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2002 DIGILAW 32 (CAL)

Captain Anadi Kumar Das v. Calcutta Port Trust

2002-01-25

KALYAN JYOTI SENGUPTA

body2002
JUDGMENT On refusal of the respondent being the employer to allow the writ petitioner to switch over from contributory provident fund to pension scheme the petitioner has approached this Court by this writ petition. The short fact of the case is as follows:- The petitioner being a Class-I employee took voluntary retirement with effect from 1st April, 1983 after completion of 25 years and 4 months of continuous service. The petitioner during his service period did not opt for pension scheme then prevailing as the same was not beneficial. All along the petitioner had hitherto been in favour of availing of contributory provident fund scheme in lieu of pension scheme until in the month of June 2001. The petitioner was in favour of continuing with this contributory provident fund scheme by accepting ex-gratia relief of Rs. 600/- per month pursuant to a Circular dated 7th January, 2000. Now the writ petitioner allegedly being ignorant of the pension scheme introduced on or about 29th December, 1984 wants to exercise option to switch over to pension scheme as late as in July 2001. By this scheme of 1984 the retired employees like petitioner were given chance to exercise option to switch over from contributory provident fund benefits to pension benefits upon refunding Trustees contribution inclusive of interest. Initially the period during which option was to be exercised was for six months from 30th November, 1984 that is to say by 31st May, 1985 arid then extended by further Notification dated 19th February, 1986 till 30th June, 1986. According to the petitioner he came to know of the existence of the aforesaid pension scheme introduced in 1984 sometimes in the month of June 2001 from one of his friends and/or colleagues of the Calcutta Port Trust on a courtesy visit. He applied accordingly immediately after having known of this fact but option was not accepted since it was delayed as the option was not exercised within the cut off date that is to say by 30th June, 1986. 2. He applied accordingly immediately after having known of this fact but option was not accepted since it was delayed as the option was not exercised within the cut off date that is to say by 30th June, 1986. 2. This application is seriously opposed by the Port authority by filing affidavit and the stand taken in the affidavit that at no point of time the petitioner was eager to avail of the pension scheme though the same was prevailing during his service period and in fact he was always keen to avail of the contributory provident fund scheme by accepting ex-gratia payment even in January 2000. 3. Mr. Jyotirmoy Bhattacharjee, learned Advocate appearing in support of this petition submits that in terms of the said pension scheme it was the obligation of the Port authority to bring to the notice of the Class-I and Class-II Officers borne on the establishments who are still on the contributory provident fund terms and they may be advised to exercise the option to elect the pension scheme within the 30th June, 1986. There was no circulation and/or effective notice unlike the scheme for payment of ex-gratia of Rs. 600/- per month in January 2000, as such the petitioner could not know it. So, he could not exercise option within the time stipulated. There was no reason for the petitioner not to exercise option. In support of his submission he has relied on an unreported decision of this Court rendered in Matter No. 591 of 1996 (1) Indra Bhusan Dutta v. Calcutta Port Trust. 4. Mr. Suresh Majumdar, learned Advocate while opposing this application contends that this scheme was well circulated and the petitioner did not exercise option within the time stipulated. All the time petitioner had taken benefit of the contributory provident fund scheme not of pension. It is an unbelievable story that after having accepted ex-gratia payment of Rs. 600/- per month he would not be knowing of the pension scheme introduced in the year 1984 and the option for which was extended till 30th June, 1986. He contends that when an employee was not interested in taking the benefit of pension scheme then prevailing, he will not be allowed to switch over at these distant years. 600/- per month he would not be knowing of the pension scheme introduced in the year 1984 and the option for which was extended till 30th June, 1986. He contends that when an employee was not interested in taking the benefit of pension scheme then prevailing, he will not be allowed to switch over at these distant years. In support of his argument he has relied on two decisions of the Supreme Court reported in (2) AIR 1990 SC 1782 , Krishena Kumar v. Union of India and (3) 1996 SCC 73 , V.K. Ramamurthy v. Union of India. 5. Having heard respective contention of the learned Advocates in this case the question which has fallen for consideration is that whether the petitioner is entitled to exercise his option for switching over to pension scheme introduced in the year 1984 and also exercise option which was valid till 30th June, 1986 or not. In other words, whether the petitioner has waived such right of exercising option by his silent act and conduct of silence or not. 6. In this case admittedly the petitioner at no point of time exercised his option for the pension scheme but all the time he was interested in the contributory provident fund and in fact he continued for a long time as, according to him, this was beneficial and advantageous to him. Mr. Majumdar, however, is fair and candid to say that had the petitioner exercised option within the cut off period then he would have been allowed to switch over. Therefore, my task has become very easier to examine whether after a period of nearly 16 years the petitioner should be allowed to exercise option or not. 7. Mr. Bhattacharjee has brought a decision of the learned Single Judge as above in support of his case wherein this Court has allowed a delayed option to be exercised, In that case I find factually the writ petitioner was an employee of either Class-III or Class-IV as it was the pension scheme therein for the aforesaid group of employees. In that case also the cut off date was 30th June, 1986. The petitioner therein wanted to exercise his option after slightly less than two years and that was not allowed by the port authority. In that case also the cut off date was 30th June, 1986. The petitioner therein wanted to exercise his option after slightly less than two years and that was not allowed by the port authority. In that situation the learned Judge held that the petitioner had exercised his option immediately after having come to learn of the said scheme. In that case the learned Judge also accepted the case of ignorance for about two years. It is true that in this case in terms of the Notification dated 19th February, 1986 extending the time for exercising option, the respondent authorities were to bring notice of Class-I and Class-II Officers and to advise them to exercise their options to elect the pension scheme within 30th June, 1986. From the affidavit-in-opposition and also the letter dated 1st August, 2001 it appears that it was well circulated. The notice does not say that it has to be done in any particular method or means. It was circulated on the notice board. 8. The case has to be Judged on the basis of the averment made in the petition so far as ignorance of the petitioner about the aforesaid Notification is concerned. In Paragraph-10 of the petition it has been stated that the petitioner sometimes in the month of June 2001 went to the residence of one of his friends and/or colleagues in the Calcutta Port Trust on a courtesy visit and only then he came to know about the introduction of pension scheme after his retirement. This story of ignorance cannot be accepted as there was no particulars as to the date of his visit. No name of his alleged friend nor address of his residence has been given. On the other hand, the petitioner had occasion to know about the existence of the above pension scheme. Admittedly on 17th August, 2000 he went to the office of the respondent for submitting an application for ex-gratia payment in prescribed form. It is unbelievable story that one will not be knowing of existence of such pension scheme. Actually the petitioner was not really interested in availing of the pension scheme at any stage, as this scheme was not advantageous and gainful for him. It is unbelievable story that one will not be knowing of existence of such pension scheme. Actually the petitioner was not really interested in availing of the pension scheme at any stage, as this scheme was not advantageous and gainful for him. Now for the reasons best known to him, the return yielded from the corpus of provident fund amount is not perhaps advantageous for him, so he has come to switch over his option to pension scheme at this belated stage. Mr. Majumdar is right in saying that the approach of the petitioner is not bona fide as at no point of time he was in favour of the pension scheme. In the case cited by Mr. Bhattacharjee the petitioner therein at the first available opportunity exercised his option. Moreover, in that case there was delay of less than two years and such delay for ignorance of existence of the said pension scheme during that period is quite reasonable. In this case it is an unbelievable story further that from 1984 till June 2001 he would not be knowing of existence of this pension scheme. I am of the view that the story made out by the petitioner is absolutely concocted as no supporting affidavit has been filed by the said friend in order to strengthen the belief of such case. It appears further that the petitioner has connection with the pensioner's association of the Calcutta Port Trust wherefrom he has collected copies of the Circular of the pension scheme sometimes in the month of July 2001. So, the petitioner could have ascertained the existence of the pension scheme introduced in 1984 had he reasonably been diligent. 9. Another point is to be noted as to whether the petitioner really had any intention to exercise option in the year 1986 or not. In my view the petitioner was not at all interested in the year 1986. The exercise of option even at the belated stage would have been bona fide if he had intention to exercise option at the relevant and appropriate time not at the later stage. Therefore, I do not find any merit in the writ petition. Accordingly, dismiss the same, however, without any order as to costs.