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2025 DIGILAW 291 (CAL)

Krishna Guha v. State of West Bengal

2025-07-14

ANIRUDDHA ROY

body2025
JUDGMENT : ANIRUDDHA ROY, J. Facts : 1. The deceased husband of the petitioner, viz. Arun Kumar Guha , since deceased was an employee of the Calcutta State Transport Corporation (CSTC) . The deceased employee retired on February 28, 2001 . The deceased employee died on February 4, 2010 , the Death Certificate is available at page 26 to the writ petition. 2. During the tenure of employment of the deceased employee, the Death- cum-Retirement Benefit Scheme of CSTC (for short the DCRB-CSTC Scheme) was introduced in 1990. Such Scheme was amended from time to time. The first amendment was notified on January 4, 1994. The second amendment was on February 10, 1999, when the deceased employee was in employment. The third amendment was notified on March 5, 2002 , after the retirement of the deceased employee. The said third amendment is the solitary consideration in the instant writ proceeding. 3. Following the said third amendment dated March 5, 2002 a circular was issued on April 23, 2002 at page 18 to the writ petition. The content of the said circular dated April 23, 2002 is quoted below. “CIRCULAR In pursuance of the kind directives of the Managing Director vide Memo No.002/806 dt. 22.03.2002, this is for information of all concerned that the following arrangements have been made towards distribution and receipt of Option Form for Pensions in terms of 3rd amendment of C.S.T.C. Employees? DCRB Regulation, 1990. 1) Option Forms will be distributed and received from 12 noon to 1 P.M. on all working days in the Central Pay Group Section, Head Quarters for the retired employees and others. 2) Forms in duplicate will be issued only to all those employees/retirees concerned who could not and/or did not exercise option or consent previously. Question of re- submission of Option by any one who has already submitted either option or consent would not arise as per provision of the 3rd amendment. 3) Shri Gopinath Halder, L.D.Clerk has been entrusted with the job for distribution and receipt of the Forms. 4) Last date of submission of Option Form is 4.6.2002 (upto 5 P.M.)” 4. By a letter dated December 29, 2000 , Annexure-R1 at page 7 to the report in the form of affidavit filed on behalf of the respondent nos. 3) Shri Gopinath Halder, L.D.Clerk has been entrusted with the job for distribution and receipt of the Forms. 4) Last date of submission of Option Form is 4.6.2002 (upto 5 P.M.)” 4. By a letter dated December 29, 2000 , Annexure-R1 at page 7 to the report in the form of affidavit filed on behalf of the respondent nos. 3 and 4, the deceased employee had informed his employer that, he did not exercise any option in terms of the DCRB Regulations, 1990. He did not submit any consent form in terms of the amended DCRB Regulations, 1998. He further declared that, he would not lodge any claim for pension in future in terms of DCRB Regulations, 1990. He also requested his employer to grant Gratuity under the Gratuity Act, 1972 as amended from time to time. 5. On May 22, 2002 the deceased employee after his retirement has submitted an option form, Annexure-P2 at page 19 to the writ petition, stating that he could not submit the relevant option form in terms of DCRB Regulations, 1990 during his employment, however, he submitted the option form in terms of the said third amendment of DCRB Regulations, 1990 following Sub-Clauses (1) and (2) to Clause 6 of the said third amendment circular. 6. Since no step was taken by CSTC, the deceased employee on July 13, 2009 submitted a representation, Annexure-P3 at page 21 to the writ petition with all the relevant documents. Since no step was taken, the petitioner being the widow of the deceased employee submitted a further representation dated January 20, 2014 , Annexure-P5 at page 27 to the writ petition. 7. Since no step was taken, the petitioner being the widow of the deceased employee submitted a further representation dated January 20, 2014 , Annexure-P5 at page 27 to the writ petition. 7. As the claim of the deceased employee nor of the petitioner was acceded to, the instant writ petition has been filed by the petitioner with the following reliefs : “a) A writ in the nature of Mandamus commanding the respondents and/or their subordinates and/or agents and/or assigns to act and proceed strictly in accordance with law and release the pensionary benefits of the Petitioner?s husband along with interest and all arrears as prayed in the representation dated 20.01.2014 being Annexure P-5 to this writ petition; b) A writ in the nature of Mandamus commanding the respondents and/or their subordinates and/or agents and/or assigns to act and proceed strictly in accordance with law and consider the representation made by the petitioner dated 20.01.2014 being Annexure P-5 to this writ petition; c) A writ in nature of Certiorari calling upon the Respondents to certify and transmit all records pertaining to this case before this Hon?ble Court so that conscionable justice may be rendered by passing order in terms of Prayer (a) and (b) above and also for making the respondent authorities to disburse the pensionary dues of the petitioner as indicated in letter dated 20.01.2014 being Annexure P-5 to this writ application; d) Rule NISI in terms of Prayers (a) to (b) above; e) An interim order directing the Respondent No.3 as well as respondent authorities to disburse the pensionary dues along with arrears of the petitioner as stated in letter dated 20.01.2014 being Annexure P-5 to this writ petition till disposal of the case or until further orders. f) Ad-interim order in terms of prayer (e) above; g) Any other writ or writs and/or writs order or orders and/or direction or directions as this Hon?ble Court may deem fit and proper; h) Costs of and incidental to this application.” 8. The respondent nos. 3 and 4 filed their report in the form of affidavit dealing with the allegations in the writ petition. The petitioner has filed its exception thereto in the form of affidavit. Submissions : 9. Referring to the said third amendment circular dated April 23, 2002 Mr. Swarup Paul, learned Counsel appearing for the petitioner submits that, same was a post-retirement circular for the deceased employee. The petitioner has filed its exception thereto in the form of affidavit. Submissions : 9. Referring to the said third amendment circular dated April 23, 2002 Mr. Swarup Paul, learned Counsel appearing for the petitioner submits that, same was a post-retirement circular for the deceased employee. The deceased employee who retired on February 28, 2001 was not made known of that the said third circular would arrive after about a year after his retirement. The expressions and language used in the said third circular clearly show that, the employees/retirees concerned who could not and/or did not exercise option or consent previously were eligible to avail of the said DCRB-CSTC Scheme in terms of the said third amendment circular. The facts admittedly show that, during the employment the deceased employee did not opt for the DCRB-CSTC Scheme which was introduced in 1990 and at all material time during his employment tenure he was governed by the regular Provident Fund and Pension Scheme available contemporaneously. The said letter/undertaking of the deceased employee dated December 29, 2000 at page 7 to the report also spells out the said status of the deceased employee at the contemporaneous point of time. 10. Mr. Paul then submits that, the last date of submission of the option form was June 4, 2002 , as would be evident from the third circular dated April 23, 2002 and admittedly the deceased employee applied for and exercised his option to avail of the benefit of the said third amendment on May 22, 2002 , Annexure-P2 at page 19 to the writ petition by submitting the prescribed form before his employer. Subsequently, the claim of the deceased employee was followed up by him during his lifetime and thereafter by the widow, the instant petitioner. 11. Mr. Swarup Paul, learned counsel appearing for the petitioner then submits that, the said pension scheme is a welfare policy of the employer/State. The plea of waiver taken on behalf of CSTC as would be evident from the report would not be a valid defence. The deceased employee submitted his undertaking on December 29, 2000 when the said third amendment and the circular dated April 23, 2002 was not even born. There was no conscious abandonment of any existing right by the deceased employee when he submitted his undertaking, since the said circular or the third amendment was not even in existence at that juncture. The deceased employee submitted his undertaking on December 29, 2000 when the said third amendment and the circular dated April 23, 2002 was not even born. There was no conscious abandonment of any existing right by the deceased employee when he submitted his undertaking, since the said circular or the third amendment was not even in existence at that juncture. In support, Mr. Paul has relied upon a decision of the Hon’ble Supreme Court dated May 8, 2023, In the matter of : Calcutta State Transport Corporation & Ors. V s. Ashit Chakraborty & Ors. rendered in Civil Appeal No.3462 of 2023. 12. Mr. Paul has also relied upon a decision of the Hon’ble Division Bench dated August 29, 2013, In the matter of : Calcutta State Transport Corporation & Ors. – vs.- Ranjit Kumar Ghosh, rendered in FMA 383 of 2013. 13. Mr. Swarup Paul, learned counsel then submits that, the claim of the petitioner is a legitimate claim in terms of the policy decision of the employer of the deceased employee. It was a conscious policy decision of the employer that those employees/retirees concerned, who could not or did not exercise option or consent previously, can avail of the benefit under the said DCRB-CSTC Scheme under its third amendment. Such a legitimate claim cannot be held back by the employer and the benefit should be extended to the petitioner. In support, Mr. Paul has relied upon a decision of the Coordinate Bench dated March 27, 2024, In the matter of : Nilotpal Chakraborty V s. State of West Bengal & Ors. rendered in WPA 6461 of 2018 This Court has been informed that no appeal has been preferred from the said judgment. 14. Mr. Paul then submits that, pension is a right and the payment of it does not depend upon the discretion of the government or employer but is governed by the rules and an employee who comes within the periphery of such rule, as of right, is eligible to receive pension. The scheme for pension being a welfare scheme must receive a liberal construction. In support, he has relied upon the decision of the Hon’ble Supr eme Court In the matter of : D. S. Nakara & Ors. V s. Union of India, reported at (1983) 1 SCC 305 . 15. In the light of the above submissions Mr. The scheme for pension being a welfare scheme must receive a liberal construction. In support, he has relied upon the decision of the Hon’ble Supr eme Court In the matter of : D. S. Nakara & Ors. V s. Union of India, reported at (1983) 1 SCC 305 . 15. In the light of the above submissions Mr. Swarup Paul, learned counsel prays for issuance of mandamus upon CSTC and its authority to grant the benefit of the said third amendment of the DCRB-CSTC Scheme in favour of the petitioner forthwith as was applied for by the deceased employee and subsequently by the petitioner as the beneficiary thereof. 16. Mr. Amal Kumar Sen, learned counsel and Additional Government Pleader appearing for respondent nos. 2 to 4 referring to the said undertaking of the deceased employee dated December 29, 2000 at page 7 to the report submits that, admittedly the deceased employee did not exercise his option in terms of the DCRB Regulations 1990 during his employment tenure. Admittedly, the deceased employee received his Provident Fund and Pension as per the general rules prevailing contemporaneously. Me. Sen then with great emphasis placed reliance upon Clause 4 from the said undertaking where, according to Mr. Sen, the deceased employee undertook specifically that he should not lodge any claim for pension “in future” in terms of DCRB Regulations 1990. 17. Relying upon the said undertaking of the deceased employee Mr. Amal Kumar Sen, learned counsel submits that, the deceased employee knowingly and consciously abandoned his claim or right to future claim in terms of DCRB Regulations 1990. The deceased employee, therefore, had waived his right to claim any benefit including future benefit under the said DCRB Regulations 1990 and this was his conscious decision. 18. On the basis of this undertaking, as referred to above, Mr. Amal Kumar Sen, learned counsel further submits that, the petitioner being the widow of the deceased employee cannot claim any higher right than that of the employee. Therefore, once the employee had abandoned and knowingly waived his right to claim any benefit in terms of DCRB Regulations 1990, the petitioner cannot claim any such right. Amal Kumar Sen, learned counsel further submits that, the petitioner being the widow of the deceased employee cannot claim any higher right than that of the employee. Therefore, once the employee had abandoned and knowingly waived his right to claim any benefit in terms of DCRB Regulations 1990, the petitioner cannot claim any such right. He submits further that, in the light of the provisions made under the said third amendment and in the circular dated April 23, 2002 the question of re-submission of any option under the third amendment of the DCRB Scheme 1990 either by the deceased employee or the present petitioner does not and cannot arise. In the light of the above submissions, Mr. Amal Kumar Sen has prayed for dismissal of this writ petition. Decision: 19. After considering the rival contentions of the parties and upon perusal of the materials on record, it appears to this Court that, the solitary consideration to adjudicate upon the issue involved in this writ petition will be the reading, interpretation and construction of the said circular dated April 23, 2002, Annexure P-1 at page 18 to the writ petition. The basic facts are more or less admitted with regard to the date of retirement of the deceased employee and submission of the said undertaking dated December 29, 2000 by the deceased employee at page 7 to the report. 20. On a plain reading and harmonious construction of the provisions and clauses laid down under the said circular dated April 23, 2002, it appears to this Court that, the employees/retirees of CSTC were classified in two distinct classes. Firstly , those employees/retirees concerned who could not and/or did not exercise option or execute consent previously under the said DCRB Scheme 1990. Secondly those who have already submitted either option or consent under the said DCRB 1990 scheme. Admittedly, the deceased employee in the instant case did not submit any option to avail of the said DCRB scheme 1990 during his employment tenure. Thus, the said deceased employee belongs to the first classification. On a plain reading of the said undertaking dated December 29, 2000, which is an admitted document by the parties, the same demonstrates that the deceased employee did not exercise any option in terms of DCRB Regulations 1990. Thus, the said deceased employee belongs to the first classification. On a plain reading of the said undertaking dated December 29, 2000, which is an admitted document by the parties, the same demonstrates that the deceased employee did not exercise any option in terms of DCRB Regulations 1990. He did not submit any consent form in terms thereof and the admitted position is he had received Provident Fund and Pension as per the prevailing rules contemporaneously in vogue but not in terms of the DCRB Scheme. Clause 4 of the said undertaking document shows that the deceased employee mentioned that he should not lodge any claim for pension in future in terms of DCRB Regulations 1990. 21. Clause 4 of the said undertaking document, in view of this Court is that, as on the date of execution of the said undertaking document dated December 29, 2000, it was agreed by the petitioner not to lodge any claim for pension in future in terms of the then prevailing DCRB Scheme 1990. Subsequently, the said circular dated April 23, 2002 which came into force even after his retirement clearly provided that those employees/retirees concerned who could not and/or did not exercise option or consent previously were made eligible to exercise their option subsequently to avail of the said third amendment of the DCRB Scheme and the petitioner by virtue of the said prescribed format dated May 22, 2002, annexure P-2 at page 19 to the writ petition applied to avail of the DCRB Scheme in terms of the said circular dated April 23, 2002 within the stipulated time. The right created under the said Circular dated April 23, 2002 is a subsequent and a fresh right for the deceased employee, which was not there as on December 29, 2000. 22. The concept of waiver is based on the principle of equity. Waiver would be there when one knowingly and expressly relinquishes or abandons his known right. The employee when executed the said undertaking on December 29, 2000 , the said circular dated April 23 2002 was never there in existence and the same did not born even. Therefore, it is incorrect to contend on the basis of Clause 4 of the said undertaking dated December 29, 2000 that the petitioner had knowingly abandoned or relinquished his known right. Therefore, it is incorrect to contend on the basis of Clause 4 of the said undertaking dated December 29, 2000 that the petitioner had knowingly abandoned or relinquished his known right. The right conferred upon the petitioner by virtue of the said circular dated April 23, 2002 were never known to the petitioner as on December 29, 2000 when the undertaking was executed. 23. In the matter of: Ashit Chakraborty & Ors. (Supra ) the Hon’ble Supreme Court had observed as under: “9. ********* ***** * ** ********* ******** ************** The only argument raised before the Division Bench was regarding waiver. However, the same was not accepted. This principle could be applied in case there was conscious abandonment of existing legal right. 10. We do not find any merit in the same argument raised by the counsel for the appellant as was rejected by the High Court, namely, the waiver of the right to receive pension by the respondent no. 1. There was no conscious abandonment of right to receive pension by the respondent no. 1 to deprive him of his pension. Reference can be made to judgment of this Court in Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another Relevant para 119 thereof is extracted below:- “119. For considering, as to whether a party has waived its rights or not, it will be relevant to consider the conduct of a party. For establishing waiver, it will have to be established, that a party expressly or by its conduct acted in a manner, which is inconsistent with the continuance of its rights. However, the mere acts of indulgence will not amount to waiver. A party claiming waiver would also not be entitled to claim the benefit of waiver, unless it has altered its position it reliance on the same.” 24. Since the law is well settled, as discussed above, the plea of waiver taken by CSTC, stands rejected 25. The claim on account of pension is now recognized and settled in law, as of right of an employee and the same shall not depend on the mercy of the employer, of course depends upon the policy framed from time to time. The claim on account of pension is now recognized and settled in law, as of right of an employee and the same shall not depend on the mercy of the employer, of course depends upon the policy framed from time to time. In the instance case, when the said circular dated April 23, 2002 was issued, the employer of the deceased employee knowingly recognized the rights of its employees including the retired employees so that they can opt for third amendment of the DCRB 1990 scheme, it is a legitimate right. The Hon’ble Supreme Court In the matter of : D. S. Nakara & Ors. (Supra) had observed as under: “19. What is a pension ? What are the goals of pension ? What public interest or purpose, if any, it seeks to serve ? If it does seek to serve some public purpose, is it thwarted by such artificial division of retirement pre and post a certain date? We need seek answer to these and incidental questions so as to render just justice between parties to this petition. 20. The antequated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deokinandan Prasad v. State of Bihar wherein this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone?s discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal Singh. ****** ******** ****** ******* 27. This view was reaffirmed in State of Punjab v. Iqbal Singh. ****** ******** ****** ******* 27. Viewed in the light of the present day notions pension is a term applied to periodic money payments to a person who retires at a certain age considered age of disability; payments usually continue for the rest of the natural life of the recipient. The reasons underlying the grant of pension vary from country to country and from scheme to scheme. But broadly stated they are (i) as compensation to former members of the Armed Forces or their dependents for old age, disability, or death (usually from service causes), (ii) as old age retirement or disability benefits for civilian employees, and (iii) as social security payments for the aged, disabled, or deceased citizens made in accordance with the rules governing social service programmes of the country. Pensions under the first head are of great antiquity. Under the second head they have been in force in one form or another in some countries for over a century but those coming under the third head are relatively of recent origin, though they are of the greatest magnitude. There are other views about pensions such as charity, paternalism, deferred pay, rewards for service rendered, or as a means of promoting general welfare (see Encyclopaedia Britannica, Vol.17. p. 575). But these views have become otiose. ****** ****** ****** ****** 30. The discernible purpose thus underlying pension scheme or a statute introducing the pension scheme must inform interpretative process and accordingly it should receive a liberal construction and the courts may not so interpret such statute as to render them inane (see American Jurisprudence, 2d, 881). ****** ****** ****** ****** 36. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life. ******* ****** ****** ****** 65. That is the end of the journey. With the expending horizons of socio-economic justice, the Socialist Republic and welfare State which we endeavour to set up and largely influenced by the fact that the old men who retired when emoluments were comparatively low and are exposed to vagaries of continuously rising prices, the falling value of the rupee consequent upon inflationary inputs, we are satisfied that by introducing an arbitrary eligibility criterion : 'being in service and retiring subsequent to the specified date' for being eligible for the liberalized pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and having been found wholly unrelated to the objects sought to be achieved by grant of liberalized pension and the eligibility criteria devised being thoroughly arbitrary, we are of the view that the eligibility for liberalized pension scheme of 'being in service on the specified date and retiring subsequent to that date' in impugned memoranda,… P – 1 & P – 2 violates Article 14 and is unconstitutional and is struck down. Both the memoranda shall be enforced and implemented as read down as under : In other words, in Ex. P-1, the words : “that in respect of the government servants who were in service on March 31, 1979 and retiring from service on or after that date And in Ex. P-2, the words : “the new rates of pension are effective from April 1, 1979 and will be applicable to all service officers who became/become non-effective on or after that date” are unconstitutional and are struck down with this specification that the date mentioned therein will be relevant as being one from which the liberised pension scheme becomes operative to all pensioners governed by 1972 Rules irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalized pension scheme from the specified date, irrespective of the date of retirement. Omitting the unconstitutional part it is declared that all pensioners governed by the 1972 Rules and Army Pension Regulations shall be entitled to pension as computed under the liberalized pension scheme from the specified date, irrespective of the date of retirement. Arrears of pension prior to the specified date as per fresh computation is not admissible. Let a writ to that effect be issued. But in the circumstances of the case, there will be no order as to costs.” 26. The Hon’ble Division Bench In the matter of: Ranjit Kumar Ghosh (Supra) has observed as under: “After hearing the learned counsel for the parties we are of the opinion the provisions contained in Regulation 6(2)(iv) of the CSTC (DCRB) Regulation, 1990 as amended in 2002 provides that the employees/retirees who did not exercise option or give expressed consent but now prefer to come under the revised DCRB Scheme may exercise their option to come under this scheme within three months from the date of publication of the notification. It is apparent from the aforesaid amendment that even retirees could have changed their options and acting thereupon the petitioner had submitted the option within the time. However, there were certain defects on being asked he corrected them. Consequently, a communication was issued by the Managing Director to deposit certain amount to the Employer’s Provident Fund on 9 January, 2007. Thus, it is apparent that option had been submitted as per Notification dated 5 March, 2007 same is applicable to retirees also. In the affidavit-in-opposition no ground was taken with respect to non-applicability of the notification by which options were invited from the employees like petitioner. When we consider the provisions contained in the Scheme of 1990 and the Notification dated 10 February, 1999, the same was applicable to the employees who have retired after 01.04.1997 or thereafter. Considering paragraph 12 of the aforesaid Notification each employee/retiree has to give option to the terms and conditions before he had given expressed consent under the revised pension scheme. Thus, it is apparent that fresh options were invited in 2002 and the petitioner had submitted it. Thus, he was entitled to avail the benefit of the fresh options invited from the retirees. Resultantly, we find no illegality in the judgement and order passed by the Single Bench warranting interference in the appeal.” 27. Thus, it is apparent that fresh options were invited in 2002 and the petitioner had submitted it. Thus, he was entitled to avail the benefit of the fresh options invited from the retirees. Resultantly, we find no illegality in the judgement and order passed by the Single Bench warranting interference in the appeal.” 27. A co-ordinate bench of this Court In the matter of: Nilotpal Chakraborty (Supra) had observed as under: “12. It is also noticed that in an identical case, this Hon?ble Court taking note of the option exercised on the part of the ex-employee of the Corporation and the failure of the Corporation to give effect to the same, had been pleased to hold that there was no justification for the Corporation to hold back the legitimate claim of the employee, and had accordingly directed disbursal of pension. In view thereof, and taking note of the option exercised by the petitioner, I find that it was the obligation of the respondents to give effect to the same. Although Mr. Sen, learned advocate by placing reliance on the judgment delivered in the case of Galada Power & Telecommunication (supra) and the General Manager, Sri Siddeshwara Cooperative Bank Limited (supra) has, inter alia, tried to contend that the petitioner having relinquished his right is not entitled to claim pensionary benefits, I find that the judgments relied on by Mr. Sen have been rendered in different set of facts. The issues involved in those cases are entirely different to the present case the same does not assist the respondents. Admittedly in this case, the petitioner had already exercised his option by relinquishing his right to the employers share of provident fund and the respondents had acted on the basis of such option. Subsequent to the petitioner?s retirement, the respondents could not have obtained a further declaration from the petitioner to disentitle him from his lawful entitlement. In any event, such declaration is contrary to the records and does not inspire confidence of the Court, the same cannot be relied upon. The petitioner having once, relinquished his right to the employers share of provident fund could not have subsequently given up the same by executing the defective declaration. It may be noted that the Hon?ble Supreme Court in the case of Calcutta State Transport Corporation v. Ashit Chakraborty & Ors. The petitioner having once, relinquished his right to the employers share of provident fund could not have subsequently given up the same by executing the defective declaration. It may be noted that the Hon?ble Supreme Court in the case of Calcutta State Transport Corporation v. Ashit Chakraborty & Ors. , SLP (C) No.11991 of 2021 while placing reliance on the case of Kalpraj Dharamshi & Anr. v. Kotak Investment Advisors Limited & Anr . in paragraph 10 was, inter alia, pleased to observe as follows:- “10. We do not find any merit in the same argument raised by the counsel for the appellant as was rejected by the High Court, namely, the waiver of the right to receive pension by the respondent no.1. There was no conscious abandonment of right to receive pension by the respondent no.1 to deprive him of his pension”. 14. Having regard to the aforesaid, and the petitioner during his service tenure having not abandoned his right by purporting to execute 10 the declaration, the same cannot stand in the way of interfering with the petitioner?s right to claim pension under the said Regulation. 15. It is a matter of record that both the Division Bench of this Hon?ble Court as also the Hon?ble Supreme Court had concluded that it is the duty of the Corporation to give effect to the option once, the same is exercised. Merely because there had been some wrong deductions from the salary of the employee, the said employee cannot be treated to be a member of CPF Scheme or a member of Employees? Pension Scheme, 1995, and the respondents cannot be permitted to raise the same as a ground to defeat the rightful claim for such person. The right to get pension immediately after retirement is a recognised right. 16. Having regard to the aforesaid and taking note of the fact that in similar circumstances, the Hon?ble Supreme Court had directed the Corporation to release pension in favour of the employee who had exercised option, I am of the view that similar benefit cannot be denied to the petitioner.” 28. In view of the foregoing discussions and reasons, this Court is of the firm and considered view that, the deceased employee at no point of time had waived any of his right upon execution of the said undertaking dated December 29, 2000 . In view of the foregoing discussions and reasons, this Court is of the firm and considered view that, the deceased employee at no point of time had waived any of his right upon execution of the said undertaking dated December 29, 2000 . This Court is also of the considered view that, the circular dated April 23, 2002 has bestowed a right upon the retired employee of CSTC, as the deceased employee was as on April 23, 2002 and since he had applied for the option on May 22, 2002, his right to avail of the said DCRB scheme 1990 under the third amendment ought not to have been denied and has been wrongfully and illegally denied. 29. 29. In view of the above, following directions are made: (i) The appropriate authority of CSTC shall calculate and crystallize, in accordance with law, as to what excess amount on account of employer?s share on Provident Fund and excess gratuity paid to the petitioner along with interest @ 6% per annum, from the date of retirement of the deceased employee i.e. February 28, 2001 and shall communicate the same to the petitioner positively within a period of three weeks from the date of communication of this order; (ii) Upon receiving the said written communication on calculation, the petitioner shall refund and payback the entire quantum with interest to the appropriate authority of the CSTC positively within a period of four weeks from the date of receiving the said calculation; (iii) Immediately after receiving the entire amount from the petitioner the appropriate authority of CSTC shall give an immediate effect to the pension initially which was payable to the deceased employee on and from March 1, 2001 (the next date of retirement) in terms of DCRB 1990 scheme read with its third amendment till February 3, 2010 (next date of retirement) along with interest @ 6% per annum until the actual amount is tendered to the petitioner on account of arrear; (iv) On and from February 5, 2010 the family pension shall be calculated in accordance with law in terms of the said DCRB 1990 Regulation read with its third amendment and the arrear shall be paid along with interest @ 6% per annum to the petitioner until the payment is actually tendered to the petitioner and (v) Thereafter the CSTC shall go on and continue to pay the family pension to the petitioner every month but positively within the 5 th day of every English calendar month. 30. The entire exercise for making payment to the petitioner by CSTC authority, as directed above, shall be carried out and completed by crediting the bank account of the petitioner positively within a period of six weeks from the date of the amount to be returned by the petitioner and received by the CSTC authority. 31. With the above observations and directions, this writ petition, WPA 11614 of 2024 stands allowed , without any order as to costs. 32. Photostat certified copy of this order, if applied for, be furnished expeditiously.