D.T.C v. Jag Shoran

"fo * % IN THE HIGH COURT OF DELHI AT NEW DELHI Iudoment Reserved On:-/,,g* t-4., 2070 t w.P.(c) 754|2OLO D.T.C. ..... Petitioner t Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus JAG SHORAN ..... Respondent Through: Ms.Kittu Bajaj, 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?

¶3Whether the judgment should be reported in the Digest? PBADEEPNANpRAIOG, t. For orders, see W.P.(C) No.L402712009. (PRA;ffiffiRAroG) JUDGE AUGUST I.O, 2OI.O mm CHAN 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. ll ,. IN THE HIGH COURT OF DELI.II AT NEW DELHI % ludoment Reserved On: 29th lulv.'2070 ludament Delivered On: 70th Auaust. 2070 + W.P. (C) L4o27 l2AOg DELHI TRANSPORT CORPORATION "..' Petitioner Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary, Advocate VETSUS MADHU BHUSHAN ANAND "... Respondent Through: Ms.Kittu Bajaj, Adv. + W.P.(c) 4o1l20x.o 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) s6s/20Lo DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate ' VCTSUS SURESH CHANDER ..... Respondent ' Through: Mr.S.N.Sharma, Adv. + W.P.(C) s98/2ox.O DELHI TRANSPORT CORPORATION ..... PCtitiONCr Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS ZILE SINGH ..... Respondent Through: Mr.N.L.Bareja,Adv. W.P.(C) No.1-4027 /2009 & Connected Matters Page L of 27 \L -r-w.P. (c) 75412OL0 D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate versus JAG SHORAN r-W.P.(c) L9o2/?010 D-l-C ..'. Petitioner ' Tlirough: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS SURENDER KUMI\R '."' ResPonde nt-Through: Ms.Kittu Bajaj, Adv. -:- W.P. (Cl 227 412u^1"0 DF-LFll TRANSPORT CORPORATION '.... Petitioner rhroush: H:f,Ti?l, fl'#?:,T, ,vrs Latika VCTSLIS Sl-I.GURBACHAN l-At.. & ORS. '...' F{espondert[s Tltrough: Mr.trl.L.Bareja, Adv. -{- W.P.(c) 3919/20Lo DELHI TRANSPORT CORPORA.|ION ....' PCtitiONCT Throtigh: Mrs.Avnish Ahlwawai, Ms.Latika Clraudhary, Advocate VCTSUS RAJO SAINI ..... ResPondetri Tlrrough: Ms. Kittr: Bajaj, adv. ..... Respondent Through: Ms.Kittu Bajaj, Adv. lV. P. (C) No.1,402.7 / 2009 & Co n i tected M atte rs Page 2 of l7 \9 t-w.P.(c) 42A2ALO DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwaurat, - Ms.Latil<.a Chaudhary, Advocate verSus SAryA PRAKASH KHURANA '.... RCSPONdCNT Through: Ms.Kittu Bajaj, adv' + w.P. (cl 7s6l2o3.o DELHI TRANSPORT CORPORATION ....' PCtitiONET T-hrough: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS SOM DUTT ..'.. ResPondent Through: Ms.DeePali GuPta, Adv. + W.P. (Cl 83212OL0 DELHI I'RANSPORT CORPORATION ."'. Petitioner Through: Mrs.Avnish Ahlwawat, lvls'Latika Chaucihary, Advocate VCTSUS SH RAM AWAR SHARMA '...."Respondent Througlr: Mr.S.N.Sharma,adv. -F w.P. (cl 75212010 DELHl TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat-, Ms.Latika Chaudhary, Advocate VCTSLIS J.L.DHUPAPR ..... ResPondent Through: Mr.Narottam VYas,. Mr,Vikramjeet Sikand, Advs. W.P.(C) No.1402712009 & Connected Matters -t-w.P.(c) 793/2OL0 DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS BFIAGWATI PRASAD ..... Respondent Through: Ms.Kittu Bajaj, Adv. + W.P.(C) L3a4l2oLo D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Clraudhary, ,Advocate versuS SH.RAJENDER SINGH ..... Respondent I'hrough: Mr.N.L.Bareja, Ad'"'. -F W. P. (C) L386/201'O DELHI 'fRANSPORT CORPORATION ,..,. Petitioner -[hrough: N4rs.Avnish Ahlwawat, lvls.Latilca Chaudhary, Advocate VCTSUS SI.I.NANU RAI\4 SHARMA . RCSPONdCNT Through: Mr.N.L.Bareja,Adv. -r-W.P.(C) 2O5L /?oL$ D-fC ..,.. Petitioner -lhrough: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS RANDHIR SINGH ..... Respondent Througlr: tvlr.N.L,Bareja, Adv. i-W. P. (C) 49O6/20L{J DELHI TRANSPORT CORPORATION ..... Petitiorrer Through: Mrs.Avnish Ahlwawat, Ms.Latika versLrs ChaudharY' Advocate RAMESH CHAt{D.jAiN .... Respondent -l-hrough: Mr.N.L..Barela, Adv. W P.(C) i,1o.1.4027120t)9 & Corinected Matter's a 1s +- w.P.(c) 468s IZALO .;ol;T!';"' VCTSUS DELHI TRANSPOR-| CORPORATION :'..' Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + w.P.(c) L639/20L0 CHARANJIT BAThA ..... Petitioner Through: Ms.Kittu Bajaj, Adv, VCTSUS DEL.HI TRANSPOROT CORPORATION ..'.. Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate +- w.P.(C) L72gl20uo CHARAN KAMAL ....' Petitioner ThrouEh: Ms.Kittu Bajaj, adv. VCTSUS DTC ..... ResPondent Through: Mrs.Avnish Alrlwawat, Ms.Latika Chaudhary, Advocate + W.P.(C) 3339/2CI10 D.T.C. ..... Petitioner -fhrough: Mrs.Avnish Ahlwawat, Ms.Latika Chaucjhary, Advocate VCTSUS PULAK MUKHERjI. .'.'. ResPondent Through: Mr.Anrit Kumar, Adv. CORAM; hloN'BLE MR. Jl,JSrlCE PRADEEP hIANDR,AJOG HON'BLE MR. JUSTICE MOOL CI-IAND GI\RG

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

¶2To be referred to Reporter or not?' W.lr.(C) No.L4O2712009 & Connected Matters u ,+{

¶3Whether the judgrnent should be reported in the Digest? PRADEEP NANDRAIOG, I. I with the promulgation of the Delhi Municipal Corporation Act Ig57 artd the Constitution of the Municipal Corporation of neihi, municipal functions in Delhi except NDMC area and the area fallirrg under the jurisdiction of the Cantonment Boar.d 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 butJget and separate sLaff. As the city of Delhi grew, it was thought advisable to corpora|iT-e public transport ip Delhi and tlrr,rs Llre Dellri Transpart Corporation was formed as a body corporate and it took: over the functioning of the Delhi -i'ransport Undertaking, The said Corporation had in place a Contrihrutory ProvicJent Fund Scheme for its employees and needless to state each tnonth a fix amount was deducted fl-om tl-re salary of the emprloyees ancl with a. matching"contribution by the Corporation was creclited in the r'Llnd anc! in the accOt-int of the employee, wlto needless to state was a nlernber of the Contributory Provident Fund. The ernployees of the 'Corporation agltatecj for long that the pension scirem,e of the Governnnent of lrrdia, which wa3 exterrded to the mulicipal enrployees be also extended to them and in respeci of whiclr claim they lrad petitioned the Supr-eme Court, when in the year Lg92 the Corporation gave an assurance to Lhe Supreme Court tlrat it would introduce a pension scheme for its employe.es, inclr-rding the retired employees and pursuant t[ereto issued crffice orcJer No.16 rJated 27.1-I.1992 notifying that a pension s;cheme stood notified which would be operated by the L.ife I'age Ct of 27 : W.P.(C) No.1,4027/2009 & Connected Matters \" lnsurance Corporation of lndia (LlC). The office order reads as under:-"No.Adm-l-5 (4)192 Dated 27 .L1.92 Sub : Introduction of Pension Scheme in DTC as applicable to the Central Govt' Employees. The introduction of Pension Scheme for the empioyees of the DTC has been sanctioned by the central Govt. and conveyed by the M'O.S.T. vide letter No'RT-L2}I}I}UBB-TAG dated 23'Il'92'as on the same 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 e'Ffect of Pension Scheme would be

3.8.1981.

¶3All the existing employees including those retired w.e.f. 3.8.1981 onwarcls would have the option to opt for the Pension Scheme or the Employees Contributory provident Fund as at present, within 30 days front the date of issue of this O.O. for the implementation of the pension scheme as approved by the Govt 9f India.

¶4The Pension Schen"te would be compulsory for all the new employees joining DTC w.e'f. 23.I7.9?-, the date of sanction of the scheme'

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

¶6The employees who have retired on or after 3'd August 1981 ancl 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. 'I-he total amoUnt to be refunded by Ehe retired employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. W.P.(C) No.1402712009 & Connected Matters PageT of27 \% :, .( 7 , Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by tlrem before any benefit under the Scheme, is granted to them. B. A due anci drawn statement would be prepared in respect of retired enrployees 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 do;r of thel 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. l-le shall be deemed to have opted the Pension Scherne Benefits. , Application forms for exercising clption would be available with the Unit Officers and ali 'enrployees includirrg retired employees wishing to exercise option, should do sc rryithin the Unit of tlreir present working/where frorn theV retired, witlrin a period of 30 clavs from the date o'f issue of this Office order' The Unit Officers, after receiving the option fronn the ex-employees, will take further necessary action for getting the necessary fot'rns compie'led, which will be iupplied to thern by the LIC for Pension etc. they will also ensure the recovery of EPF and Gratuity from the Ex-ernployees before forwarding their applications as mentioned above. The cases of all officers will be dealt with at Headquarters. Tlre options received from the existing ernployees for not opting Pension may be kept in their Pet'sorral tile and entry made in their Service Bock'" ',1. A perusal of the scheme shows tfrat as regai'ds the retired employees, the,y had to specifically opt to be paid pension and harJ to simultaneously refund to the Corporation, the employers' slrare received by them as n"ienrbers of the Contributory Providerrt Fund Scheme together witlr intet-est w.P.(c) No.1.4027/2009 & connectecl Matters fl (vide para 6 of the Scheme). As regards ttre 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.IL.I992 and as regards the existing serving employees, vide para 9, it was stated that those who rJo 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 '7I'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 pensioll scheme and needless to state their positive option to opt for the pension scheme was alwaYs there.

¶3without working out the modalities with the Llc 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 the pension scheme and who specifically opted to continue t0 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 Tl.a nsPo rt CorPo ratio n The rnatter pertaining to the irrtroduction 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 ernployees of the be applicable to corporation i.e. a ll reg ula r workers and W.P.{C) No.t4O27/2009 & Connected Matters executives who are appointed against regular vacancies in the corPoration.

¶2Eligibility: An employee nrust have completed ten years of service in this corporation or ccmpleted 40 years of age to qualify for consideration under the Scheme. For this purpose, period of deputationiretention 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' Volr-rntary rel-irement will be normally allowed only in cdses of incumbents of the posts which have been declared suirplus or redundant. Hourever, voluntary retirement Scheme could also be allowed in other cases depending on the merits of each case and in the interest of the corporation Voiuntary retirement cannot be claimed by any employee as a matter of right. . The corporatir:n will have the right not to grant Voluntary Retirement for reasons to be recorded in writ!ng. Under no reasons will the relief under this scheme be allowed frorn a date earlier tharr the date of passing the orders. An enrployee irr wl'tose case any'disciplinary case is pending will not be considered under this scheme until the disposal of the same.

¶4An empioyee uufto had taken voluntary retirenrent will be eligible to the following refunds/payrnents:-

(a)

(b)

(c)

(a) Balance in his PF Accourit as provident fund applicahrle to hint.

(b) Encashment of refused accumulated earned leave 3s Per corporation applicable to him as if he tlre trorrnal rules of retirernent. \ir/.P.(C) No.L402712009 & Connected Ma'.ters per rules of leave a nd rules of the retires under .t

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

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

(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 norfflal 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 lndia.

(g) Pen"sionary benefits as per office order Irlo.1G dt.27 "1"3-.92. (Emphasis supplied) All amounts due to the corporation will be adjusted against the payments r-tnder (d) & (e) above and ihe employee concerned should clear any outstanding cjures/advances taken before the date of effect of voluntary retirement. Errrployees worl<ing on the post of Conductor in the Corporation are proposed to be covered under-the Voluntary Retirement Scheme in the tirst instance. Such Conductors who are desirous of seelcing voluntary retirement in the proposed Scheme fnay give their option in the prescribed Performa through proper channel within 15 dayr5 to be concerned Unit Officer who will fon'vard the same to the Secretary, DTC Board. This issue with authority." the approval of competent

¶4Needless to state, the VRS Scheme clearly notified that those who opt for voluntary retirement would be entitled to pension as per the office order ltlo.16 dated 27.t.L1-992 (vide para a(g) of the VRS Scheme). & # W.P.(C) No.t4O27/2009 & Connected Matters Page 1.7 of 27

¶5Soon thereafter 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 utrder:- "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 pf seeking voluntary retirement in'the proposed scheme rnay give their option in the prescribed proforma through proper channel within 15 i days to the concerned unit officers, who will forward the same to the Secretary, DTC Board."

¶6\A/hen DTC notified the pension scheme on ?7 .LL.1gg?-, the respondents of W.P'(C) Nos. f402.7 !2009,

401./2010, 565i2010, 598/201.0, 754120LO, 19C12/2010, 2'27412010 (3 in number) and 391912010 specifically opted for tl're pension scherrre. The respondents of W.P.(C) N(rs.423 l2}l-o, 7561?oLfJ, B32l2oLo, 7521)aLo, 7g3l2o:]:o, 13B4PAI0, 1386/2C)10 and 2051/2010 did not submit any cptions and hence were to be treated as deemed optees for pension. 7 . lt may be noted that the writ petitioners of w.P.(c) Nos. t63gl2}10 and 1729l2010salso did not submit any optiorrs arnd lrence would be deerned to [re optees for pensiotr. B. lt may also be noted that the respondeni of W'P.(C) No.4906 12010 and the writ petitioner qf W.P.iC) NrJ.46Bg l2'0:J .submitted their options expressly stating that they cic not opt for the pension scheme, meaning thereby, they indicated pcsitively that they woulcl lil<e to continue to be mernbers of the Contributory Provident Furnd Scheme.

¶9On different dates, but all. in the year 1993 the responclents of all the writ petitionS except W'P.(C) No.1639 2A1.A, W.P.(C) iVo.r7Z9 l2ot0 iincj w.P.(c) W.p.(C) No.1.4O2l /2009 & ConnecterJ N4atters Page LZ oi 27 Le No.3339 120L0 and the writ petitioner of W.P.(C) No.46B9l20I0 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.46B9 ]2OIO, would or would not be entitled to pension would depend upon whether they or anyone of them had specifically opted to continue under the Contribrutory Provident Fund Scheme. We say so for the reason, pertaining to the existing employees, the pension scheme notified on 27.11.1992 clearly stated that those who specifically opted for the pension scheme ahd 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 Corrtributory Provident Fund Scheme. Thus, it is apparent that the respondent of W'P'(C)

10.

¶11No.4906 l2OI0 and the writ petitioner of W'P.(C) No.4689 1201-0, having exercised a positive option to continue to be retained as llembers under ttre Contributory Prgvident Fund Sclreme, coulfl under no circumstance claim benefit under the pension scheme. ln the year 7gg4, by and under a notification dated

5.I2.Igg4, all dmployees 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:- W.P.(C) No.l4O27/7009 & Connected Matters Page L3 of 27 3v ,# "lt is also notified for infonmation of all stlch employees who opt for VRS that they wotlld not be entitled to join Pension Scheme if they ?re 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)

¶13on 23.12.1994 another circular . was issued extending the right to 'make offer by all the empioyees pertaining to the VRS Scheme notified on 5.1-2.7994. 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.

1.4. The writ petitioners of w.P.(c) Nos.t639l2]10 and L72912010, whr: were deemed optees under the pension s;cherne, having exercisecl no option at all pursuant to the rrotification date d 2.1.11.:1.992, submitted offer to be volttnLarily r"etired on 4.1.1995 and 17.10'1995. -l-o pr-rt it in a nut-shell, all employees who are r.5. litigating under the various petitions either as the petitioner or' as the respondents, except the two petitioners of W'P.(C) Nos.1639/2010 and 7779f2}:r0, submitted offer letters to be voluntarily retired under the VRS Scheme notified on 3.3.1993, which contQined the ternrs of the Scheme and as exterrded from tinre to time in i:he year 1993.

¶16As regards W.P.(C) No.3339120L0, the respondent thereof had retired on 10.7.1991 i.e. before the notification clateci 27.1.1..L992 was issued and as regards him, iride para 6, if he did not specificallV opt for the pension scheme rruithin 30 cJays of the notification datecl 27.11.1992 he virould have got no benefit under the pension scheme for the reason on his W.P.(C) No.t4O27/2009 & Connected N4atters ps 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 parties in three compaftments. 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' :1_8. we deal with the grievance of the corporation pertaining to w.P.(C) No.3339120l0, the respondent where6f lras 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 opteb for pension as per the pension scheme notified on 27.11'1992' No discer-nable reasons are forthcoming from the decision of the Tribunal save and except that the'Tribunal has treated his entitlement in terms nf clause 9 of the pension scheme dated 27.:_1.1992, ignoring.the fact that clause g applied to the serving employees of DTC atrd in respect of .those who had retired prior to the promulgation of the notification dated 27.JI.Igg2., 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, virJe para 6 of the notification clated 27.11..1992. lndeed, tlris has been so held by a Division Bench of tlris court in the' decision dated

16.3.2000 in LPA No.33/19e8 DIS-t1t-Sh-EatineILEttatWvA Ors. which decision tras been upheld by the Supreme Court in W.P.(C) No.t4O27/2009 & Connected l/latters L7.

¶19&b the decision reporterJ as (2001) 6 SCC 61 DTC Retired Thus, as regarcls W.P.(C) No.3339120!0 is concerned, noting that ttre respondent therein could not be tr-eated as a deemed optee tor the pension scheme and having not specifically opted for the pension scheme'and having received all dues pa.yable to him when he retired as per the amount lyitrg to his credit as a member of the Contributory Prorrident Fund Scheme and obviously he having'not opted for the pension scherne'and thus not having returned the rnanagernent'S contribr-liion pertaining to hirn and as credited in Fris account as a member of the Corrtributory Provident Fund Scheme, saicl respondent vu'ouid have no case at all. 2). Thus, W.P.(C) No .333912010 is allowed ' lmpugned judgment and order dated 15.1,2010 allowing TA No.12O9 l2OO9 is set aside and TA No.1209l2OO9 is dismissed.

¶22We take up tlre case of the petitioners of W'P.(C) Nos.1639/2010 and 172912070, who were in servlce as on

27.ILLgg2 and did not submit any option Llnder the notification dated 27.1.1.1992 and hence vide clause 9 thereof would hre treated as deemed optees for the pension scheme.

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

4.1.1995 and 17.10.1995 respectively. lt is further to be noted that by then the voluntary retirement schemes notified earlier had lapsed and they could seek voluntary retirernent as per the scheme notified on 23.L2.I99/L and 8.5.1995 respectively i.e. the VRS Schemes notified prior to the dates 4.1.1995 and 7'7.I0.1995. As is notecl irereinabove both schemes under wl^rich the;r applied sgrecifically excluded entitlement for pension inasmuch aS the tvvo schennes clearly staLed that employees opting for voluntary retirement under the two Emnlovees Associattol A )tS-.-V

¶20VV.P.(C) No.140)712009 & ConnecteC Matters -fr-scl'lemes 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. It is apparent that the terms of the VRS Scheme notified on 3.3.1993 are incorporated by reference under the VRS Schemes notified on 23.L2.I994 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 langgage rruhich expressly stated that it was notified for information of the employees ttrat 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.IT.L992 could not be implemented because LIC backed out and it was only on 31.10.1.995 did.the Central Government provide the necessary fund and only those empldyees 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 notified on 5 .L2.L994 and 8.5.1995, we see no scope for the petitioners of W.P.(C) Nos.1639/201-0 and t72gnAI\ to be entitled to receive anv peirsion and we holC that the Tri[runal lras correctly dismirr"O their clairn petitions. ?-7. To be fair to the said writ petitioners, we may note that tlre only submission urged by their counsel was 'that the orders relieving them and enclosing the amoLlnt lying to tlreir credit in the Contributory Provident Fund Scheme referred to

¶24W.P.(C) No.1.4027 /2009 & Connected Nlatters Page 77 of 2.7 sg thefactthattheyWerebeingretiredaSpertheVRsScheme datec|3'3.1993andaSextendedtoa|ltheemp|oyeeson 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 whiclr stated that pension would be Paid 28'Sufficewou|ditbetostatethatabareperusalof, the orders referred to by learned counsel, evidence that a printed proforma has been used' The same pertained to the earlier vRS schenies. lt is settled law that rights are determinecj not r,vitlr reference to the language of tfre proforma lrr-rt the statute or the scheme applicable. The said two petitioners subnritted offers to be.voluntarily retired under the schemes notifiec| on 5 .I2j-9g4 and 8.12.1995. Further, they receivecJ the cheques tenderecl to tlrem which included tlre rnanagement,s share in the Contributory Provident Fund Account. -t'hese cheques were received by them o.n 31"3'1995 arrd 31.10.1995 respectirrely. They encashed the cheques', we may note that these two peti[ioners had filed writ petitions iri the year 2005 anc 2007 respectively laying a claim for pension whictr were transferred ,to the centr-al Adrninistratiire -t-ritcunal and registered as TA No.689/2009 and TA Nio.l3B5pa}grespectively,whichhavebeenclisrnissedbyt|ie Tribunal vicie impr-rgned orrjer dated 23.9.2009' The clairn of these writ petitioners wortlcl everl otherwise be barred by the law of limitation, The principle that right to recei're pension is al continuous cause crf act.ion is not available to thern inasmuch a5 C.IUA l-herrr, tlte issue was whetlrer they were entltled to receive cjues as per Contributory Provident Filtid sc:lreme or. uncler the pension scheme. They were paid full dues when t.lrey retirecj on 31..3.1995 arrd 31.10..i995 resoec'tlvely as per the contributory Provident Fund scheme and if they iiad any W.P.{C) No.14O2l/2009 & Ccnnecled Matters Page 18 of27 ?T- # grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thusl W.P.(C) Nos.1639/2010 and !72912010 are dismissed

¶30Pertaining to the remaining 18 writ petitions, w€ 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 1-h.utpondents of W.P.(C) Nos.L402712009, 401/2010, 565/2010, 59812010, 75412010, 19021201"0, 227412010 and 391912010 who specifically opted for the pension schemes wlren they submitted tlrelr 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-Resporrdents of W.P.(C) Nos.423 l2O7O, 75612010, 83212010, 752120!0, 79312010, 1-3B4|20LO, 1386/2010 and 205U2010 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 a nd conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in tlre year 1993. CaLegory 3-Resporrdents of W.P.(C) ' No.49O6 I2OIO and the writ petitioner of W.P.(C) No.4689 I2OIO 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,4906120L0 has succeeded betore the Tribunal and the other i.e. the petitioner of \tu.P.(C) No.4689l2OL0 has lost, notv,rithstanding their cases being identical. W.lr.(C) No.L4O27 /2009 & Connected Matters Page L9 of 27 v#

¶32Having perused the reasons given by the Tribunal in favour of the respondent of W.P.(C) ttJo '490612010 as per para

¶22of the impugned order dated J'3.4.2010, suffice would it be tcl state that the Tribunal has gone off at a complete tangent by referring to some policy ciecisions 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 utrderstand as to.how said decisions can apply to the respondent of w.P.(c) No.4906120]0 who specifically opted to be retained as a member under the Corrtributory Provident Fund Scheme. Noting further that said respondent received the full amount payable to hirn as a rnernber of the Contributor"y 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 ancl lastly that having retired in the year 1993 anc! .received full dues in tlre sa.rne year he could not rake up the issue when he filed OA N0.2053/2009 in tlre year 2009 before the Tribunal' .We concur with the reasoning given by the Tribunal pertaining to the vvrit petitioner clf VJ.P.(C) No.4689120L0 when OA No.237 Ll200g filed by him was dismissed vide order dated

18.2.2010. :13. Tlrurs, W.P.(Ci No.4.68912010 is dismissed.

¶34\r'/,P.(C) No.4906 120L0 is aliowed. Tl-re impugned order dated 13.4.2010 allowing Ol\ No.205312009 is set aside and OA No.2053/2009 is disnrissed'

¶35T!'re claim of the respolldents in caiegcry l-and cat'eglory 2 may be tal<en up together-for the reason whether tlrey exercised a positive option to be brouglit urrder the pension scfleme or having exercisecl no optiorr wliatsoever and f',elrce as deenrerJ optees being brouglrt under the p1insion scherrte, their status wot-ild i:e the same aS errtitleri Io be W. P. ( C) No.'1a02'7 | 2.009 & Co n n ected N4a tle rs Page ?-0 of 27 N brought under the pension scheme under the' notification dated 27.:,,:r.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 tb 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 sche.me 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 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 them not only tireir Share in the Contributory Provident Fund Account but even the management's share, wtrich they accepted withclut demur and hence coulrJ not rake up the issue-after 12 to 15 years i'e' when they filed either writ petitions irr this Court which were transferred to the Central Administratirre Tribunal or filed original Applications before the central Administrative Tribunal.

¶36Qua these respondents, it may be noted that the respondent of w.P.(c) No.l402712009 submitted a letter dated

2.3.1995 specifically stating that he cloes not want to opt for the pension scheme ahO Oesires. his dues to be paid as per his cpF Account. The respondent of w.P.(c) No.565/2.01.0 likewise W.P.(C) No.'1402712009 & Connected Matters Page 2L of 27 3L submitted a letter on 12.7.1995. The respondent of W'P'(C) No.59B/2010 likewise submitted a letter in the year 1994 and reatfirmed the said fact in the letter dated 5.11.1998. The' respondent of w.P.(C) No ,7541?.010 likewise submitted a letter on 20.4.1995. The respbndent of W.P.(C) No.190212010 liicer,vise submitted a letter on 14.7.1995. The 3 respondents of W,P.(C) No.2274PA70 likewise submitted letters on

11..3 .Lgg4, 15.3 .Lgg4 and 9.6.1995 respectively. The respondent of W.P.(C) No.39I9l201-0 likewise submitted a. letter on 22.7.1996. -l-he respondent c'f W.P.(C) No'423/2010 likewise submitted a letter on 5.10.1994' The respondent of W.P.(C) No.756l?-Ol-0 likewise submitted a letter on 15.3'1994 as clairned by tlre DTC but denied. by said respondent' Vt/e note that D|C has prociuced sairj letter and additionally has reliecl upon a list prepared on I?-.4.1994 where the name of sairJ responclent is at serial No.1.13 and notes his opting out for perrsion. The responCent of W.P.(C) . N a.B32l20lA likewise sr-rbrnitted a letter on 5.9.1995. The respondent of W.P.(C) Nicr.752l20l} likewise submitted a letter on l.l-2'1993. The respondent of W.P,(C) trlo.401'l20l-A also opted out af the pension scherne, though tlre date when he did So is not on record. It may be noted that ail aforesaid respondents 31 . except the respondent of W.P.(C) No.756/2010, who clainrs not i:o have written letter derted 15.3.1-994, 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 Scherner, have prleaded that they wl'ote the letters out pf compulsion because it was uncertain whetlrer at all the pension Scheme would be introcluced and there waS complete uncertainLy luhether-at all Page22c{27' W.P (C) No.ia1T'l/?-009 & Conr,ected Matters *

¶38Qua the stand taken by the respondent of 'W'P'(C) 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.?'1993 and thereafter received the CPF dues and kept quiet till he filed a writ petition in this Court in the year 2O0B which was transferred to the Central Administrative Tribunal in the year 2009 and was registered as TA No.744912009. Proceeding fr-rrther, we note that the pleadings qua when the respondents of W.P.(C) Nos. 79312010, l3j4l2Ol0; 1386/2010 and w,P.(c) No,205Il20L0 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 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.

¶40In 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 after 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 the pension scher'ne would be which date. introduced and if Yes, from

¶39W.P.(C) No.1,402712009 & Connected Matters 3\ by them is that once their offer for being compulsorily retired was accepted, the contract stood concluded by the acceptance of the offer and the terms of the contract was as contained in the VRs scheme notifiecl on 3.3.1993, which specifitally stated tfiat such retirees would be entitled to pension' They claim that later on, the conti'act could not be modified arrd thus their subsequent letters to opt out of the pension scheme and revert back to the CPF Scheme could not be accepted' 4\. 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 invitation to offer. The employees make an offer 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 to the clues as per the VRS Scheme. But, nothing prevents the parties to novate the contract. In the instant case the co'ntract got novated rryhen 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. cPF 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 etrtire 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 relea5ed. As noted hereinabove the pension \,V.P.(C) No.1"4027 /2009 & Connected Matters eE scheme notified on 27.L7.L992 could not take off because Llc 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 from 12 to 15 years when they took recourse to legal action is clearly 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 tal<e the benefit of a few'who likewise went to Court and obtained relief, by pulling wool over the eyes of the Cou,rt 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 wlratsoever 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.LaO27 12009 & Connected'Matters 3L ,.{/ the court or the Tribunai within a maximum period of 3 years being tlre 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 ol' 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 opted 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, 40u2010, 565/2010, 598/2010, 754120L0, t90212010, 227 4120L0 3919i 2'01-0, 423]2OLO, 756120:J0, B32l2ArO, 75212010, 793120L0, 1.38412010, f3B6/2010 and 2051/201C and set bsicje the im pug ned or-ciers ciateci 30.6.2009, 3.8.2009,

3.9.2009, 23.9.2009, 25.9.2009, 8.10.2009, 1-J'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 b'efore the Tribunal and as a consequence dismiss all the Transferred Applications or Original Applicatiotts allowed in favour of the respective respondent(s)

¶48To summarize tlre 21 writ petitions stand disposed of as ui'':der:- A. W.P.(C) No.1639lz}t}, W.P.(C) No.1729|2OLO and V'i.P.(C) tlo .468912010 are clismissed. W.P.(C) Nct.'J"4O27 /2009 & Connectcd Matt€'rs +q B. W.P.(C) No.14027 12009, W'P'(C) No'40U20I0' W.P.(C) No'565/2010, W'P.(C) No'598/2010, W'P.(C) No.75412010, W.P.(C) No'1902 l2OL0' W'P'(C) No'227 412010 W.P.(C)No.39:-:g]2O:-]O,W.P'(C)No'42312010'W'P'(C) No.756/2010, W.P'(C) No.832l2010, W'P'(C) 'No'752/2010' W.P.(C)No.793/2010,W'P'(C)No'1384t2010'W'P'(C) No.13B6 ]2OLO, W.P.(C) No.2O5:r|2O7O, W'P'(C) No'490612010 and w.P.(c) No.3339 I2O1O are allowed and the 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. /+g. There shall be no orders as to costs' (PRADE,*-t*f EP rSANDR,A.loG) Jr.iDGE AUGUST I.O, 2OT.O mm Page27 of27 GAR,G) JUDGE W.P.(C) No.1402712009 & Connected Matters