Delhi Transport Corporation v. Som Dutt

* % IN THE HIGH COURT OF DELHI AT NEW DELHI tudoment Reserved On:, 23* $'W-2070 Iudament Delivered On: 70th Auouit. 2070 w.P.(c) 7s6l2oLo DELH I TRANSPORT CORPORATION SOM DUTT ..... Petitioner T Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS rhroush: Ms.Deepati d;il"fffndent 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 NANDRAIOG, I. For orders, see W.P.(C) No. L4027 12009. -qY (PRADEEP NA'i[dnnjoc) JUDGE AUGUST I.O, 2OI.O mm a t rl I D GARG fuh,(4.n yra ,3 8&f n n/- V't Rt 4 w r. lstcl c h *tO 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. x % IN THE HIGH COURT OF DELHI AT NEW DELHI t Reserved On: 29th lulv. 2070 ment Delivered On: 7 w.P.(c) L4027 t2009 DELHiTRANSPORT CORPORATION .... PCtitiONCr Through: Mrs.Avnish Ahlwawat, Ms.Latika. Chaudhary, Advocate versuS MADHU BHUSHAN ANAND .;... Respondent Through: 'Ms.Kittu Bajaj, Adv. w.P.(c) 40Ll20Lo : DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhaiy, Advocate . versus SUDERSHAN LAL SHARMA Through: Ms.Rekha . Advs. w.P.(c) s65/2010 ,... Petitioner DTC Through: Mrs.Avnish Ahlwawat, Ms. Latika . Chaudhary, Advocate VCTSUS SURESH CHANDER ..... Respondent . Through: Mr.S.N.Sharma, Adv. w.P.(c) s98/2010 DELH I TRANSPORT CORPORATION .,,.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate ZILE SINGH Through: Mr.N.L,Bar".iu, Aiul"spondent Page I of 2) .... Respondent Aggarwal, Mr,D.S.Kauntae, VETSUS W.P.(C) No.14027/2009 & Connected Matters lL l + W.P.(c) 7s4l2oL(. b,t.c. ..,.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS 'JAG SHORAN .... ResPondent Through: Ms.Kittu Bajaj, Adv. + w.P.(cl Lgo2lzoLo ..... Petitioner DTc Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate verSus SURENDER KUMAR .... Respondent Through: Ms.Kittu Bajaj, Adv. + w.P.(c) 2274|2OLO DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SH.GURBACHAN LAL & ORS. ..... Respondents Through: Mr.N.L.Bareja, Adv. + w.P.(c) 3919/2010 DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS RAJO SAINI .,... Respondent Through: Ms. Kittu Bajaj, adv. W.P.(C) No.t4027/2009 & Connected Matters Page 2 of 27' \t w.P.(c) 423|2OLO . DELHI TRANSPORT CORPORATION ..... Petitioner v",.,uJn'o'nn' u;:f,"njil, il'#?:.T' Ms Latika SATYA PRAKASH KHURANA ..... Respondent Through: Ms.Kittu Bajaj, adv. + w.P.(c) 75612OLO DELHI TRANSPORT CORPORATION PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS SOM DUTT .... ResPondent Through: Ms.Deepali Gupta, Adv. + w.P.(c) 832|2OLO DELHI TRANSPORT CbRPORATION ,.... PCtitiONCr rhroush: u;:f,"ni?l, il'#?:.T' Ms Latika versus SH RAM AWAR SHARMA ..... Respondent Through: Mr.S.N.Sharma, adv. ' + w.P.(c) 752120LO DELHI TRANSPORT CORPORATION .... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika ' Chaudhary, Advocate ver5u5 J.L.DHUPAPR .... Respondent' Through: Mr.Narottam Vyas, Mr.Vikramjeet Sikand, Advs,- W.P.(C) No.t4027/2009 & Connected Matters Pag.e 3 of 27 \ + w.P.(c) 793120LO DELHI TRANSPORT CORPORATION '.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate versus BHAGWATI PRASAD .'.' ResPondent Through: Ms.Kittu Bajaj, Adv' + w.P.(c) L384|2OLO D.T.C. '.'.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika versus chaudharY' Advocate SH.RAJENDER SINGH .... Respondent . Through: Mr.N.L.Bareja, Adv, w.P.(c) 1386/20LO DELHI TRANSPORT CORPORATION ....; PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SH.NANU RAM SHARMA ..... Respondent ' Through: Mr.N.L.Bareja, Adv. + W.P.(c) zosLlzoL0 DTC .... Petitioner Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary, Advocate VCTSUS RANDHIR SINGH .. ResPondent Through: Mr.N.L.Bareja,Adv. + w.P.(c) 4so6t2oLo' DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika ChaudharY, Advocate VETSUS . RAMESH CHANDJAIN ..... Respondent . Through: Mr.N.L.Bareja, Adv. W.P.(C) No.L4027/2009 & Connected Matters t\ + w.P.(c) 4689|2OLO DEBI SINGH .... Petitioner Through: Ms.Deepali GuPta, Adv. ve.rsus DELHI TRANSPORT CORPORATION ..,.. Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + w.P.(c) L639/201O .HARANJIT BArRA hroush: Ms.Kittu Baj;;, 'ol;utitioner ' VCTSUS DELHI TRANSPOROT CORPORATION ..... Respondent rhroush: xil:ilni?l, t!'#?:,x'' Ms Latika , + w.P.(c) L729|20LO CHARAN KAMAL ..... Petitioner Through: Ms.Kittu Bajaj, adv. versus DTC .,... ResPondent ' Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary, Advocate + w.P.(c) 3339/2010 D.T.C. rhroush: Mrs.Avnish ^[d$]:;nilr.ru.'ou versus chaudharY' Advocate PULAK MUKHERJI ..... Respondent Through: Mr.Amit Kumar, Adv. .CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON',BLE MR. JUSTTCE MOOL CHAND GARG '

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

¶2To be referred to Reporter or not? W.P.(C) No.t4027 /2009 & Connected Matters fa

¶3Whether the judgment should be'reported in the Digest? PRADEEP NANDRAIOG, I.

¶1With the promulgation of the Delhi Municipal Corporation Act l-957 and the Constitution of the Municipal Corporation of Delhi, municipal functions in Delhi except NDMC area and the area falling under tfre jUrisdiction of the Cantonment Board were vested in the Municipal Corporation of Delhi, which included the function of providing public transport in the 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 thus the Delhi Transport Corporation was formed as a body corpgrate and it took over the functioning of the Delhi Transport Undertaking. The. said Corporation had in place a Contributory 'Provident Fund Scheme for its empJoyees and needless to State each month a fix amount wa's deducted from the salary of the employees and with a matching contribution by the Corporation was credited in the fund and in the account of the employee, who needless to state was a member of the Contributory Providb'nt Fund. The employees . of the Corporation agitated for long that the pension scheme of the Government of India, which was extended to the municipal employees be also extended to them and .in respect of which claim they had petitioned the Supreme Court, when in the yea.r 1992 the Corporation gave An assurance to the Supreme Court that it would introduce a pension scheme for its employees, including the retired employees and pursuant thereto issued office order No.16 dated 27.1-1-1-992 notifying that a pension scheme stood notified which would be operated by the Life W.P.(C) No.L4A27/2009 & Connected Matters )T Insurance Corporation of India (LlC).. The office order reads as under:- " N o.Ad m-l-5(4) 192 Dated 27.l-7.92 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-L201912U88-TAG dated 23.II.92 as on the same pattern as for the Central Govt. employees subject to the following conditions:- 1, The pension scheme would be operated by the LlC.on behalf of DTC.

¶2The date of effect of Pension Scheme would be

3.8.19.81

¶3All the existihg 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 India.

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w,e.f . 23.11.92, the date of sanction of the scheme.

¶5.The 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 Scheme would be transferred to the LlC, for o.perating.

¶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 with interest in the event of their opting for the Pension Scheme. The 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. W. P.(C) No.14027 / 2009 & Con nected Matters i PageT of 27 It

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

¶9lf any of the employee of DTC, who does not exercise any option within 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 Scheme Benefits. Application forms for exercising option would be available with the Unit Officers and all employees including retired employees wishing to exercise option, should do so within the Unit of their present working/where from they retired, within a period of 30 days from the date of jssue of this Office order. The Unit Officers, after receiving the optiol from the ex-employees, will take further necessary,action for getting the necessary forms completed, which will be supplied to'them by the LIC for Pension etc. they will alsb ensure the recovery of EPF and Gratuity from the Ex-employees before forwarding their applications as mentioned above. The cases of all officers will be dealt with at Headquarters. The options received from the existing employees for not opting Pension may .be kept in their Personal file and entry made in their'service Book."

¶2A perusal of the scheme shows that as regards the retired employees, they had to specifically opt to b.e paid pension and had to simultaneously refund to the Corporation, the employers' share received by them as members of . the Contributory Provident Fund Scheme together with interest W.P.(C) No.74027/2009 & Connected Matters )1 (vide para 6 of the Scheme). As regards the existing employees, it was stated vide para 4, that the'pension scheme would be compulsory for those who joined service under the Corporation with effect from 23.IL1-992 and as regards the existing serving employees, vide para g, it.wad stated that those who do not submit any option would be deemed to have' opted for the pension scheme. Thus, it i.s apparent that as regards t-he existing employees of the Corporation who were still in serv.ice when the office order dated 21 .II.1992 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 pensioh scheme and needless"to state their positive option to opt for the pension sch€me was always there.

¶3Without working 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 er who had to be treated as the deemed optee under the pension scheme and who specifically opted to continue to 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 ns po rt Co rporatio n. The matter pertaining to the.intr:oduction of voluntary Retireme.nt 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.t4027 /2009 & Connected Matters ;n executives who are appointed against regular vacancies in the corporation.

¶2Eligibility: An employee must have completed ten years of service in this corporation or completed 40 years of age to qualify for consideration under the Scheme. For this purpose, period of deputa.tion/retention of lien in the parent office in lieu of deputation prior to absorption in the regular service of the Corporation will be excluded.

¶3Conditions covering voluntary retirement.

(a) Voluntary retirement will be normally allowed only in cases of incumbents of the posts which hav0 been declaied surplus or redundant. ' However, voluntary retirement Scheme could also be allowed in other cases depending on the'merits of each case and in the interest of . the corporation.

(b) Voluntary retirement cannot be claimed by - any employee as a m.atter 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 this scheme be allowed from a date earlier than the date of passing the o rd ers.

(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 who had taken voluntary retirement will be eligible to the following refunds/payments:-

(a) ' Balance in his PF Account as per rules of provident fund applicable to him ' (b) Encashment of refused leave and accumulated earned leave as per rules of the corporation. applicable to him as if he retires under the normal rules of retirement. Page LO of 27 W.'p.(C) No.L4Q27/2009 & Connected Matters tu\

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

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

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

(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.LL.92.. (Emphasis supplied) All amounts due to the Corporbtion will be adjusted against the payments under (d) & (e) above and the employee concerned should clear any outstanding 'dues/advances taken before the date of effect of voluntary retirement. Employees working on the post of Conductor in the Corporation are proposed to be covered under the Voluntary Retirement Scheme in the first instance. Such Conductors who are desirous of seeking voluntary retirement in the proposed Scheme may give their option in the prescribed Performa through , proper channel within 15 days to be concerned Unit Officer who will forward the same to the Secretary, DTC Board. This issue with the approval of competent authority."

¶4Needless to state, the VRS Scheme cle-arly notified that those who opt for voluntary retirement would be entitled to pension as per the office order No.16 dated 27.II.I992 (vide para 4(g) of the VRS Scheme). W.P.(C) No.L4027/2009 & Connected Matters Page tL of 27 1'L-

¶5Soon thereafter vide office memorandum dated

16.3.1993 the VRS Scheme notified on 3.3.1993 was made open, for offers to be submitted by all employees of the Corporation. The officer memorandum.dated-16.3.1993 reads as under: "Now, it has been decided to cover all the employees of the Corporation under the proposed Voluntary Retirement Scheme. Such employees who are desirous of seeking voluntary retirement in the .proposed scheme may 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, DJC Board."

¶6When DTC notified the pension scheme on 27 .I]-.tgg2, the iespondents of W.P.(C) Nos.1402 7l2}0g, 40112010, 565/2010, 598/2010, 754120l-0, 190212010, 227412010 (3 in number) and 3919120]-0 specifically opted for the pension scheme. The respondents of W.P.(C) Nos.423l2010, 756120]-0, 832120l-0, 75212010, 79312010, I384]2OIO, 1386/2010 and 2O5]r]2OlrO did not submit options and hence were to be treated as deemed optees pension any for

¶7lt may be noted that the writ petitioners of'W.P.(C) Nos.16391201-0 and 172912010 also did not submit any options and hence would be deemed to be optees for pension.

¶8' lt may also be noted that the respondent of W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C) trto.+O8g/2010 submitted their options expressly stating that they do not opt for the pension scheme, meaning thereby, they indicated positively that they would like to continue to be members of the Contributory Provident Fund Scheme.

¶9On different dates, but'all in the year 1993 the respondents of all the writ petitions except W.P,(C) No.1639/2010, W.P.(C) No,172912010 and W,P.(C) W.P.(C) No.t4O27/2009 & Connected Matters Page L2 of 27 (, No.3339/2010 and the writ petitioner of W.P.(C) No.4689/2010 submitted offers under the VRS Scheme afore-noted and requested to be relieved from service.

¶10It is thus apparent that if'request for voluntary retirement was accepted, the said respondents and the writ petitioner of W.P.(C) No.468gl2}]r}, would or would not be entitled to pension would depend upon whether they or anyone of them had specifically opted to continue under the Contributory Provident Fund Scheme. We say so fol tne reason, pertaining to the existing employees, the pension scheme notified on 27.1LI.992 clearly stated that those who specifically, opted for the pension scheme and those who submitted no option whatsoever would.be treated as opting for the pension scheme and only those who specifically opted to continue to be mdmbers 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.

¶11Thus, it is apparent that the respondent of W.P.(C) No.4906/2010 and the writ petitioner of W.p.(C) No.4689 ]2OIO, having exercised a positive option to continue to be retained as members under the Contributory Provident Fund Scheme, could under no circumstance claim.benefit under.the pension scheme.

¶12In the year lgg4, by and under a notification dated

5.12.1994, 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 Sch.eme dated 3.3.1993 would apply. But, the said notification expressly stipulated the following condition:- W.P.(C) No.t4027/2009 & Connected Matters Page t3 of 27 L\ "tt is also .notified for'information of all such employees who opt for VRS that they would not be entitled to join Pension Scheme if they are allowefl retirement 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).

¶13On 23.72.1994 another circular was issued extending the right to make offer by all the employees pertaining to the VRS Scheme notified on 5.12.1994. Thereafter on 8.5.1995, to a specified category of employees stipulated in the scheme were given the option to submit offers under the Voluntary Retirement Scheme. But there.was an express condition therein that these employees would not be entitled to join the pension scheme.

¶14The writ petitioners of W.P.(C) Nos,1639/2010 and 1-72912010, who were deemed optees under the pension scheme, having exercised no option at all pursuant to the notification dated 27.l-LI992; submitted offer to be voluntarily retired on 4.1.1995 and 17.10.1995.

¶15To put it in a nut-shell, all employees who are litigating under the various petitions either as the petitioner or as the respondents, except the two petitioners of W.P.(C) Nos.1639I2OIO and 1729\2OLO, submitted offer letters to be voluntarily retired under the VRS Scheme notified on 3.3.1993, which contained the terms of the scheme and as extended from time to time in the year 1993

¶16As regards W.P.(C) No.3339120l-0, the. respondent thereof had retired on I0.7.1991 i.e. before the notification dated 27.I1.:-992 was issued and as regards him, vide para 6, if he did not specifically opt for the pension scheme within 30 days of the notification dated 27.I1.lgg2 he would have got no benefit under the pension scheme for the reason on his W.P.(C) No.L4027/2009 & Connected Matters Page L4 of 27 retirement he was paid ovei the due i.e. the amount to his credit under the Contributory Provident Fund Scheme. Had he exercised such an bption he was oOiigeO to have refunded the management's contribution credited to his account under the Contributory Provident Fund Scheme. Thus, *" .un conveniently segregate the litigating 1)

¶17parties in three compartments. Those who exercised option for voluntary retirement in f'gg:. Those who exercised option for voluntary retirement in the year 1995. Lastly the respondent of W.P.(C) No.3339/2010 whose case has to be dealt with de-hors the Voluntary Retirement Schemes.

¶18' We deal with. the grievance of the Corporation pertaining to W.P.(C) No.3339/2010, the respondent whereof has got benefit from'the Central Administrative Tribunal, where 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 .I1.J'992

¶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 dateil 27.II.Igg2, ignoring the fact that clause 9 applied to the serving employees of DTC and in respect of those who had retiied prior to the promulgjation of the notification dated 27.1I.1992, were required to exercise a positivg option to be given pension with concomitant_act of refunding the management's share received by them under the Contributory Provident Fund Scheme, vide para 6 of the notification dated 27.II.1992. lndeed,'this has been so held by a Division Bench of this Court in the decision dated

16.3.2000 in LPA No.33/1998 DTC Vs: Sh.Baijnath Bharqav & Ors. which decision has been upheld.,by the Supreme Court in W.P.(C) No.t4O27/2009 & Connected Matters Page tS of 27 the decision reported as (2001) 6 SCC 6I' DTC Retired Emplovees Association & Ors. Vs. DTC & Ors.

¶20Thus, as regards W.P.(C) No.3339/2010 is concerned, noting that the respondent therein could not be treated as a deemed optee for the pension scheme and having not specifically opted for the pension scheme and having received all dues payable to him when he retired as per the amount lying to his credit as a member of 'the Contributory Provident Fund Scheme and obviously he having not opted for the pension scheme and thus not having returned the management's contridution pertaining to him and as credited in his account as a member of the Conlributory Provident Fund Scheme, said respondent would have no case at all. 2I, Thus, W.P.(C) No.3339/2010 is allowed. lmpugned judgment and order dated 15.1.2010 allowing TA No.1209/2009 is set aside and TA No.1209/2009 is dismissed.

¶22We take up the case of the petitioners of W.P.(C) Nos.163912010 and l-72912010, who were in service as on

27.ILI992 and did not submit any option under the notification dated 27]-l-l-992 and hence vide clause 9 thereof would be treated as deemed optees for the pension scheme.

¶23, As is noted hereinabove, these two respondents applied to be voluntarily retired by submitting offers on

4.1.1995 and 17.10.1995 iespectively. lt is further to be noted that by then the voluntary retirement schemes notified earlier had lapsed and they could seek voluntary retirement as per the scheme notified on 23.I2.I994 and 8.5.1995 respectively i.e. the VRS Schemes notified prior to the dates 4.1.1995 and

17.10.1995. As is noted hereinabove both schemes under .which they applied specifically excluded entitlement for pension inasmuch as the two schemes clearly stated that employees opting for voluntary retirement under the two W.P.(C) No.t4027/2009 & Connected Matters Page L6 of 27 ,g schemes would not be entitled to pension; and as regards the other terms and conditions it was mentioned that the same would be as per the scheme notified on 3.3.1993.

¶24It is apparent that the terms of the VRS Scheme notified on 3.3.1993 are irfcorporated by reference under the VRS Schemes notified on 23.I2.I'gg4 and 8.5.1995 except clause 4(g), for the ieason 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 that 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 the scheme would be the same as per the office circular dated 3.3.1993"

¶25It may be noted that the pension scheme notified on 27.i-L1-992 could not be implemented because LIC backed out and it was only on 31.10.1995 did the Central Government provide the necessary fund and only those employees who ietired after 1.11.1Si95 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 notified on 5.!2.1994 and 8.5.1995, we see no scope for the petitioners of W.P.(C) Nos.163912010 and I729|2AI0 t9 be entitled to receive any pension and we hold that the Tribunal has correctly dismissed their claim petitions.

¶27To be fair to the said writ petitioners, we may note that the only submission urged by their counsel was that the orders.relieving thein and enclosing the amount lying to their credit in the Contributory Provident Fund Scheme referred to W. P. (C)'No.L4027 / 2009 & Con nected Matters Page L7 of 27 the fact that they were being retired as per the VRS Scheme dated 3.3.1993 and as extended to all the employees on

16.3.1993. Predicated thereon was the submission that these employees have been treated as having voluntarily -retired under the VRS scheme notified on 3.3.1993 which stated that pension would be paid

¶28Suffice would it be to state that a. bare perusal of the orders referred to by learned counsel, evidence that a. printed proforma has been used. The same pertained to the earlier VnS Schemes. lt is settled law that rigfrts are determined not with reference to the language of the proforma but the statute or the scheme applicabie. The said two petitioners submitted'offers to be voluntarily retired under the schemes notified on 5.12.1994 and 8.12.1995. Further, they received the cheques tendered to them which included th"e management's share in the Contributory Provident Fund Account. These cheques were received by them on 31.3.1995 and 31.10.1995 respectively. . They encashed the cheques. We may note that these two petitioners had filed writ petitions in the year 2005 and 2007 respectively laying a claim for pension .which were transferred. to the Central Administrative Tribunal and registered as TA No.689/2009 and TA No.1385/2009 respectively, which have been dismissed by the Tribunal vide impugned order dated 23.9.2009. The claim of these writ petitioners would even otherwise be barred by the law of limitation. The principle that right to receive pension is a continuous cause of action is not available to them inasmuch as qua them, the issue was whether they were entitled to receive dues as per Contributory Provident Fund Scheme or under the pension scheme. They were paid full dues when they retired on 31.3.1995 and 31.10.1995 respecJively as pei the Contributory Provident Fund Scheme and if they had any W.P.(C) No.L402712009 & Connected Matters A9 grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W.P.(C) Nos.1639l20LO and 7729120t-0 are dismissed

¶30Pertaining to the remaining 18 writ petitions, we may divide the :um: into 3 further categories which emerge from the facts noted by us in para 6 and B above. The said 18 writ petitions are divided: Category 1-Respondents of W'P.(C) Nos.14027 12009, 40].12OI0, 565120]-0, 598/2010, 754120]-0, IgOzl2Ot}, 2274/2010 and 3gtgl2O1-0 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.42312010, 75612070, 83212010, 752120l-0, 793120l-0, I3B4l20tO, 1386/2010 and 2051,|2010 who having not submitted any options have to be treated as deemed optees for the pension scheme when they submitted their offer for being voluntarily retired as per the terms and conditions notified in the VR.S Scheme notified on 3.3.1993 which was made applicable, by ieference to the subsequent schemes notified in the year 1993. Category 3-Respondents of W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C) No.4689120]-0 who specifically opted to'be retained in the Contributory Provident Fund Scheme.

¶31We take category 3 first, Surprisingly, one claimant being the respondent of W.P.(C) No.4906120t.0 has succeeded before the Tribunal and the other i.e. the petitioner of W.P.(C) No.4689/2010 has lost, notwithstanding their cases being identical. W.P.(C) No.L4027/2009 & Connected Matters Page L9 of 27

¶3233, Hbving perused the reasons given by the Tribunal in favour of the respondent of W,P.(C) No.4906/2010 as per para 22 of the impugned order dated 13.4.2010, suffice would it be to state that th.e Tribunal has gone off at a complete tangent by referring to some policy decisions 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 understand as to how said decisions can apply to the respondent of W.P.(C) No.4906/2010 who specifically opted to be retained as a mennber under the Contributory Provident Fund Scheme. Noting further that said respondent received the full ameunt payable to him as a member of the Contributory Provident Fund Scheme which included the management's contribution in the fund pertaining to his account, it would be anoiher reason to hold against him and lastly that having retired in the year 1993 and received full'dues in the same year he could not rake up the issue'when he filed OA No.2053/2009 in the year 2009 before the Tribunal. We concur with the reasoning given by the Tribunal pertaining to the writ petitioner of W,P.(C) No.4689/2010 when OA No.237112009 filed by him was dismissed vide order dated

18.2.2010 Thus, W.P.(C) Nb.4689/2010 is dismissed.

¶34W.P.(C) No.4906/2010 is allowed. The impugned order dated 13.4.2010 allowing OA No.2053l2OO9 is set aside and OA No.2053/2009 is dismissed.

¶35. The claim of the respondents in category 1 and category 2 may be taken up together for the reason whether they exercised. a positive option to be brought under.the pension scheme or having exercised no option whatsoever and hence as deemed optees being brought under the pension scheme, their status would be the same as entitled to be W.P.(C) No.L4027/2009 & Connected Matters Page 2O of 27 1l brought under the pension scheme under the notification dated 27.1-1.1992. Since all these respondents applied for being voluntarily retired when the scheme notified on 3.3.1993 was extended frcim time to time in the year 1993, they certainly would be entitled to pension for the reason 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 ha.ve opted under the pension scheme, the said respondents specifically opted out from the pension scheme and by the time they retired under the Voluntary Retirement Scheme, the pension scheme had 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 intend to opt out of the.pension scheme and be retained as members under the Contributory Provident Fund Scheme and thus on accepting their.offers to be voluntarily retired the Corporation paid over to them not only their share in the Contributory Provident Fund Account but' even the nianagement's share, rnihich they accepted without demur and hence could 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 Administrative Tribunal or filed Original Applications before the Central Administrative Tribunal.

¶36Qr-ia these respondents, it may be noted that the respondent of W.P.(C) No.1402712009 submitted a letter dated

2.3.1995 specifically stating that he does not want to opt for the pension scheme and'desires his dues to Oe paid as per his CPF Account. The respondent of W.P.(C) No.565/2010 likewise W.P.(C) No.I4O27/2009 & Connected Matters Page 2L of 27 qL submitted a letter on 12 .7.7995. The respondent of W.P.(C) No.598/2010 likewise submitted a letter in the year 1994 and reaffirmed the said fact in the letter dated 5.11.1998. The respondent of W.P.(C) No.75412010 likewise submitted a letter on 20.4.!gg5. The respondent of W.P.(C) No.1902/2010 'likewise submitted a letter on 14.7.1995. The 3 respondents of W.P.(C) No.227 412010 likewise submitted letters on

11.3.1994, 15.3.L994 and 9.6.1995 respectively. The. respondent of W.P.(C) No.3919/2010 likewise submitted a letter on 22.7.tgg6. The respondent of W.P.(C) No.a23l2010 likewise submitted a letter on 5.10.1994. The respondent -of W.P,(C) No.756/2010 likewise submitted a letter on 15.3.1994 as claimed by the DTC but denied by said respondent. We note that DTC has produced said letter and additionally has relied upon a list prepared on'I2.4.I994.where the name of said respondent is at serial No.113 and notes his opting out for pension. The respondent of W.P.(C) No.832l2010 likewise submitted a.letter on 5.9.1995.' The respondent of W.P.(C) No.752l2010 likewise. submitted a letter on 7 .I2.Igg3. The respondent of W.P.(C) No.40U2010 also opted out of the pension scheme, though the date when he did so is not on record.

¶37lt may be noted that all aforesaid respondents except the reSpondent of W.P.(C) No.756/2010, who claims not to have written letter dated 15.3.1994, and the respondent of W.P.(C) No.401/2010 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 opted out of the pension scheme, have . pleaded that they wrote the letters out of compulsion because it was uncertain whether at all the pension scheme would be introduced and there was complete uncertainty whether at all W.P.(C) No.t4O27/2009 & Connected Matters 9\ rl 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 respondent5 he received the CPF dues when he retired with effect from 31.5.1993 and thereafler 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 Tribuna.l in the year 2009 and was registered as TA No.1449/2009. '

¶39Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 793l2OlO, I384|2OIO,. t396l20tO and W.P.(C) No.205]-120]-0 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 subsequently opted out of the pension scheme and received all dues under the CPF Scheme. They also claim that they 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 the pension scheme would be introduced and if yes, from which date.

¶38Qua the stand taken by the respondent of W.P.(C) In a nut-shell all these respondents plead that they were under compulsion to opt out of the pension scheme after they had submitted their offer to be voluntarily retired and after the same was accepted and they stood retired; compulsion being the uncertainty of pdnsion being paid and their pressing need for funds. The legal argument advanced W.P.(C) No,L4027/2009 & Connected Matters I '40. \q (' by them is that once their offer for being compulsorily retired was accepted, the contract stood concluded by the accep.tance of the offer and the terms of the contract was as contained in the VRS Scheme notified on 3.3.1993, which specifically stated that such retirees would be entitled to pension. They claim that later on, the contract 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 4t. The argument of the said respondents has to be 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 invitbtion to offer. The employees make an offer under the stheme being, to retire on.the terms notified as per the scheme. On being accepted,.the letter of offer results in the contract bei.ng concluded and the employees become entitled to the dues 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 wrotb 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 CPF Scheme. lt is settled law that one manner of accepting an offer ,is to perform the obligation to be perfo.rmed as per the offer. Thus, by making payment under the CPF Scheme the Corporation accepted the 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 compulsion and if yes the affect thereof.

¶43The compulsion alleged by them'is the uncertainty of pension being released. As noted hereinabove the pension W.P.(C) No.14027/2009 & Connected Matters t\ 7{ scheme notified on 27.Il-]rgg2 could no/trke off because LIC did not fund the scheme as envisaged and latei 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 from 12 to 15 years when they took recourse to legal action is clearly indicative of there being no compulsion. The silence of these responderits speaks for itself. lt is apparent that with the passage of time these respondents became clever by a dozen and thought why not take the benefit of a few who likewise went to Court and obtained relief, by pulling wool civer the eyes of the Court by pleading that their act of subsequently opting out of the pension scheme was meaningless because the contract stood concluded, a submission which was accepted by the Courts without considering the further issue of contract being novated In 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

¶44W.P.(C) No.14027/2009 & Conhected Matters 5L .ry 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 compulsion .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 been . set forth that they acted out of compulsion when they oilted out of the pension scheme.

¶46Accordingly, we hold that the said writ petitions have to be allowed. 47 . We allow W.P.(C) Nos.1402712009, 40].12010, 565/2010, 598/2010, 75412010, t902120r0, 227 412010 3919120l-0, 423120l-0, 756120l-0, 83212010, 752120l.0, 793/2OIO, t384l2}l}, 1386/2010 and 205I/2OIO and set aside the impugned orders dated 30.6.2009, 3.8.2009, ,

3.9.2009, 23,9.2009,25.9.2009,.8.10.2009, 13.10.2009,

4.II.2O09 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 dismiss all the Transferred Applications or Original Applications allowed in favour of the respective, respondent(s).

¶48To summarize the 21 writ petitions stand disposed ' of as under:- A. W.P.(C) No.1639/2010, W,P.(C) No.172912010 and W.P.(C) No.4689/2010 are dismissed. - W.P.(C) No.t4O27/2O09&ConnectedMatters eageZSofZt -l ,4 \ YT {t, B. W.P.(C) No.1402712009, W.p.(C) No.40U2010, W.P.(C) No.565/2010, W.P.(C) No.598/2010, W.P.(C) No.75412010, W.P.(C) No.1902/2010, W.P.(C) No.227412010 W.P.(C) No.3919/2010, W.P.(C) No.423l2010, W.P'(C) No.756/2010, W.P.(C) No.832/2010, W.P.(C) No.752l2010, W.P.(C) No.793/2010, W.P.(C) No.1384/2010, W'P.(C) No.1386/2OIO, W.P.(C) No.205]-.120t0, W.P.(C) No.4906/2010 and W.P.(C) No.3339/2010 are allowed and the impugned orders passed by the Central Administrative Tribunal which are challenged in the said writ pe[itions are set aside and the respective Transferred Petition or Original Application are dismissed,

¶49There shall be no orders as to costs. g.0h (PRADEEP NANDRAJOG) JUDGEtK (MOOL CHAND GARG) JUDGE AUGUST 10, 2Ot O mm W.P.(C) No.l4O27/2009 & Connected Matters Page27 of27