
opt for CPF Scheme or Pension Scheme. On the absorption of
the original petitioner (respondent No. 1 herein), his CPF Account E
was closed and instead GPF Account was opened by the Board
on 02.08.2001. Moreover he was asked to deposit employee’s
share of CPF amount which he did. A perusal of the paragraph 13
of the guidelines would show that it is in two parts. Clause (a)
thereof applies where the employee was covered under CPF
Scheme and absorbing enterprise also has CPF Scheme. Clause F
(a) provides that the balance in the CPF Account of surplus
employee shall be transferred to the absorbing enterprise and on
absorption the surplus employee would be governed by the CPF
Scheme and the rules of absorbing enterprise while Clause (b) of
Para 11 provides that where the absorbing enterprise is having G
CPF Scheme, the balance in the CPF account of the surplus
employees shall be transferred to the absorbing enterprise for
credit to the CPF Account of the employees and the Pension
Fund in proportion of employees and the pension fund in proportion
of the employees subscription and organisation’s contribution
H
258 SUPREME COURT REPORTS [2020] 10 S.C.R.
A respectively. It further provides that the eligible period of service
rendered in relieving enterprise would be considered as qualifying
service under pension scheme of absorbing enterprise. In view of
the admitted fact that the CPF account of the present respondent
was closed after he was absorbed in the RSEB and that he was
called upon to deposit employees’ share of CPF amount which he
B
did, it is apparent that the present appellants accepted that the
respondent would be governed by the pension scheme and that
his case is covered by Clause 11(b). In this view of the matter, the
rejection of the petitioner’s claim for pension was not legally proper.
Merely because the respondent No. 1 had withdrawn the entire
C CPF amount prior to his absorption would not make any difference
because the CPF account was closed by the Board on the
employee’s absorption.”
45. In the above case also the balance of C.P.F. amount was
deposited in absorbing organization even though in the said case the
D employee has withdrawn the entire C.P.F. amount prior to his absorption
in the subsequent employment. In the present case the respondent has
not withdrawn any amount and both the employees and employer
contributions were transferred to the Rajasthan State Road Transport
Corporation by Regional Provident Fund Commissioner. Against the
judgment of the Division Bench of the Rajasthan High Court dated
E 19.12.2007, Special Leave Petition (C)No.10904 of 2008 was also filed
by Jaipur Vidyut Vitran Nigam Ltd. which was dismissed by this Court
on 09.05.2008.
46. In view of the foregoing discussion, we are of the considered
opinion that respondent had made out a case for grant of pension by the
F appellant and both the learned Single Judge and the Division Bench did
not commit any error in allowing the claim of the respondent for pension.
47. The direction of learned Single Judge in paragraph 5 as stated
above amply protected the interest of the appellant.
G 48. We may also notice that the respondent, who attainted the
age of superannuation on 31.10.2012, immediately filed the writ petition
in the year 2012 itself being Writ Petition No.8847 of 2012 which writ
petition was entertained and direction was issued by the learned Single
Judge. No delay was caused by the respondent in approaching the High
Court for relief of Pension. Before filing the writ petition the respondent
H
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v. 259
GOVERDHAN LAL SONI [ASHOK BHUSHAN, J.]
has also sent representation in the year 2010 raising his claim for Pension A
which ought to have alerted the appellant to take appropriate steps.
49. There being an interim order passed by this Court on 13.08.2018
in this appeal, the impugned judgment of the High Court could not be
given effect by the appellant. Learned Single Judge while allowing the
writ petition of the respondent although directed the appellant to return B
the benefit received by him under the CPF Scheme but had not fixed
any time for deposit. In ends of justice we allow a period of two months
from this order to the respondent to refund the entire amount under the
C.P.F. Scheme including excess gratuity. On such deposit being made
by the respondent, the Rajasthan State Road Transport Corporation shall
sanction the pension to the respondent and take steps regarding payment C
of pension but without any interest thereon.
50. But looking to the facts of the present cases, to balance equities
between the parties ends of justice be served in directing the Corporation
to pay pension to the respondents only with effect from the date on
which deposit is made by respondents. The pension received by D
respondents under CPF Scheme shall be allowed to be retained by the
respondents. This means that the amount received as pension under the
CPF need not be given back by the respondents and the same shall not
be deducted when the pension is computed and paid by the appellant to
the respondents. Subject to above modifications in the impugned judgment E
of the High Court, we dismiss both the appeals.
Ankit Gyan Appeals dismissed.
F
G
H
260 [2020]REPORTS
SUPREME COURT 10 S.C.R. 260 [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 Court
Rules – Or. XXXIX – Transfer Petitions – Petitioner sought transfer
of three criminal cases pending before different Courts in Dehradun
C
to competent courts in Delhi or some other courts outside the State
of Uttarakhand – The petitioner apprehended threat to his life –
The basic premise for such apprehension was that on account of
his work as an investigative journalist against the Ruling
dispensation, the State was targeting the petitioner for vindictive
D prosecution – Held: It is established law that the transfer power
u/s. 406 of the Code is to be invoked sparingly – Only when fair
justice is in peril, a plea for transfer might be considered – The
Court, however, will have to be fully satisfied that impartial trial is
not possible – Equally important is to verify that the apprehension
of not getting a level playing field, is based on some credible material
E
and not just conjectures and surmises – Further, while considering
a plea for transfer, the convenience of parties would be a relevant
consideration – In the instant case, the petitioner failed to
demonstrate that because of what he endured, it is not possible for
the Courts in the State to dispense justice objectively and without
F any bias – The petitioner was involved in several cases in the State
of Uttrakhand and it is difficult to accept that justice for the petitioner
can only be ensured by transfer of three cases mentioned in the
petitions – When relative convenience and difficulties of all the
parties involved in the process are taken into account, the petitioner
has again failed to make out a credible case for transfer of trial to
G
alternative venues outside the State – Further, when the nature of
three cases are examined, it is seen that two of the cases are property
and Will related matters – One of this case is pending for last over
a decade – Therefore, this Court finds it difficult to accept that the
cases are on account of journalistic activities of the petitioner – In
H fact credibility of the journalistic activity of the petitioner is itself
260
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 261
questioned, by a member of his sting operation team, in the third A
case – In such circumstances, the prosecution in the concerned three
cases can’t prima facie be said to be on account of malicious
prosecution.
Dismissing the transfer petitions, the Court
HELD:1. The legal enunciations make it amply clear that B
transfer power under section 406 of the Code is to be invoked
sparingly. Only when fair justice is in peril, a plea for transfer
might be considered. The court however will have to be fully
satisfied that impartial trial is not possible. Equally important is
to verify that the apprehension of not getting a level playing field, C
is based on some credible material and not just conjectures and
surmises. [Para 20][270-G; 271-A]
2. While assurance of a fair trial needs to be respected, the
plea for transfer of case should not be entertained on mere
apprehension of a hyper sensitive person. In his pleadings and D
arguments, the petitioner in my assessment has failed to
demonstrate that because of what he endured in 2018, it is not
possible for the courts in the state to dispense justice objectively
and without any bias. It can’t also be overlooked that the petitioner
is involved in several cases and this year itself has generated
few on his own in the state of Uttarakhand. Therefore, it is difficult E
to accept that justice for the petitioner can only be ensured by
transfer of three cases mentioned in these petitions. [Para 21]
[271-B-C]
3. While considering a plea for transfer, the convenience of
parties would be a relevant consideration. It can’t just be the F
convenience of the petitioner but also of the Complainant, the
Witnesses, the Prosecution besides the larger issue of trial being
conducted under the jurisdictional Court. When relative
convenience and difficulties of all the parties involved in the
process are taken into account, it is clear that the petitioner has G
failed to make out a credible case for transfer of trial to alternative
venues outside the State. [Para 22][271-C-D]
4. When the nature of the three cases are examined, it is
seen that two of the cases are property and Will related matters.
One of this case is pending for last over a decade. Therefore,
H
262 SUPREME COURT REPORTS [2020] 10 S.C.R.
A this court finds it difficult to accept that the cases are on account
of journalistic activities of the petitioner. In fact the credibility of
the journalistic activity of the petitioner is itself questioned, by a
member of his sting operation team, in the third case. In such
circumstances, the prosecution in the concerned three cases can’t
prima 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 SCC
1 : [2010] 4 SCR 103; Maneka Sanjay Gandhi v. Rani
Jethmalani (1979) 4 SCC 167 : [1979] 2 SCR 378;
Abdul Nazar Madan v. State of T.N. & Anr. (2000) 6
C SCC 204 : [2000] 3 SCR 1028; R. Balakrishna Pillai
v. State of Kerala (2000) 7 SCC 129 : [2000] 3 Suppl.
SCR 26; Captain Amrinder Singh v. Prakash Singh
Badal & 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 Sunil
Parab v. State (NCT of Delhi) & Ors. (2018) 6 SCC
358 : [2018] 3 SCR 732 – relied on.
Case Law Reference
[2010] 4 SCR 103 relied on Para 13
E
[1979] 2 SCR 378 relied on Para 14
[2000] 3 SCR 1028 relied on Para 15
[2000] 3 Suppl. SCR 26 relied on Para 16
[2009] 9 SCR 194 relied on Para 17
F
[2010] 13 SCR 851 relied on Para 18
[2018] 3 SCR 732 relied on Para 19
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) Nos.534-536 of 2019.
G
Petitions filed u/s.406 of the CrPC, 1973 read with Order XXXIX
for Transfer of Case No. 207 of 2007, Case Crime No. 2208 of 2019
and Case Crime No. 3588 of 2019.
Kapil Sibal, Anupam Lal Das, Sr. Advs, Arunabh Chowdhury,
Ankur Chawla, Adit Subramanian Poojary, Jayant Mohan, Ms. Ruchira
H
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 263
Gupta, Kuldeep Parihar, Jaswant Singh Rawat, Vikas Singh Negi, A
Ms. Ikshita Parihar. Ms. Pallavi Langar, Anirudh, R. K. Mohit Gupta,
Arvind Kumar Shukla, Ms. Reetu Sharma, Nihal Ahmad, Ms. Neena
Shukla, Advs. for the appearing parties.
The Judgment of the Court was delivered by
HRISHIKESH ROY, J. B
1. The present petitions are filed under Section 406 of the
Code of Criminal Procedure, 1973 (for short “the CrPC”) read with
Order XXXIX of the Supreme Court Rules seeking transfer of three
criminal cases pending before different courts in Dehradun to competent
courts in Delhi by or some other courts outside the State of Uttarakhand. C
2. Mr. Kapil Sibal, the learned Senior Counsel submits that the
petitioner apprehends threat to his life and will be prejudiced in conducting
his defense in the courts at Dehradun. The basic premise for such
apprehension is that on account of his work as an investigative journalist
against the Ruling dispensation, the State is targeting the petitioner for D
vindictive prosecution. It is pointed out that as a journalist the petitioner
has conducted sting operations against the Chief Minister, his relatives
and associates in the State of Uttarakhand and therefore he is being
targeted for malicious prosecution within the State. Moreover, besides
the three cases for which transfer is sought, many false cases are foisted E
against the petitioner. As such, the petitioner has a genuine and justifiable
apprehension that justice will not be done if the trials are conducted in
the courts within the State of Uttarakhand. Therefore, those cases be
transferred either to the courts in Delhi or to any other competent courts,
out of Uttarakhand.
F
3. Representing the State of Uttarakhand, Ms. Ruchira Gupta,
the learned counsel however submits that the petitioner has failed to
demonstrate how and in what manner, he will be prejudiced if the trials
continue in the courts at Dehradun. According to her, the effort of the
petitioner is filed only to delay the proceedings. Since investigation in all
three cases are concluded and charge sheet has been filed, the G
apprehension of interference in the cases by the State administration is
contended to be wholly unfounded. The government counsel then refers
to the large number of witnesses in the cases to point out that all of them
are residents of the State of Uttarakhand and therefore it will be wholly
irrational to transfer the trials only on the basis of unsubstantiated
H
264 SUPREME COURT REPORTS [2020] 10 S.C.R.
A apprehension by the accused. Rebutting the contention that the petitioner’s
life is endangered within the State of Uttarakhand, Ms Ruchira Gupta,
the learned government counsel submits that these petitions are confined
to only three cases whereas the petitioner is accused in several other
cases pending in the State. Moreover, he has himself filed five PILs in
the year 2020 itself in the High Court of Uttarakhand and this demonstrates
B
that the petitioner is conducting his affairs without any impediment. The
government advocate then submits that the transfer of criminal cases
should be rare and exception since it impacts the credibility of the Courts
in Uttarakhand. Ms. Gupta submits that some of the criminal cases against
the petitioner have been closed and the charges of extortion have been
C dropped. This according to the learned government counsel would clearly
demonstrate the unbiased approach of the State Government and the
incorrect 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 client
D during his service with the petitioner learned that the petitioner is using
the cover of journalism to grab property inasmuch as none of the so-
called sting operations carried out by the petitioner has led to prosecution
of anyone in the State of Uttarakhand. The counsel submits that in most
of the 29 cases pending against the petitioner, the primary charge is
grabbing of property, and accordingly, the counsel argues that the
E petitioner has put forth a non-bonafide plea, in order to delay the trial
against him.
5. Insofar as the FIR No. 100/2018 is concerned, the Complainant’s
lawyer points out that although the so called investigation and sting
operations were carried out, the petitioner never had any intention of
F actually exposing corruption in high places. The sting operations
commenced in January 2018, but there was no attempt made by the
petitioner to telecast the video recordings and only then Complainant
realized that the video footage collected with secret camera will be used
by the petitioner to blackmail people. That is why on 10.08.2018, the
G Complainant who was one of the team members under the accused,
was constrained to file the FIR to expose the nefarious design of the
petitioner. The counsel then argues that the petitioner has failed to indicate
as to how the trial would be prejudiced if they are to be conducted in the
courts at Dehradun.
H
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 265
[HRISHIKESH ROY, J.]
6. Mr. Anupam Lal Das, the learned Counsel appearing for the A
co-accused in the FIR No.100/2018, however, joins the petitioner in
seeking transfer of the said criminal case from the Courts in Uttarakhand.
7. Before proceeding any further, it would be appropriate to refer
to the list of cases pending against the petitioner. Out of those cases, 17
cases relate to the State of Uttarakhand, 4 cases are from the State of B
Uttar Pradesh, 5 cases relate to the State of West Bengal, 2 cases are
from Delhi out of which one is under investigation of the CBI, and another
one at Ranchi, Jharkhand.
8. Whether those cases are without merit or otherwise, can be
determined only through trial. However, the numbers do suggest that the C
petitioner is not an ordinary person. It is also important to note that the
State has withdrawn prosecution in many cases filed against the petitioner.
9. We also notice that one of the FIR that is being sought to be
transferred i.e. FIR No.16/2007 was filed long back in 2007, when the
present ruling dispensation in the State of Uttarakhand, was nowhere in D
picture. The contents of the allegations in the FIR No.16/2007 (registered
on 9.2.2007) relates to a property dispute involving the Will (dated
20.1.1995), of a family member of the petitioner.
10. The next FIR No.128/2018 (registered on 01.11.2018) relates
to forcible land grabbing attempts, on the basis of purportedly fake of E
documents.
11. Perhaps only the FIR 100/2018 (dated 10.08.2018) is relatable
to journalistic activity where the allegation of a core member of the
investigative journalism team is that the petitioner in the guise of sting
operation (by video recording activities of powerful elements), does not F
air them and the concerned footages are utilized for extraneous purposes.
12. Let us now examine the arguments of the petitioner’s counsel
about the petitioner being targeted for malicious prosecution. To
demonstrate this aspect the learned senior counsel refers to the pro-
active steps taken by the public prosecutor to arrest the petitioner by
G
repeatedly approaching the magistrate and then the High Court. Whether
the public prosecutor followed the legal process or it was a case of
overenthusiasm is an issue, which may not be very relevant for the
purpose of these transfer petitions. This is because the incident happened
nearly two years back when the FIR 100/2018 was first registered.
More importantly the charge sheet is already filed and the case is H
266 SUPREME COURT REPORTS [2020] 10 S.C.R.
A scheduled to go for trial in the Dehradun Court. Therefore, the role of
the State will now be limited to prove the prosecution case before the
Trial Court. In such Court controlled proceeding, the prosecution will
have to marshal their evidence which is to be evaluated by the Presiding
Officer of the concerned Court. Therefore, the apprehension of malicious
prosecution because of the steps taken by the public prosecutor against
B
the petitioner in 2018, is not acceptable. I may also add that our courts
are 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 role
C of public prosecutor and conducting of investigation and his observations
in the present case, will be apposite.
“187. Therefore, a Public Prosecutor has wider set of duties than
to merely ensure that the accused is punished, the duties of ensuring
fair play in the proceedings, all relevant facts are brought before
D the court in order for the determination of truth and justice for all
the parties including the victims. It must be noted that these duties
do not allow the Prosecutor to be lax in any of his duties as against
the accused……………………………………………
198…………………………The law in relation to investigation
E of offences and rights of an accused, in our country, has developed
with the passage of time. On the one hand, power is vested in the
investigating officer to conduct the investigation freely and
transparently. Even the courts do not normally have the right to
interfere with the investigation. It exclusively falls in the domain
F of the investigating agency. In exceptional cases the High Courts
have monitored the investigation but again within a very limited
scope. There, on the other a duty is cast upon the Prosecutor to
ensure that rights of an accused are not infringed and he gets a
fair chance to put forward his defence so as to ensure that a
guilty does not go scot-free while an innocent is not punished.
G Even in the might of the State the rights of an accused cannot be
undermined, he must be tried in consonance with the provisions
of the constitutional mandate. The cumulative effect of this
constitutional philosophy is that both the courts and the investigating
1
H (2010) 6 SCC 1
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 267
[HRISHIKESH ROY, J.]
agency should operate in their own independent fields while A
ensuring adherence to basic rule of law.”
14. In Maneka Sanjay Gandhi vs. Rani Jethmalani2, for the
three Judge Bench, Justice V.R. Krishna Iyer enunciated the law on
transfer under Section 406 CrPC with the following observation: -
“2. Assurance of a fair trial is the first imperative of the dispensation B
of justice and the central criterion for the court to consider when
a motion for transfer is made is not the hypersensitivity or relative
convenience of a party or easy availability of legal services or like
mini-grievances. Something more substantial, more compelling,
more imperilling, from the point of view of public justice and its C
attendant environment, is necessitous if the Court is to exercise
its power of transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to case. We
have to test the petitioner’s grounds on this touchstone bearing in
mind the rule that normally the complainant has the right to choose
any court having jurisdiction and the accused cannot dictate when- D
the case against him should be tried. Even so, the process of
justice should not harass the parties and from that angle the court
may weigh the circumstances.
3. One of the common circumstances alleged in applications for
transfer is the avoidance of substantial prejudice to a party or E
witnesses on account of logistics or like factors, especially when
an alternative venue will not seriously handicap the complainant
and will mitigate the serious difficulties of the accused. In the
present case the petitioner claims that both the parties reside in
Delhi and some formal witnesses belong to Delhi; but the meat of F
the matter, in a case of defamation is something different. The
main witnesses are those who speak to having read the offending
matter and other relevant circumstances flowing therefrom. They
belong to Bombay in this case and the suggestion of the petitioner’s
counsel that Delhi readers may be substitute witnesses and the
complainant may content herself with examining such persons is G
too presumptuous for serious consideration.”
2
(1979) 4 SCC 167 H
268 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 15. In Abdul Nazar Madan vs. State of T.N. & Anr.3, Justice
R.P. Sethi speaking for the Division Bench discussed the scope of power
under Section 406 CrPC and observed:-
“7. The purpose of the criminal trial is to dispense fair and impartial
justice uninfluenced by extraneous considerations. When it is
B shown that public confidence in the fairness of a trial would be
seriously undermined, any party can seek the transfer of a case
within the State under Section 407 and anywhere in the country
under Section 406 CrPC. The apprehension of not getting a fair
and impartial inquiry or trial is required to be reasonable and not
imaginary, based upon conjectures and surmises. If it appears
C that the dispensation of criminal justice is not possible impartially
and objectively and without any bias, before any court or even at
any place, the appropriate court may transfer the case to another
court where it feels that holding of fair and proper trial is conducive.
No universal or hard and fast rules can be prescribed for deciding
D a transfer petition which has always to be decided on the basis of
the facts of each case. Convenience of the parties including the
witnesses to be produced at the trial is also a relevant consideration
for deciding the transfer petition. The convenience of the parties
does not necessarily mean the convenience of the petitioners alone
who approached the court on misconceived notions of
E apprehension. Convenience for the purposes of transfer means
the convenience of the prosecution, other accused, the witnesses
and the larger interest of the society.”
16. In R. Balakrishna Pillai vs. State of Kerala4, Justice M.B.
Shah in another case for transfer under Section 406 CrPC, made the
F following pertinent observation:-
“9. ……. we would further state that in this country there is
complete separation of the judiciary from the executive and Judges
are not influenced in any manner either by the propaganda or
adverse publicity. Cases are decided on the basis of the evidence
G available on record and the law applicable. Granting such
application and transferring the appeal from the High Court of
Kerala to the High Court of Karnataka would result in casting
unjustified aspersion on the Court having jurisdiction to decide the
3
(2000) 6 SCC 204
H 4
(2000) 7 SCC 129
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 269
[HRISHIKESH ROY, J.]
appeal on the assumption that its judicial verdict is consciously or A
subconsciously affected by the popular frenzy, official wrath or
adverse publicity, which is not the position qua the judicial
administration in this country. We would also mention that at the
time of hearing the learned counsel has not raised this contention.
17. In Captain Amrinder Singh Vs. Prakash Singh Badal & B
Ors.5, Justice P. Sathasivam, as he then was, speaking for the three
judge Bench, on the issue of transfer of criminal cases, observed as
follows: -
“48. The analysis of all the materials, the transfer of the case as
sought for, at this stage, is not only against the interest of prosecution C
but also against the interest of the other accused persons, the
prosecution witnesses and the convenience of all concerned in
the matter.
**** **** **** ****
**** **** **** **** D
51. We have already pointed out that a mere allegation that there
is an apprehension that justice will not be done in a given case
alone does not suffice. Considering the totality of all the
circumstances, we are of the opinion that in a secular, democratic
Government, governed by the rule of law, the State of Punjab is E
responsible 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 petitioners
cannot be construed as reasonable one and the case cannot be
transferred on a mere allegation that there is apprehension that F
justice will not be done.”
18. Let us now examine another precedent on transfer of criminal
cases. In Nahar Singh Yadav & Others vs. Union of India & Ors.6,
Justice D.K. Jain writing for the three Judge Bench discussed the scope
of transfer under Section 406 CrPC in the following terms: -
G
“22. It is, however, the trite law that power under Section 406
CrPC has to be construed strictly and is to be exercised sparingly
and with great circumspection. It needs little emphasis that a prayer
5
(2009) 6 SCC 260
6
(2011) 1 SCC 307 H
270 SUPREME COURT REPORTS [2020] 10 S.C.R.
A for transfer should be allowed only when there is a well-
substantiated apprehension that justice will not be dispensed
impartially, objectively and without any bias. In the absence of
any material demonstrating such apprehension, this Court will not
entertain application for transfer of a trial, as any transfer of trial
from one State to another implicitly reflects upon the credibility of
B
not 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) & ors7, where Justice Navin Sinha, enunciated
the law on transfer jurisdiction in the following terms:-
C
“8. The apprehension of not getting a fair and impartial enquiry or
trial is required to be reasonable and not imaginary, based upon
conjectures and surmises. No universal or hard-and-fast rule can
be prescribed for deciding a transfer petition, which will always
have to be decided on the facts of each case. Convenience of a
D party may be one of the relevant considerations but cannot override
all other considerations such as the availability of witnesses
exclusively at the original place, making it virtually impossible to
continue with the trial at the place of transfer, and progress of
which would naturally be impeded for that reason at the transferred
E place of trial. The convenience of the parties does not mean the
convenience of the petitioner alone who approaches the court on
misconceived notions of apprehension. Convenience for the
purposes 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 40
F witnesses, the petitioner alone is from Mumbai, two are from
Ghaziabad, and one is from Noida. The charge-sheet of FIR No.
1742 of 2016 is not on record. A reasonable presumption can be
drawn that the position would be similar in the same also.”
20. The above legal enunciations make it amply clear that transfer
G power under Section 406 of the Code is to be invoked sparingly. Only
when fair justice is in peril, a plea for transfer might be considered. The
court however will have to be fully satisfied that impartial trial is not
possible. Equally important is to verify that the apprehension of not getting
7
H (2018) 6 SCC 358
UMESH KUMAR SHARMA v. STATE OF UTTARAKHAND 271
[HRISHIKESH ROY, J.]
a level playing field, is based on some credible material and not just A
conjectures and surmises.
21. While assurance of a fair trial needs to be respected, the plea
for transfer of case should not be entertained on mere apprehension of
a hyper sensitive person. In his pleadings and arguments, the petitioner
in my assessment has failed to demonstrate that because of what he B
endured in 2018, it is not possible for the courts in the state to dispense
justice objectively and without any bias. It can’t also be overlooked that
the petitioner is involved in several cases and this year itself has generated
few on his own in the state of Uttarakhand. Therefore, it is difficult to
accept that justice for the petitioner can only be ensured by transfer of
three cases mentioned in these petitions. C
22. While considering a plea for transfer, the convenience of
parties would be a relevant consideration. It can’t just be the convenience
of the petitioner but also of the Complainant, the Witnesses, the
Prosecution besides the larger issue of trial being conducted under the
jurisdictional Court. When relative convenience and difficulties of all the D
parties involved in the process are taken into account, it is clear that the
petitioner has failed to make out a credible case for transfer of trial to
alternative venues outside the State.
23. The learned senior counsel for the petitioner made it clear that
the petitioner is not pointing any fingers towards the courts and his E
apprehension is based only on the action taken by the State. The transfer
of trials from one state to another would inevitably reflect on the credibility
of the State’s judiciary and but for compelling factors and clear situation
of deprivation of fair justice, the transfer power should not be invoked.
This case is not perceived to be one of those exceptional categories. F
24. When the nature of the three cases are examined, it is seen
that two of the cases are property and Will related matters. One of this
case is pending for last over a decade. Therefore, this court finds it
difficult to accept that the cases are on account of journalistic activities
of the petitioner. In fact the credibility of the journalistic activity of the G
petitioner is itself questioned, by a member of his sting operation team, in
the third case. In such circumstances, the prosecution in the concerned
three cases can’t prima facie be said to be on account of malicious
prosecution.
H
272 SUPREME COURT REPORTS [2020] 10 S.C.R.
A 25. In view of the forgoing, these Transfer Petitions are dismissed.
However, it is made clear that the observations in this judgment is only
for disposal of these petitions and should have no bearing for any other
purpose.
B Ankit Gyan Transfer petitions dismissed.
C
D
E
F
G
H
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