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2024 DAILYLAW 2469 (CAL)

Subhas Chandra Jha v. State of West Bengal

2024-12-04

Hiranmay Bhattacharyya

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JUDGMENT : Hiranmay Bhattacharyya, J. 1. Fifteen persons have jointly filed this writ petition challenging the order of the Managing Director, Calcutta Tramways Company (1978) Ltd. dated 13.07.2023 which is now known as West Bengal Transport Corporation Limited. 2. The petitioners are all retired employees. The petitioners claim that within six months prior to their respective dates of superannuation they have exercised their option to come over to the pension scheme from the Contributory Provident Fund Scheme. The petitioners on an earlier occasion approached this Court by filing a writ petition being WPA 12697 of 2021 which was disposed of by an order dated 10.05.2023 by directing the Managing Director of the West Bengal Transport Corporation (for short the WBTC) to consider the representations of the petitioners dated 25.12.2020. By the order dated 13.07.2023, the prayer of the petitioner stood rejected. 3. Being aggrieved by the said order, the petitioners have approached this Court. 4. Mr. Bhattacharya, learned counsel appearing for the petitioner, on instructions, submits that only petitioner nos. 2, 4, 5, 7 & 14 have exercised their option to come over to the pension scheme six months prior to their dates of retirement. Nothing has been produced before this Court to show that the other petitioners have applied for pension within six months prior to their respective dates of superannuation. 5. By drawing the attention of the Court to Regulation 59 of the (Calcutta Tramways, 1978 Employees Pension Regulations), 2001 (for short, 2001 Regulations), Mr. Bhattacharya submits that only five petitioners have exercised their option to come over to the pension scheme. He further submits that the Managing Director while passing the order dated 13.07.2023, did not consider such fact. He submits that the aforesaid five petitioners are willing to refund the amount which they have received on account of Contributory Provident Fund alongwith the interest thereon, if this Court, allows the petitioners to switch over to the pension scheme. Mr. Bhattacharya places reliance upon a decision in the case of Calcutta State Transport Corporation & ors. vs. Ashit Chakraborty & ors. reported at (2023) SCC OnLine SC 594 in support of such contention. 6. On the other hand, Ms. Mr. Bhattacharya places reliance upon a decision in the case of Calcutta State Transport Corporation & ors. vs. Ashit Chakraborty & ors. reported at (2023) SCC OnLine SC 594 in support of such contention. 6. On the other hand, Ms. Chattaraj, learned counsel appearing for the WBTC submits that the petitioners did not exercise their option for switching over to the Pension Regulation within the time limit stipulated under Regulation 6 of the 2001 Regulation or within the extended time. She further submits that the petitioners have approached this Court at a belated stage and this Court should not entertain the claim of the petitioners. She also placed reliance upon a judgment of the Division Bench passed on 22.02.2016 in APO 302 of 2015 in the case of Dilip Sankar Das & ors. vs. State of West Bengal & ors. in support of such contention. 7. Mr. Roy Mukherjee, learned counsel for the State is present. He however adopts the argument advanced by the learned counsel appearing for the WBTC. 8. Heard learned counsel for the parties at length and perused the materials placed. 9. Regulation 2(1) of the 2001 Regulation states that the Pension Regulation shall come into force with retrospective effect from 01.04.1997. Sub-Regulation 3 of Regulation 2 states that the Pension Regulation shall be optional to the employees as in Regulation 2(2) above. The said Regulation was notified in the Calcutta Gazette on 24.12.2001. Regulation 6(1) of the said Regulation states that the employee who may prefer to come under the purview of these regulations shall have to exercise his option within six months from the date of actual publication of these regulations in the Official Gazette. 10. Regulation 6(3) states that the failure to exercise option by an employee stipulated as referred to in Regulation 6(1) and Regulation 6(2) shall be treated as if he had not opted towards the Pension Regulation. The Managing Director, in the order dated 13.07.2023, noted that the petitioners did not exercise their option in terms of the Pension Regulation though there was sufficient time given to exercise the same. The Managing Director, in the order dated 13.07.2023, noted that the petitioners did not exercise their option in terms of the Pension Regulation though there was sufficient time given to exercise the same. It was further recorded therein that another circular was issued on 24.07.2006 by the Company extending the date by which the option should be exercised by existing employees for the Death-cum-Retirement Benefit Scheme 2001 and all such employees who opted to fall within the ambit of the scheme were required to exercise their option by 31.07.2006. The Managing Director further recorded a factual finding that at that point of time, the petitioners did not exercise their option under the pretext that the Pension Regulations cover them and it was not necessary for them to exercise any option. It was also recorded in the said order that the petitioners were also paid their retiral benefits such as gratuity and provident fund whey they retired from service. 11. Mr. Bhattacharya however does not dispute the said factual finding. According to Mr. Bhattacharya, Regulation 59 of the 2001 Regulation gives the employees an additional right to exercise their option within the time limit stipulated therein. He submits that the petitioners have submitted their application within the time limit contemplated under Regulation 59 insofar as the aforesaid five writ petitioners are concerned. 12. The question that arises for consideration is whether a person who has not exercised for their option to switch over to the pension scheme within the time limit stipulated under Regulation 6(1) or within the extended time vide circular issued in the year 2006 can be allowed to switch over to the Pension Regulation by filing an application within the time limit stipulated under Regulation 59. 13. Regulation 6(1) specifies the time within which an employee shall have to exercise his option and such time shall start running from the date of actual publication of the regulations in the Official Gazette. It is not in dispute that the Pension Regulation was published in the Official Gazette on 24.12.2001. Sub-Regulation 3 of Regulation 6 provides that the failure to exercise such option shall be treated as if the employee had not opted towards the Pension Regulations. Admittedly, the time to exercise such option was extended by the circular issued on 24.07.2006. 14. It is not in dispute that the Pension Regulation was published in the Official Gazette on 24.12.2001. Sub-Regulation 3 of Regulation 6 provides that the failure to exercise such option shall be treated as if the employee had not opted towards the Pension Regulations. Admittedly, the time to exercise such option was extended by the circular issued on 24.07.2006. 14. It is not in dispute that the petitioners did not exercise their option within the time limit stipulated under Regulation 6(1) or within the extended time as per the circular dated 24.07.2006. 15. Regulation 59 falls within Chapter X. Chapter X deals with application for grant of pension. Regulation 57(1) states that regulation in this Chapter shall apply to all employees applying for pension within the regulations. Regulation 59 states that every employee shall submit a formal application for pension in prescribed form (annexures) at least six months in advance of the date of anticipated retirement. Regulation 59 deals with the procedure for applying for pension. In order to be eligible to apply for pension, an employee ought to have come over to the pension scheme by exercising their option within the time limit stipulated under Regulation 6(1) or within the extended time as stipulated in the circular dated 24.07.2006. It is not in dispute that the petitioners did not exercise their option to switch over to the pension scheme within the aforesaid time limit. That apart, the petitioners immediately after retirement, were paid the benefits of gratuity as well as the amount on account of Contributory Provident Fund. The petitioners received the same without any protest. 16. Mr. Bhattacharya would contend that the amounts were transferred directly to the bank account of the petitioners. However, it is not the case of the petitioners that they were not aware of the fact that such amount have been transferred to their bank accounts. The reasons for which the petitioners did not take any steps to either refund the amount to the company or to approach the Court immediately thereafter is best known to the petitioners. 17. The claim of the petitioners is that they have applied for pension in terms of Regulation 59. The reasons for which the petitioners did not take any steps to either refund the amount to the company or to approach the Court immediately thereafter is best known to the petitioners. 17. The claim of the petitioners is that they have applied for pension in terms of Regulation 59. Regulation 59 cannot come to the aid of the petitioner as the petitioners have neither exercised their option within the time limit stipulated under Regulation 6(1) or within the extended time limit as per the circular dated 24.07.2006 to switch over to the Pension Scheme. 18. This Court is, therefore, not inclined to accept the submission of Mr. Bhattacharya. 19. Mr. Bhattacharya would vehemently contend that there is an apparent conflict in the provisions laid down in Regulation 6(1) as well as Regulation 59 insofar as the time limit for exercise of option to come over to the pension scheme is concerned. 20. In view of the observations made hereinabove, this Court is of the view that there is no apparent conflict because Regulations 6 and 59. Regulation 6 deals with exercise of option and Regulation 59 states the manner in which a person who has already come over to the pension scheme shall apply for pension. 21. It is also well settled that in case of any apparent conflict between two of statutory provisions, it is the duty of the Court to harmonize the same so as to give effect to both and not to make one of the provisions otiose if the contention of the learned counsel appearing for the petitioner is to be accepted, the provisions laid down under Regulation 6 shall become otiose. 22. In Asit Chandra (supra) the respondent employees had submitted their option immediately after the regulations were notified. Such is not the case on hand as observed hereinabove. The said decision being distinguishable on facts cannot come to the aid of the petitioner. 23. For all the reasons as aforesaid, the writ petition stands dismissed however with no order as to costs. Consequently, all the connected applications also stands dismissed. 24. Urgent certified Photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.