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TMI Blog2009 (12) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... , and more important, received the entire PF amount on his retirement. In fact, as noticed, in his application before the Tribunal the respondent refers to all the options. He is careful to say that he was not intimated about the contents of the last order relating to extension of the option, but does not say that he was unaware of the order extending the benefit of option. The respondent consciously chose not to exercise the option as he admittedly thought that receiving a substantial amount in a lump sum under the provident fund scheme (which enabled creation of a corpus for investment) was more advantageous than receiving small amounts as monthly pension under the pension scheme. In those days (between 1957 when the pension scheme was introduced and 1976 when the respondent retired) the benefits under the provident fund scheme and pension scheme were more or less equal; and there was a general impression among employees that having regard to average life expectancy and avenues for investment of the lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is therefore allowed and the orders of the Tribunal and the High Court are set aside and the original application of the respondent before the tribunal is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases of other employees who were allegedly extended the benefit of exercising the option for belated switch overs, cited and relied upon by the respondent. The relevant portion of the order is extracted below: Thus, the cases referred to in the preceding para are not relevant to the case of Shri Sarkar who had eight occasions to come over to the Pension Scheme during his service period. By the time, VIII Pension option was thrown open, vide Board's letter dated 23.7.1974 as extended from time to time upto 31.12.1978, Shri Sarkar was in service till 15.10.1976. He resumed as COS/NF Railway on 11.6.1976. Board's instructions dated 30.6.1976 extending the last date for exercising of option available under Board's letter dated 23.7.1974 to come over to the pension scheme upto 31.12.1976 was circulated by NF Railway vide their letter dated 17.7.1976. The said letter was circulated as per standard mailing list including HODs. Shri Sarkar, being the HOD himself at the relevant time, cannot deny having knowledge of the aforesaid Railway Board's instructions. 5. The respondent challenged the order dated 15.5.2004 by filing a second application before the Tribunal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant was cut off from railway and was in darkness about their Pension policy. In 1998 the applicant came to know that some officers of administrative grades were given pensionary benefit with or without intervention of court since they had not been informed about option for pension. The Tribunal by order dated 25.7.2005 allowed the application of the respondent and directed the appellants to permit the respondent to opt for pension scheme and also inform the respondent the amount that was required to be refunded in case he exercised the option. The Tribunal extracted the reasons assigned by the Chairman of the Railway Board in his order dated 15.5.2004 rejecting the request of respondent. Significantly, the Tribunal did not disagree with the said finding, nor refer to the enormous delay in making the claim. The Tribunal allowed the application, as the Railways had remained unrepresented and had not contested the claim, even though in the entire application there was no averment denying knowledge of the availability of the VIII Option dated 23.7.1974. 6. The appellants challenged the order of the Tribunal in WP (CT) No. 467/2005. The High Court dismissed the writ petition by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lump sum PF amount, it was prudent to receive a large PF amount on retirement rather than receive a small pension for a few years (particularly as there was a ceiling on the pension and as dearness allowance was not included in the pay for computing the pension). 8. From 1980 onwards, gradually the pension scheme became more and more attractive as compared to the Contributory Provident Scheme, on account of various factors, like dearness allowance being included in the pay for computing pension, ceiling on pension being removed and liberalisation of family pension etc. But the respondent was well aware that not having opted for pension scheme and having received the PF amount on retirement, he was not entitled to seek switch over to pension scheme. But in 1996, when the respondent learnt that some others who had retired in and around 1973 to 1976 had been permitted to exercise the option in 1993-94 on the ground that they had not been notified about the option, he decided to take a chance and gave a representation seeking an option to switch over to pension scheme. Having enjoyed the benefits and income from the provident fund amount for more than 22 years, the respondent could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt relief. In this manner, the bar of limitation or the laches gets obliterated or ignored. When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. A Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. If it is with reference to a 'dead' or 'state' issue or dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent therein approached the Central Administrative Tribunal in 1993 alleging that he came to know about the said option only in 1993 and that his representation dated 12.6.1993 for relief was rejected by the Railway Board on 13.7.1993. The Tribunal held that the respondent should be given the opportunity to exercise his option to shift to pension scheme, in terms of the Railway Board's letter dated 23.7.1974, as he was prevented from exercising his option by the failure of Railways to inform him about the option. The Tribunal also took note of the fact that another railway employee was allowed to exercise the option long after the date for exercising the option had expired, but the respondent was not given a similar benefit. The said decision of the Tribunal was affirmed by this Court. The decision in D.R.R. Sastri is of no assistance as it does not lay down any proposition that the last date prescribed for exercising option is not relevant or that option could be exercised at any time, even if a last date had been stipulated for exercise of the option. That case was decided on its peculiar facts as the employee (who was on deputation and who resigned from the service of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;notice' it must be presumed to have borne in mind that it means not only a formal intimation but also an informal one. Similarly, it must be deemed to have in mind the fact that service of a notice would include constructive or informal notice. If its intention were to exclude the latter sense of the words 'notice' and 'service' it would have said so explicitly. 13. Learned Counsel for the respondent lastly submitted that one K.V. Kasturi who had retired in 1973, was granted the benefit of exercising the option by an order dated 19.9.1994, and therefore, principles of equality and equal opportunity required that the Railways should give him the option. The Chairman of Railway Board, while rejecting the respondents' representation by order dated 15.5.2004 has clarified that K.V. Kasturi's case was similar to that of D.R.R. Shastri as he had also not been informed of the availability of option. There is another angle to the issue. If someone has been wrongly extended a benefit, that cannot be cited as a precedent for claiming similar benefit by others. This Court in a series of decisions has held that guarantee of equality before law under Article 14 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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