TMI Blog2009 (12) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... eme, and more important, received the entire PF amount on his retirement. In fact, as noticed, in his application before the Tribunal the respondent refers to all the options. He is careful to say that he was not 'intimated' about the contents of the last order relating to extension of the option, but does not say that he was unaware of the order extending the benefit of option. The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in a lump sum under the provident fund scheme (which enabled creation of a corpus for investment) was more advantageous than receiving small amounts as monthly pension under the pension scheme. In those days (between 1957 when the pension scheme was introduced and 1976 when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not entitled to the relief. The appeal is therefore allowed and the orders of the Tribunal and the High Court are set aside and the original application of the respondent before the tribunal is dismissed. - R.V. Raveendran And K.S. Panicker Radhakrishnan, JJ. For the Appellant : Mohan Jain, ASG, Dinesh Thakur, Rohini Mukherjee, A.K. Srivastava, Y.P. Mahajan, A.K. Sharma and D.S. Mahra, Advs For the Respondent : Jaideep Gupta, Sr. Adv., Raja Chatterjee, Sachin Das, Malay Kumar Singh and G.S. Chatterjee, Advs. JUDGMENT R.V. Raveendran, J. 1. Leave granted. 2. The respondent joined the Railway service on 10.2.1947. He was a subscriber to Contributory Provident Fund Scheme. Railways introduced the pension scheme vide Railway Board's letter dated 16.11.1957. Under the said scheme, those who entered Railway service on or after 16.11.1957, were automatically governed by the pension scheme. Those employees who were in service as on 1.4.1957 and those who joined between 1.4.1957 and 16.11.1957 were given an option to switch over to pension scheme instead of continuing under the Contrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 15.5.2004, rejecting the belated request of the respondent for switching over to the pension scheme as being untenable. He also distinguished the cases of other employees who were allegedly extended the benefit of exercising the option for belated switch overs, cited and relied upon by the respondent. The relevant portion of the order is extracted below: Thus, the cases referred to in the preceding para are not relevant to the case of Shri Sarkar who had eight occasions to come over to the Pension Scheme during his service period. By the time, VIII Pension option was thrown open, vide Board's letter dated 23.7.1974 as extended from time to time upto 31.12.1978, Shri Sarkar was in service till 15.10.1976. He resumed as COS/NF Railway on 11.6.1976. Board's instructions dated 30.6.1976 extending the last date for exercising of option available under Board's letter dated 23.7.1974 to come over to the pension scheme upto 31.12.1976 was circulated by NF Railway vide their letter dated 17.7.1976. The said letter was circulated as per standard mailing list including HODs. Shri Sarkar, being the HOD himself at the relevant time, cannot deny having knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not even intimated about the content of the order by the respondents through any communication during his deputation.... ...The applicant also states that after retirement in October, 1976 the applicant was cut off from railway and was in darkness about their Pension policy. In 1998 the applicant came to know that some officers of administrative grades were given pensionary benefit with or without intervention of court since they had not been informed about option for pension. The Tribunal by order dated 25.7.2005 allowed the application of the respondent and directed the appellants to permit the respondent to opt for pension scheme and also inform the respondent the amount that was required to be refunded in case he exercised the option. The Tribunal extracted the reasons assigned by the Chairman of the Railway Board in his order dated 15.5.2004 rejecting the request of respondent. Significantly, the Tribunal did not disagree with the said finding, nor refer to the enormous delay in making the claim. The Tribunal allowed the application, as the Railways had remained unrepresented and had not contested the claim, even though in the entire application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension and as dearness allowance was not included in the pay for computing the pension). 8. From 1980 onwards, gradually the pension scheme became more and more attractive as compared to the Contributory Provident Scheme, on account of various factors, like dearness allowance being included in the pay for computing pension, ceiling on pension being removed and liberalisation of family pension etc. But the respondent was well aware that not having opted for pension scheme and having received the PF amount on retirement, he was not entitled to seek switch over to pension scheme. But in 1996, when the respondent learnt that some others who had retired in and around 1973 to 1976 had been permitted to exercise the option in 1993-94 on the ground that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. A Court or Tribunal, before directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o were in service as on 1.1.1973, The respondent therein who had left the Railway service on 26.6.1973 was not informed of the availability of the option. He could not therefore exercise the option. In fact, he retired from service of the Heavy Engineering Corporation without any pension as that Corporation had also no pension scheme. The respondent therein approached the Central Administrative Tribunal in 1993 alleging that he came to know about the said option only in 1993 and that his representation dated 12.6.1993 for relief was rejected by the Railway Board on 13.7.1993. The Tribunal held that the respondent should be given the opportunity to exercise his option to shift to pension scheme, in terms of the Railway Board's letter dated 23.7.1974, as he was prevented from exercising his option by the failure of Railways to inform him about the option. The Tribunal also took note of the fact that another railway employee was allowed to exercise the option long after the date for exercising the option had expired, but the respondent was not given a similar benefit. The said decision of the Tribunal was affirmed by this Court. The decision in D.R.R. Sastri is of no assistance as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of 'notice' in Nilkantha Sidramappa Ningashetti v. Kashinath Somanna Ningashetti etc. AIR 1962 SC 666. This Court held : We see no ground to construe the expression 'date of service of notice' in col. 3 of Article 158 of the Limitation Act to mean only a notice in writing served in a formal manner. When the Legislature used the word 'notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words 'notice' and 'service' it would have said so explicitly. 13. Learned Counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents' representation by order dated 15.5.2004 has clarified that K.V ..... X X X X Extracts X X X X X X X X Extracts X X X X
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