# RAJASTHAN STATE ROAD TRANSPORT CORPORATION AND OTHERS v. GOVERDHAN LAL SONI AND ANR

- **Citation:** [2020] 10 S.C.R. 238
- **Court:** Supreme Court of India
- **Decided:** 2020-09-09
- **Case number:** Civil Appeal No. 1789 of 2020
- **Bench:** Ashok Bhushan, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajasthan-state-road-transport-corporation-and-others-v-goverdhan-lal-soni-and-34456
- **Pages:** 35

## Headnote

Pension - Rajasthan State Road Transport Corporation
Employees Pension Regulations, 1989 - The State Government
closed the Rajasthan State Agro Industries Corporation Limited and
declared all its employees as surplus - The surplus employees were
absorbed in different Corporations - The State issued a circular on
02.07.1991 containing guidelines for absorption of surplus
employees - The respondent no. 1 was absorbed in appellantRajasthan State Road Transport Corporation - The respondent was
given an option to opt for either CPF scheme or the GPF and pension
scheme - The respondent opted for the pension scheme under
Regulations, 1989 - Pursuant to the option opted by the respondent
no. 1, the appellant-Corporation directed for transfer of amount -
The contribution of employees as well as contribution of employer
deposited with the Provident Fund Commissioner was transferred
to the appellant-Corporation - However, the Rajasthan Agro
Industries Corporation Limited informed that pension scheme being
not applicable in Agro Industries Corporation, capital value, amount
in regard to absorbed employee is not due to the appellantCorporation - Respondent filed writ petition - The High Court held
that respondent-writ petitioner was entitled to get pension - In
another civil appeal, the other respondent after absorption also
gave an option for opting for GPF and pension scheme - Not being
given the benefit of GPF and pension, writ petition was filed by him
- The writ petition was allowed - Both the appeals having raised
similar issues are before the Supreme Court - Held: The regulation
43 of the Regulations, 1989 makes it clear that except those
employees who have opted for continuing to CPF, employer's share
shall be transferred to the appellant-Corporation Pension Fund
and the employees share with interest shall be transferred to
[2020] 10 S.C.R. 238
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appellant-Corporation GPF Fund - For the employees who were
entitled to grant of pension there is mention of only two funds that
is pension fund and GPF fund - The employer's share was to be
transferred to Pension Fund and employee's share shall be
transferred to GPF Fund - Further, clause 11(b) of circular dated
02.07.1991 makes it clear that when the respondent was absorbed
in appellant-Corporation the balance in CPF Account of the surplus
employees would be transferred in GPF Account and the Pension
Fund respectively - Since, the Certificate issued by the Regional
Provident Fund Commissioner makes it clear that the contribution
of employee and employer was transferred to the appellantCorporation - Thus, it was the obligation of the appellantCorporation to credit the amount in Pension fund and GPF fund -
Neither Regulations, 1989 nor circular dated 02.07.1991 refers to
any capital amount - There was no obligation of erstwhile employer
of the respondent to transfer any capital amount - Neither any such
capital amount was contemplated by 1989 Regulations or by scheme
of absorption dated 02.07.1991 - There was no justifiable ground
for the appellant for not sanctioning the claim of Pension of the
respondent after his retirement - Therefore, the High Court did not
commit any error in allowing the claim of the respondent for pension.
Dismissing the appeals, the Court
HELD: 1. The contention which has been pressed by the
counsel for the appellant before this Court is that there was no
transfer of capital amount of the erstwhile employer of respondent.
The counsel for the appellant has relied and refer to the letter
dated 18.09.1998 issued by the Rajasthan State Agro Industries
Corporation Limited. This has been brought on record as
Annexure-P/1. A perusal of Annexure-P/1 indicates that appellantRajasthan State Road Transport Corporation by letter dated
29.07.1998 requested the Rajasthan State Agro Industries
Corporation Limited for transferring capital value amount in
regard to the respondent. The erstwhile employer of the
respondent informed the appellant that capital v

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RAJASTHAN STATE ROAD TRANSPORT
CORPORATION AND OTHERS
v.
GOVERDHAN LAL SONI AND ANR.
(Civil Appeal No. 1789 of 2020)
SEPTEMBER 09, 2020
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Pension - Rajasthan State Road Transport Corporation
Employees Pension Regulations, 1989 - The State Government
closed the Rajasthan State Agro Industries Corporation Limited and
declared all its employees as surplus - The surplus employees were
absorbed in different Corporations - The State issued a circular on
02.07.1991 containing guidelines for absorption of surplus
employees - The respondent no. 1 was absorbed in appellantRajasthan State Road Transport Corporation - The respondent was
given an option to opt for either CPF scheme or the GPF and pension
scheme - The respondent opted for the pension scheme under
Regulations, 1989 - Pursuant to the option opted by the respondent
no. 1, the appellant-Corporation directed for transfer of amount -
The contribution of employees as well as contribution of employer
deposited with the Provident Fund Commissioner was transferred
to the appellant-Corporation - However, the Rajasthan Agro
Industries Corporation Limited informed that pension scheme being
not applicable in Agro Industries Corporation, capital value, amount
in regard to absorbed employee is not due to the appellantCorporation - Respondent filed writ petition - The High Court held
that respondent-writ petitioner was entitled to get pension - In
another civil appeal, the other respondent after absorption also
gave an option for opting for GPF and pension scheme - Not being
given the benefit of GPF and pension, writ petition was filed by him
- The writ petition was allowed - Both the appeals having raised
similar issues are before the Supreme Court - Held: The regulation
43 of the Regulations, 1989 makes it clear that except those
employees who have opted for continuing to CPF, employer's share
shall be transferred to the appellant-Corporation Pension Fund
and the employees share with interest shall be transferred to
[2020] 10 S.C.R. 238
238
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appellant-Corporation GPF Fund - For the employees who were
entitled to grant of pension there is mention of only two funds that
is pension fund and GPF fund - The employer's share was to be
transferred to Pension Fund and employee's share shall be
transferred to GPF Fund - Further, clause 11(b) of circular dated
02.07.1991 makes it clear that when the respondent was absorbed
in appellant-Corporation the balance in CPF Account of the surplus
employees would be transferred in GPF Account and the Pension
Fund respectively - Since, the Certificate issued by the Regional
Provident Fund Commissioner makes it clear that the contribution
of employee and employer was transferred to the appellantCorporation - Thus, it was the obligation of the appellantCorporation to credit the amount in Pension fund and GPF fund -
Neither Regulations, 1989 nor circular dated 02.07.1991 refers to
any capital amount - There was no obligation of erstwhile employer
of the respondent to transfer any capital amount - Neither any such
capital amount was contemplated by 1989 Regulations or by scheme
of absorption dated 02.07.1991 - There was no justifiable ground
for the appellant for not sanctioning the claim of Pension of the
respondent after his retirement - Therefore, the High Court did not
commit any error in allowing the claim of the respondent for pension.
Dismissing the appeals, the Court
HELD: 1. The contention which has been pressed by the
counsel for the appellant before this Court is that there was no
transfer of capital amount of the erstwhile employer of respondent.
The counsel for the appellant has relied and refer to the letter
dated 18.09.1998 issued by the Rajasthan State Agro Industries
Corporation Limited. This has been brought on record as
Annexure-P/1. A perusal of Annexure-P/1 indicates that appellantRajasthan State Road Transport Corporation by letter dated
29.07.1998 requested the Rajasthan State Agro Industries
Corporation Limited for transferring capital value amount in
regard to the respondent. The erstwhile employer of the
respondent informed the appellant that capital value amount in
regard to the absorbed employees is not due to the appellantCorporation. The appellant was informed that contribution of
Provident Fund amount is deposited in the account of
Commissioner, Provident Fund, Government of India which can
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.
GOVERDHAN LAL SONI
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be got transferred. The question to be answered is as to whether
apart from transfer of employee's contribution and employer's
contribution deposited in the account of Commissioner, Provident
Fund, there is any other amount which required to be transferred
to the appellant for the purpose of making the respondent eligible
for the benefit of pension. Regulation 43 of the Rajasthan State
Road Transport Pension Regulations, 1989 is the provision of
transfer of Pension Fund by Corporation. The Regulation makes
it clear that except those employees who have opted for continuing
to CPF, employer's share shall be transferred to the appellantCorporation Pension Fund and the employees share with interest
shall be transferred to appellant-Corporation GPF Fund. For the
employees who were entitled to grant of pension there is mention
of only two Funds that is Pension Fund and GPF Fund. The
employer's share was to be transferred to Pension Fund and
employee's share shall be transferred to GPF Fund. Clause 11
sub-clause (b) of Circular dated 02.07.1991 also refers to only
two accounts i.e. GPF Account and Pension Fund. As per clause
11(b) in an Enterprise having pension scheme, the balance in
CPF Account of surplus employees would be transferred to
absorbing Enterprise for credit to the GPF Account of the
employees and the Pension Fund in proportion of employees own
subscription and organisation's contribution respectively. Thus,
employee's contribution shall go to the GPF Account and
employer's proportion should be credited to the Pension Fund.
Clause 11(b) makes it clear that when the respondent was
absorbed in appellant-Corporation, the balance in CPF Account
of the surplus employees would be transferred in GPF Account
and the Pension Fund respectively. The certificate issued by the
Regional Provident Fund Commissioner which has been filed at
Annexure R-8 makes it clear that contribution of employee
Rs.92504/- and contribution of employer Rs.101282/- have been
transferred to the appellant-Corporation which was the amount
credited with Regional Provident Fund Commissioner. The entire
amount having been transferred to the appellant-Corporation it
was the obligation of the appellant-Corporation to credit the
aforesaid amount in respect of Pension Fund and GPF Fund.
Neither Regulations, 1989 nor Circular dated 02.07.1991 refers
to any capital amount. There was no obligation of erstwhile
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employer of the respondent to transfer any capital amount.
Neither any such capital amount was contemplated by 1989
Regulations or by Scheme of absorption dated 02.07.1991. The
Circular dated 02.07.1991 is in conformity with the Regulations,
1989 and a reading of Regulation 43 of Regulations 1989 as well
as Circular dated 02.07.1991 makes it abundantly clear that for
benefit of Pension Scheme what was required to be transferred
by the erstwhile employer was the employees contribution which
was to get transferred into the GPF Account and the employer's
contribution to be credited in the Pension Fund. Nothing more
was required to be done by the respondent or erstwhile employer
for fulfilling any condition or statutory requirement with regard
to the respondent's claim of pension. After transfer of the amount
aforesaid, the respondent having given option regarding opting
the pension scheme, it was statutory obligation of the appellant
to credit both the aforesaid amounts and thereafter continues to
deposit 10% in the Pension Fund and after retirement calculates
the pension accordingly. [Para 38][253-G-H; 254-A-H; 255-A-D]
2. The notification dated 12.02.1997 specially Clause 2(vi)
on which reliance has been placed by the counsel for the appellant
also does not refer to any sum as a capital amount which needs to
be transferred to the appellant for making employee eligible for
Pension. The circular dated 09.02.1999 filed by the appellant as
Annexure-P/2 does refer to capital amount but it relies on
notification dated 12.02.1997 specifically on Clause 2(vi). Clause
2(vi) of notification dated 12.02.1997 does not refer to any capital
amount. Thus, the statement in Circular dated 09.02.1999 that
only upon receipt of capital amount from Rajasthan State Agro
Industries Corporation Limited employees were entitled to get
benefit of Corporation Pension is unfounded and without any basis.
Clause 2(vi) contemplates that those employees who give their
option under Employee Pension Scheme, 1989 their deducted
Provident Fund Contribution amount of earlier service on
receiving back from P.F. Commissioner Office by their employer
will be forwarded to Corporation. This Court has already noticed
that both employee's contribution and employer's contribution
which were deposited with Provident Fund Commissioner Office
was transferred to Corporation. Thus, what was contemplated by
Clause 2(vi) of notification dated 12.02.1997 was complied with.
[Para 39][255-E-H]
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.
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3. This Court is satisfied that there was no justifiable ground
for the appellant for not sanctioning the claim of pension of the
respondent after his retirement. [Para 40][256-A]
Pepsu Road Transport Corporation, Patiala versus
Mangal Singh and Others (2011) 11 SCC 702 : [2011]
6 SCR 564 - relied on.
Mahaveer Prasad Jain v. Jaipur Vidhyut Vitran Nigam
Ltd. (SB Civil Writ Petition No. 3116 of 2004); Jaipur
Vidhyut Vitran Nigam Ltd. through its Chairman and
Anr. v. Mahaveer Prasad Jain 2008 (2) WLN 337 -
referred to.
Case Law Reference
[2011] 6 SCR 564
relied on
Para 32
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1789
of 2020.
From the Judgment and Order dated 05.03.2018 of the High Court
of Judicature at Rajasthan, Bench at Jaipur in D.B. Special Appeal Writ
No. 1799 of 2017.
With
Civil Appeal No. 1812 of 2020
Dr. Ritu Bhardwaj, Sachin Mittal, P.B. Suresh, Vipin Nair, Karthik
Jayshankar, Rishabh Sancheti, K. Paari Vendhan, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed by Rajasthan Road Transport
Corporation and others (hereinafter referred to as Corporation)
challenging the judgments dated 05.03.2018 and 30.08.2018 respectively
of the Division Bench of Rajasthan High Court dismissing the D.B.Special
Appeals filed by the appellants. Both the appeals having raised similar
issues it shall be sufficient to refer the facts and pleadings in Civil Appeal
No.1789 of 2020 for deciding both the appeals.
2. Goverdhan Lal Soni, the respondent No.1 was appointed as
Junior Assistant on 02.04.1974 in Rajasthan State Agro Industries
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Corporation Limited. The State Government closed the Rajasthan State
Agro Industries Corporation Limited and declared all its employees as
Surplus. The State Government took a decision to absorb services of all
surplus employees in different Corporations. The Bureau of Public
Enterprises, Government of Rajasthan issued a Circular on 02.07.1991
containing guidelines of absorption of surplus employees in public
enterprises. The guidelines also contained provisions for various benefits
to be extended to the absorbed employees. The Respondent No.1 in
pursuance of Circular dated 02.07.1991 was absorbed by Rajasthan State
Road Transport Corporation vide order dated 03.10.1996. The
Corporation issued a notification dated 12.02.1997 in relation to the
absorbed employees laying down the procedure for the employees, who
want to opt either C.P.F Scheme or the G.P.F. and Pension Scheme.
3. The respondent gave his option on 22.03.1997 for Pension under
Rajasthan State Road Transport Pension Regulations, 1989. In Rajasthan
State Agro Industries Corporation Limited, the respondent No.1 was
governed by Contributory Provident Fund Scheme and the Pension
Scheme was not applicable in Rajasthan State Agro Industries Corporation
Limited. The Corporation on 29.07.1997 noticing that the respondent
No.1 after coming to the service of Corporation has given option of
Pension directed for transfer of amount deposited in Provident Fund
Account and family pension so that same can be deposited in the account
of General Provident Fund as well as pension fund.
4. Rajasthan Agro Industries Corporation Limited wrote a letter
dated 18.08.1998 to Financial Advisor of the Corporation referring to a
letter of the corporation dated 29.07.1998 informing that Pension being
not applicable in Agro Industries Corporation, Capital Value, amount in
regard to absorbed employee is not due to corporation. The letter
mentioned that in the Agro Industries Corporation, Provident Fund
Scheme was applied in which regard contribution of Provident Fund is
deposited in office of Commissioner, Provident Fund, Government of
India, which amount can be transferred at the level of Corporation.
Regional Provident Fund Commissioner transferred the contribution of
Employees as well as contribution of Employer deposited with the
Provident Fund Commissioner to the Corporation. Certificate of account
transfer was issued transferring the aforesaid amount to the corporation.
5. A circular dated 09.02.1999 was issued by the corporation
referring to earlier circular dated 12.02.1997 mentioning that those
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.
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employees who produce their option letter to get benefit of Rajasthan
State Road Transport Corporation Employees Corporation Pension
Regulations, 1989, only upon receipt of capital amount from Rajasthan
State Agro Industries Corporation Limited, they shall be entitled to get
benefit of Corporation Pension.
6. The respondent, who had joined the corporation on 10.10.1996,
wrote a letter dated 06.07.2010 to the Finance Advisor and Chief Accounts
Officer of the Corporation praying for approval of pension. Letter also
mentioned that in compliance of letter of Chief Manager dated 19.02.1997,
CPF amount has been received by Corporation. The respondent No.1
sent several reminders with regard to approval of his pension. The
respondent was superannuated on 30.06.2012. A writ petition No. 8847
of 2012 was filed by the respondent No.1 in the High Court of Rajasthan,
Bench at Jaipur, praying for following reliefs: -
"(i) By issuing an appropriate writ, order or direction to the
Respondents to consider the case of petitioner for extending
the benefits of the GPF and Pension Scheme of 1989 in the
light of the condition No.11(b) of the Circular dated
02.07.1991 by taking note of his option form for the same.
(ii) Hon'ble High Court may kindly quash and set aside the
circular dated 09.02.1999 (Annexure-8) issued in the garb
of Notification dated 12.02.1997.
(iii) Hon'ble High Court may kindly direct the respondent to
grant pension to the petitioner if petitioner gets retired during
the pendency of the writ petition."
7. Learned Single Judge of the High Court by judgment dated
05.07.2017 after noticing the submission of writ petition as well as the
corporation, held that writ petitioner had already opted for Pension, his
case cannot be distinguished from an earlier judgment of High Court
dated 24.05.2007, Mahaveer Prasad Jain Versus Jaipur Vidhyut
Vitran Nigam Ltd. SB Civil Writ Petition No. 3116 of 2004. Learned
Single Judge allowed the writ petition directing that writ petitioner be
treated to be entitled to get pension, however, the same would be subject
to petitioner returning the amount under the CPF Scheme. The appellant
aggrieved by the judgment of learned Single Judge filed D.B.Special
Appeal(writ) No.1799 of 2017 before the Division Bench which appeal
was dismissed on 05.03.2018. This appeal has been filed challenging the
judgment of the Division Bench dated 05.03.2018.
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8. In Civil Appeal No.1812 of 2020, the respondent Mangla Ram
Aanwala was also initially appointed in Rajasthan State Agro Industries
Corporation Limited and in pursuance of circular dated 02.07.1991, he
was also absorbed in the corporation by order dated 03.10.1996 on the
post of Junior Accountant. Respondent also gave an option on 25.02.1997
for opting for GPF and Pension Scheme. On 30.06.2012, the respondent
also attained the age of Superannuation. Not being given the benefit of
GPF and Pension, S.B.Civil Writ Petition No.8100 of 2017 was filed by
the respondent which was allowed by learned Single Judge on 29.11.2007
in terms of judgment of the learned Single Judge in writ petition of
Goverdhan Lal Soni(Supra). The appellant filed Special Appeal Writ
No.1314 of 2018 which has been dismissed on 30.08.2018 against which
Civil Appeal No.1812 of 2020 has been filed.
9. We have heard Mrs. Ritu Bhardwaj for the appellant and Shri
Rishabh Sancheti and Shri P.B.Suresh for the respondents.
10. Learned Counsel for the appellant submits that respondent
was absorbed from Rajasthan State Agro Industries Corporation Limited
where Pension Scheme was not applicable and the respondent was
governed only by Contributory Provident Fund (CPF) Scheme. It is
submitted that the absorption of Employees in Rajasthan State Road
Transport Corporation was on the terms and conditions as laid down in
circular dated 02.07.1991 of Bureau of Public Enterprises, Government
of Rajasthan. The Agro Industries Corporation from where the
respondent had come on absorption in Rajasthan State Road Transport
Corporation was covered only by CPF Scheme, hence, for availing the
benefits of Pension Scheme the former Organization of the respondent
was liable to transfer not only the balance in CPF Account but Pension
Fund in proportion of Employees own subscription and Organization's
contribution respectively.
11. The Rajasthan State Agro Industries Corporation Limited vide
letter dated 18.08.1998 having refused to transfer the capital value amount
regarding absorbed employee, the conditions under para 11(b) of Circular
dated 02.07.1991 were not fulfilled and the corporation cannot undertake
the liability of payment of pension.
12. It is submitted that on retirement of the respondent, entire
benefit under the CPF Scheme as well as Gratuity of Rs.10 Lakhs and
other benefits were taken by the respondent. It is submitted that
respondent is already getting the pension from Employees Provident
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Fund Organization. The respondent has also availed the benefit of Loan
of amount of more than Rs.18 Lakhs from the Corporation which was
possible only due to the reason that the respondent was member of CPF
Scheme and he can avail loan out of contribution of the employees as
well as the contribution of the Employer.
13. It is further submitted that both learned Single Judge and
Division Bench had not adverted to mandatory conditions as given in
paragraph 11(b) and without recording any satisfaction and finding that
the mandatory condition has been fulfilled, direction has been issued for
grant of Pension. The respondent who has already availed the benefit
under CPF Scheme cannot be directed to given the benefit of Pension
which shall amount to extending the double benefits.
14. Learned counsel appearing for the respondents in both the
appeals have refuted the submission of the counsel for the appellant and
submits that the entire contribution of the respondent which was credited
were transferred by the Regional Provident Fund Commissioner with
regard to which a certificate of account transfer has also been issued by
Regional Provident Fund Commissioner which has been brought along
with the counter Affidavit filed on behalf of respondent No.1, Goverdhan
Lal Soni. Regional Provident Fund Commissioner having transferred the
entire amount to the corporation, nothing more was due to be transferred.
15. The respondent has exercised the option of Pension benefit
within the period prescribed i.e. before 31.03.1997. The case of the
respondent was fully covered by the judgment of the Rajasthan High
Court dated 05.07.2017 in Mahaveer Prasad Jain's Case. He submits
that the judgment of learned Single Judge dated 05.07.2017 was also
affirmed by the Division Bench vide judgment dated 19.12.2007 in Jaipur
Vidhyut Vitran Nigam Ltd. through its Chairman versus Mahaveer
Prasad Jain, which appeal was dismissed on 19.12.2007.
16. It is submitted that Special Leave Petition against the Division
Bench judgment dated 19.12.2007 has also been dismissed by this Court
vide its order dated 09.05.2008 in Special Leave to Appeal (Civil)
No.10904 of 2008. The case of Mahavir Prasad Jain was also a case of
absorption from Rajasthan State Agro Industries Corporation Limited
into Rajasthan State Electricity Board (Jaipur Vidhyut Vitran Nigam Ltd.).
17. The notification dated 12.02.1997 laid down procedure to be
adopted in relation to absorbed employees. Subsequent circular dated
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09.02.1999 informing that only on transfer of Capital amount from the
concerned department benefit of Pension can be extended was not
applicable on the respondent No.1 since he was already covered by
1991 circular and has exercised his option on 22.03.1997 with regard to
receiving of payment under GPF Scheme as well as Gratuity. With regard
to Pension under CPF Scheme it is submitted that the said pension has
been accepted since the respondent had no option. The gratuity amount
was paid directly in account of the respondent.
18. It is further submitted that both the Rajasthan State Agro
Industries Corporation Limited as well as Rajasthan State Road Transport
Corporation are two arms of the Government and it was the State
responsibility to ensure that the respondent No.1 could have received
the Pension in pursuance of his option exercised on 22.03.1997.
19. Learned counsel for the parties have relied on several
judgments of this Court and Rajasthan High Court which shall be referred
to while considering the submission in detail.
20. From the pleadings of the parties and materials on record,
following undisputed facts have emerged:-
i)
the respondents in these appeals were employees of Agro
Industries Corporation who were declared surplus after the
Agro Industries Corporation was closed.
ii)
Bureau of Enterprises issued guidelines dated 02.07.1991 for
absorption of surplus employees of the State Public Enterprises.
The guidelines enumerated the benefits and mechanism for
receiving the benefits by the absorbed employees.
iii) that by order dated 03.10.1997, the respondents were
absorbed in Rajasthan State Road Transport Corporation. The
respondents while working under the Rajasthan State Agro
Industries Corporation Limited were covered by only CPF
Scheme.
iv) Both Employees and Employer's contributions towards the
Provident Fund were deposited with the Regional Provident
Fund Commissioner. The Regional Provident Fund
Commissioner transferred both Employees contribution of
Provident Fund as well as Employer's contribution of
Provident Fund to the Rajasthan State Road Transport
RAJASTHAN STATE ROAD TRANSPORT CORPORATION v.
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Corporation and certificate of account transfer was also issued
by office of Regional Provident Fund Commissioner, certifying
the above said transfer. After the absorption, respondent opted
for the Pension Scheme within the prescribed period i.e.
31.03.1997.
v)
The respondent in Rajasthan State Road Transport Corporation
were continued in the CPF Scheme and the contribution of
the Employees and Employers were deposited and after
retirement of the respondent, the entire amount accumulated
has been paid to the respondent with gratuity and other benefits.
21. The corporation has both CPF and Pension Scheme. The
Pension Scheme which is applicable in the Corporation is Rajasthan
State Road Transport Corporation Employees' Pension Regulations 1989.
Regulation 3 of the Regulations, 1989 provides for exercise of option by
the existing regular employees for pensionary and gratuity benefits.
Bureau of Public Enterprises, Government of Rajasthan, had issued
guidelines dated 02.07.1991 under which surplus employees of State
Public Enterprises were to be absorbed in other Public Enterprises.
22. Before we enter into the submissions raised by the counsel of
the parties it is necessary to notice the relevant statutory Regulations
applicable in the RSRTC and the Circular dated 02.07.1991 by which
Bureau of Public Enterprises, State Enterprises Department, Government
of Rajasthan issued terms and conditions for absorption of surplus
employees of State Public Enterprises. The Rajasthan State Road
Transport Corporation Employees Pension Regulations, 1989 have been
framed in exercise of power under Section 45 of the Road Transport
Corporation Act, 1950. Regulation 3(l) defines 'option' which is to the
following effect:
"3(l) "Option" means a written consent of the existing regular
employee for pensionary and gratuity benefits alongwith the
adoption of the General Provident Fund Regulations 1989 or to
continue as member of the existing CPF scheme covered under
the BPF Act, 1952 within a period of 90 days from the date of
publication of RSRTC Pension Regulations. Any existing employee
who does not exercise the option within specified period of 90
days shall be deemed to have exercised option in favour of the
Pension & CPF Regulations."
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23. Regulation 3(k) has defined "existing employee" as meaning
'an employee who is in service of the Corporation as on 01.04.1989'.
The option under Regulation 3(l) was contemplated from existing
employee.
24. Several employees including the respondent who became
surplus in their earlier employment were absorbed by Rajasthan State
Road Transport Corporation vide order dated 03.10.1996. The
Corporation issued a notification dated 12.02.1997 with regard to 30
employees who had come from Rajasthan State Agro Industries
Corporation Limited, out of whom some employees wanted to take
benefit of Contribution Provident Fund and some employees wanted to
take benefit of Corporation Pension Scheme. The notification contained
necessary instructions with regard to the above. Learned counsel for
the appellant has relied and referred to Clause 2(vi) of the notification
which is relevant with regard to the respondent. Clause 2(vi) is as follows:
"2(vi) Those employees who give their option under Employee
Pension Scheme, 1989, their deducted Provident Fund
Contribution amount of earlier service on receiving back
from P.F. Commissioner office by their employer will be
forwarded to Corporation as per instructions given by
R.S.R.T. Corporation about pension, gratuity, P.F. and Leave
encashment etc. For receiving the above contribution after
editing by Accounts Department (Establishment), Head
Office, this amount will be received. After receiving amount,
concerned amount of pension to Manager (Pension) and
concerned amount of General Provident Fund to A.G.M.
(G.P.F.) will be forwarded."
25. After issuance of notification dated 12.02.1997, the Corporation
asked for option from employees who were absorbed in the Corporation
to give their option. As noted above, the option under Regulation 3(l)
was to be taken from the 'existing employees' but after absorption of
employees in the Corporation from Rajasthan State Agro Industries
Corporation Limited, the Corporation adopted same statutory mode with
regard to the absorbed employees as per statutory scheme. Hence, option
was asked from absorbed employees. The respondent gave option on
27.03.1997, i.e., before 31.03.1997 which was last date for option.
26. Another Regulation which needs to be noted is Regulation 43
of Regulations, 1989 which deals with transfer to pension fund by
Corporation. Regulation 43 is as follows:
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"43.
TRANSFER
TO
PENSION
FUND
BY
CORPORATION
The Corporation shall transfer the pension contributions @
10% on the basic wages plus D.A. to the R.S.R.T.C. pension
Fund latest by 10th of succeeding month.
The employer's share with interest except for those existing
employees as on 01.04.1989, who have opted for continuing the
C.P.F. benefits shall be transferred to the R.S.R.T.C. Pension
Fund and the employee's share with interest shall be transferred
to the R.S.R.T.C. GPF Fund."
27. The second part of Regulation 43 as extracted above
contemplates transfer of employer's share for existing employees who
have opted for Pension Fund and employees' share with interest in the
G.P.F. Fund.
28. Clause 2(vi) of notification dated 12.02.1997 as extracted above
is also in the same line as of Regulation 43.
29. The respondent having opted for pension, Regulation 43 read
with notification dated 12.02.1997 becomes relevant and applicable with
regard to the respondent.
30. Now, we come to the Circular dated 02.07.1991 issued by the
Bureau of Public Enterprises, Government of Rajasthan, which is the
guidelines for absorption of surplus employees of State Public Enterprises.
We had heard this appeal earlier and reserved the judgment. At the time
of preparation of judgment we found ambiguity in the record of the appeal
pertaining to correct wordings of clause 11(b) of Circular dated
02.07.1991. By our orders dated 29.07.2020 we directed both the parties
to bring on record correct clause 11(b) of Circular dated 02.07.1991. In
pursuance of our order dated 29.07.2020 both the parties have filed their
affidavits. In the affidavit filed in application I.A.No.76182 of 2020 filed
by the respondent, the copy of Circular dated 02.07.1991 has been brought
on record. At the time of hearing on 14.08.2020, learned counsel for the
petitioner has also not disputed the correctness of the copy of the Circular
dated 02.07.1991 as brought on the record by respondent. Clause 11 of
the Circular dated 02.07.1991 which is relevant for the present case
brought on record by I.A.No.76182 of 2020 is to the following effect:
"11. In case the surplus employees covered under CPF Scheme,
on absorption:-
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(a) In an enterprise having CPF Scheme, the balance in CPF
account of the surplus employees shall be transferred to the
absorbing enterprise. On absorption the surplus employees would
be governed by CPF Scheme and rules of the absorbing enterprise.
(b) In an enterprise having pension scheme, the balance in CPF
Account of surplus employees would be transferred to absorbing
enterprise for credit to the GPF Account of the employees and
the Pension Fund in proportion of employees own subscription
and organisation's contribution respectively. The eligible period of
service rendered in relieving enterprise would be considered as
qualifying service under pension scheme of absorbing enterprise."
31. The petitioner also filed affidavit on 14.08.2020 and has not
disputed the correctness of clause 11 as brought on record by the
respondent.
32. Both CPF and Pension Schemes are beneficial Schemes for
the employees which are of different nature. In a Contributory Provident
Fund Scheme Employer makes matching contributions to the Employees
contribution and both are kept in separate account and on retirement of
employees both are released to the employee along with the interest.
The Pension is a periodic payment to the employee after the retirement
from the service by the Employer. Payment of Pension is made under
scheme floated by Employer. Pension Scheme contemplates a fund out
of which the pension is payable to an employee. The payment of pension
is dependent on various considerations and conditions. This Court in
Pepsu Road Transport Corporation, Patiala versus Mangal Singh
and others, (2011) 11 SCC 702, while considering Pension Scheme
and contributory Provident Fund Scheme under Pepsu Road Transport
Corporation Employees' Pension/Gratuity and General Provident Fund
Regulations, 1992 made following observations in paragraph 34:-
"34. Pension is a retirement benefit partaking of the character
of regular payment to a person in consideration of the past
services rendered by him. We hasten to add that although
pension is not a bounty but is claimable as a matter of right,
yet the right is not absolute or unconditional. The person
claiming pension must establish his entitlement to such pension
in law. The entitlement might be dependent upon various
considerations or conditions. In a given case, (sic whether)
the retired employee is entitled to pension or not depends on
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the provisions and interpretation of the rules and regulations.
The contributory provident fund appears to be a simple
mechanism where an employee is paid the total amount which
he has contributed along with the equal contribution made
by the employer ordinarily at the time of retirement of an
employee. In short, we quote what was repeatedly said by
this Court that "pension is payable periodically as long as
the pensioner is alive whereas CPF is paid only once on
retirement." Therefore, conceptually, pension and CPF are
separate and distinct."
33. Now reverting to the facts of the present case, we need to
first consider as to what were the conditions which were to be fulfilled
by the respondent for receiving the pension. As noted above, paragraph
11(b) of guidelines dated 02.07.1991 was applicable in the present case
with which both the parties are in agreement. It is the case of both the
parties that it is clause 11(b) which is applicable in the case of the
respondent.
34. Clause 11 begin with the words "in case surplus employees
were covered under CPF scheme on absorption;"- in an Enterprise having
Pension Scheme, (i) the balance in CPF account of surplus employee
will be transferred to absorbing Enterprise for credit of CPF account of
the employee, and (ii) the pension fund in proportion of employees' own
subscription and organization's contribution respectively; (iii) the eligible
period of service rendered in relieving Enterprise would be considered
as qualifying service under Pension Scheme of absorbing Enterprise.
35. The circular dated 02.07.1991 provided for absorption from
one State Public Enterprise to another Public Enterprise. All Public
Enterprises were not governed by common CPF and Pension Scheme,
for example, Rajasthan Agro Industries Corporation Limited did not have
a pension scheme for its employees whereas Rajasthan State Road
Transport Corporation ltd. has Pension Scheme. When an employee
who is governed by CPF Scheme in his erstwhile employment opts for
CPF Scheme in absorbing Enterprise, the balance amount in CPF account
is transferred and the employees continue in CPF Scheme. There can
be two categories of surplus employees, one category may have in its
erstwhile Employment Pension Scheme and another category may have
only CPF Scheme. In a case where in erstwhile employment employee
is governed by Pension Scheme and he opts for Pension Scheme in the
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absorbing Enterprise, there is no difficulty in implementing of Pension
Scheme since balance in CPF account as well as Pension Fund shall be
transferred in corresponding accounts in absorbing Enterprise.
36. In this context, we refer to Clause 12 of Circular dated
02.07.1991 which is to the following effect:
"(12)In case the surplus employees were covered by pension
scheme, on absorption:-
(a)In an enterprise having pension scheme the relieving enterprise
would transfer the balance of GPF Account of the employee and
his share in the Pension Fund of the relieving organisation to the
absorbing organisation for credit to GPF Account and Pension
Fund respectively.
(b)In an enterprise having CPF Scheme, the balance of GPF
Account and share in Pension Fund would be transferred to the
absorbing enterprise for credit to the CPF Account. On absorption,
the surplus employees would be governed by CPF Scheme and
rules of the absorbing enterprise."
37. The respondent in his earlier employment was covered by the
CPF Scheme and both employee's contribution as well as employer's
contribution were deposited in the Provident Fund. Alongwith affidavit
filed by the respondent in this appeal Certificate of Accounts Transfer,
issued by the Regional Provident Fund Commissioner, Jaipur has been
brought on record. The total deposit of respondent No.1 with the Regional
Provident Fund Commissioner, Jaipur was (a) contribution of employee
Rs.92,504/-; (b) contribution of employer Rs.1,01282/-. Both the above
amounts were transferred to the Rajasthan Road State Transport
Corporation after the respondent was absorbed in the Rajasthan State
Road Transport Corporation.
38. The contention which has been pressed by the learned counsel
for the appellant before us is that there was no transfer of capital amount
of the erstwhile employer of respondent. Learned counsel for the appellant
has relied and refer to the letter dated 18.09.1998 issued by the Rajasthan
State Agro Industries Corporation Limited. This has been brought on
record as Annexure-P/1. A perusal of Annexure-P/1 indicates that
Rajasthan State Road Transport Corporation by letter dated 29.07.1998
requested the Rajasthan State Agro Industries Corporation Limited for
transferring capital value amount in regard to the respondent. The
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erstwhile employer of the respondent informed the appellant that capital
value amount in regard to the absorbed employees is not due to the
Rajasthan State Road Transport Corporation. The appellant was informed
that contribution of Provident Fund amount is deposited in the account
of Commissioner, Provident Fund, Government of India which can be
got transferred. The question to be answered is as to whether apart
from transfer of employee's contribution and employer's contribution
deposited in the account of Commissioner, Provident Fund, there is any
other amount which required to be transferred to the appellant for the
purpose of making the respondent eligible for the benefit of pension.
Regulation 43 of the Regulations, 1989 is the provision of transfer of
Pension Fund by Corporation. The Regulation makes it clear that except
those employees who have opted for continuing to CPF, employer's
share shall be transferred to the Rajasthan State Road Transport
Corporation Pension Fund and the employees share with interest shall
be transferred to Rajasthan State Road Transport Corporation GPF Fund.
For the employees who were entitled to grant of pension there is mention
of only two Funds that is Pension Fund and GPF Fund. The employer's
share was to be transferred to Pension Fund and employee's share shall
be transferred to GPF Fund. Clause 11 sub-cause (b) of Circular dated
02.07.1991 also refers to only two accounts i.e. GPF Account and Pension
Fund.