Dtc v. Suresh Chander

w * % IN THE HIGH COURT OF DELHI AT NEW DELHI tudament Reserved On: /9e r.!!A 2070 t w.P.(c) s6s/2or.o DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate VCTSUS SURESH CHANDER ..... Respondent Through: Mr.S.N.Sharma,Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NAIIDMIOG-L For orders, see W.P.(C) No.1402712009. -*a\Y (PRADEEP NAND'RAJOG) JUDGE AUGUST I.O, 2O1O mm "r( it>-l e Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. )t@ * IN THE HIGH COURT OF DELHI AT NEW DELI-II % ludament Reserved On: 29th lulv, 2070 tudament Delivered On: 70th Auoust. 2070 + W.P.(C) L4O27l2OOg DELHI TRANSPORT CORPORATION ..''. PCtitiONET Through: Mrs.Avnish Ahlwawat, Ms.Latika' Chaudhary, Advocate VCTSUS 't. l (; MADHU BHUSHAN ANAND '.... Respondent Through: Ms.Kittu Bajaj, Adv. + W. P. (c) 4oLl2olo, DTC ....' Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate VCTSUS SUDERSHAN LAL SHARMA ".' Respondent Through: Ms.Rekha Aggarwal, Mr.D.S.Kauntae, Advs. + w.P.(c) s65/20LO DTC .,... Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate VCTSUS SURESH CHANDER ..... Respqndent Through: Mr.S.N.Sharma,Adv. + w.P.(c) 598/20L0 DELHI TRANSPORT CORPORATION ..... PCtiIiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS ZILE SINGH .... Respondent Through: Mr.N.L.Bareja,Adv. W.P.(C) No.L4027/2009 & Connected Matters Page 1-of 27 { -r-w.P.(c) 75U2AL0 D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advo.cate VCTSUS JAG Sr-ioRAN ..... Respondent Through: Ms.Kittu Bajeij, Adv. -{ f--l +- W.P.(C) L9O2/2O1"O D-l-C .'... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS SURENDER KUMI\R ..... ResPondent-Through: Ms.Kittu Bajaj, Adv. + W.P.(cl 2274lzaLV DF.LHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs,Avnisl't Ahlwawat, lvls.Latika Chaudhary, Advocate VCTSLIS 6 SH.GURBACHAN l-At- & oRS. ..... RespontlerrLs Through: Mr.l{.L.Bareja,Adv. + w.P.(c) 39L9/20L0 DELHI TRAhISPOF.T CiORPOfiA-flON ..... Petitioner Throrigh: Mrs.Avnish Ahlwawat,' Ms.Latika Clraudhary, Advocate VCTSUS RAJO SAINI ..... ResPoncleni Tlrrough: Ms. Kittr: Bajaj, adv. ',V.P.(C) No.LaO2.7 /2009 & Connected Matters Page 2 ol 27 A v +- w.P.(c) 423|2OLO DELHI TRANSPORT CORPORATION ".'. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS SATYA PRAKASH KHURANA ..'.. Respondent Through: Ms.Kittu Bajaj, adv. + w.P. (cl 7s6l2oLo DELHI TRANSPORT CORPORATION ...'. PctitiONCT I-hrough: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS SOM DUTT '.'.. ResPondent Through: Ms.DeePali GuPta, Adv. + W.P. (cl 8321203.0 DELHI I'RANSPORT CORPORATION ....' Petitioner Through: ,Mrs.Avnish Ahlwawat, IVls.Latika Chaucihary, Advocate verSus SH RAM AWAR SHARMA ,.... Respoirdetrt Througlr: Mr.S.N.Sharma,adv. -F W.P. (c) 752l2on o DEI-HI TRANSPORT CORPORATION .... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSLIS J.L.DHUPAPR ..... ResPondent Through: Mr.Narottam VYas, Mr.Vikramjeet Sil<and, Advs. W.P.(C) No.L4O27/2009 & Connected Matters ik + \q -{- w.P.(c) 793|2OLO DELHI TRANSPORT CORPORATION .... PCtitiONCT rhroush' u;:f,Ti?l, tl*?:,x'' Ms Latika VCTSUS BHAGWATI PRASAD ..... ResPondent Through: Ms.Kittu Bajaj, Adv. + W.P.(C) L384l2OLo D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, MS.Latika Chaudhary, Advocate VCTSUS SI-I.RAJENDER SINGH ."'. Respondent I'hrough: Mr.N.L..Bareja, Ad''r + W.P.(C) L386/2010 DELHI.TRANSPORT CORPORATION ...'. PCtitiONCT -t-hrough: N4rs.Avnish Alrlwawat, Ms,Latilca Chaudhary, Advocate VCTSUS S|-|.NANU RAI\4 SHARMA ..... Respondent Through: Mr.N.L.Bareja,Adv. + W.P.(C) 2O5L/2O1't) D-fC ..... Petitioner -l-hrolrgh: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advccate VCTSLIS RANDI-{IR SINGH ..... Respondeitt Througlr: wlr.N.L.B-areja, A.tlv. -.i-W.P.(C) 4906 /?AT{J DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSLIS RAMESH CHAI{D jAiN .... RespondenL -l-hrough: Mr.N.L..Bare1a, Adv. 'v!.P.(C) i,|o.1.4027 !7009 & Corinected lVlatter"s ( l\ +- w.P.(c) 468sl2OLO DEBI SINGH ..... Petitioner Through: Ms.Deepali Gupta, Adv. VCTSUS DELHI TRANSPORT CORPORATION ..... Respondent Throughl Mrs.Avnish Ahlwawat, Ms.Latika ClraudharV, Advocate d +. W.P.(c) 1639/20L0 CHARANJIT BATRA .... Petitioner Through: Ms.Kittu Bajaj, Adv. VCTSUS DEL.HI TRANSPOROT CORPORATION ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate +- W.P. (cl L729l2oTo CHARAN KAMAL ..... PCtitiONCT Through: Ms.Kittu Bajaj, adv. VCTSUS DTC ..... Respondgnt Through: Mrs.Avnish Alrlwawat, Ms.Latika { Chaudhary, Advocate - + W.P.(C) 3339/20L0 ).T.C. ..... Petitioner -l-hrough: . Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS PULAK MUKHERjI .... Respondent Through: Mr.Anrit Kumar, Adv. CORAM: r-toN'BLE MR. JT.JST|CE PRADEEP NIANDRAJOG l-{oN'BLE MR. jUST|CE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Repor-ter or not? W.P.(C) No.1,4O27 /2009 & Connected Matters \b Y< Jrs --

¶3Whetfrer the judgrnent should be reported in the Digest? PRADEEP I{ANDRAIOG, l. J. With the promulgation of the Delhi Municipal Corporation Act 1957 artd the Constitution of the Municipal Corporation of Delhi, municipal functions in Delhi except NDMC area and the area fallirrg under the jurisdiction of the Cantonment Board were vested in the Municipal Corporation of Delhi, which included the function of providing public transport. irr tlre city of Delhi. As a separate wing of the Corporation, the Delhi Transport Undertaking was constituted with a separate budget and separate staff. As the city of Delhi grew, it was. thought advisable to corporatize public transport in Delhi and tlrus tlre Dellri Tfansport Corporation was forrrled as a body c0rporate and it tool< over the functioning of the Dellri 'l'ransport Undertaking. The said Corporation had in place a Contributory Provident Fund Scheme for its employees and nee'Jless to state each tnonth a fiX amount was deducted from tl-re salary of the emprloyees and with a matching contriklution by the Corpclration was creclited in the fr-rnd anc! in the accr-lunt of the employee, wlto needless to state \^/as a nlember of the. Contributory Provident Fu nd. The enn ployees of the C,orporation agitated for long that the pension sclreme of the Governrnent of lrrdia, which was exterrded to l.he rrrunicipal enrployees be also extended to them and in respect o.f whiclr claim they lrad petitioned the Supreme Court, when in the year L992 the Corporation gave an assurance to Lhe Supreme Court that it would introduce a pension scheme for its employees, including the retired enrployees and pursLtant tlrereto issued o'tfice order No.16 rJated 27.L7.IggZ notifying. that a pension s;cheme stood notified which would be operated b), the Life W.P.(C) No.1"4027 /2009 & Cottnected Matters I'age 6 of 27 g n6 Insurance Corporation of lndia (LlC). The office order reads as u rr d er:-"No.Adm-l-5 (4)192 Dated 27.17'92 Sub :lntroduction of Pension Scheme in DTC as applicable to the Central Govt. Employees' The introduction of Pension Scheme for the employees of the DTC has been sanctioned by the Central Govt. and conveyed by the M.O.S.T. vide letter No'RT-' L2OLT\TIIBB-TAG dated 23.IL92 as on the sa me pattern as for the central Govt. employees subject to the following conditions:-

¶1The pension scheme would be operated by the .. LIC on behalf of DTC.

¶2The date of eFfect of Pension Scheme would be

3.8.1981.

¶3All the existing employees including those retired w.e.f. 3.8.1981 onwards would have the option to opt for the Pension Scheme or the Employees Contributory Provident Fund as at present, within 30 days from the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt. of lndia'

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23 'II.92, the ' date of sanction of the scheme.

¶5The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF Alc of the DTC employees, who opt for Pension Schente would be transferred to the LlC, for operating.

¶6The employees who have retired on or after 3'd August 1981 and the existing employees, who have drawn the employer's share, under the EPF Act, partly or wholly shall have to refund the same wiih interest in the event of their opting for the Pension Scheme. l-he total amount to be refunded by the retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. t W.P.(C) No.L402712009 & Connected Matters PageT of 27 $ A .|}

¶7Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them before any benefit under the Scheme, is granted to them

¶8A due ancj drawn statement would be prepared in respect of retired enrployees opting for Pension Scheme and tlre amount to be paid/refunded, lvould be worked or-tt by the'concerned unit, wherefrom the employee had retired from service.

¶9lf any of the employee of DTC, who does not exercise any option withirr the prescribed period of 30 days or quit service or dies without exercising an option or whose option is incomplete or conditional or ambiguous. He shall be deemed to have opted the Pension Schetne BenefiLs. Application forms for exercising clption would be available with the Unit Officers and ali enrployees includirrg retired employees wishing to exdrcise option, should do sc rryithin the Unit'of tlreir present worlcing/where froru thev retired, witlrin a period of 30 clays from the date oF issue of this Office order. The Unit Officers, after receiving the option from the ex-entployees, will take further necessary action for gettirrg the necessary forrns comple'ied, wlrich will be supplied to thern by tire LIC for Pension e.tc. they will also ensure the recovery of EPF and Gratuity from the Ex-ernployees before forwarding their applications as rrientioned above. The cases of all officers will be dealt witlt at l-leadtluarters. Tlre options received frclm the existing ernployees for not opting Pension nray be kept in their Personal file and errtry made in their Service Bock." ). A perusal of the scheme shows that as regards the retired employees, they had to specifically opt to be paid pension arrd had to simultaneously refund to the Corporation, t-lre employers' slrare received by thdm as ntenrt:ers cf tlre L.ontributory Proyident Fund Scheme together witlr interest W. P. ('::) No.1,4027 / 2009 & Co n n e ctecl M atte rs Page 8 <lf 27 $ ( (vide para 6 of the Scheme). As regards tlre existing employees, it was stated vide pafa 4, that the pension scheme would be compulsory for those who joined service under the Corporation with effect from 23.11 .L992 and as regards the existing serving employees, vide para 9, it was stated that those who do not submit any option would be deemed to have opted for the pension scheme. Thus, it is apparent that as regards the existing employees of the Corporation who were still in service when the office order dated 27.7LI992 was promulgated, if they desired to continue to be the members of the Contributory Provident Fund Scheme they had to specifically say so, for the reason, their silence was to be treated aS a deemed option to opt for the pension scheme and neeclless to state their positive option to opt for the pension scheme was always there.

¶3Without worlcing out the modalities with the LIC to work upon and implement the pension scheme and without completing the formalities of compiling the data as to who opted 'or who had to be treated as the deemed optee under f the pension scheme and who specifically opted to continue tcl be a member of the Contributory Provident Fund Scheme, post haste, the Corporation notified a voluntary retirement scheme on 3.3.1993 contents whereof read as under:-"Sub:-Voluntary Retirement of Employees of Delhi Tra nsport Corporation. The rnatter pertaining to the introduction of voluntary Retirement Scheme for the employees has been under the consideration of Delhi Transport Corporation. Salient Features of the proposed voluntary Retirement Scheme are as under:'-

¶1Applicability: The scheme will be applicable to all regular employees of the corporation i.e. workers and W.P.(C) No.L4027 /2009 & Connected Matters c fr executives who are appointed against regular vacancies in the corporation. Eligibility: An employee nrust have completed ten years'of service in'this corporation or completed 40 years of age to qualify for consideration under the Scheme. For this purposd, period of deputation/retention of lien in the parent office in lieu of deputation prior to absorption in the regular service'of the Corporation will be excluded. Conditions covering voluntary retirement.

(a) Voluntary retirement will be norrnally.allowed only in cases of incumbents of the posts which have been declared surplus or ' redundant. However, ',toluntary retirement Scheme could also be allowed in other cases depending on the merits of each case and in the interest of the corporation.

(b) Voiuntary retirement cannot be claimed by any employee as a matter of right. The corporation will have the right not to grant Voluntary Retirement for reasons to be recorded in writing. Under no reasons will the relief under t.lris scheme be allowed frorn a date ear'lier than the date of passing the orders.

(c) An employee in whose case any disciplinary ' case is pending will not be considered under this scheme until the disposal of the same.

¶4An employee wl'to had taken voluntary retirenrent will be eligible to the following refunds/payments:-

(a) Balance in his PF Accourrt as per rules of provident fund applicable to hint.

(b) Encashnrent of refused leave and accumulatecj earned leave as per rules of the corporation applicable to him as if l're reLi[es under tlre rrorrnal rules of retirernent.

2. ..L

¶3.> t'; \lr/. P. (C) No.L4027 I 2009 & Con n ected Nlatte rsj Page LO of 27 tI

(c) Gratuity as per payment of gratuity act and gratuity Rules of the corporation applicable to him.

(d) Three month notice the individual case as per employment. pay as is applicable in the terms of him/her \

(e) An Ex-Gratia payment equivalent to I-Il2 month's basic pay plus DA for such completed year of service limited to one month pay multiplied by the number of whose month of service left before norrnal date of retiretnent.

(f) Expenses for travelling for the entitled class for the employee and his/her family comprising his/her spouse and dependent members from the place of his/her posting to the place where he/she intends to settle down in India.

(g) Pensionary benefits as per office order No.L6 dt.27.XL.92. (Emphasis supplied) All amounts due to the Corporation will be adjusted against the payments under (d) & (e) above and the employee concerned should clear any outstanding dr-res/ad.vances taken before the date of effect of vol r-r nta ry reti rement. Ernployees working on the post of Conductor in the Corporation are proposed to be coverecl under the Voluntary Retirement'Scheme in the first instarice. Such Conductors who are desirous of seelcing voluntary retirement in the proposed Scheme rnay give their option in the prescribed Performa tlrrough proper channel within 15 days to be concerned Unit Officer who will forrryard the same to the Secretary, DTC Board. This issue with the approval of ' competent a uthority. "

¶4Needless to state, the VRS Schetne clearly notified that those who opt'for voluntary retirement would be entitled to pension as per the office order ltJo.16 dated 27.\I.I992 (vide para a(g) of the VRS Scheme). Page 1.1 of 27 * W.P.(C) No.14027 /2009 & Connected Matters )/a z\ !-

¶5Soon thei'eafter vide office memorandum dated

1.6.3.1993 the VRS Scheme notified on 3.3.1993 was made open, for offers to be submitted hry all employees of the ) Corporation. The officer memorandum dated 16.3.1993 reads as urrder:- "Now, it has been decided i:o correr all the employees of the Corporation under the proposed Voluntary Retirement Scheme. Such employees who' are desirous of seelcing voluntary retirement in the proposed scheme rnay give their option in the prescribed proforma through proper channel within 15 days to the concerned Unit Officers, who will forward the same to the Secretary, DTC Board."

¶6When DTC notified the pension scheme on

2.7 .|L.I99?_, the respondents of w.P.(c) Nos.14027 !2009, ,401/2010, 565 20l-A, 598/2010, 75412.0L0, l-9ct2l20ra, 22'741?.010 (3 in number) and 391912010 specifically opted for tl-re pension scherrre. The respondents of W'P.(C) Nos.423 |2OLO, 7561?010, 83212010, 752120l-0, 793120l-0, '13841207A, 1386/2010 and 2051/2010 did not submit any cptions and hence were to be treated as deemed optees for pension.

¶7lt may be noted that the writ petitioners of W.P.(C) Nos.l-63912010 and 1.7291?.01.0 also did not submit any options and hence would be deemed to he optees for pensiort. B. lt may also be noted that the respondent of W.P.(C) No.4906120L0 and the writ petitioner of W.P.(C) No.4689l20I0 subrnitted their options expressly stating that they dc not opt for the pension scheme, meaning thereby, they indicated . pcsitively that they. would lil<e to continue to be mernbers of the Contributory Provident Fund Scheme.

¶9On differerit dates, but all in the respondents of all the 'writ petitions No.1639P.A7.A, W.P.(C) No.1729 2010 \ /.P.(c) Nio.l./lo?-7/2009 & connected N4atters year 1993 the except W.P.(C) a nd W. P. (C) t Page L2 of 27 ()/' No.3339120L0 and the writ petitioner of W.P.(C) No.468912010 submitted offers under the VRS Scheme afore-noted and requested to be relieved from service. It is thus apparent that if request for voluntary -\- retirement was accepted, the said respondents and the writ petitioner of W.P.(C) No.468912010, would or would not be entitled to pension would depend dpon whether they or anyone of them had specifically opted to continue under the Contributory Provident Fund Scheme. We say so for the reason, pertaining to the existing employees, the pension scheme notified on 27.1-L.I992 clearly stated that those who specifically opted for the pension scheme and those who submitted no option whaLsoever would be treated as opting for the pension scheme and only those who specifically opted to continue to be members of the Contributory Provident Fund Scheme would not .be treated as optees under the pension scheme and would continue to be retained as members of the Contributory Provident Fund Scheme. Thus, it is apparent that the respondent of W.P.(C)

10.

¶11ln the yeai :rgg4, by and urrder a notification dated

5.I2.1994., all employees of the Corporation except Officers, Traffic Supervisors, Tls, ATls, Vehicle Examiners and Drivers, were given another chance to opt for Voluntary Retirement by submitting letters of offer. The scheme notified stated that all terms as per the VRS Scheme dated 3.3.1993 would apply. But, the said notification expressly stipulated the following condition:- Page t3 of 27 ,t). No.490612070 and the writ petitioner of W.P.(C) No.468912010, having exercised a positive option to continue to be retained as lnembers under tlre Contributory P.rqvideht Fund Scheme, could under no circumstance claim bbnefit under the pension schem e. l-2. W.P.(C) No.t4O27/2009 & Connected Matters 9A "L "lt is also notified for inforrnation of all such employees who opt for VRS that they wou[d not be entitled to join Pension Siheme if they. are allowed retirernent under VRS. Other salient features of the proposed VRS will remain the same as announced earlier vide this office circular dated

03.03.1993." (Emphasis added) 1:l " On 23.1,2.Igg4 a nother circu la r was issued extending the right to make offer by all the empioyees pertaining to the VRS Scl'reme notified on 5.1.2.1994. Tlrereafter on 8.5.1995, to a specified category of employees stipulatecl in the scheme were given the option to submit olfers under the Voluntary Retirement Scheme. But there was an express condition therein that these employ.ees would not be entitled to join the pension scheme. 14 . The writ petitioners of W.P.(C) Nos.l-63912010 and ]]72I201A, wlro were tleemed optees under the pension s;cherne, having exercis,ed no option at all pursuant to the rrr:tificartion dated 27.11.1992, submitted offer to be volun[arily r"etired on 4.1.1995 and 1.7.10.1995. To put it in a nut-shell, all employees who are

1.5. ,i.. litigating under the various petitions either as the petitioner or as the respondents, except the two petitioners of W.P.(C) Nos.1639i2010 and 77291'2A10, submitted offer letters to be voluntarily retired under the VRS Scheme notifieS on 3.3.1993, which contained the ternrs of the scheme and as exterrded from tinre to time in the year 1993.

¶16As regards W.P.(C) No.3339120L0, the respondent thereof had retired on 10.7.1991 i.e. before ihe notificatiori clateci 27.1.1..1992 was issued and as regards him, vide para 6, if he did not specificallv opt for the pension scheme within 30 clays of the notificatiort dated 27.11.1992 he would have got no benefit under the pension scheme for the'reason on his W.P.(C) No.I4O27/2009 & Connected N4aLters Page L4 of 27 retirement he was paid over the due i.e. the amount to his credit under the Contributory Provident Fund Scheme.. Had he exercised such an option he was obliged to have refunded the management's contribution credited to his account under the Contributory Provident Fund Scheme' Thus, we can conveniently segregate the litigating L7. parties in three compartments. Those who exercised option for voluntary retirement in 1993. Those who exercised option for voluntary retirement in the year 1995. Lastly the respondent of W.P.(C) No.3339 12010 whose case has to be dealt with de-hors the Voluntary Retirement Schemes.

¶18we deal with the grievance of the corporation pertaining to W.P.(C) No.3339|}OLO, the respondent whereof has got benefit from the Central Administrative Triburral, wlrere vide order dated 15.1..2010 his claim has been allowed by holding that he is,a deemed optee for pension as per the pension scheme notified on 27.11.1992

¶19No discernable reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has treated his entitlement in terms of clause 9 of the pension scheme dated 27J-1.I992, ignoring the fact that clause 9 applied to the serving employees of DTC alrd in respect of those ryho had retired prior to the promulgation of the notification dated 27 .1-1.1992, were required to exercise . a positive option to be given pension with concomitant act of refunding the management's share received by them under the Contributoryr Provident Fund Scheme, vide para 6 of the notification clated 27.11.1992. Incleed, tltis has been so held by a Division Bench of this Court in the decision. dated

16.3.2000 in LPA No.33/1998 OfC Vs-Sn.Saiifrath Bharaav & Ors. which decision has been upheld by the Supreme Court in t\ W.P.(C) No.L4027/2009 & Connected l/latters Page L5 of 27 the decision reported as (2001) 6 SCC 61 DTC Retired Emplovees Association & Ors. Vs. DTC & Ors. Thus, as r-egards W.P.(C) No.333912010 is

¶2021 . concerned, noting that the respondent therein could not be treated as a deemed optee for the pension scheme and having not specifically optefl for the pension scheme and having received all dues payable to him when he retired as per the amourrt. lying to his credit as a member of the Contributory Provident Fund Scheme and obviously he having not opted for the pension scherne and thuts not having returned the managernent'S contributiorr pertaining to him and as credited in l-ris account as a-member of the Contributory Provident Fund Scheme, said respondent vrcluid have no case at all. Thus, W.P.(C) No.3339i2010 is allowed, lmpugned t judgment and orrJer dated 15.1.2010 allowing TA No.1.209 12009 is set aside and TA No.1209l2OOg is dismissed.

¶22We take up the case of the petitioners of W.P,(C) Nos.1639/2010 and 1729120L0, who were in service as on

27.I1.1992 and did not submit any option under the notification date d 27.1.1.1992 and hince vide clause 9 thereof would Lre treated as deemed optees for the pension scheme.

7.3. As is noted hereinabove, these two respclndents applied to be voluntaiily retired by submitting offers on

4.1.1995 and 17.10.1995 respectively. lt is further to be noted that by then the voluntary retirenrent schemes notified earlier hatl lapsed and they could seek voluntary retirernent as per the scheme notified on 23.I2.1994 and 8.5.1995 respectively i.e. tlre VRS Schemes notified prior to the dates 4.1.1995 and

17.10.1995. As is notec'l irereinabove both schemes under which theyr applied sglecificaily excluded entitlement for pensir:n inasmuch as lhe tvvo schemes clearly staLed that employees opting for voluntary retirement under the two W.P.(C) No.L40)7 /2009 & ConnecteC Matters >r-schemes would not be entitled to pension; and as regards the other terms and conditions it was mentioned that the same would be as pet tne scheme notified on 3.3.1993.

¶24It is apparent that the terms of the VRS Scheme rrotified on 3.3.1993 are incorporated by reference under the VRS Schemes notified on 23.12.1994 and 8.5.1995 except clause 4(g), for the reason in the two VRS Schemes in question, there is a specific reference to not being entitled to pension. We may re-note the conditions/terms of the said two schemes with reference to the language which expressly stated that it was notified for information .of the employees tlrat all those who opt for VRS under the two schemes would not be entitled to join the pension scheme if they are allowed to retire under the said schemes and that other salient features of tlre scherne would be the same as per the office circular dated 3.3.1993

¶25It may be noterJ that the pension scheme notified on 27.ILI992 could not be implemented because LIC backed out arrd it was only on 31.10.1.995 did the Central Government provide the necessary fund and only those employees who retired after 1.11.1995 started receiving pension. In other words whether or not pension would have been paid remained inchoate till 31.10.1995

¶26Having retired pursuant to the VRS Schemes rrotified on 5 .l2.Igg4 and 8.5.1995, w€ see no scope for the petitioners of W.P.(C) Nos.1639/2010 and !72912070 to be entitled to receive any pension and we hold that the Tribunal lras correctly dismissed their clairn petitions

¶27To be fair to the said writ petitioners, we ffid5r note tlrat tlre only submission urged by their counsel was that the orders relieving them and enclosing the amount lying to their credit in the Contributorv Provident Fund Scheme referred to T W.P.(C) No.J"4O27 /2009 & Connected rVlatters Page t7 of 2,7 % c\t v -A-- the fact that they were being retired as per the VRS Scheme dated3'3.lgg3arldasextendedtoal|theemployeeson

16.3.1993. Predicated thereon was the submission. that thesd employees have been treatecl as .having votuntarily retired under the VRs scheme notified on 3'3.1993 which stated that pension would be Paid'

28.Sufficewoulditbetostatethatabareperusalof, the orclers referrerj to by learned counsel, evidence that a printedproformahasbeenused'TheSamepertainedtothe earlier vRs sclremes. lt is settled law that rights are determinecJ not r,vith reference to the language of the proforma but the statute or the scheme applicable. The said two petitioners submittecl offers to be.voluntarily retired under the schemes notifiecj on 5 .I2.Lgg4 and 8'12.1995. Further, they received the cheques tenderecl to tlrem which included the rnanagement,sshareintheContributoryProvidentFund Account. T'hese cheques were received by them on 31"3'1995 and 31.10.1.995 respectively. They encashed the cheques', we r-nay note tlrat these two peti[ioners had filed writ petitions intheyear2005anc2ooTrespectivelylayingac|aimfor pension whictr were transferred to the central Adrninistrative Tribunal and registered as TA No.6B9/2009 and TA Nio.l3B5,za}grespectively,whichhavebeenrjisrnissedbythe Tribunal vide impugned order dated 23'9.2009' The claim of' tftese writ petitioners woulcl everl otherwise be barred by the IawofIimitati,cn'Theprinciplethatrighttorecei'lepensionis a continuous cause of action is not available to them inasmuch as qua l-hei.n, tfre issue was whetlrer they were en'tltled to receive dues as per contributory Provident Fi.rrrd sr:heme or uncler the pension scheme. They were paid full dues when they retirecj on 31.,3.1995 arrd 31.10'i995 respectively as lier the contributory l-'rovident Fund scheme arrd if they !'iad any r W.P.(C) Nci..ia027/2009 & CcnnecLed Matters grievance pertaining to the same, it had a Competent Court within at most 3 years

¶29Thus, W.P.(C) Nos.1639/2010 to be brought before thereafter. a nd 17 2912070 a re \i,, dismissed.

¶30Pertaining to the remaining 18 writ petitions, we may divide the same into 3 further categories which emerge from the facts noted by us in para 6 and 8 above. The said 18 writ petitions are divided: Category I-Respondents of W.P.(C) Nos.14027 12009, 40l-120l-0, 565/2010, 59812010, 75412010, 190212010, 227412010 and 39191201.0 who specifically opted for the pension schemes when they submitted their offer for being . voluntarily . retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in the year 1993. Category 2-Respondents of W.P.(C) Nos.423 l2O1O, 75612010, B32|2OI0, 752120]-0, -l93|2OIO, 1384/2010, 1386/2010 and 2051/2010 wlro having not submitted any options have to be treated as deemed optees for the pen5ion scheme when'they submitted their offer for being voluntarily retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in the year 1993. Category 3-Resporrclents of W.P.(C) No.4906120l-0 and the writ petitioner of W.P.(C) No.46B9l20I0 who specifically opted to be retained in the Contribr-ltory Provident Fund Scheme. t. J

¶31We take category 3 first. Surprisingly, one claimant being the respondent of W.P.(C) No.4906l2OI0 has succeeded befoie the Tribunal and the other i.e. the petilioner.of \tV.P.(C) No.46B9l20L0 has lost, notv'rithstanding their cases being identical. W.tr.(C) No.L4O27/2009 & Connected Matter-s Page L9 of 27 (g ffi )\-

¶32Having perused the reasons given by the Tribr-rnal in favour of the respondent of W.P.(C) liJo.a906l2010 as per para

¶22of the impugned order dated 1'3.4.2010, suffice would it be to state that the Tribunal has gone off at a complete tangent by referring to some policy cjecisions dated 30.4.1993 and

7.5.1993 which refer to those who have given no option whatsoever to be treated as optees under the pension scheme. We fail to uttderstand as to how said decisions can apply to the respondent of W.P.(C) No.490612010 who specifically opted to be retained as a member under the Corrtributory Provident Fund Scheme. Noting further tlrat said respondent receivecj the full amount payable to hirn as a rnember of the Contributory Provident Fund Scheme whicl-r included the managemertt's contribution in the fund pertaining to his account, it would be another reason to hold against him ancJ lastly that having retired in the year. 1993 anc! received full dues in the sarne year he could not rake up the issue when he filed OA No.205312009 in tlre year 2009 before the Tribunal. We concur with the reasoning given by the Tribunal pertaining t-cr the vvrit petitioner of V'/,P.(C) No.4689|2AIO when OA No.237L|TOO9 filed by him was dismissed vide order dated

18.2.2010. :J3. Tlrus, W.P.(C) No.468912010 is dismissed.

¶34VJ.P.(C) No.4 906120'10 is allowed. The impugned order dated 13.4.2010 allowing Ol\ No.2053l2A0g is set aside and OA No.2053/2009 is disnrissed.

¶35Tfre claim of the resportdents in categc.ry' l-and c-at'eqory 2 may be taken up together for the reason whet[ei" tlrey exercised a positive opiion to be brought urtdei'the pension sclreme or having exercised no optiorr wlratsoever and. lie.rlrce as deenrecJ optees being brouglrt un<Jer the pension scherne, their status would be the same as en'titled ro be f.L\ W.P.(C) No.'LaO2'7 /2.009 & Connected l\4atters F agc i,-O crf 27 eI )- brought under the pension scheme under the notification dated 27.II.Lggz. Since all these respondents applied for being voluntarily retired when the scheme notified on 3.3.1993 was extended from time to time in the year 1993, they certainly would be entitled tcl pension for the i'eason clause 4(g) of the scheme notified on 3.3.1993 clearly stated that such persons would be entitled to pensionary benefits' But, there are certain further facts which need to be noted qua them. The case of the Corporation is that having opted under the pension scheme or deemed to have opted under the pension scheme, the said respondents specifically opted out from the pension scheme and by the time they retired uncjer the Voluntary Retirernent Scheme, the pension scheme hacj not been formally brought into effect (as noted above it was formally brought into effect for the retirees who retired post

1.11.1995), they filed applications specifically stating that they inLend to opt out of the pension scheme and be retained aS members under tlre Contributory Provident Fund'Scheme and thus on accepting their offers to be voluntarily retired the Corporation paid over to tlrem not only their share in the Contributory Provident Fund Account but even the management'S Share, wlrich they accepted withot-lt demur and hence coulil not rake up the issue after 12 to 15 years i.e' when they filed either writ petitions in this Court which were, transferred to the Central Administratirre Tribunal or filed Original Applications before the Central Administrative Tribunal. Qua these respondents, it may be noted that the t

¶36respondent of W.P.(C) No.L402712009 submitted a letter dated

2.3.1995 specifically stating that he does not want to opt for the pension scheme ancl desires his dues to be paid as per his CPF Account. The respondent of W.P.(C) No.5 6512.010 likewise W.P.(C) No.t4O27 /2009 & Connected Matters Page 2L of 27 q ,Jx ')1-submitted a letter on L2.7.1995. The respondent of W.P.(C) No.598i2010 likewise submitted a letter in the year 1994 and reaffirmed the said fact in tlre letter dated 5.11.1998. The' respondent of \ /.P.(C) No .75412070 likewise submitted a letter on 20.4.1995. T'he respondent of 'w.P.(c) No.1902 2AI0 !ikewise submitted a letter on 14.7.1-995. The 3 respondents ol' W.P.(C) No.2 27 4|2A]O likewise submitted letters on

11..3 .7gg4, 15.3 .Lgg4 and 9.6.1995 respectively. The respondent of W.P.(C) No.39I9l20L0 likewise submitted a. letter on 22.7.1996. 1-he respondent of W.P.(C) No.423l2010 likewise sr-rbmitted a letter on 5.10.1994. The respondent of W.P.(C) No.756120l-0 likewise submitted a letter on 15.3.L994 as claimed by tlre DTC but denied. by said respondent. VVe note that DT'C has prociuced sairJ letter and additionallir has reliecl upon a list prepared on I2.4.I994 where the name of sairJ respondent is at serial No.1.13 anci notes his optirrg out for perrsion. The responCent of W.P.(C). No.B32l20l0 likewise submitted a letter on 5.9.1995. The respondetrt of W.P.(C) l\icr.752l20LO likewise submitted a letter on 7.I2.1993. The respondent of W.P.(C) trlo.4Q lrl2|:rA also opted out of the pension scherne, though the date when he did so is not on record.

¶37It may be noted that all aforesaid respondents except the resportdent of W.P.(C) No.756/2010, who clainrs not i:o have written letter derted 15.3.1994, and the respondent of W.P.iC) No .40112010 who is silent on the aspect of his having opted out i.e. has chosen not to rebut the plea of the Corporation that he opteci out of the pension schem€r, have prleiaded that they wrote the letters out of compulsion because it was uncertain whether at all the pension schenre would be introcluced and there was complete uncertainty urhether at all I I W.P (C) No.1tlo2'//2009 & Connected Matters Page 22 cf 27 yes, from . \ the pension scheme would be introduced and which date.

¶38if Qua the stand taken by the respondent of W.P.(C) h No.756/2010, suffice would it be to state that DTC has produced the letter written by him under his signatures. lt is a handwritten letter. He has not denied that the writing is not his. He has not denied his signatures thereon. His vague denial that he never wrote the letter,'without taking specific stand is neither here nor there. Further, as we would be noticing qua the other respondents he received the CPF dues when he retired with effect from 31.5.1993 and thereafter received the CPF dues and kept quiet till he filed a writ petition in this Court in the year 2008 which was transferred to the Central Administrative Tribunal in the year 2009 and was reg iste red a s TA N o. L44912009 .

¶39Proceeding fr-rrther, we note that the pleadings qua when the respondents of W.P.(C) Nos. 79312010, l3.8412010, 1386/2010 and W.P.(C) No.205Ll20I0 submitted applications to opt out of the pension schemes are not clear, but it is not in dispute and it is the joint case of the Corporation as well as said respondents that they i.e. the respondents of the said writ petitions subseq.uently opted out of the pension scheme and received all dues under the CPF Scheme. They also claim that tlrey did so because it was not certain as to whether at all pension scheme would be brought into force when they voluntarily retired in the year 1993

¶40ln a nut-shell all these respondents plead that they were under compulsion to opt out of the pension scheme after tlrey had submitted their offer to be voluntarily retired and al'ter the same was accepted and they stood retired; compulsion being the uncertainty of pension being paid and their pressing need for funds. The legal argument advanced ( I W.P.(C) No.I4O27 /2009 & Connected Matteis Page ?3 of 27 .\ by the.m is that once their offer for being compulsorily retired was accepted, the contract stood concluded by the acceptpnce of the offer and the.terms of the contract was as contained in the VRS Scheme notified on 3.3.1993, which specifically stated tlrat such retirees would be entitled to pension' They claim that later on, the conti'act could not be modified and thus their subsequent letters to opt out of the pension scheme and revert back to the cPF scheme could not be accepted. The argument of the said respondents has to be

41.. \-I noted and rejected for the reason' nothing prevented the parties to novate the contract. lt is settled by now that a VRS Scheme has an element of contract. The VRS Scheme is an invitation to offer. The employees make an otfer under the scheme being, to retire on the terms notified as per the scheme. On being accepted, the letter of offer results in the contract being concluded and the employees become entitled tr: the clues as per the VRS Scheme. But, nothing prevents the parties to novate the contract. In the instant case the.contract got novated when the said respondents wrote that instead of being paid pension as per the scheme they be paid the dues as per the CPF Scheme and thereafter they received even the management's share under the. CPI Scheme. lt is settled law that one manner of accepting an offer is to perform the obligation to be performed as per the offer. Thus, by rnaking payment under the CPF Scheme the Corporation accepted tlre offer of these employees to forego' claim for pension and instead entire due under the CPF Scheme be paid.

¶42There remains then the issue to be decided whether the said respondents were under a compuision and if yes the affect thereof.

¶43The compulsion alleged by them is the uncertainiy of pension being relea5ed. As noted hereinabove the pension \,V.P.(C) NoJ"aO27 /2009 & Connected Matters ,$ w\ l.- scheme notified on 27.!LI992 could not take off because LIC did not fund the scheme.as envisaged and later on the Central Government agreed to fund the scheme on 31.10.1995 and indisputably those who retired after 1.11.1995 were paid pension. Thus, the compulsion resulting as the consequence of the uncertainty of pension being released, which may have been.uncertain when the said respondents opted out to receive pension and reverted to receive benefit under CPF, came to an end on 1.11.1995. The silence of these respondents for periods ranging frorn 12 to 15 years when they tool< recourse to legal action is tlearly indicative of there being no compulsion. The silence of these respondents speaks for itself. lt is apparent that with the passage of time these respondents became clever by a dozen and thought why not talce the benefit of a few who likewise. went .to Court and obtained relief, by pulling wool over the eyes of the Court by pleading that their act of subsequently opting out of the pension scheme was meaningless because the contract stotbd concluded, a submission which was accepted by the Courts without considering the further issue of contract being novated.

¶44In our opinion these respondents have no claim whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension scheme and DTC accepted the same and paid to them even the management's share in the CPF account. Their claims are hit by delay, laches and limitation. They are not entitled to plead that right to receive pension is'a continuous cause of action, for the reason, in law either pension can be received or benefit under the CPF account. lf the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach W.P.(C) No.I4O27 /2009 & Connected Matters \ bb-the Court or the Tribunal within a maximum period of 3 years being the limitation prescribed to file a suit.

¶45That apart, if it was the case of the respondents that they were compelled to opt out of pension scheme on account of the uncertainty in the implementation of the pension scheme, they ought to have sought a declaration that their act of opting out of the pension scheme be declared null and void, being out of conrpulsion and for said prayer they ought to have made the requisite pleadings entitling them for such a declaration. Needless to state an act out of compulsion is a voidable act and not a void act. The respondents have admittedly not done so. lt is only in the rejoinder filed by them to the reply to their respective OA that a bald plea has be'en set forth that they acted out of compulsion when they opted out of the pension scheme. that the. said writ petitions Accordingly, we hold be a llowed. We allow W.P.(C) Nos.L402712009, 401120l-0, 565/2010, 598/2010, 754120l-0, ]-90212010, 227 412070 3 919i 2 CI10, 423120i0 , 7 56120]-0 , 83a2At0 , 7 52120L0 , 793120l-0, 1.384i2010, f 386/2010 and 2051/201C and set aside the impugned or-ciers dated 30.6.2009, 3.8.2009,

3.9.2009, 23.9.2009, 25.9.2009, 8.10.2009, 13.10.2009,

4.LL 2009 and 26.11.2009 i.e. the singular or composite orders disposing of one or more Transferred Application or Original Application before the Tribunal and as a consequence dismisd all the Transferred Applications or Original Applications allowed in favour of the respective respondent(s). To summarize the 2f wiit petitions stand disposed of as under:- A. W.P.(C) No.1639|2OIO, W.P.(C) Nr:.17291201,0 and Vi"P.(C) t{o.aGBgl2O10 are dismissed. W.P.(C) No.14027i2009 & Connected Matt€.rs I

¶46have. to

47.

¶48^( 7-B.W.P.(C)No.14027|2009,W.P.(C)No'40I|20I4, W.P'(C)No.565/2010,W.P.(C)No'598/2010,W.P.(C) No.754l2O10, W.P.(C) No.1902 l20LO, W'P'(C) No'227'4120L0 W.P.(C) No.3919 :2OLO, W.P'(C) No'42312010' W'P'(C) No.756/2010,W'P'(C)No'832/2010,W'P'(C)No'75212010' W.P.(C)No.793/2010,W.P'(C)No'1384120:-0'W'P'(C) No.1386 l20LO, W.P.(C) No.205I120t0, W'P'(C) No'4906120l-0 ' and W.P.(C) No.3339 l2OI0 are allowed and tne impugned orders passed by the central Administrative Tribunal which are challenged in the said writ petitions are set aside and the respective Transferred Petition or original Application are dismissed.

¶49There shall be no orders as to costs' '-t-t-/:+*? \\fl (PR,ADEEP NAill DR,AjOC) JUDGE GARG) JUDGE AUGUST I"O, 2OI.O mm I W.P.(C) No.1.402712009 & Connected Matters Page27 of27