THE CALCUTTA PORT TRUST AND OTHERSversusANADI KUMAR DAS (CAPT.) AND OTHERS

                         [2013] 12 S.C.R. 862


A          THE CALCUITA PORT TRUST AND OTHERS
                                v.
            ANADI KUMAR DAS (CAPT.) AND OTHERS
                 (Civil Appeal No. 7148 of 2008)
                        NOVEMBER 13, 2013
B
          [G.S. SINGHVI AND V. GOPALA GOWDA, JJ.]

          Service Law - Pension - Belated application for grant of
    opportunity to opt for pension scheme, after expiry of cut off
C   date - Maintainability - Held: If an aggneved retiree seeks
    intervention of the Court for issue of direction to the employer
    to give him opportunity to exercise option to switch over from
    one scheme to the other, the employer can produce evidence
    to show that the concerned employee had knowledge about
D   the particular scheme etc - The employer can also show that
    even though the scheme etc. had not been communicated
    to the concerned employee in person, he was aware of the
    same - It cannot be laid down as a general rule that each and
    every circular/instruction issued by the employer giving
E   additional monetary benefits to retired employees must be
    published in the newspapers and absence of such publication
    or personal communication to a retired employee would entitle
    him to seek intervention of the Court after lapse of many years
    - In the instant case, at the time of introduction of the Pension
F   Scheme, respondent No. 1 was very much in service of
    appellant no.1-Port Trust as a Class-I officer - Relevant
    circulars pertaining to Pension scheme were also issued
    during his service tenure - Therefore, it is not possible for any
    person of ordinary prudence to believe that respondent No. 1
    was not aware of the Pension Scheme and the opportunities
G   given to the retired employees/officers to exercise option to
    switch over from the CPF Scheme to the Pension Scheme -
    Story put forth by respondent No. 1 of having acquired
    knowledge about the circulars issued in 1984 and 1986 from
H                                 862
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                863
                  (CAPT.)

his friend/colleague rightly discarded by the Single Judge - A
Failure of respondent No. 1 to disclose the name of the
concerned friend/colleague adequately supports the inference
drawn by the Single Judge - Division Bench of the High Court
committed serious error in interfering with the order of the
Single Judge by entertaining the highly belated claim lodged B
by respondept no. 1 in the year 2001 - However, keeping in
view the peculiar facts of the case, appellants directed to allow
respondent No. 1 to exercise option in terms of circular dated
19.2.1986.

     Respondent No.1 joined the service of appellant C
No.1-The Calcutta Port Trust on 19.8.1957 as Class-I
Officer. At the time of appointment of respondent No.1,
there was no Pension Scheme for the employees of
appellant No.1 and they were given monetary benefits of
the Contributory Provident Fund Scheme (CPF Scheme). D
For the first time, Pension Scheme was introduced vide
circular dated 29th May, 1962 and made effective from
1.6.1962. All the existing employees, who were in service
on 1.6.1962 were given the choice to opt for the Pension
Scheme, but respondent No.1 did not exercise the E
option. Respondent no.1 retired from service w.e.f.
1.4.1983 under the Voluntary Retirement Scheme. Vide
circular dated 11.8.1979, appellant No.1 extended the cut
off date fixed for exercise of option under the Pension
 Scheme by Class-I and Class-II officers and fixed F
9.11.1979 as the last date. Many officers opted for the
 Pension Scheme but respondent No.1 did not opt for the
 same. Similar options were given to the employees vide
 circulars dated 17.1.1981, 11.3.1981, 29.12.1984 and
 19.2.1986, but respondent No.1 did not avail any of the G
 opportunities. In the year 2000, the Central Government
 issued circular dated 7.1.2000 and sanctioned ex gratia
 at the rate of Rs.600 per month for the CPF beneficiaries.
 Respondent No.1 took benefit of that circular and
 received the amount of ex gratia.                          H
    864     SUPREME COURT REPORTS            [2013] 12 S.C.R.


A       In June 2001, the Government of India announced
   liberalized pensionary benefits for retired Class-I and
   Class-II officers of Major Ports which resulted in manifold
   increase in the pension payable to them. On 23.7.2001,
   i.e. 18 years after his retirement, Respondent No.1
B submitted application for grant of permission to exercise
  of option in terms of circulars dated 29.12.1984 or
  19.2.1986. The application was rejected by appellant No.1
  on the ground that option to switch over to the Pension
  Scheme under Circular dated 29.12.1984 was open upto
c 31.5.1985 and under Circular dated 19.12.1986, it was
  open upto 30.6.1986. Respondent No.1 filed Writ Petition
  before the High Court averring that he was never
  informed or made aware of the option to switch over to
  the Pension Scheme by way of publication in the
0 newspapers or otherwise and he came to know about the
  same only in June 2001 from his friend to whom he had
  paid a courtesy visit and immediately thereafter, he
  submitted application dated 23.7.2001 for exercise of
  option in terms of circular dated 19.2.1986.

E      The Single Judge of the High Court declined to
  accept the plea of ignorance put forth by respondent No.1
  on the ground that being a Class-I officer he was very
  much aware of the Pension Schem1i introduced in 1962
  and the circulars issued from time to time for giving
F opportunity to the retirees to e1:ercise option. The
  Division Bench of the High Court, however, reversed the
  order of the Single Judge holding that appellant No.1 was
  duty bound to publish the circulars in the daily
  newspapers or circulate the same amongst all the
G concerned retired employees and that the Single Judge
  erred by declining relief to respondent no.1 on the
  assumption that he must have been aware of the circulars
  issued in 1984 and 1986. Hence the present appeal.
       Disposing of the appeal, the Court
H
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS               865
                  (CAPT.)

      HELD: 1.1. Whenever an employer introduces the A
Pension Scheme or makes the same applicable to retired
employees and give them opportunity to exercise option,
the circulars/instructions issued for that purpose should
either be communicated to the retirees or made known to
them by some reasonable mode. Mere display of such B
notice/instructions on the notice board of the Head Office
cannot be treated as an intimation thereof to the retired
employees/officers. The employer cannot presume that
 all the retirees have settled in the city where the Head
 Office is located. If the employees belong to the services c
 of thP. Central Government or its agencies/
 instrumentalities, they are likely to settle in their native
 places which may be far away from the seat of the
 Government or Head Office of the establishment or
 organisation,·cTile retirees are not expected to frequently
                                                                D
 travel from their native places to the seat of the
 Government or Head Office to know about additional
 benefits, if any, extended by the Government or their
 establishment/organization and it is the duty of the
 employer to adopt a suitable mechanism for
 communicating the decision to the retired employees so E
  as to enable them to exercise option. This could be done
 either by publishing a notice in the newspaper about
 which the retirees are told at the time of their retirement or
  by sending copies of the circulars/instructions to the
  retirees or by sending a copy thereof to the association F
  of the employees and/or officers with a direction to them
  to circulate the same among the concerned retirees. By
  taking advantage of the modern technology, the employer
  can also display the circulars/instructions on a designated
  website about which prior information is made available G
  to the employees at the time of their retirement. If one of
  these modes is not adopted, the retired employees can
  legitimately complain that they have been denied right to
  exercise the option and can seek intervention of the Court.
   [Para 20] [885-G-H; 886-A-F]                                 H
    866      SUPREME COURT REPORTS                [2013) 12 S.C.R.


A      1.2. If an aggrieved retiree seeks intervention of the
   Court for issue of a direction to the employer to give him
   opportunity to exercise option to switch over from one
   scheme to the other, the employer can produce evidence
   to show that the concerned employee had knowledge
B about the particular scheme etc. The employer can also
  show that even though the scheme etc. had not been
  communicated to the concerned employee in person, he
  was aware of the same. Each such case will have to be
  decided by the competent Court keeping in view the
c pleadings and evidence produced by the parties and it
  cannot be laid down as a general rule that each and
  every circular/instruction issued by the employer giving
  additional monetary benefits to the retired employees
  must be published in the newspapers and that in the
  absence of such publication or personal communication
0
  to the retired employee would entitle him to seek
  intervention of the Court after lapse of many years. [Para
  21] [886-F-H; 887-A-B]

         1.3. In the instant case, it is not ir, dispute that at the
E   time of the introduction of the Pension Scheme,
    respondent No.1 was very much in service as Class-I
    officer. Circulars dated 11.8.1979, 17.1.1981and11.3.1981
    were also issued during his tenure as a senior officer of
    appellant No.1. Therefore, it is not possible for any person
F   of ordinary prudence to believe that respondent No.1
    was not aware of the Pension Scheme and opportunities
    were given to the retired employees/officers to exercise
    option to switch over from the CPF Scheme to the
    Pension Scheme. This is precisely what the Single Judge
G   did and no error is found in the approach adopted by
    him. The story put forth by respondent No.1 of having
    acquired knowledge about the circ:ulars issued in 1984
    and 1986 from his friend/colleague was rightly discarded
    by the Single Judge. The failure of respondent No.1 to
H   disclose the name of the concerne<I friend/colleague
 CALCUTTA PORT TRUST v. ANADI KUMAR DAS             867
                 (CAPT.)

adequately supports the inference drawn by the Single A
Judge; and the Division Bench of the High Court
committed serious error by interfering with the order of
the Single Judge. [Para 22) [887-B-F]

    1.4. Further, it was neither the pleaded case of B
respondent No.1 before the High Court nor any evidence
was produced by him to show that the copies of the
circulars issued by appellant No.1 were not sent to the
Association of employees. It was also not the pleaded
case of respondent No.1 that he had visited the C
Association for the first time in 2000 for collecting the
circular issued by the Government of India for grant of
ex gratia of Rs.600 per month. This being the position, it
is not possible to accept the specious argument of
respondent No.1 that he had no knowledge of the
Pension Scheme and the circulars issued in 1984 and D
1986. [Para 23) [887-F-H; 888-A]

     Union of India v. M.K. Sarkar (2010) 2 SCC 59: 2009
(16) SCR 249; Dakshin Haryana Bijli Vitran Nigam v. Bachan
Singh (2009) 14 sec 793: 2009 (11) SCR 710; Union of E
India v. D.R.R. Sastri (1997) 1 SCC 514: 1996 (9) Suppl.
SCR 151; Kesar Chand v. State of Punjab AIR 1988 Punjab
265; D.S. Nakara v. Union of India (1983) 1 SCC 305: 1983
(2) SCR 165 and Subrata Sen v. Union of India (2001) 8 SCC
71 - referred to.                                          F

     2. In the result, the order passed by the Single Judge
is restored. However, keeping in view the peculiar facts
of this case, the appellants are directed to allow
respondent No.1 to exercise option in terms of circular G
dated 19.2.1986. At the same time, it is made clear that this
direction shall not be treated as a precedent for other
cases pending before the High Court, which shall be
decided in the backdrop of their own facts. [Para 24) [888-
 8-C]
                                                           H
    868       SUPREME COURT REPORTS                 [2013) 12 S.C.R.


A                         Case Law Reference:

          2009 (16) SCR 249          referred to           Para 13

          2009 (11) SCR 710          referred to           Para 14

B         1996 (9) Suppl. SCR 151 referred to              Para 17

          1983 (2) SCR 165           referred t1>          Para 19

          (2001) s sec 11            referred to           Para 19
c       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7148 of 2008.

      From the Judgment & Order dated 04.08.2006 in A.P.O.
  No. 400 of 2002 and dated 08.12.2006 in G.A. No. 3585 of
D 2006 in A.P.O. No. 400 of 2002 of the High Court at Calcutta.

         Mohan Parasaran, SG, Jayant Bhushan, Vibha Datta
    Makhija, A.V. Rangam, Buddy A. Rangandhan, Rana
    Mukherjee, Kasturba K., Ajay Majithia, S. Ravi Kumar, Aman
E   Preet Singh, V.S. Lakshmi, A.V. Bala.n for the appearing
    parties.

          The Judgment of the Court was delivered by

         G.S. SINGHVI, J. 1. Whether respondent No.1 was
F entitled to opt for the Pension Schemu after 18 years of his
  retirement is the question which arises for consideration in this
  appeal filed by the appellants against judgment dated 4.8.2006
  passed by the Division Bench of the C:3lcutta High Court. The
  appellants have also challenged order dated 8.12.2006 by
G which the Division Bench of the High Court dismissed the
  application filed for review of judgment dated 4.8.2006.

        2. Respondent No.1 joined the smvice of appellant No.1-
    The Calcutta Port Trust on 19.8.1957 as Class-I Officer. He was
    posted as Chief Officer (D&D) under the Marine Department
H
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                    869
           (CAPT.) [G.S. SINGHVI, J.]

of the then Commissioners for the Port of Calcutta, which was        A
re-named as the Calcutta Port Trust on 19.8.1957. He got
several promotions and ultimately retired from service
w.e.f.1.4.1983 under the Voluntary Retirement Scheme.

     3. At the time of appointment of respondent No.1, there         B
was no Pension Scheme for the employees of appellant No.1
and they were given monetary benefits of the Contributory
Provident Fund Scheme (CPF Scheme). For the first time,
Pension Scheme was introduced for the Commissioner's
employees vide circular dated 29th May, 1962 and made
effective from 1.6.1962. All the existing employees, who were        C
in service on 1.6.1962 were give.n the choice to opt for the
Pension Scheme, but respondent No.1 did not exercise the
option.

     4. Vide circular dated 11.8.1979, appellant No.1 extended       D
the cut off date fixed for exercise of option under the Pension
Scheme by Class-I and Class-II officers and fixed 9.11.1979
as the last date. Many officers opted for the Pension Scheme
but respondent No.1 did not opt for the same. Similar options
were given to the employees vide circulars dated 17.1.1981,          E
 11.3.1981, 29.12.1984 and 19.2.1986, but respondent No.1
did not avail any of the opportunities.

    5. In the year 2000, the Central Government issued circular
dated 7.1.2000 and sanctioned ex gratia at the rate of Rs.600        F
per month for the CPF beneficiaries. Respondent No.1 took
benefit of that circular and received the amount of ex gratia.

     6. In June 2001, the Government of India announced
liberalized pensionary benefits for retired Class-I and Class-II
officers of Major Ports. This resulted in manifold increase in the   G
pension payable to them. With a view to take advantage of the
policy decision taken by the Central Government, respondent
No.1 submitted application dated 23.7.2001 for grant of
pemiission to exercise of option in terms of circulars dated
                                                                     H
    870       SUPREME COURT REPORTS                [2013] 12 S.C.R.


A   29.12.1984 or 19.2.1986. The relevant portions of the
    application read as under:

          "This is to bearing to your kind notice that I joined my
          service as Chief Officer D & D under the Marine
          Department of the then Commissionms for the Port of
B
          Calcutta, since renamed as Calcutta Port Trust on 19th
          August, 1957. During the tenure of my service I got several
          promotions and ultimately retired from service under
          Voluntary Retirement Scheme with effect from 1st April,
          1983 after completion of 25th years and 4 months of
c         continuous service.

          At the time of my appointment there was no pension
          scheme for the employees of the Calcutta Port Trust and
          as such like all other employees I was given the benefit of
D         Contributory Provident Fund Scheme. Since the time of
          my retirement. I have no contact with my office.

          During the tenure of my service pension scheme was
          introduced in the Calcutta Port Trust for its employees but
          the said scheme was not responded to by the majority of
E
          its employees partly due to non circulation of the said
          scheme amongst its employees and partly due to the fact
          that the scheme so introduced was not at all attractive.
          However, since a poor response was received by the
          Calcutta Port Trust, the said scheme did not materialize
F         at all. I however could not exercise such option as I was
          never advised by the authoritv concerned either about the
          introduction of the said scheme or about the benefits
          arising therefrom.

G         I further state that at the time of my retirement no such
          scheme was in vogue for exercis:ng any option to switch
          over to the pension scheme. As such the provident fund
          benefits was given to me by way of my terminal benefits.

H
CALCUTTA PORT TRUST v. ANADI KUMAR DAS                   871
         (CAPT.) [G.S. SINGHVI, J.]

 I further state that even after my retirement the Calcutta Port A
 Trust extended the benefits of the scheme of such pension
 to the retired persons at least on two occasions. Once is
 December 1984 and Second in February 1986. But
 unfortunately even those schemes were neither circulated
 through mass media nor brought to the notice of retired B
 pension including myself as a result of which J also could
 not exercise such option purs1Jant to the said schemes
 though the said scheme appears to be much more
  beneficial then the earlier ones. I further state that in these
  hard days of inflation it is practically impossible fo survive c
  without pension and as such I opted for the scheme of ex
  gratia payment to the retired employees which was
  introduced in January 2000 whenever it came to my notice
  through the newspaper circulation. Similarly I also availed
  of the scheme for medical benefits employees which was 0
  introduced in 1998 as per notification issued through
  newspaper publication.

  Very recently it has come to my notice from one of my
  colleagues that the Calcutta Port Trust also extended the
  benefits of such pension scheme to the retired pensioners     E
  on condonation of delay on sympathetic grounds though
  there was delayed exercise of such option.

  Accordingly I mostly humbly and respectfully pray to you for
  allowing me to the exercise my option by condonation of F
  delay as I am otherwise entitled to avail of the said benefits
  as per the circular issued by the Calcutta Port Trust either
  on 29th December 1984 or on 19th February 1986 which
  I could not avail of within the stipulated time due to my
  ignorance about the introduction of the said scheme as it G
  was not at all noticed to me. I undertake to refund the
  Trustee's contribution towards provident fund together with
  interest as per your said schemes."

                                        (emphasis supplied)
                                                                 H
    872      SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A        7. The application of respondent No.1 was rejected by the
    Financial Adviser and Chief Accounts Officeir of appellant No.1
    on the ground that option to switch over to !tie Pension Scheme
    under Circular dated 29.12.1984 was open Jpto 31.5.1985 and
    under Circular dated 19.12.1986, it was open upto 30.6.1986.
B   This was conveyed to respondent No.1 vide letter dated
    7.8.2001.

        8. Respondent No.1 challenged the rejection of his prayer
  for permission to opt for pension in Writ Petition No.1830/2001
C filed before the Calcutta High Court. After chronologically
  presenting the facts relating to the Pension Scheme and the
  circulars issued from time to time for giving opportunity to the
  retirees to exercise option, respondent No .1 averred that he
  was never informed or made aware of the same by way of
  publication in the newspapers or otherwise and he came to
D know about the same only in June 2001 from his friend to whom
  he had paid a courtesy visit and immediately thereafter, he
  submitted application dated 23. 7.2001 for exercise of option
  in terms of circular dated 19.2.1986.

E       9. In the written statement filed on behalf of the appellants,
  it was averred that respondent No.1 was very much aware of
  the Pension Scheme introduced in 1962 and circulars issued
  from time to time giving additional opportunities to the retired
  employees and officers to opt for the pension. According to the
F appellants, respondent No.1 availed benefits under CPF
  Scheme because it was more beneficial and deliberately
  refrained from exercising option for the Pension Scheme till it
  was liberalized in 2001 by the Central Government. The
  appellants further pleaded that the application made by
G respondent No.1 after 18 years of his retirement was rightly
  rejected by the Financial Advisor and Chief Accounts Officer
  because it was submitted after more than 15 years of the issue
  of circular dated 19.2.1986.

      10. After analyzing the pleadings of the parties and the
H documents produced by them, the learned Single Judge opined
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                      873
           (CAPT.) [G.S. SINGHVI, J.]

that the plea of ignorance put forth by the writ petitioner           A
(respondent No.1) cannot be accepted because being a Class-
1 officer he was very much aware of the Pension Scheme
introduced in 1962 and the circulars issued from time to time
for giving opportunity to the retirees to exercise option. The
relevant portion of the order of the learned Single Judge is          B
extracted below:

    "The case has to be judged on the basis of the averment
    made in the petition so far as ignorance of the petitioner
    about the aforesaid notification is concerned. In paragraph       C
    10 of the petition it has been stated that petitioner
    sometimes in the month of June 2001 went to the
    residence of one of his friends and /or colleagues in the
    Calcutta Port Trust on a courtesy visit and only then he
    came to know about the introduction of pension scheme
    after his retirement. This story of ignorance cannot be           D
    accepted as there was no particular as to the date of his
    visit. No name of his alleged friend nor address of his
    residence has been given. On the other hand, the petitioner
    had occasion to know about the above pension scheme.
    Admittedly on 17th August 2000 he went to the office of           E
    the respondent for submitting an application for ex-gratis
    payment in prescribed from. It is unbelievable story that
    one will not be knowing of existence of such pension
    scheme. Actually the petitioner was not really interested in
    availing of pension scheme at any stage, as this scheme           F
    was not advantageous and gainful for him. Now for the
    reason best known to him, the return yielded from the
    corpus of provident fund amount is not perhaps
    advantageous for him, so he has come to switch over his
    option pension scheme at this belated stage. Mr.                  G
    Majumdar is right in saying that the approach of the
    petitioner is not bonafide as at no point of time he was in
    favour of the pension scheme. In the case cited by
     Mr.Bhattacharjee the petitioner therein at the first available
     opportunity exercised his option. Moreover, in that case         H
    874       SUPREME COURT REPORTS                [2013] 12 S.C.R.


A         there was delay of less than two years and such delay for
          ignorance of existence of the said pension scheme during
          that period is quite reasonable. In this case it is an
          unbelievable story further that 1984 till June 2001 he would
          not be knowing of existence of this pension scheme. I am
B         of the view that story made out by the petitioner's
          absolutely concocted as no supporting affidavit has been
          filed by the said friend in order to strengthen the belief of
          such case. It appears further that the petitioner has
          connection with the pensioners' association of the Calcutta
c         Port Trust wherefrom he has collected copies of the circular
          of the pension scheme sometimes in the month of July
          2001. So, the petitioner could have ascertained the
          existence of the pension scheme introduced in 1984 had
          he reasonably been diligent."
D         11. The Division Bench of the High Gourt allowed the
    appeal filed by respondent No.1 and reversed the order of the
    learned Single Judge by observing that the circulars issued by
    appellant No.1 were neither published in the daily newspaper
    not the same were circulated among the concerned retired
E   employees. The Division Bench was of the view that appellant
    No.1 was duty bound to publish the circulars in the daily
    newspapers or circulate the same amongst all the concerned
    retired employees and that the learned Singl13 Judge committed
    an error by declining relief to him on the assumption that he must
F   be aware of the circulars issued in 1984 and 1986. The relevant
    portions of the judgment of the Division Bench are extracted
    below:

          "There is nothing to show that the said circular allowing the
          retired employees to exercise option to come under the
G
          said pension scheme was circulated amongst all the
          retired employees. There is also nothing to show that there
          was any attempt on the part of Port Trust Authority to
          publish the said circular in the daily newspaper either
          English or Bengali for bringing the said beneficial order to
H
CALCUTTA PORT TRUST v. ANADI KUMAR DAS                 875
         (C~~_T.) [GS. SINGHVI, J.]

 the notice of the retired employees. To the contrary, it      A
 appears that on 19.2.1986 there was another circular to
 all Heads of Department, Calcutta Port Trust for granting
 fresh opportunity to Class-I and Class-II officers who were
 on the Contributory Provident Fund Scheme to elect the
 pension scheme by exercising option within 30.6.86.           B
 There is also nothing to show that this circular was
 circulated amongst all the concerned retired employees of
 Calcutta Port Trust and the same was published in any daily
 newspaper.

 It is needless to say that the circulation of the said orders C
 extending benefit to the retired employees amongst all the
 concerned retired employees including the writ petitioner
 was a must and it was incumbent upon the Port Trust
 Authority to show that the said circular was brought to the
 knowledge of each and every concerned retired employee D
 by the authority. In order to discharge the heavy onus upon
 the Calcutta Port Trust not a single scrap of paper was
 produced by the respondent to show that the said matter
 was circulated and reached the writ petitioner. It is not
 claimed by the respondent that the concerned circulars E
 were circulated by publishing the same in any daily
 newspaper. In para 4(F) of the Affidavit in opposition
 submitted on behalf of the respondent Nos.1 to 7 it was
 stated that all the circulars were made through circulation
 of the Heads of Departments which were in turn circulated F
 through Sectional Heads by displaying in notice board and
 there was no reason why the writ petitioner being a Class-
 ! employee would not know the same at least till he retired.
 There is no paper to show that there was any order of
 displaying the circulars in the Notice Board and really the G
 same was displayed in the Notice Board of the office of
 the respondent. The first circular granting fresh opportunity
 to Class-I and Class-II officers who were enjoying the
 benefits of the Contributory Provident Fund Schemes to
 elect the pension scheme was issued by the Calcutta Port H
                                                                             -
                                                                             ~




    876       SUPREME COURT REPORTS                   [2013] 12 S.C.R.


A         Trust to all Heads of Department on 29.12.84 whereas the
          writ petitioner retired from service on 1.4.83. If it is
          assumed that the said circular was displayed in the Notice
          Board of the office still then it cannot be definitely said that
          the said circular came to the notice of all the retired
B         employees of Calcutta Port Trwst including the writ
          petitioner who retired from service before the date of issue
          of the circular. It was incumbent on the part of the Calcutta
          Port Trust to serve the said copy of circular upon the writ
          petitioner but the Calcutta Port Trust Authority did not make
c         any attempt to send the said circular to the writ petitioner.
          The same was not published in the newspaper. The
          Calcutta Port Trust Authority thus failed to discharge the
          onus of proving that the said circular was brought to the
          knowledge of the writ petitioner by ti and despite the fact
          that the said circular was brought tc1 the notice of the writ
D
          petitioner, the writ petitioner failed to exercise his choice
          within the stipulated period."

        12. The Division Bench noted that even though respondent
  No.1 did not file affidavit of his friend from whom he is said to
E have acquired knowledge about the circulars issued by appellant
  No.1 in 1984 and 1986 but held that it was the duty of the latter
  to bring those circulars to the notice of respondent No.1 and it
  cannot take advantage of the weakness of his case.

F      13. Shri Mohan Parasaran, learned Solicitor General and
  Shri Jayant Bhushan, learned senior counsel appearing for the
  appellants relied upon the judgment of this court in Union of
  India v. M.K. Sarkar (2010) 2 SCC 59 and argued that even
  though the circulars issued by appellant No.1 giving an
  opportunity to the retirees to opt for pensi1ln were not published
G in the newspapers or through radio/television and copies
  thereof were not sent to the concerned individuals, respondent
  No.1 was not entitled to exercise option after a time gap of 15
  years counted from the date of issue of circular dated 19.2.1986
  and over 16 years counted from 13.11.1984 because being a
H
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                    877
           (CAPT.) [G.S. SINGHVI, J.]

Class-I officer, who remained posted at Calcutta, he will be       A
deemed to be aware of the Pension Scheme introduced in
1962 and multiple opportunities afforded to the employees and
officers to opt for pension. Both Shri Parasaran and Shri Jayant
Bhushan emphasized that respondent No.1 did not opt for the
Pension Scheme because till his retirement the CPF Scheme          B
was more beneficial and he submitted representation in July
2001 only after the Pension Scheme was liberalized and
became very lucrative and argued that the Division Bench of
the High Court committed serious error by entertaining the claim
lodged by respondent No.1 after more than 15 years of the          c
issue of circular dated 19.2.1986.

     14. Shri Ajay Majithia, learned counsel for respondent No.1
relied upon the judgment in Dakshin Haryana Bijli Vitran
Nigam v. Bachan Singh (2009) 14 SCC 793 and argued that
the Division Bench of the High Court did not commit any error      D
by granting an opportunity to his client to opt for the Pension
Scheme because at no point of time the circulars issued in
1984 and 1986 were communicated to him.

     15. We have considered the respective arguments and           E
scrutinized the record. In support of his plea that till 2001 he
was unaware of the circulars issued by appellant No.1 in 1984
and 1986, respondent No.1 made the following averments in
paragraphs 7 to 17 of the writ petition:

    •7. Your petitioner states that from a newspaper publication F
    your petitioner came to a know that the Government of
    India, Ministry of Surface Transport (Port Wing) by a letter
    being No.A-38011/11/98 PET dated 7th January, 2000
    decided to grant ex gratia payment to C.P.F. beneficiaries
    who had retired between 18th November, 1960 to 31st G
    December, 1985 at the rate of 600/- per month with effect
    from 1st November, 1997 subject to a condition that such
    persons should have rendered at least 20 years of service.

    8. Your petitioner states that after coming to know about      H
    878       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A         the introduction of the said scheme for ex gratia payment
          your petitioner submitted an application in prescribed form
          on 17th August, 2000 for grant of ex grati.a payment and
          your Petitioner was granted such ex gratia. payment.

          9. Your petitioner further states that your petitioner also
B
          availed of the scheme for medical benefits extended by
          the Calcutta Port Trust to its retired employees which was
          introduced in 1998 as per the notification issued through
          newspaper publication.
c         10. Your petitioner states that sometimes in the month of
          June, 2001 your petitioner went to the residence of one of
          his friends and/or colleague in the Calcutta Port Trust on
          courtesy visit. It is only then that your petitioner came to
          know about the introduction of pension scheme introduced
D         even after his retirement. On further enquiry your petitioner
          came to know that the Calcutta Port Trust extended the
          benefits of such pension scheme to many of its employees
          by condoning their defaults for delayed exercise of their
          options, sometimes on its own and sometimes following
E         the orders passed by this Hon'ble Court in its constitutional
          writ jurisdiction on different writ petitions filed by various
          retired employees of the Calcutta Port Trust from time to
          time.

          11. Your petitioner states that your petitioner r.ame to know
F         that on or about 29th December, 1984. the Financial
          Adviser and Chief Accounts officer issued a circular to all
          departmental heads allowing fresh opportunity to all class-
          1 and Class-II officers who were in service on 1st August,
          1982 but have retired from service with Contributory
G         Provident Fund benefits after 1st August 1982 and till the
          date of issue of the said Government order dated 30th
          November, 1984 provided such retired employees
          exercise their option by 31st may 1985 and 1s agreeable
          to first refund the Trustees contribution towards the
H         provident fund benefits inclusive of interest thereof.
CALCUTTA PORT TRUST v. ANADI KUMAR DAS                     879
         (CAPT.) [G.S. SINGHVI, J.]

 A true copy of the said circular which your peUtioner             A
 collected from the petitioner's association of the Calcutta
 Port Trust subsequently sometimes in early July, 2001 is
 annexed hereto and is marked with Annexure "A" to this
 petition.
                                                                   B
 12. Your petitioner states that the said circular was never
 intimated to your petitioner by the Calcutta Port Trust
 though it is incumbent upon the Calcutta Port Trust to
 intimate the retired employees personally about the
 scheme introduced for the benefit of the retired employees.       C

 13. Your petitioner states that the said circular was also
 not circulated by the Calcutta Port Trust through the Mass
 Media such as newspaper publication broadcasting of
 news over Radio, Television etc. to keep the retired
 employee informed about the introduction of such scheme. D
 As a result your petitioner could not know about the
 introduction of the said scheme.

 14. Your petitioner states that your petitioner further came
 to know that by a subsequent notification issued by the           E
 Calcutta Port Trust vide Memo No. 1720 P dated 19th
 February 1986, another opportunity for exercising fresh
 option to the retired Class I and Class II officers who retired
 from service after 1st August, 1982 with Contributory
 Provident Fund benefits and till 1st January 1986 was
 given by the Calcutta Port Trust provided such retired            F
 employees exercised their option within 30th June, 1986
 and is agreeable to refund the Trustees contribution
 towards the Contributory Provident Fund Scheme including
 interest thereof.
                                                                   G
 A true copy of the said notice/circular which you petitioner
 collected subsequently sometimes in early July 2001 is
 annexed hereto and is marked with Annexure "B" to this
 petition.
                                                                   H
    880       SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A         15. Your petitioner states that even the said circular was
          not intimated to your Petitioner personally by the Calcutta
          port Trust though the Calcutta Port Trust was aware of your
          petitioners residential address. Your petitioner further
          states that like the earlier one, this time also the Calcutta
B         Port Trust did not circulate the said circular through the
          Mass Media as a result your petitioner could not know
          about the said circular. Thus for the reasons as aforesaid
          your petitioner could not exercise his option though he was
          ready to avail of the benefits of the said pension scheme.
c         16. Your petitioner states that since the introduction of the
          aforesaid pension schemes by the Calcutta Port Trust was
          not known to your petitioner, your petitioner was finding it
          extremely difficult to survive without pension in these hard
          days of inflation and as such your petitioner opted for the
D         scheme of ex gratia payment to the retired employees
          which was introduced in January, 2000 whenever it came
          to the notice of your petitioner through the newspaper
          circulation. Your petitioner further states that had your
          petitioner had known about the said pension scheme
E         earlier then your petitioner wouJd have exercised his option
          within the stipulated period as the said scheme is much
          more beneficial to your petitioner.

          17. Your petitioner states that however, immediately after
F         coming to know that the Calcutta Port Trust allowed some
          of its retired employees to come over to the pension
          scheme by condoning their delayed exercise of option,
          your petitioner submitted a representation to the
          concerned respondents by his letter dat1~d 23rd July, 2001
G         inter alia praying for allowing your petitioner to come over
          to pension scheme on condonation of delay for exercising
          such option.

          A true copy of the said representation which was received
          by the concerned respondents on 2'7th July, 2001 is
H
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                 881
           (CAPT.) [G.S. SINGHVI, J.)

    Annexed hereto and is marked with Annexure "C" to this      A
    petition."

     16. The learned Single Judge critically analysed the above
reproduced averments and recorded a well reasoned finding
that respondent No.1 was aware of the Pension Scheme and B
the circulars issued by appellant No.1. The learned Single Judge
dmcarded the story of respondent No.1 that he came to know
about circular dated 19.2.1986 in the month of June from his
friend/colleague. The Division Bench of the High Court neither
adverted to the averments contained in the writ petition nor C
referred to the reasoning of the learned Single Judge and
granted relief to respondent No.1 on the premise that appellant
 No.1 is duty bound to get the circulars published in the daily
 newspapers and display thereof on the notice board was not
sufficient to give an intimation to the retirees.
                                                                 D
      17. In Union of India v. D.R.R. Sastri (1997) 1 SCC 514,
 to which reference has been made in Union of India v. M.K.
 Sarkar (supra) relied upon by the learned counsel for the
 appellants, a two Judge Bench of this Court considered whether
 the Central Administrative Tribunal was right in directing the E
 Railway Board to allow the respondent to exercise option for
 Pension Scheme after expiry of the cut off date fixed for that
 purpose. While approving the order of the High Court, which
 dismissed the writ petition filed by the appellant, this Court
 observed:                                                       F

      "When this case was listed before this Court on 6-5-1995,
it was brought to the notice of the Court that the Government
itself has granted a similar benefit to one K.V. Kasthuri by an
order dated 19-9-1994, even though he had retired in the year
1973. The Court, therefore, called upon the Union Government G
to place the necessary material which enabled the Government
to grant the relief to Shri Kasthuri and how his case stands on
a different footing than the case of the respondent. But no further
affidavit was filed by the Union of India nor was any material
 placed to indicate any distinguishing feature for granting the H
    882      SUPREME COURT REPORTS                [2013] 12 S.C.R.


A    relief to Shri K.V. Kasthuri and refusing the same to the
     respondent. Be that as it may when the matter was again
    argued on 20-8-1996, it was contended on behalf of the
    appellant that the respondent having resigned from the Railways·
    and having been absorbed by the Heavy Engineering
B   Corporation would be entitled to the benefits available to him
    under the Heavy Engineering Corporation and the counsel for
    the appellant also contended that the Heavy Engineering
    Corporation has already determined the pension of the
    respondent by taking into account the entire period of service
c   from 1952. In view of the aforesaid submissions of the learned
    counsel appearing for the appellant the Court had called upon
    the railway administration to indicate whether the period of
    service rendered by the respondent from 1950 till 22-7-1972
    under the Railways was taken into account by the Heavy
0   Engineering Corporation in fixing his pension on his retirement
    from the service of Heavy Engineering Corporation and whether
    the proportionality of the period of service from 1950 to 31-7-
    1972 and from 1-8-1972 till the retirement are separated to
    compute the pension and if so computed whether the
    respondent would stand to gain any higher pension than is
E   being actually drawn. But unfortunately no further affidavit or
    material was placed by the appellant. On the other hand the
    respondent has filed an affidavit stating therein that he has not
    received any pension on his retirement from the Heavy
    Engineering Corporation as the Corporation itself had no
F   pensionable scheme. In the aforesaid premises and in the
    absence of any explanation from the appellant to indicate any
    special feature for granting similar relief as late as in the year
    1994 to Shri K.V. Kasthuri, we see no justification for our
    interference with the impugned direction of the Tribunal. The
G   respondent had served for about 22 years and he should not
    be deprived of the pensionary benefit when the Government
    itself had come forward with the Liberalised Pension Scheme
    and gave option to the persons already retired to come over
    to the pension scheme. But his pension is to be calculated as
H   on 31-7-1972 in accordance with the Railway Board's letter
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                     883
           (CAPT.) [G.S. SINGHVI, J.]

dated 23-7-1974 and in compliance with all the necessary            A
formalities by the respondent in accordance with the said
circular."

     18. The question whether it was incumbent upon appellant
No.1 to get the circulars published in the newspapers and
                                                                    B
communicate the same to the individual employees was
considered by a two-Judge Bench in Union of India and others
v. M.K. Sarkar (supra) and answered in the following words:

    "The Tribunal in this case has assumed that being "aware"
    of the scheme was not sufficient notice to a retiree to         C
    exercise the option and individual written communication
    was mandatory. The Tribunal was of the view that as the
    Railways remained unrepresented and failed to prove by
    positive evidence, that the respondent was informed of the
    availability of the option, it should be assumed that there     D
    was non-compliance with the requirements relating to
    notice. The High Court has impliedly accepted and
    affirmed this view. The assumption is not sound.

    The Tribunal was examining the issue with reference to a
                                                                    E
    case where there was a delay of 22 years. A person, who
    is aware of the availability of option, cannot contend that
    he was not served a written notice of the availability of the
    option after 22 years. In such a case, even if Railway
    Administration was represented, it was not reasonable to
    expect the department to maintain the records of such           F
    intimation(s) of individual notice to each employee after 22
    years. In fact by the time the matter was considered more
    than nearly 27 years had elapsed. Further when notice or
    knowledge of the availability of the option was clearly
    inferable, the employee cannot after a long time (in this       G
    case 22 years) be heard to contend that in th.e absence
    of written intimation of the option, he is still entitled to
    exercise the option."

    In the above noted case, the Court found that the               H
    884       SUPREME COURT REPORTS                [2013] 12 S.C.R.

A respondent had made application after 22 years of his
  retirement for grant of opportunity to opt for the Pension
  Scheme. The Chairman, Railway Board rejected his
  representation on the ground that it was highly belated. The
  Tribunal set aside the decision of the Chairman, Railway Board
B and the Division Bench of the Calcutta High Court upheld the
  same. This Court reversed the orders of the Tribunal and the
  High Court and observed:

          "When a belated representation in regard to a "stale" or
          "dead" issue/dispute is considered and decided, in
c         compliance with a direction by the court/tribunal to do so,
          the date of such decision cannot 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
D         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
E         extend the limitation, or erase the delay and laches.

          A court or tribunal, before directing "consideration" of a
          claim or representation should examine whether the claim
          or representation is with reference to a "live" issue or
F         whether it is with reference to a "dead" or "stale" issue. If
          it is with reference to a "dead" or "stale' issue or dispute,
          the court/tribunal should put an end to the matter and should
          not direct consideration or reconsideration. If the court or
          tribunal deciding to direct "consideration" without itself
          examining the merits, it should make it clear that such
G
          consideration will be without prejudice to any contention
          relating to limitation or delay and laches. Even if the court
          does not expressly say so, that would be the legal position
          and effect."
H         19. In Dakshin Haryana Bijli Vitran Nigam v. Bachan
  CALCUTTA PORT TRUST v. ANADI KUMAR DAS                     885
           (CAPT.) [G.S. SINGHVI, J.]

Singh (supra) on which reliance was placed by Shri Ajay A
Majithia, this Court approved the order of the Punjab and
Haryana High Court which had taken the view that the employer
was duty bound to inform the retired employees about the
instructions issued for giving them opportunity to switch over
to the Pension Scheme. This Court referred to the judgment of B
the Full Bench of the Punjab and Haryana High Court in Kesar
Chand v. State of Punjab AIR 1988 Punjab 265, the judgments
of this Court in D.S. Nakara v. Union of India (1983) 1 SCC
 305, Subrata Sen v. Union of India (2001) 8 SCC 71 and held:
                                                                      c
     "In view of the law as has been articulated in a large number
     of cases where this Court has observed that any
     discriminatory action on the part of the Government would
     be liable to be struck down. Hence, in this case, it would
     be totally unreasonable and irrational to deny the
     respondent the pensionary benefits under the scheme D
      particularly when the appellants have failed to produce any
      record showing that the instructions dated 6-8-1993 and
      9-8-1994 were actually got noted in writing by the
      respondent. In the absence of any such material it can well
      be inferred that the respondent had no knowledge about E
      the options called by the appellants."

      From the above extracted observation, it is evident that this
 Court felt persuaded to approve the order of the High Court
 because no evidence was produced by the appellant to prove           F
 that the respondent knew about the options called by the
 appellants.

      20. We would like to observe that whenever an employer
 introduces the Pension Scheme or makes the same applicable G
 to retired employees and give them opportunity to exercise
 option, the circulars/instructions issued for that purpose should
 either be communicated to the retirees or made known to them
 by some reasonable mode. Mere display of such notice/
 instructions on the notice board of the Head Office cannot be
                                                                   H
     886      SUPREME COURT REPORTS                 [2013] 12 S.C.R.


A treated as an intimation thereof to the retired employees/
    officers. The employer cannot presume that all the retirees have
    settled in the city where the Head Office is located. If the
   employees belong to the services of the Central Government
   or its agencies/instrumentalities, they an~ likely to settle in their
B native places which may be far away from the seat of the
   Government or Head Office of the establishment or
   organisation. The retirees are not expected to frequently travel
   from their native places to the seat of the Government or Head
   Office to know about additional benefits, if any, extended by the
c Government or their establishment/organization and it is the duty
   of the employer to adopt a suitabl; mechanism for
   communicating the decision to the retired employees so as to
   enable them to exercise option. This could be done either by
   publishing a notice in the newspaper about which the retirees
0  are   told at the time of their retirement or by sending copies of
  the circulars/instructions to the retirees or by sending a copy
  thereof to the association of the employees and/or officers with
  a direction to them to circulate the same among the concerned
  retirees. By taking advantage of tl1e modern technology, the
E employer can also display the circulars/instructions on a
  designated website about which prior information is made
  available to the employees at the time of their retirement. If one
  of these modes is not adopted, the retired employees can
  legitimately complain that they have been denied right to
  exercise the option and can seek intervention of the Court.
F
        21. If an aggrieved retiree seeks intervention of the Court
  for issue of a direction to the employer to give him opportunity
  to exercise option to switch over from one scheme to the other,
  the employer can produce evidence to show that the concerned
G employee had knowledge about the particular scheme etc. The
  employer can also show that even though the scheme etc. had
  not been communicated to the concerned employee in person,
  he was aware of the same. Each such case will have to be
  decided by the competent Court keeping in view the pleadings
H and evidence produced by the parties and it cannot be laid
   CALCUTTA PORT TRUST v. ANADI KUMAR DAS                     887
            (CAPT.) [G.S. SINGHVI, J.)
down as a general rule that each and every circular/instruction     A
issued by the employer giving additional monetary benefits to
the retired employees must be published in the newspapers
and that in the absence of such publication or personal
communication to the retired employee would entitle him to seek
intervention of the Court after lapse of many years.                 B

        22. We may now revert to the facts of this case. It is not in
  dispute that at the time of the introduction of the Pension
  Scheme, respondent No.1 was very much in service as Class-
  ! officer. Circulars dated 11.8.1979, 17.1.1981and11.3.1981 C
  were. also issued during his tenure as a senior officer of
  appellant No.1. Therefore, it is not possible for any person of
  ordinary prudence to believe that respondent No.1 was not
, aware of the Pension Scheme and the opportunities given to
  the retired employees/officers to exercise option to switch over
  from the CPF Scheme to the Pension Scheme. This is D
  precisely what the learned Single Judge did and we do not find
  any error in the approach adopted by him. The story put forth
  by respondent No.1 of having acquired knowledge about the
  circulars issued in 1984 and 1986 from his friend/colleague was
  rightly discarded by the learned Single Judge. The failure of E
  respondent No.1 to disclose the name of the concerned friend/
  colleague adequately supports the inference drawn by the
  learned Single Judge and the Division Bench of the High Court
  committed serious error by interfering with the order of the
  learned Single Judge.                                               F
       23. We may add that it was neither the pleaded case of
 respondent No.1 before the High Court nor any evidence was
 produced by him to show that the copies of the circulars issued
 by appellant No.1 were not sent to the Association of G
 employees. It was also not the pleaded case of respondent
 No.1 that he had visited the Association for the first time in 2000
 for collecting the circular issued by the Government of India for
 grant of ex gratia of Rs.600 per month. This being the position,
 it is not possible to accept the specious argument of respondent H
   888      SUPREME COURT REPORTS              [2013] 12 S.C.R.


A No.1 that he had no knowledge of the Pension Scheme and
  the circulars issued in 1984 and 1986 .

      . 24. In the result, the appeal is allow1~d. the impugned
  judgment and order are set aside and the one passed by the
8 learned Single Judge is restored. However, k.eeping in view the
  peculiar facts of this case, we direct the appellants to allow
   respondent No.1 to exercise option in terms of circular dated
   19.2.1986. The needful be done within a period of two months
   from the date of receipt of copy of this judgment. At the same
C time, we make it clear that this direction shall not be treated
   as a precedent for other cases pending before the High Court,
   which shall be decided in the backdrop of their own facts.

   B.B.B.                                   Appeal disposed of.