Delhi Transport Corporation vs Balwan Singh & Ors.

4 of the Scheme provided for pensionary benefits as per Office Order dtd. 27.11.1992 – Respondents availed VRS – Held disentitled to pension on account of exclusion of period when they remained absent without authorisation, for which period they were held not entitled to salary – In Lillu Ram’s case such exclusion was upheld – Reconsideration by larger Bench – Held: VRS itself, more specifically Clause(g), makes Pension Rules applicable– r.21 is clear, i.e.”all leave during service for which leave salary is payable” would count – If an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension – r.3(1)(q), while defining “qualifying service” provides for service rendered while on duty “or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules”– Thus, the period of leave for which leave salary is not payable would be excluded – Rule is crystal clear and does not brook any two interpretations – Pension Scheme was sought to be introduced only couple of months before the VRS – It was ultimately implemented by the appellant, much later in 1995 – Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied – To avail the benefit of Pension Rules, an employee must qualify in terms of the Rules– Respondents do not do so, as the period sought to be excluded from their qualifying service is one where they were admittedly not paid leave salary – Qualifying period for the VRS would have to be governed by that Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules – Pension Rules came into force much later, though the intention was announced just before the VRS – Respondents were not governed by these Rules, but by the Employees Contributory Provident Fund Scheme – Result may be the same as in Lillu Ram’s case, reasoning is slightly different from that view – Impugned order set aside – Interpretation of Statutes - Service Law.

Allowing the appeal, the Court

HELD: 1.1 The VRS itself, more specifically clause (g), makes these very Rules applicable. Rule 21 is quite clear in its terms, i.e., “all leave during service for which leave salary is payable” would count. The corollary is that if an employee is not paid for leave, that period has to be excluded from the period to be counted for admissibility of pension. Rule 3(1)(q), while defining “qualifying service” provides for service rendered while on duty “or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.” Thus, the period of leave for which salary is payable would be taken into account for determining the pensionable service, while the period for which leave salary is not payable would be excluded. The Rule is crystal clear and does not brook any two interpretations. When the words of a statute are clear and unambiguous, there cannot be a recourse to any principle of interpretation other than the rule of literal construction. The endeavour to refer to Rules 27 & 28 of the Pension Rules is of no avail, as those are dealing with the effect of interruption in service which may result in forfeiture of past service. In the present case, there has been no forfeiture of past service. [Paras 20, 21][542-G, H; 543-A-C]

1.2 Insofar as the Government decision dated 28.2.1976 is concerned, that elucidates the requirement of a prompt entry into the service record, but this certainly cannot supersede the Rule. The position would be no different for SR 200, SR 202 and the other Government of India Order dated 24.6.1966. It is trite to say that as per Kelsen’s Hierarchy of Legal Norms, the Grundnorm, being the Constitution of India, the applicable hierarchy would read as under:

“(1) The Constitution of India.

(2) Statutory Law, which may be either Parliamentary Law or law made by the State Legislature.

(3) Delegated legislation which may be in the form of rules, regulations etc. made under the Act.

(4) Administrative instructions which may be in the form of GOs, Circulars etc.”

In the given facts of the present case, the respondents were not governed by these Rules, but by the Employees Contributory Provident Fund Scheme. The Pension Scheme was sought to be introduced only couple of months before the VRS, and that too was not implemented till 1995. Not only that, it was not implemented through the LIC but ultimately by the appellantCorporation itself, much later in 1995. Thus, the occasion for making any entries for this leave period in the service record, in terms of the Rules did not even arise at the stage when the VRS was applied. There may have been some significance to these aspects if the Pension Rules were already applicable over a period of time and entries had not been made, though, even there, it would not be in supersession of the plain language of the Rule. [Paras 22, 23][543-D-H; 544-A, B]

1.3 To avail of the benefit of Pension Rules, an employee must qualify in terms of the Rules. In the present case, the respondents unfortunately do not do so, as the period which is sought to be excluded from their qualifying service is one where they have admittedly not been paid leave salary. The qualifying period for the VRS would have to be governed by that Scheme and cannot ipso facto be imported into the entitlement of pension, contrary to the plain wordings of the Pension Rules. There is no conflict in this, apart from the fact that the Pension Rules came into force actually much later, though the intention was announced just before the VRS. The respondents were governed prior to that by the Employees Contributory Provident Fund Scheme. While the result may be the same as in LilluRam’s case, our reasoning is slightly different from that view. The impugned order is set aside. However, to avoid any grave hardship, if any payments have been made to the respondents, especially in view of the interim order dated 23.7.2014, the appellant-Corporation will not claim any refund of such amount already paid. [Para 24-27][544-B-F]

D.T.C. v. Lillu Ram (2017) 11 SCC 407 : [2007]

2 SCR 1092; Swedish Match AB v. Securities and Exchange Board, India AIR (2004) SC 4219 : [2004]

3 Suppl. SCR 745 – referred to.