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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7148 OF 2008

The Calcutta Port Trust and others ....Appellants

versus

Anadi Kumar Das (Capt.) and others ....Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Whether respondent No.1 was entitled to opt for the Pension Scheme 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 Calcutta High Court.  The appellants have also challenged  

order dated 8.12.2006 by 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 service of appellant No.1-The Calcutta Port  

Trust on 19.8.1957 as Class-I Officer.  He was posted as Chief Officer (D&D)  

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under the Marine Department of the then Commissioners for the Port of Calcutta,  

which was 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  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 in service on 1.6.1962 were given 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 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,  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 per month for the CPF beneficiaries.  

Respondent  No.1  took benefit  of  that  circular  and received the amount  of  ex  

gratia.

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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 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  permission  to  exercise  of  

option in terms of circulars dated 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  Commissioners for  the Port  of  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 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  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  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 at all. I however could not  exercise  such  option  as  I  was  never  advised  by  the  authority  concerned either about the introduction of the said scheme or about  the benefits arising therefrom.

I further state that at the time of my retirement no such scheme was in  vogue for exercising 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.

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I further state that even after my retirement the Calcutta Port 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  pension including myself as a result of which I also could not exercise  such  option  pursuant  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 to  survive 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 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  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 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  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)

7. The application of respondent No.1 was rejected by the Financial Adviser  

and Chief Accounts Officer of appellant No.1 on the ground that option to switch  

over  to  the  Pension  Scheme  under  Circular  dated  29.12.1984  was  open  upto  

31.5.1985 and under Circular dated 19.12.1986, it was open upto 30.6.1986. This  

was conveyed to respondent No.1 vide letter dated 7.8.2001.

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8. Respondent No.1 challenged the rejection of his prayer for permission to  

opt  for  pension in  Writ  Petition No.1830/2001 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 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.  

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 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 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 documents produced by  

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them, the learned Single Judge opined that the plea of ignorance put forth by the  

writ  petitioner  (respondent  No.1)  cannot  be  accepted  because  being a  Class-I  

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  

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 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 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  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  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. 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  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 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  

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strengthen the belief of such case. It appears further that the petitioner  has connection with the pensioners' association of the Calcutta 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.”

11. The  Division  Bench  of  the  High  Court  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 nor the same were circulated among the concerned retired 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 Single Judge committed an error  

by declining relief to him on the assumption that he must 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 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 the notice  of  the  retired  employees.  To  the  contrary,  it  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.  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.

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It is needless to say that the circulation of the said orders 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 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 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  through  Sectional  Heads  by  displaying  in  notice  board  and  there  was  no  reason why the writ petitioner being a Class-I 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 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 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 employees of Calcutta Port Trust  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 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 it and despite the  fact  that  the  said  circular  was  brought  to  the  notice  of  the  writ  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 have acquired knowledge about the  

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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.

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  pension  were  not  published  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 Class-I officer, who remained posted at  

Calcutta, he will be 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 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  

issue of circular dated 19.2.1986.   

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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  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 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  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 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 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 gratia payment and your Petitioner  was granted such ex gratia payment.

9.  Your  petitioner  further  states  that  your  petitioner  also  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.

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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  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 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 came to know  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-I  and  Class-II  officers  who were  in  service  on  1st  August,  1982  but  have  retired from service with Contributory 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 is  agreeable to first refund the Trustees contribution towards the  provident fund benefits inclusive of interest thereof.

A true copy of the said circular which your petitioner 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.

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.

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.  As  a  result  your  petitioner  could not  know about  the  introduction  of  the said  scheme.

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14. Your petitioner states that your petitioner further came to  know that by a subsequent notification issued by the 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 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.

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.

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 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.

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  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  earlier  then  your  petitioner  would 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  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  

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submitted a representation to the concerned respondents by his  letter dated 23rd July, 2001 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  27th  July,  2001  is  Annexed  hereto and is marked with Annexure "C" to this 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 the circulars issued by appellant No.1. The learned  

Single Judge discarded 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 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.   

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 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  

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Court,  which  dismissed  the  writ  petition  filed  by  the  appellant,  this  Court  

observed:

“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 gran- ted 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, there- fore, called upon the Union Government to place the necessary mater- ial 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 re- spondent. But no further affidavit was filed by the Union of India nor  was  any  material  placed  to  indicate  any  distinguishing  feature  for  granting the 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 re- spondent  having  resigned  from the  Railways  and  having  been  ab- sorbed by the Heavy Engineering 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 En- gineering Corporation has already determined the pension of the re- spondent  by  taking  into  account  the  entire  period  of  service  from  1952. In view of the aforesaid submissions of the learned counsel ap- pearing for the appellant the Court had called upon the railway admin- istration to indicate whether the period of service rendered by the re- spondent from 1950 till 22-7-1972 under the Railways was taken into  account by the Heavy 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 com- pute the pension and if so computed whether the respondent would  stand to gain any higher pension than is being actually drawn. But un- fortunately no further affidavit or material was placed by the appel- lant. 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 pen- sionable 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. Kas- thuri, we see no justification for our interference with the impugned  direction  of  the  Tribunal.  The respondent  had served for  about  22  years and he should not be deprived of the pensionary benefit when  

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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 on 31-7- 1972 in accordance with the Railway Board’s letter dated 23-7-1974  and in compliance with all the necessary 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 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 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  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 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  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 case 22  years)  be  heard  to  contend  that  in  the  absence  of  written  intimation of the option, he is still entitled to exercise the option.”  

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In the above noted case,  the Court  found that  the 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 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  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 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 “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 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.”

19. In Dakshin Haryana Bijli Vitran Nigam v. Bachan Singh (supra) on which  

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reliance was placed by Shri Ajay 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 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:

“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  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 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 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 to retired employees and give them  

opportunity to exercise option, the circulars/instructions issued for that purpose  

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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  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 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.  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 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 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 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 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  

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intervention of the Court.   

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 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 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 to the retired employee would entitle him to seek intervention of  

the Court after lapse of many years.   

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-I officer. Circulars dated 11.8.1979, 17.1.1981 and 11.3.1981  

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  

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CPF Scheme to the Pension Scheme.  This is 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 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.

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  

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  

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 allowed, the impugned judgment and order are  

set aside and the one passed by the learned Single Judge is restored. However,  

keeping 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  

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needful be done within a period of two months from the date of receipt of copy of  

this judgment.  At the same 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.

     ......………………………..….J.        [G.S. SINGHVI]

New Delhi,                 ...….……..…..………………..J. November 13, 2013.        [V. GOPALA GOWDA]

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