Delhi Transport Corporation v. Sh Ram Avtar Sharma

lD * % IN THE HIGH COURT OF DELHI AT NEW DELHI Iudoment Reserved On: '23& i,tb+ , 2070 ludament Delivered On: 70th Auau"st. 2070 -r"'r-#(t tl (PRADEEP NANDRAJOG) JUDGE a w.P.(c) 832|2OLO DELH I TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS SH RAM AWAR SHARMA ..." 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 NANDRAIOGJ For orders, see W.P.(C) No.1402712009. .a ,Q AUGUST LO, zOLO mm JUDGE 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. I \\ {< IN THE HIGH COURT OF DELHI AT NEW DELI-I! % tudament Reserved On: 29th lulv. 2070 tudament Delivered On: 70rh Auoust. 2070 + W.P.(C) L4o27l2Aog D E LH I rRAN s Po *1f3ffi fr l^1?) nun i, t, Ah I * ;; i;t'l'i 3 t?!' o" Chaudhary, Advocate VCTSUS MADHU BHUSHAN ANAND .'.'. RCSPONdCNT Through: Ms.Kittu Bajaj, Adv' + W.P. (Cl +oLlzoLO 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) s65/2OLO DTC .." Petitioner j Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Adv.ocate VCTSUS SURESH CHANDER ..... ResPondent Through: Mr.S.N.Sharma,Adv. + w.P.(c) 598/20L0 DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Cha.udhary, Advocate VCTSUS ZILE SINGH :.... Respondent Through: Mr.N.L.Bareja,Adv. W.P.(C) No.I4O27 /2009 & Connected Matters Page L of 27 V ,W -r-w.P.(c) 7s4lzaLo D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS . JAG SHORAN ..... ResPondent Through: Ms.Kittu Bajaj, Adv. .+- W.P.(c) L9o2/2o10 DTC .... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS SURENDER KUMI\R .., ResPondent-Through: Ms.Kittu Bajaj, Adv, .:, W.P.(C) 2274|2ALO DF:LHl TRANSPORT CORPORATION .".. Petitioner Through: Mrs,Avnisft Ahlwawat, Mls.Latika Chaudhary, Advocate ' versLls .f ' iII.GURBACHAN l-At.. & oRS. ..... Responderrt-s . Through: Mr.hl.L.Bareja, Adv. -{- W.P.(C) 39L9/20X0 DELHI TRAI{SPORT CORPORA'|ION ..... Petitioner 'Throrigh: Mrs.Avnish Ahlwawat, Ms.Latika Clraudhary, Advocate VCTSUS RAJO SAINI ..... ResPoncletti Tlirough: Ms. Kittr"t Bajaj, adv. l{/. P. (C) No.L402.7 I 2009 & Co n irected M atte rs Page 2 ol 27 '4" + w.P. (Cl 423l2Ol"Q DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwavrat, Ms.Latika ChaudharY, Advocate VCTSUS SATYA PRAKASH KHURANA '.'.' Respondent Through: Ms.Kittu Bajaj, adv. + W.P. (Cl 7s6l2oLo DELHI TRANSPORT CORPORATION ..... PCtitiONCT ' T-hrough: Mrs.Avnish Ahlwawat, Ms.Latika versus chaudharY' Advocate SOM DUTT ""' ResPondent Through: Ms.DeePali GuPta, Adv. + W.P. (cl 8321203-0 DELHI I'RANSPORT CORPORATION '."' Petitioner Through: Mrs.Avnish Ahlwawat, tvls.Latika ChaucjharY, Advocate : versus SH RAM AWAR SHARMA ..... RCSPONdCNT Througlr: Mr.S.N.Sharma,adv. -f w.P. (cl 7s212o10 DEI_HI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate . VETSLIS J.L.DHUPAPR ...'. ResPondent . Through: Mt'.Narottam VYas, Mr.Vikramjeet Sil<and, Advs, W.P.(C) No.L402712009 & Connected Matters \\ft +- w.P.(c) 793/20L0 DELHI TRANSPORT CORPORATION "... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS BHAGWATI PRASAD ..... ResPondent ' T'hrough: Ms.Kittu Bajaj, Adv. + W.P.(c) L384l2oLo D.T.C. ..." Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VETSUS SH.RAJENDER SINGH ',..' Respondent I-hrough: Mr.N.L.Bareja, Ad'r. + W.P.(C) L386/201"O DEL-Hl.rRANSPoRTCoRPoRATloN.'...Petitioner -l-hrough: N4rs.Avnish Alrlwawat, lVs.Latil<a Chaudhary, Advocate VCTSUS SI-I.NANLJ RAN4 SHARMA ....' Respondent Through: Mr.N.L.Bareja,Adv. +- W.P.(C) 205Llz0Ltt D-IC .... Petitioner -l-hror.rgh: Mrs.Avnish Ahlwaurat, Ms.Latika Chaudhary, Advccate ' VCTSLIS RANDHIR SINGH ..... ResPondeirt Thrctuglr: lvlr.N.L,Bareja, A.tjv. i. W.P.(C) 49oG lzAL{I DELHI TRANSPORT CORPORATION ..... PCtitiO]IET. Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSLIS RAMESH CHAND jAiN ..... Respondent 'l-hrough: Mr.N.L..Bareja, Adv W. P. (C) tno.1.4O27 / 2009 & Co n n ected lvlatte !'s Page. 4 of 27 : {' A <- +- w.P.(c) 4689 aALO DEBI SINGH ..... Petitioner Through: Ms.DeePali GuPta, Adv. VCTSUS D E LH I rRAN s P o -ifSffi fl 1"1?| Av n i s h ffi ,l:;i'?l lrTl-"., o, Clraudhary, Advocate +- W.P.(c) L639/2oLo CHARANJIT BATRA .'.'. Petitioner Through: Ms.Kittu Bajaj, Adv. VETSUS DEL.HI TRANSPOROT CORPORATION ..'.. Respondent Through: Mrs,Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate +- W.P.(C) L7291201'O CHARAN KAMAL ..... PCtiTiONCT Through: Ms.Kittu Bajaj, adv. VCTSUS DTC ..... ResPondent Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary, Advocate n. 1-W.P.(cl 333e/2o1o D.T.C. .... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS PULAK MUKHERjI ..... ResPondent Through: Mr.Anrit Kumar, Adv. CORAM: HON'BLE MR. JIJSTICE PRADEEP NANDRAJOG t-toN'BLE MR. JUSTICE MOOL CI-IAND GARG

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

¶2To be referred to RePorter or not? W.tr.(C) No.t4O27 /2009 & Connected Matters t x4 a-'

¶3Whether the judgnrent should be reported in the Digest? PRADEEP NANDRAJOG, I.. I With the promulgation of the Delhi Municipal Corporation Act Ig57 artd the Constitution of the Municipal Corpclration of Delhi, municipal tunctions in Delhi except NDMC area and the area fallirrg under !hu jurisdiction of the Cantonment Board were vested in the Municipal Corporation of Delhi, which included the function of providing public transport irr 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 tlie city of Delhi grew, it was thought advisable to corporatize public transport in.Delhi and tlrus l-he Dellri l-ranspcrt Corporation was fornred as a body crlrporate and it took over the functioning of the Dellri -l'ransport Undertaking. The said Corporation had in place a Contributory Provident Fund Scheme for its employees and needless to state each tnonth a fix amount was deducted from tl-re sdlary of the emprloyees and with a matching contribution bry the Corpclration was credited in the fr:nd and in the accr-lt:nt of the employee, who needless to state \^/as a rltember of the Contributory Provid.ent Fund. The . emplloyees of the C,orporation agltateci ior lon-o that the pension scheme of the Govsrnnnent of lrrdia, which was exterrded to Lhe municipal enrployees be also extended trr them and in respect of whiclr claim they lrad petitiorred the Supr-eme Court, when in the year L992 the Corporation gave an assurance to the Supreme Court tlrat it would introdLtce a pension scheme for its employees, including the retired enrployees and pursLtant thereto issued office order No.16 dated 7-7.71.1992 notifying that a pension s;cheme stood notified which would be operated b)' the Life W.P.(C) No.1,4027 /2009 & Cortnected Mattefs g V rl' lnsurance Corporation of lndia (LlC). The office order reads as under:-Dated 27 .LI..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; L2OIT\2\/BB-TAG dated 23.1"L.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 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 Schen'le 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 qTC 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 with interest in the.event of their opting for the Pension Scheme. 'l-he total amount to be refunded by - the reLired employees/existing enrployees would be the amount that would have accrued', had they not withdrawn the employer's share. W. P. (C) No.1-4027 / 2009 8t Co n nccte-'d Matte rs PageT of 27 't. 'f $ fl x<

¶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 tlrem betore any benefit under the Scheme, is granted to tfrern B. A due ancj drawn statement would be prepared in respect of retired enrployees opting for Pension' Scheme and tlre amount to be paid/refunded, would be worked out by the concerned unit, whierefrom 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. l-le shall be deemed to have opted the Pension Scheme Benefits Application forms for exercising option would be available with tfre Upit Officers and ali enrployees irrcludirrg retired employees wishing to exercise option, should do sc r,uithin the Unit of tlteir present working/wherefrorn 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 forrns comple'ied, which will be supplied to thern by the LIC for Pension etc. they will also ensure the recovery of'EPF and Gratqity from the Ex-ernployees before forwarding their applications as rnentioned abr:ve. The cases of all officers will be dealt with at l-leadtluarters. Tlre options received from the existing ernployees for not opt.ing Pension may be kept in their Fet'sonal file and entry 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 tlre Corporation, the employers' slrare received by them as nlenrbers cf the Contributory Providerrt Furrd Scheme together with interest W.P.(C) Nc:.1.402712009 & Connectecl Matters .'t, Page 8 of27 f ,y I T (vide para 6 of the Scheme). As regards tlre exist[ng employees, it was stated vide para 4, that the pension scheme would be compulsory for those who joined serviqe under the Corporation with effect from 23.L1-.I992 and as regards the existing serving erlployees, vide para 9, it was stated that those who cJo 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'I992 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 tor tfre pension scheme was alwaYs there.

¶3Without worl<ing ou[ the modalities with the LIC to worl< upon and implement the pension Scheme and without completing the formalities of compiling the data as tr: who opted or 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:-e. of Delhi "Sub:-Voluntary Retirement of Employees Tra nsport Co rpo ration. 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 be aPPlicable to ernployees of the corporation i.e. W.P.(C) No.L4027/2009 & Connected Matters all regular workers and Page 9 of27 bP \fr I 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 deputationlretention 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' Volurntary rel-irement will be norrnal!y allowed only in cases of incumbents of the posts which have been declared suirplus or redundant. Houlever, 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 ca'nnot 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 fronn a date earlier tharr the date of passing the orders.

(b)

(a)

(a) 2a An entployee itt whose case any disciplinary case is pending will not be considered under this scheme until the disposal of the same-

¶4An employee vul'to had taken voluntary retirenrent will be eligible to the following refunds/payrnents;- Balance in his PF Accourrt as per rules of

(c) prr:vident fund applicahrle to hint.

(b) Encashment of refused accumulated earnecl leave as Per corporation applicable to him as if he the rrorrnal rules of retirernent. leave and rules of' the retires under \A/.P.(C) No.L407712009 & Connected Ma'rters A tu

(c) Gratuity as per payment of gratuity act and gratuity Rules of the corporation applicable to him' pay as is applicable in the terms of him/her

(d) Three month notice the individual case as Per em ployment. I --(.

(e) An Ex-Gratia payment equivalent to l-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 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 erf,fice order Nfo.J.6 dt.27.X,L.92. (Emphasis supplied) All amourrts due to the corporation will be adjusted against the payments urnder (d) & (e) above and the employee concerned should clear any outstanding cjures/advances taken before the date of effect of voluntary retirement. Errrployees working on the post of Conductor in the' Corporation are proposed to be covered .under the Voluntary Retirement Sclreme in the first instapce. Such Conductors who are desirous of seel<ing voluntary retirement in the proposed Scheme rxay give their option in the prescribed Performa tlrrough proper channel within 15 days to be concerned Unit Officer who rrvill foruiard the same to the Secretary, DTC Board. 'This issue with a uthority. " the approval of competent 4,. Needless to state, the VRS Scherne clearly notified that those who opt 'For voluntary retirement would be entitled to pension as .per the office order No.16 dated 27..l.1-'1-992 (vide para a(g) of the,VRS Scheme). Page 1.7 of 27 .o W.P.(C) No.1-4027/2009 & Connected Matters /1/ A \"I

¶5Soon thereafter l,ide office memorandum dated

16.3.1993 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 under:- "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 seeking voluntary retirement in the proposed scheme rnay give their option in the prescribed profbrma 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

27.I1.1992, the respondents of W.P.(C) Nos.14027!2049, 40u2010, 565i2010, 59,8/2010, 75412.0l-0, 19C)2/2010, 227412010 (3 in number) and 3919.2A10 specifically opted for tl-re pension scherrre. The respondents of W.P.(C) Nrrs.423 |2OIO, 7561?010, B32l?-0l-0, 752120].0, 7931201'0, 138412070, 1386/2010 and 2051/2010 did not submit any options and hence were to be treated as deemed'optees for perrsion. r '7. lt may be noted that the writ petitioners of .\A/.P.(C) - Nos.1639i2010 and'1.-72912010 also did not submit any options and hence would be cleemed to be optees for pensiotr. B. lt may also be noted that the respondent of W.P.(C) No.4906120L0 and the writ petitioner of W.P.(C) No.46B9l20I0 subrnitted their options expressly stating, that they do not opt for the perrsion 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 year 1993 the respondents of all the writ petitions exceSrt W.P.(C) No.1639DA7.A, W.P.(C) No.1729 2010 ;:ncj W.P.(C) \li. P.( C) Na.1.402-7 / 2009 & Co n n ected M a tte rs Page LV of 27 fi, No.3339 I2OIO 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 requrest for voluntary \(--

10.

¶11T2, retirement was accepted, the said respondents and the writ petitioner of W.P.(C) No.4689120]-0, 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 for the reason, pertaining to the existing employees, the pension scheme notified on 27.LI.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) No.4906 I2OIO and the writ petitioner of W.P.(C) N0.4689120l.0, having exercised a positive option to continue to be retained as members under tlre Contributory Provident Fund Scheme, could under no circumstance claim benefit under the pension scheme. ln the year irgg4, by and under 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:-W.P.(C) No.1,4O27/7009 & Connected Matters Page !3 of 27 qAt -c-

1.5. " lt is also notified for information of all such employees who opt for vRS that they would rlot be entitled to join Pension Scheme 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) 13" on 23.l'2.L994 another circular , was issued extending the right to make offer by all the empioyees pertaining to the VRS Scl-reme notified on 5.I2.1994. Thereafter on 8.5.1995, to a specified category of employees stipurlatecJ 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. L4. The writ petitioners of W.P.iC) Nos.163912010 a.nci I72gl2OL0, wlro were deemed optees under the pension schelne, having exercisecl nc option at all pursuant to the rrotification date d 21.11.1992, 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 litigating under the various petitions either as the petitioner or as the respondents, except the two petitioners of W'P.(C) Nos.1639i2010 and 172912010, submitted offer letters to be voluntarily retired under the VRS Scheme notified 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.3339120l-0, the respondent thereof had retired on 10.7.1991 i.e. before the notification clateci 2-7.7.1..1992 was issued and as regards him, vide para 6, if he did not specificall.v opt fcrr the pension scheme vrrithin 30 clays of Lhe notification datecl 27.11.1992 he uiould have got no benefit under thel pension scheme for the reason on his W.P.(C) No.t4O27 /2009 & Connected N4atters ( A 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' :-7. 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 120L0 whose case has to be clealt with de-hors'the Voluntary Retirement Schemes' we deal with the grievance of the corporation

18.

¶19pertaining to w.P.(c) No.3339I2OLO, the respondent whereof lras got benefit from the central Administrative Triburral, 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 27.11.1992' No discepnafle reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has Lreated his entitlement in terms of clause 9 of the pension scheme dated 21 .tI.I992, ignoring the fact that .clause 9 applied to the serving employees of DTC and in respect of those who had retired prior to the promulgation of the notification dated 27.Il.Lgg?-, were required to exercise a positive option to be given pension with concomitant act of refunding the management's share received by them under theContributoryrProvidentFundScheme,videpara.6ofthe notification clated 27.11.1992. lrrcleed, tltis has been so lreld by a Division Bench of tlris Court in the decision dated

16.3.2000 in LPA No.33/1998 Dre tts--sn-EaanAlLBharctav & Ors. which decision has been upheld by the Supreme Court in Page L5 of 27 W.P.(C) No.1,aO27/2009 & Connected Matters ,* -/, the decision reporterJ as (2001) 6 SCC 61 DTC Retired iation & Ors. Vs. DTC & O Thus, as regards W.P.(C) No.333912070 is

¶20\l concerned, noting that the respondent therein could not be treatecl as a deemed optee for the pension scheme and having not specifically opted for the pension scheme and. having received all dLtes payable to him when'he retired as per the amount lyitrg to his credit as a member of the Contributory Provident Fund Scheme and obviously he having not opted for the pension scherne. ancl thus not having returned the rnanagernent'S contribution pertaining to him and as credited in l'ris account as a member of the Corrtributory Provident Fund Scheme, saicl respondenL vrouid have no case at all.

27.. Thus, W.P.(C) No.3339/2010 is allowed. l.mpugned judgment and or'Jer dated 15.1.2010 allowing TA No.1209 l2OOg is set aside and TA No.1209 12009 is dismissed'

¶22We take up the case of the petitioners of W.P.(C) Nos.1639/2010 and 172912010, who were in service as on

27.I1.1992 and did not surbmit any option under the notification dated ?7.1.1.1992 and hence vide clause 9 thereof would be 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 retirenrent schenres notified earlier had lapsed and they could seek voluntary retirernent as per the schenre notified on 23.12.199/L and B.5.1995.respectively i.e. tlre VRS Schemes ncltified prior to the dates 4'1.1995'and I'7.I0.1995. As is notecl irereinabove both schemes under which theyr applied specifically excluded entitlement for pension inasmuch aS the tvvo schennes clearly stated that employees opting for voluntary retiretnent under the two W.p.(C) No.1"40)712009 & ConnecteC Matters q ()/ 'n/ w ..-c| 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 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 errtitled to pension. We may re-note the conditions/terms of,the said two schemes with reference to the language r,ruhich 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 It may be noted that the pension scheme notified an 27.11.1992 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 employees who retired after 1.11.1995 started receiving pension. In other words whether or not pension would ha.ve been paid remained inchoate till 31.10.1995.

¶26Having retired pursuant to the VRS Schemes notified on 5.I2.I994 and 8.5.1995, we see no scope.for the petitioners of W.P.(C) Nos.1639/2010 and !7291201-0 to be entitled to receive any pension and we hold that the Tribunal lras correctly dismissed their claim petitions.

¶27To be fair to the said writ petitioners, we may note tlrat tlre only submission r-rrged by their coLlnsel was that the orders relieving them and enclosing the amount lying to tlreir credit in the Contributory Provident Fund Scheme referred to Page 77 of 2,7 )

¶25W.P.(C) No.J,4O27/2009 & Connected r\latters ,f # .r: thefactthattheyWerebeingretiredaSpertheVRSScheme 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 urrcler the VRs scheme notified on 3.3'1993 which stated that pension would be Paid' 28'Sufficewoulditbetostatethatabareperusalof the orders referrerj to by |earned counsel, evidence that a printedproformahasbeenused.TheSamepertainedtothe earlier vRS Sclremes. lt is settled law that rights are determined not r,vith reference to the language of the proforma trut the statute or the scheme applicable. The said two petitioners submittecl offers to be.voluntarily retired under the schemes notifiecl on 5 .I2,LggL and 8 .l.2'L995. Further, they received the cheques tendered to tlrem which included the rnanagement,s share in the Contributory Provident Fund Account. -t'hese cheques were received by them on 31-'3'1995 and 31.10.1995 respectively. They encashed the cheques' We may note tlrat these two petiLioners had filed writ petitions in the year 2005 and'2007 respectively laying a claim for pension which were transferred to the central Adrninistrative Tribunal and registered as TA No.689/2009 and TA Nio'1385 pa09 respectively, which lrave been rjisrnissed by the 'Tribunal vide impugnecl orrjer dated 23.g.2009' The claim of these writ petitioners wottlcl everl otherwise. be'barred by the law of limitation. The principle that right to recei're 'pension.is a continuous cause clf action is not available to them inasmuch as qua l-hei.n, Lhe issue was whetlrer they were entltled to receive cjues. as per Contributory Provident Firnd Sclreme or unclerthepensionscheme,TheyWerepaidfrr||dueswhert they retirecj on 31..3.1995 arrd 31.10.1995 respectively. as ner the contributory Provident Fund scheme and if they fiad any w.P.(C) No.l4O27l2Q09 & Ccnnecled Mattters -t. "h ,# -( grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W.P.(C) N,os.1639/2010 and !72912010 are dismissed.

¶30Pertaining to the remaining 18 writ petitions, we may divide the same into 3 further categories which emerge trom 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, 40112010, 565/2010, 598/2010, 75412010, 190212010, 227412010 and 39191201.0 who specifically opted for the pension schemes when they submitted tlreir 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 l2OlO, 75612010, B32|2OLO, 75212070, 793120L0, 1384/2010, 1386/2010 and 2051/2010 wlro 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 VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in tlie year 1993. Category 3-Respondents of W.P.(C) No.4906120L0 and the writ petitioner of W.P.(C) No.468912010 who specifically opted to be retained. in the Contribr-rtory Provident Fund Scheme. We take category 3 first. Surprisingly, one claimant

¶31being the respondent of W.P.(C) No.4906120L0 has succeeded before the Tribunal and the other i.e. the petiticlner of \lV.P.(C) No.46B9 120L0 has lost, notv,rithstanding their cases being identicaL Page !9 of 27 W.tr.(C) No.t4.O27 /2009 & Connected Matters ^ --.j

¶32Having perused the reasons given by the Tribr-rnal in favour of the respondent of W.P.(C) No.490612010 as per para

¶22of the impugned order dated lr3.4.2010, suffice would it be io state that the 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 faii to utrderstand as to how said clecisions can apply to the respondent of w.P.(c) No.4906120J.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 rnember of the Contributory Provident Fund Scheme whicl'r included the managemerlt's contribution in the fund pertaining to his account, it would be another reason to hold against him and lastly that having retired in the year 1993 ancl received full dues in tlre sarne year he could not rake up the issue when he filed OA No.2053 n}Ag in the year 2009 before the Tribunal. We concur with the reasoning given by the Tribunal periaining to the writ petitioner of V,/.P.(C) No.468912070 when OA No.237L12009 filed by him was dismissed vide order dated

18.2.2010.

¶33Tlrurs, W.P.(C) No.4 68912010 is dismissed.

¶34W.P.(C) No.4906120'L0 is allowed. Tl're impugned ()rder dated 13.'4.201"0 allowing Ol\ NJo.2053/2009 is set aside and OA No.20531?.0A9 is dismissed.

¶35T!-re claim of the respolrdents in categcry l-and cat'egory 2 may be tal<en up together-for the reason wheth.ei' they exercised a positive option to be brouglit urrdei'the pension sclreme or having exercised no optiorr wlratsoever and f'r6.rt'tC€ aS deenrecJ optees being brouglrt under the pension scheme, their status woL;ld i:e the same as errtitled Io be Pagc 2-0 crf 27 ) t W.P.(C) No.'14O2'7 /2.009 & Connected Matters 9\ "A \a l brought under the pension scheme under the notification . dated 27.L:J,.Igg2. since all these respondents applied for being voluntarily retirecl when the scheme notified on 3.3,1993 was extended from 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 staied 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 uncier ' tlre Voluntary Retirernent 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 int-end to opt out of the pension scheme and be retained as nrembers 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 withoLrt demur and hence coulrj not rake up the issue after 12 to 15 years i.e. when they filed either wriL petitions in this Court which were transferred to the Central Administrative Tnbunal 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 submi[ted 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.565l?.01.0 likewise W.P.(C) No.L4O27 /2009 & Connected Matters / -r-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 tlre letter dated 5.11.1998. The' respondent of w.P.(c) No.7 541?.010 likewise submitted a letter on 20.4.1995. Thg respondent of w.P,(c) No.190212}rc !ikewise submitted a letter on 14.7.1995. The 3 respondents of W.P.(C) No.2274120L0 likewise submitted letters on

11..3 .Lgg4, 15.3 .L994 and 9.6.1995 respectively. The respondeirt of W,P.(C) No.3919 l2ol0 likewise submitted a. letter on'22.7.L996. -l-he respondent of W.P.(C) No'423/2010 likewise submitted a letter on 5,10.1994' The respondent of W.P.(C) No.7561201-0 likewise submitted a letter on 15.3.1994 as clairned by tlre DTC but denied. by said respondent. VVe, note that DTC has prociuced sairJ letter ancl adcJitionally has reliecl upor't a list pre-pared orl I?.4.1994 where the name of saic.l respondent is at serial No.l.1: and notes his opting out for perrsion. The responCent of W.P.(C)..No.832/2010 likewise submitted a letter on 5.9.1995. The respondent of W.P'(C) Ncr.752l2010 likewise submitted a letter on 7.I2.1993. The respondent of W.P.(C) frlq.40Il207O also opted out of the' pension scherne, though the date when he did so is not on record. 3t. It may be noted that ail aforesaid respondents except the respondent of W.P.(C) No.75 612010, who clainrs not to have written letter darted 15.3.1994, and the respondent of W.P.(C) 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 schemel, have prletacled that they wrote the letters out r:f compulsion because it was uncertain whether at all the pension scheme would be introcluced and there was complete uhcertainty rryhethet-at all vr./.1) (C) No.iti02'll20tj9 & Connected Matters -l Page 22 cf 77 +d -l -t I the pension scheme would be introduced and if yes, from which date.

¶38Qua the stand taken by the respondent of W.P.(C) No.756i 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 registered as TA No.144912009.

¶39Proceeding fr"rrther, we note that the pleadings qua when the respondents of W.P.(C) Nos. 79312010, 13841201-0, 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 reteived 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 volr-rntarily 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 they had submitted their offer to be voluntarily retired and af[er 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 W.P.(C) No.L402712009 & Connected Matters .$\ ) 1|l 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 corytract was as contained in the VRS Scheme noti.fiecl on 3.3.1993, which specifically stated that 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.. l-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 o'tfer 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. ln 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. 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 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 !s the uncertainty of pension being relea5ed. As noted hereinabove the pensio'n \,V.P.(C) No.L4O27 /2009 & Connected lVlatters ( I :. scheme notified on 27.IL1992 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 rece.ive 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 tool< 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 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 stood concluded, a submission which was accepted by the Courts without considering the further issue of contract being novated.

¶44In our opinion these respon'dents 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 "l W.P.(C) No.1402712009 & Connected Matters & iI 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 of the u.ncertainty 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 plead!ngs 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 coinpulsion when they opted out of the pension scheme,

¶46Accordingly, \^fe hold tha't the said writ petitions have to be allowed. 47 . We allow W.P.(C) Nos. !402712009, 10112010, 565/2010, 598/2010, 754120L0, 1902120l-0, 227 4120L0 3919i2010, 423120iO, 756120LO, B3U2ATO, 75212010, Tv ' 79312010, 7.384120L0, 1386/2010 and 2051/201C and set aside the impugned oi-ciers ciated 30.6.2009,3.8.2009,

3.9.2009, 23.9.2009, 25.9.2009, 8.10.2009, T3.10.2009,

4.IL 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 dismiss all the Transferred Applications or Original Applicatiorrs allowed in favour of the respective respondent(s). To summarize tl-re 21 writ petitions stand disposed of as ui'':der:- A. W.P.(C) No.153912010, W.P.(C) wr-..',1.729120rc and V'i.P.(C) t{o .468912010 are dismissed. W.P.(C) No.L4O27i2009 & Connectcd Matt€'rs

¶48A ,ry.t B. W.P.(C) No'1402712009, W'P'(C) No'40I120t0 ' w.p.(c) No.565/2010, w.P,(c) No.598/2010, w.P.(c) No.75412010, w.P.(C) No.1902 l2OI0, W.P.(C) No.227 4120L0 W.P.(C)No.39tg:2OIO,W.P.(C)No'42312010,W'P'(C) No.756i2010, w.P.(c) No.B32l2010, w.P.(c) No.752l2OlO, W.P.(C)No.793/2010,W.P.(C)No.1384120l-0,W'P'(C) No.13B6 |2OLO, W.P.(C) No.205L|2OL}, W.P'(C) No'49061201-0 and W.P.(C) No.3339/2010 are allowed and the impugned orders passed by the central Administrative Trlbunal 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 -NF+*? \\ fi (PRADEEP NANDR,AJOG) JUDGE AUGUST 1.O, 2OI.O mm t GARG) JUDGE W.P.(C) No.L4O27/2009 & Connected Matters Page27 of27