- (1.) THIS appeal has been filed by the Kolkata Port Trust challenging the judgment of the learned single Judge dated 6th february, 2007 in writ petition No. 2053 of 2003. By the aforesaid judgment, the writ petition has been allowed. Writ in the nature of mandamus has been issued directing the respondent to do the needful in terms of the order prayed for in the writ petition by allowing him to exercise his option and to switch over to the Pension Scheme. The respondents were directed to act accordingly within a period of four weeks from the date of receipt of a copy of the judgment. Instead of implementing the aforesaid judgment, the present appeal has been filed.
(2.) THE petitioner joined the Calcutta (now Kolkata) Port Trust (herein after referred to as the Port Trust) under its Marine Department as a hooghly Pilot with effect from January, 1952. He was confirmed as class-I Officer. At the time of his appointment, there was no Pension scheme for the employees of the i'ort Trust. They were given benefits of Contributory Provident Fund Scheme. While the petitioner was in service, the Port Trust introduced a pension Scheme for its employees. The aforesaid Scheme was not properly circulated and most of the employees remained ignorant of the Scheme as well as the benefits arising therefrom. These circulars had been issued in 1980 and 1981. These circulars had provided that the employees who were desirous of switching over from Contributory Provident Fund Scheme to the pension Scheme could opt for the same within a stipulated period. However, since many people did not come to know about the Scheme, the circulars did not attract a good response. Subsequently, the financial Advisor and the Chief Accounts Officer issued a Circular to all Heads of Departments giving opportunity to Class-1 and Class-II officers who were in service as on 01. 08. 1982 to exercise the option up to 31 st May, 1985. Again, the Scheme was not properly circulated and only very few employees of the Port Trust opted for the same. The Port trust, therefore, issued another circular on 19th of February, 1986 and extended the time for exercising option till 30th June, 1986. Again, the circular met with very poor response. In the meantime, the petitioner after rendering 39 years of satisfactory service, retired from service with effect from 01. 12. 1990. It is not disputed that the petitioner received the entire benefits under the Contributory Provident Fund scheme. After retirement, the petitioner and his family members settled at his Mohali residence in Punjab, House No. 730 Phase-III, B1, mohali, Punjab. In December, 2000, the petitioner had come to visit his friends and relatives in New Delhi. During his visit he came to learn from his friends Trilok Singh, who had also retired from Kolkata Port trust as Chief Hydrographer, about the introduction of the Pension scheme and its benefits for the retired employees. The petitioner, thereafter, got in touch with one of his friends, viz. , one Mr. N. K. Kapur and sought for details of the Scheme. He was informed that the Pension scheme dated 9th January, 1997 had been framed for grant of Pension in lieu of Provident Fund for those employees who retired from service on or after 1. 1,1986 with Contributory Provident Fund benefits. The scheme had been circulated to Chairmen of all the major Port Trusts as well as to the Deputy Chairmen of all Dock Labour Boards. He was, therefore, able to collect a copy of the same and it is annexed as "p-1" to the writ petition. It is a case of the petitioner that the aforesaid scheme ought to have been brought to the notice of the petitioner by suitable notice or publicity. In fact, he claimed that it was the duty of the Port Trust to communicate the Scheme to the retired employees personally. The petitioner complained that the Scheme itself had been issued for the benefit of all retirees who had retired after 1. 1. 1986. Therefore, the petitioner was not aware about the Scheme, otherwise he would have exercised the option to come over to Pension Scheme. On coming to know about the Scheme, the Petitioner submitted a representation to the Kolkata Port Trust on 2. 2. 2001, requesting that he be allowed to switch over from CPF to Pension Scheme. But the petitioner came to know that the Pension Scheme had been published in 'the Statesman'. Since the petitioner was living in Mohali, he never came across the publication in "the Statesman' as it is not in wide circulation in Punjab. The petitioner also claimed that the Port Trust has extended the benefits of the Pension Scheme to many other employees by condoning the delay. This delay was condoned by the Port trust either on their own or in accordance with the orders passed by different Courts in proceedings initiated by the aggrieved employees. Therefore, by letter dated 24th of September, 2001, the petitioner again requested that he be allowed to switch over to the Pension Scheme. In his representation, the petitioner relied on a decision of this Court in the case of Indra Bhusan Dutta v. Calcutta Port Trust (W. P. No. 591 of 1996), delivered on 28th July, 1998 by S. B. Sinha, J. , and a judgment in the case of Amiya Ghosh v. Calcutta Port [w. P. No. 42 or 2000) delivered by aloke Chakrabarti, J. It was pointed out that no appeal has been filed against the aforesaid two judgments and they had been implemented. The petitioner, therefore, claimed the same relief on the principle of parity. However, the claim was rejected on 03. 12. 01. The reasons given for the rejection was that the relevant circulars were duly communicated to the existing employees through display, on the Notice boards of the sections/departments by the concerned H. O. Ds and the option had been exercised by thousand of employees. It was also the case of the respondents that the 1997 circular was widely circulated in leading newspapers in English, Hindi and Bangali and thousand of retirees who retired after 1. 1. 1986 or their widows had exercised the options. Therefore, the petitioner can not claim ignorance of the Pension scheme. But the petitioner further claimed that the circular dated 9. 1. 1997 was further clarified by a subsequent letter dated 15th April, 1997 by which the last date for exercising the option was extended from 31. 03. 1997 to 30. 09. 1997. Even, this time was further extended up to 31st of December, 1997. The learned single Judge also noticed the averments made in the affidavit-in-reply in which it has been stated that various Schemes for Pension were first introduced by the erstwhile commissioners of the Port Trust from as early as on 29th of May, 1962. Thereafter, numerous circulars had been issued. All these circulars had been circulated whilst the petitioner was in service but he never opted for Pension Scheme. Therefore, the petitioner must be deemed to have waived and/ or abandoned his right to opt. These circulars had been attached as annexure "r-I".
(3.) AFTER considering the entire fact situation and hearing the learned counsel for the parties, learned single Judge has held that the petitioner would be entitled to exercise the option even now. In coming to the aforesaid conclusion, the learned single Judge has distinguished the judgment or the Supreme Court in the case of V. K. Ramamurthy v. Union of India and Anr. (1996) 10 SCC 73. The learned single Judge has observed that "we are faced with the situation where thousands of employees similarly placed as the petitioner, have been conferred with the benefits of the Pension Scheme, but the claim of the petitioner has been denied on the ground that there was a conscious abandonment of rights by the petitioner. " The learned single Judge has rejected the objection raised by the respondents with the observation that no satisfactory answer has been given to the plea of the petitioner in relation to proper circulation through a newspaper. It is also observed by the learned single Judge that the intention of the Pension Scheme is benevolent. It was to give the benefit of the Pension to those persons who had retired 11 years prior to the date of the circulation. In these 11 years much had happened. The petitioner had relocated his family 1500 Kms. away from kolkata in Mohali in the State of Punjab. In our opinion, the learned single Judge has correctly come to the conclusion that it would, therefore, be most unreasonable to expect that such a person who had retired 7 years prior to the date of the issuance of the circular would be well-conversant with the day to day affairs happening and taking place, more than 1500 Kms. away from his home, in Kolkata. In our opinion, the learned single Judge has also come to a correct conclusion that as far as circulation of the Scheme in "the Statesman" The Telegraph', (Sanmarg' (Hindi) and The Ananda Bazar Patrika' (Bengali) are concerned, it is of no consequence as the Newspapers did not have wide circulation in Punjab. Therefore, it would be wholly unfair to deny the petitioner benefits of the Pension Scheme. The judgement in V. K. Ramamurthy's case (supra) has also been correctly distinguished as in that case prior to superannuation, as many as six opportunities had been given to the petitioner and he chose not to exercise the option for the Pension Scheme. In fact, the petitioner therein deliberately chose to continue with the Provident Fund Scheme. The observations of the supreme Court in V. K. Ramamurthy's case (supra) are as under : "that the Pension Scheme was introduced by the Railway Board since 16. 11. 1957 while the petitioner was still in service is not disputed. Further, the assertion of the railway administration that prior to the superannuation of the petitioner on 14. 7. 1972 as many as six options had been given to the petitioner to come over to the pension Scheme and yet he did not choose to come over to the Pension scheme and on the other hand deliberately chose to continue in the provident Fund Scheme is also not disputed. The question that arises for consideration, therefore, is whether still the petitioner can option to go back to the Pension Scheme?" To be fair, Mr. Dutta had also cited the judgment in the case of krishena Kumar v. Union of India and Ors. (1990)4 SCC 207. The aforesaid judgment has, also been correctly distinguished by the learned single judge in para 13 of the judgment which is as under :- "35. It would also appear that most of the petitioners before their filing these petitions had more than one opportunity to switch over to the Pension Scheme which they did not exercise. Some again opted for PF Scheme from the Pension Scheme. ";