Dtc v. Randhir Singh

) t * % IN THE HIGH COURT OF DELHI AT NEW DELHI tudoment Reserved On:'23+ t^Qy. 2070 ludament Delivered On: 70th Auauit 2070 w.P.(c) Z05LI?OLO DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus RANDHIR SINGH ..... ResPondent Through: Mr.N.L.Bareja,Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1, Whether 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.L402712009. -nv-s*fte'{ (PRADEEP NA${ohntocl JUDGE AUGUST I.O, 2OI.O mm a n 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. rD x % I IN THE HIGI-N COURT OF DELHI AT NEW DELHI tudoment Reseried On: 29th lulv. 2070. tudoment DeliYered On: 70th Auaust: 2070 + w.P. (c) L4O27l2OO9" DELH I TRANSPORT CORPORATION Through: Mrs.Avnish ChaudharY, VCTSUS ..... Petitione'r AhlWawat, t\4s.Latika Advocate {;' d MADHU BHUSHANi)fl?: Ms.Kittu w,P.(c) 4o1l2oxo : Through: VCTSUS ' ..... Petitioner Mrs.Avnish Ahlwawat, Ms. Latika Chaudhaiy, Advocate D^i^i AArr D(l)A), /aLl v ' Respondent DTC SUDERSHAN LAL,SHARMA '.." Respondent +. w.P.(c) 565/2OLO DTC Through: ZILE SINGH w:e.(t) No.L4O27 /2009 & Connected Matters ..... Petitioner Mrs.Avnish Ahlwawat, Ms. Latika ,.... Respondent Through: Mr.N.L.Bareja,Adv. rf .f Chaudhary, Advocate VCTSUS ,., iollsPondent + W.P.(c) 598/20L0 D E L H I r R A N s P o -lf,? ffi I ^til?l Av n i s h A h | ;, J;t:' t l'?i ?',,, o ; ChaudharY, Advocate VETSUS + w.P. (cl 7s4/2oL0 . I-\-l-a u. | .u. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika ' Chaudhary, Advocate VCTSUS JAG SHORAN ,.... ResPondent Through: Ms,Kittu Bajaj, Adv, f , + W.P.(c) L902/2010 {,. 'DTC .... Petitioner Through: Mrs'Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate , VCTSUS sURENDER KUM"?^rounn' Ms.Kiuu ea,;"1,'oleusnondent , + W.P.(C) 22741201.0 DELHI TRANSPORT CORPORATION .-.. Petitioner Through: Mrs.Avnisft Ahlwawat, fvls.Latika versLrs chaudhar"Y' Advocate ,') SH.GURBACHAN l-At.. & oRs. ,.... Respontlerrts Tlrrough: Mr.hi.L.Bareja, Adv. r-W.P.(c) 3919/2010 DELHT TRANSPORT CORPORATION ..... Petitioner i rhrorish u,i:ilij?l il,#?Htr, Ms Latika VCTSUS ' RAJO SAINI i ' W.F'.(C) No.L4O2.7 !2009 & Connecteci Matters i. ..... ResPondeni Through: Ms. Kittl-r Bajaj, adv. :' I \Y + w.P. (c) 423120L0 DELHI TRANSPORT CORPORATION ..... Petitiorrer Through: Mrs.Avnish Ahlwawat, Ms,Latika Chaudhary,'Advocate VETSUS SATYA PRAKASH KHURANA ..... Respondent ' Through: Ms.Kittu Bajaj,'adv. f r *' w.P.(c) 756/201,0 .( DELHI TRANSPORT CORPORATION ....' PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate " VCTSUS SOM DUTT . ResPondent Through: Ms.Deepali GuPta, Ad.v. + ' w.P. (c) 832/20L0 D E LH I r RAN t oo *1f,?ffi l^li?| au n r, r, ild:il,t ?,n il, iuti r.u Chaucihary, Advocate VETSUS SH RAM AWAR SHARMA '.'.. Respondetrt Througtt: Mr.S.N.Sharrna,adv. -f W.P. (Cl 752120L0, D E L H I rRAN s P o -lf:Hfl l^1,|.?| Av n i s h A h | ; " J,".|,' t'fi !'Ju,, ou ChaudharY, Advocate VCTSUS J.L.DHUPAPR .'... ResPondent rhroush: Mi:UffiT", r,ound, Adr,ryya', i W.P.(C) No.L407-7 /2009 & Connected Matters ID ' + w.P. (c) 7s3l2oxo 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) I"384|ZOLO f , r) T r^ ..... Petitioner *' I Through: Mrs.Avnish Ahlwawat, Ms.Latika Clraudhary, Advocate VCTSUS SH.RAJENDER SINGH ."" Respondent I'hrough: Mr.N.L.Bareja, Ad'Y. ' .+ W.P.(c) L386i201-o DELHI .TRANSPCRT CORPORATION .'..' PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate , VCTSUS sFl'NANU RAM tn?[[tnn, Mr.N.r-.sareja, rrlT.ottoenl + w.P,(c) 20s1"/203.0 DTC '.... Petitioner 1-hrough: Mrs.Avnish Ahlwawat, Ms.Latika vers,s chaudh'arY', Advccate , RANDHIR SINGH .'... ResPondetrt Thiouglr: tvlr'N'L'Bareja, A.tJv' +- W'P.(c) 4906/20L{) DELHI TRANSPORT CORPORATION PCtitiOIICT .Thro'ugh: Mrs,Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS RAMESH CHAt{D.jAiN ..... Respondent l-hrough: ', Mr'N'L-'Bare1a, Adv' w.p.(C) No.1.4027 /20t)9 & Cotinected lVlatters )age 4 of 27 -a4I tq. + w.P.(c) 4689/2010 DEBI SINGH .... Petitioner Through: Ms.Deepali Gupta, Adv. . VCTSU,S DELHI TRANSPORT CORPORATION' ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms,Latika' . Clraudhary, Advocate + ' W.P.(c) L63e lzaLo CHARANJIT BATRA .'Petitioner Through: Ms.Kittu Bajaj, Adv. VCTSUS DELHI TRANSPOROT CORPORATION ..." Resporrdent Through: Mrs,Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate" + W.P. (c) L729l20La CHARAN KAMAL ..'.' PCtitiONCT Through: Ms.Kittu Bajaj, adv. , VETSUS DTC '.... ResPoncient. Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advo.cate l + W.P.(C).3339/20L0 ..... Petitioner D.T.C. Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS iKHERll '.... ResPondent . PULAK MUKHERJI Through: Mr.Anrit Kumar, Adv. ' CORAM: htoN'BLE MR. JUSTICE PRADEEP MNDRA.IOG HON'BLF MR.JUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allclwed to see the'judgment? '2. To be referred to RePorter or not? W.P.(C) No.1402712009 & Connected Matters s T n

¶3Whether the judgr:nent should be reported in the Digest? PRADEEP NANDRAJOG, I. -L. With the pro'mulgation of the Delhi Municipal Corporation Act Ig57 aricl the Constitution of the Municipal Corporation of Delhi,.municipal functions in Delhi except NDMC area and the area failing under the jurisdiction of the Cantonment Board werb vested in the Municipal Corporation of Delhi, which included the function of providing public tran,sport in the city of Delhi. As a separate wing of the Corporation, the Delhi Transport Undertaking was constituted with a separate bud,get and separate staff. As the city of Delhi grew, it was thought advisable.to.corporatize public transport in Delhi arrd thi.rs the Dellri Transport Corporation uras formed as a body corporate and it iook over ihe functioning of the.Dellri : 'l-ransport Undertaking. The said Corporation had in place a Contributory Provident Fund Scheme for its employees and nee,Jless to state each tnonth a fix amount was deducted from tl-re sdlary of the emprloyees and with a matching contributicln by the Corporation was creclited in the funcl and in the accr-ri:nt of the. employee, wlto needless to state was a nrember of the Contributory Proviclent Fund. The enrployees of the Corporation agitatecj for long that'the pension scheme of the' Governnnent of India, which -vvas exterrded to the municipal enrployees be also extended to them and in respect of.whiclr claim they had petitioned the iupreme CoUrt, when in the year Igg2 the Corporation gave an assurance to the Supreme Court that it. would introdLlce'a pension scheme for its employees, including the retired employees and pursLlant tlrereto issued office order No.16 rJated 27:11.1992 notifying that a pension s;cheme stood noiified which would' be operated b1r the L.ife Page 6 of .27 W.P.(C) No.Ia07712009 & Connected Matters \t r ) Insurance Corporation of lndia (LlC). The office order reads as under:-, . "No.Adm-l-5 (4)19'2 Dated 27 .11.92 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-I2019121/BB-TAG dated 23.II.92 as on the same pattern as for the Central Govt. employees subject to the followi ng cond itions:-

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

¶2The date of effect of Pension Scheme would be

3.8.1981.

¶3All the existing employees including those retired w.e.f. 3.8.1981 onwards would have the option to opt for the Pension Scheme or the Emplpyees Conti'ibutory Provident Fund as at present, within 30 days front the date of issue of this O.O. for the implementation of the Pension Scheme a: approved by the Govt. of India.

¶4The Pension Scheme would be compulsory fdr all lhe new employees joining DTC w.e.f. 23.IL92, the date of sanction of the scheme.

¶5The Pension Scheme would be operated by the LIC on behalf of DTC. The employees share in the EPF Alc of the DTC employees, who opt for Pension 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 errent of their opting for the Pension Scheme. 'T-he total amount to be refunded by the reLired 'employees/existing employees would be the amount that would have accrued, had they not withdrawn the employer's share. W.P.(C) No,L4O27/2009 & Connected Matters Fage1 of 27 \" 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 them before any benefit under the Scheme, is granted to them. 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, wherefrom the employee had retired fi'om service. 9'.. lf dfl;z of thet ernployee of DTC, who does not exercise any option within the prescribed period of 30 clays or quit service or dies r,vithout exercising an option or whose option is incomplete or conditional or ambiguous. lle shail be deemed to have opted the Pension Scheme Benefits . Application 'forms' for exercising option woulcl be available with the Urrit Officers and ali employees includiirg retired employees wishing to exercise option, should do sc within the Unit of theilpresent working/where frortr thev retired, witlrin a period clf 30 clays from the date of issue of this Office order. The Unit Officers, after receiving the option fronn the ex-entployees, will take further necessary action for gettirrg the necessary forrns comple'ied, which will be supplied to them by.tlre LIC for Pension etc' they will also ensure the re(-overy of EPF and Gratqity from the Ex-ernployees before forwarding their applications as mentioned above. The cases of all officers will be: dealt with at l-leaciquarters. The options received from the existing ernployees for not opt.ing Pension may be kept in their Personal file and entry made in their Service Bock' ;1. A perusal of the scheme shows that as retired employees, they h?,i to specifically c;pt pension arrcl had to simultaneously refund to the 'l regards the to be paid Corporation, the employers' slrare received by them aS n'lenrbers cf tlre Contributory Providelrt Fund Schenie together witlr intei-est W.P.(C) No.Ia027 i2009 & Conncctecl Matt-ers \b tii (vide para 6 of the Scheme). As regards tlre 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 frbm 23.l-1.7992 and as regards the existing serving employees, vide para g, it was stated that those who cjo not submit any option would be deemed to have opted for the. pensi,on scheme. Thus, it is apparent that as regards the existing employees of the Corporation who were still ih service when the office order dated 27.ILl992 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 needless to state their positive option to opt for the pension scheme was alwaYs there.

¶3without worlcing 'out the modalities with the Llc to work upon and implement the pension scheme and.without completing the form'alities 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 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 Transport CorPoration The rnatter pertaining to the iritroduction of voluntary Retirement Scheme for the employees has been under the consideration of Delhi Transport Corporation ' Salient Features of the proposed voluntary Retiretnent . Schemg are as,under:-

¶1ApPlicabilitY: The scheme will be applicable to all regular elnployees of the corporation i.e. workers and t W.P.(C) No.t402712009 & Connected Matters Page 9"of 27 L) (- executives who are appointed against regular vacancies in the corporation.

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

¶3Conditions covering voluntary retirement.

(a) Volr-rntary retirement will be normally allowed only in cases of incumbents of the posts which have been declared 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) Voiirntary retirement cannot be claimed by any employee as a matter of right. The corporation will have the right not to grant Voluntary Retirement' for reasons to be recorded in writing. Under no reasons will the relief under t.lris scheme be allowed frorn a date earlier than the date of passing the orders. An entployee in whose case any disciplinary case is pending will not be considered under this scheme until the disposal of the.same.

(c)

(a) \li.P.(C) No.1402712009 & Connecied Matters

¶4An empioyee whc had taken voluntary retirenrent wili be'eligible to the following refunds/paVrnents:- Balance in his PF Accourrt as per iules cf pru:vident furrd applicable to hint.'

(b) Encashnrent of refused accLrmulatecj earned ieave as Per corporbtion applicable to him as if he the norrnal ruies of retirernent. leave. a nd rules of the retires u nder l .i Page IA of 27 { I (

(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 per the terms of him/her em ploym ent.

(e) An Ex.Gratia payment equivalent to I-]-l2 month's basic pay plus DA for such complete.d 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) Fensionary benefits as per office onder No"L6 dt.27.LL.92' (Emphasis supplied) All amounts due to the corporatipn will be adjusted against the paymerits r:nder (d) & (e) above and the employee concerned should clear any outstanding , dules/advances taken before the date of effect of volttntarY retirement, . Ernployees working on the post of conductor in the corporation,are proposed to be coveretl under the Voluntary Retirement Scheme in the first instapce. such concluctors who are desirous of seelcing ' voluntary retirement in the proposed scheme lnay give their optiorr.in the prescribed Performa tlrrough proper channel within 15 dayr5 to loe concerned Unit officer who will forr,vard the same'to the secretary, , DTC Boa rd. This 'issue with the approval of competent a uthoritY. "

¶4.' Needless to state, the VRS Schelne clearly notified that those who opt for voluntary retirement would be entitled to' pension as per the office order No."16 dated 27'11,1992 (vide para 4,(g) of the VRS Scheme). W.P.(C) No.La027./2009 & Connected Matters .t Page L'J. 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 under:- ' "Now, it has been decided.i:o 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 rnay give their option in the prescribed proforma through proper channel within 15 days to the concerned Unit Officers, who will forward the same to the Secretary, DTC Board."

¶6\A/hen DTC notified the pension schenre o n ?-7 .Il.I99?-, the respondents of W.P.(C) Nos.14027l?-049, AOI ?-OIA, 565/2.010, 598i201.0, 75412.070, Ig02l207O; ?2'7412010 (3 in nur.nber) and 397912010 sp€cifically opted for the pension scherre, The respondents of W'P'(C) N os.42 312Ol-O , 7 561?0]-A , B32l2Ol0 , 7 5212070 , 7 93l2OI0 , 7384nA10, 1386/2C)10 and 205112010 did not submit any cptions and hence were to be treaied as deerned optees for pension.

¶7tt may be noted that the writ petitioner-s of \ /.P.(C)' Nos..163912010 and .t /2912010 also did not submit any options and hence would be cleerned to lce optees for pensiotr. B. lt may also be noted that the respondeni of W'P.(C) No.490612010 and. the writ petitioner of w.P.(c) N0.468912010 submitted their options expressly stating that they dc not opt for the pertsion scheme, meaning.th.ereby, they indicated positively that they woulcl lil<e io continue [o be mernbers of the Contriburory Provident Furnd Scheme. g. on differerit dates, but all in the year 1993 the respondents of ' all the writ petitions except W'P.(C) No.1639ftA7.0, \'V.P.(C) No.1729 2010 and W'P'(C) W.P.(C) No.1402-//2009 & Connected N4atters t ,2 No.333912010 and the writ petitioner of W.P.(C) No.46B9l20I0 submitted offers under the VRS Scheme afore-noted and reouested to be relieved from service.

¶10It is thus apparent that if request for voluntary retirement was accepted, t!" said respondents and the writ petitioner of W.P.(C) No.468912010, 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 Plovident Fund Scheme. ' We say so for the reason, pertaining to the existing employees, the pension scheme notified on 2.7.!7.Igg2 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 specificalty 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 respon'dent of W,P.(C) f e

11.

¶12No.490612070 and the writ petitioner: of W.P.(C) No.4689120]-0, having exercised a positive option to continue tp be retained as members under tlre Contributory Provident Fund Sclreme, could under no circumstance claim benefit under the pension scheme. In the year 1994, 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 Voluntarlr Retirement by submitting letters of offer. The scheme.notified stated that all terms'as per the VRS Scheme dated 3.:.fgg: would apply. But, the said notification expressly stipulated the following condition:- Page L3 o.f 27 W.P.(C) No.14027/2009 & Connected Matters 9L " Nt is also notified for lnformation of all such employees who opt for VR,S that they would not be entltled 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).

¶13On 23.!2.1994 anether circular wa.s issued extendi'ng the right' to' make 'offer by all .the empioyees pertaining to the VRS Scl'reme. notified on 5.L2.1994. Thereafter on B 5.1995, to a specified category of'errtployees stipcrlated in the scheme were given the option to subrmit offers under the V.oluntary Retirement Scheme. But tl'ier'e was an express condition therein that these employees would not be entitled io jgin the pension scheme. ;

¶14The writ petitioners of W,P.(C) Nos.163912010 and 172912010, who were deemed optees under the pension s;cherne, having exercisecl no optibn at all pursuant to the notifi,cation date d 27.11.1992, submitted offer to be volttntariiy retired on 4.1.1995 and 17.10.1995.

¶15-fo put it in a nut-shell, all employees who are litigating under the various petitions either as the petit!oner or as the respondehts, except the two petitioners of W.P.(C) Nos.1639/2010 and J.72912070, submitted offer letters to be voluntarily retired under the lRS Scheme notified on 3.3.1993, which contained the ternrs of the scheme and as exterrded from time to time in the year 1993. ,

¶16As regards W.P.(C) No.3339120L0, the respondent thereof . had retired" on IA.7.1991-,i.e. before the notificatioh ciatecl 27.LJ..Lgg2 was issued and as regards him, vide pa ra 6, if he did not specificallV opt for, the pension scheme rruithin 30 days of Lhe notification date cJ 27.11.1992 he rlrould have got no benefit under the 'pensicn scheme for the reason on his W.P.(C) No.1-4O27i2009 & Ccrnnected N4atters ?age 1-4'of 27 t\ (" ,-\ ietirement 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 managernent's contribution credited to his account under the Contributory Provident Fund Scheme. 17, Thus, we can conveniently segregate the litigating parties in three compartments. Those who exercised option for voluntary retirement in 1993. Those who exercised option for voluntary retirement in the year 1995. Lastly the ' respondent of W.P.(C) No.3339 I2OI1O whose case has to be dealt with de-hors the Voluntary Retirement Schemes. We deal with the grievance of the Corporation.

¶18pertaining to W.P.(C) No.3339 20L0, the respondent whereof has got benefit from'the Central Administrative -[ribunal, .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 oension scheme notified on 2l .Il-I992

¶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 PQnsion scheme dateci 27 'rrj-,gg2, ignor:ing th9 fact that clause 9 applied to the serving employees of DTC and in respect of those who had retired p1ior to the promulgation. of the notification dated 27.!1.1992, were required to exercise a positive option to be given pension with conco.mitant act of refunding.the management's share'received by them under the Contributoryr Provident Fund Scheme, vide para 6 of the notification clate d 27.11.1992. Indeed,' tlris has been so lreld by a Division Bench of this Court. in the decision ciated

16.3.2000 in LPA No.33/1998 UC Vs. Sp.B-aJingltr-Enarc-Qv--e. Ors. which decision has been upheld by the Supreme Ctlu.rt in W.P.(C) No.L4O27/2009 & Connected Matters {t -a /* the decision reporfed as (2001) 6 SCC 61 DTC Retired Emplo.vees Association & Ors. Vs. DTC & Ors.

¶20Thus, as regards W.P.(C) No.333912010 is concerned, noting that the respondent therein coulcl not be treated as a deemed optee for the pension scheme and having not specifically opted for the pension scheme and having received all dLres payable to him when he retired as per the amount lying to his credit as a member of the Contributory Prorrident Fund Scheme and obviously he having not opted for the pension scheme and thr-rs not having returned the managernent's contribution pertaining to him ancl as.creditecJ. in his account as a member of the Contributory Provident Fund, Scheme, sai,C resporrdent vuould have no case at ali.

27.. Thus, W.P.(C) No.333912010 is allowed. l.mpugned judg ment a nd orcier dated 15-1.2010 a llowing TA No.120912009 is set aside and TA No.120912009 is dismissed,

¶22We take up the case of the petitioners of W.P,(C) Nos. 1639120]10 and ],72g2l10, who were in service as on

27.IL.I992 and did not submit any option under the notification date d 27.1.1.1992 and hence vide clause 9 thereof would be tieated as deemecl 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 resp'ectively. lt is further to be noted that by then the voluntary retirement schemes notified earlier h'ad lapsed and they could seek voluntary retirernent as per the scheme notified on 23.I2.1994 and 8.5.1995 respectively i.e. tlre VRS Schemes ncltified prior to the dates 4.1.19.95 and 11 .I0.1995. As is notecl irereinabove both schemes un,Cer which they applied specificaily excluded entitlement forl penSion inasmuch as the tvvo schernes clearly stated that employees opting for voluntarV retirement under the two W.P.(C) No.ta027/2009 & ConnecteC Matters . Page L6 of 27 schemes would not be entitled to pension; and as regards the other terms and conditions it was mentioned that th'e 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 incorporated by reference under the VRS Schemes notified on 23.!2.1994 and 8.5.1995 except clause 4(g), for the reason in the . two VRS Schemes in question, there is a specific reference to not being entitled to pension. We may re-note the conditionS/terms.of the said two. schemes with reference to the'language uuhich 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 salierrt features of the scherne would be the same as per the office circular dated 3.3.1993

¶25It may be noted that the pension scheme notified on 27 .ILIgg2 could not be implemented beca use LIC backed out and it was only on 31.10.1.995 did the Central Government provide the necessary fund and only th.ose employbes who retired after 1.11.1995 started receiving pension. In other words whether or not pension would have been paid remained incho'ate till 31.10.1995.

¶26Having retired pursuant to the VRS Schemes notified on 5.I2.L994 and 8.5.1995, we see no scope for the petitioners of W.P.(C) Nos.1639/201-0 and !72,912010 to be entitled to receive any peirsion and we hold that the Tribunal has correctly dismissed their ciairn petitions.

¶27To be fair to the said writ petitioners, we may note tlrat the only submission urged by their counsel was that the orders relieving them ancl enclosing the amount lying to'tlreir credit in the Contributory Provident Fund Scheme referrecj to t W.P.(C) No.1,402712009 & Connected Nlatters Page t7 of 2.7 r-the fact that they were being retired as per.the VRS Scheme dated 3:3.1993 ald 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 Derusai of the orders refei'red to by learned'counsel, evidence that a printed proforma has been used. The same pertained to the earlier VRS Schemes. lt is settled law that rights are determirrerj not r,vith reference to the language of the proforma but the statute or the scheme applicable. The said two petitioners submitted offers to be.voluntarily retired under the schemes notified on 5.I2.Igg4 and 8.]-'2.]-,995. Furth'er, they received the cheques tendered to them which included tlre management's share in the Contributory Provident Fund Acccunt. T'hese cheques were received by them on 31.3.1995 and 31.10.1.995 respectirrely. They encashed the cheques. We rnay note that these two petitioners had filed writ.petitions iri the year 2005 anC 2007 respectively laying a claim for pension whicfr were transferred to the Central Adrninistrative Tribunal and registered as TA No.689i2009'and TA No.1385 ZAdg respectively, which have been clisnrissed by the Tribunal vide impugned orcler dated 23.9.2009. The ciaim of .these writ petitioners wouid even otherwise be bari"ed by the law of limitati'cn, The principle that right to recei're pension is a continuous cause cr'['action is not available to thern inasmuch as qua thei'n,the issi;e was whetlter they were entitled'to receive dues as per Contributory Provident Fund Sr:lreme or under the pension'scheme. They were paid full dues wlren they retirecj on 31.3.1995 arrd 31.10.i995 respectively as rer th€ Contributory Prr:vident Furrd Scheme arrd if the1.r !'racl any W.P.(C) No.i4027 /2C109 & Curnected Martters r- .1. grievance pertairring to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W.P.(C) Nos.1639/2010 and r-72912010 are dismissed.

¶30Pertaining to the remaining 18 writ petitions, we may'di,vide the same into 3 further categories which emerge from the facts noted by us in para 6 and B above. The said lB writ petitions'are divided: Category 1-Respondents of W.P.(C) Nos. 14027 12009, 40II20IO , 56512010, 5gBl20IO , 7 5412070 , 190212070, 227412010 and 39L91201.0 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 ,,^/as made applicable by reference to the subsequent schemes notified in the year 19.93. Catego ry 2-Respondents of W.P.(C) N os.42 312010 , 7 5612010 , 832120t0 , 7 5212010, 7 g3l20l0 , 138412010, 1386/2010 'and 2051-12010 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 conditiclns notifiecl in the VRS Stheme notified on 3.3.1993 which was made applicable by reference to the 'subsequent schemes notified in the year"1993. Ca'Legory l-Resporrclent's of W.P,(C) .. No.490612010 and the writ petitioner of W.P.(C) No.46B9120]-0 who specifically opted to be retained in the Contrib[rtory Provident Fund Scheme We take category 3 first, Surprisingly, one claimant t

¶31being the respondent of W.P.(C) No,4906 1201-0 has succeeded before the Tribunal and the other i.e. the petitioner of W.P.(C) No.46B91201-0 has lost, notv'rithstanding their cases being identica l. . ) W.P.(C) No.L4027 /2009 & Connected Matters Page L9 of 27 .a* \-

¶32Having perused the reasons given by the Triburnal 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 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 understand as to how said decisions can apply to the respondent of W.P.(C) No.490612010 who specifically opted tc be retained as a member _'uncjer the Coritributory Provident Fund Scheme. Noting further that said respondent received the full amount payable to hirn as a menrber of the Contributory Provident Fund Scheme whicl'r included the managemerrt'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 receivecl, full dues in tlre sarne year he could not rake up the issue when he file,J OA No.2053/2009 in the year 2009 before tlre Tribunal. We concur with the reasoning given by the Tribunal pertaining to the writ petitioner of V/.P.(C) No.4689120]-0 when OA No.237l*l20}9 filed by him was dismissed vide order dated

18.2.2010.

¶33Tlrus, W.P.(Ci No.4.689 l20IO is dismissed.

¶34\1,/.P.(C) No.490612010 is allowed. Tl're impugned order dated 13./+.2010 allowing Or\ No.205312009 is set aside and OA No.205317.0A9 is disnrissed, T!'te claim of the resportdents in categcry 1 and category 2 ntay be tal<en up together for the reason whethei' they exercised a positive option to be brought urrdei'the pension scl'reme or having exercised no optiorr wl'iatsoever and he.nce as deerneC, optees treing brouglrt iinder Lhe pensiorr schenre, their status would be the same as enLitled ro be . F'agc ?-O of 27 t

¶35W.P.(C) No.:1402'712009 & Connected N4atters P Y I -n brought under the pension scheme under the notification dated 27.71.1992. Since all these respondents applied for being volunta.rily retired when the scheme notified on 3.3.1g93 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 3.3.19.9,3 clearly stated ihat 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 the Voluntary Retirernent Scheme, the pension scheme had not been formaily brought into effect (as noted above it was. formally brought into effect for the..retirees wlro 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 acceptinE 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, which they acceptecl without demur and hence coulcj 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 Administrative Tribunal or filed Original Applications before the Central Administrative Tribu nal.

¶36Qua these respondents, it may be noted that the respondent of. W.P.(C) No.f402712009 submitted a letter dated

2.3.1995 specifically stating that he does not want to opt for the pension scheme ancj desires his dues to be paicl as per his CPF Account, The respondent of W.P.(C) No.56512.010 likewise W.p.(C) NoJ14027/.2009 & Connected Matters Page 2L of 27 ">\ t submitted a letter on 12.7.1995. The respondent cf W.P.(C) No.5 }B2A10 likewis'e submitted a letter in the year 1994 and reatfirmed the said fact in the letter dated 5,11.1998. .T,he respondent of W.P.(C) No.754l2OiO f ikewise submitted a letter on 20.4.1995. . Thg respondent of W.P.(C) No.190212010 likewise submitted a letter on 14.7.J.995. The 3 respondents of W.P.(C) ' No.227 42Arc likewise submitted letters on 11,3.Igg+, 15.3.Igg4 and 9.6,1995 respectiveiy, Thq respondent of W.P.(C) No.39J9I2OIO likewise submitted q letter on 22.7.L996, The respondent of W.P.(C) No.423l20i0 likewise submitted a letter on 5.10.1994. The respondent of W.P.(C) No.75612010 likewise submitted a letter on 15.3.1994 as claimed by tlre DfC but cienied. by said respondent. Vlie note that DTC has pi"oouc,ed sairj letter ancl additionally has relied upon a list pre-pared on l?-.4.1gg4 where the name'of saicl responclent is at serial No.11s ancJ notes his optirrg out'for perrsion. The responCent of W.P.(C) . N o.B32|2OJA likewise submitted a letter on 5,9.1995. The respondent of W.P.(C) No.75212070 likewise submitted a letter on 7j*2,1993.. The respondent of. W.P.(C) hlo.40 I]20],A also opted out. of the pension scherne, thougir the daie when he did so is not on record,

¶37It may b'e: noted that all aforesaid respohdents except the respondeht of W.P.(C) No.75 61201b, who clainrs not to have written letter: darted 15.3.1994, and. the respondent of W.P.(C) Nq.40112010 who is silent on the aspect of his having opted out i.e. has chosen not to rrebut the plea of the Corporation that he onteci out of the pension, Schernet, have pleaded that they wrote the letters out of compuls'ion because it was uncertain whether at all the pension scheme would be introcluced ahd there was complete uncertainty wlrei:het-at all Page 22 6{ 27 t W.P.(C) No.14O2'//?-009 & Connected Matters \ (5\/ the pension schbme would be introduced and if yes, from which date.

¶38Qua the stand take'n 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 sig.natures. 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. F'urther, as we would be noticing qua the other respondents he received the CPF dues when he retired with effect from 31.5 19"91 .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 regiptered as .TA N o,1449 12009.

¶39' , Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 793l20lr}, 138412010, r 1386/2010 and W.P.(C) No.205Il20I0 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 th.e Corporation as,well as said respondents that they i.e. the respondents of the said writ petitions subsequently opted out of the pension sche.me 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 pensidn scheme *or'ld be brought 'into force when 'they voluntarily retired in the year 1993 ,

¶40ln a nut-shell all these respondents plead that they were under compulsion to opt but 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 pension being paid and their pressin,g need for funds. The legal, argument advanc.ed W.P.(C) No.74027 /2809 & Connected Matters ,) by them is that once their offer for being compulsorily retired was accepted, the contract stood concluded by the acceptance of the.offei 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 cla,im 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.

¶41The argument of the said respbndents 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 invitaticn to offer. The employees make an offer under the scheme being, to retire on the terms notified as per the scheme. On beinq accepted, the letter of offer results in the contlact being 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 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 th'at 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 compuision alleged by of pension being released. As noted \^/.P.{C) N.o.I4O27/2009 & Connected Matters them is the uncertainty hereinabove the oension. \ i scheme notified on 27.7r.1992 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 untertainty 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 bnd thought why not take 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 rneaningless because the contract stood concluded, a submission which was,acceptefl by the Courts without considering the further issue of contract beifig novated.

¶44ln our opinion these respondents have, nb claim whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension scheme and DTC accepted the same and paid to them even the management's share in the CPF.account.' Their claims are hit by delay, laches and limitation. They are not entitled to plead that right to receive pension is a continuous cause of action, for the reason, in law either pension can be received or benefit under the CPF account. lf the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach W P.(C) No.1.4027/2009 & Connected Matters -F T ,l ;; 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 connpul,sion and for said prayer they ought to have made the requisite pte"adings 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 or-rt.of the pension scheme.

¶46Accordingly, we hold that th.e said writ Petitions have to be allowed. ,47. We bllow W.P.(C) Nos. L402712009, 10112010,, 565/2010, 59812010, 75412010, 7g02l2oro, 227 4,il]O 3919/2010, 423120:.0, 756120]-0, 83212070, 752120l-0, 7g3l2QI0, 1.38412010, f3B6/2010 and 2051/2010 and .set aside the impugned orciers ciated 30.6.2009, 3.8.2009, 3,9.2009, 23.9.2009; 25,9.2009, 8.10.2009, 13'10'2009,

4.11.2009 and 26.11.2009 i.e. the singular or composite orders disposing of one or more Transferred Application .or" Original Applicaticn before the Tribunal and as a consequence dismiss all the Transferred Applications or original Applicatio,tts allowed in favour of th.e respective respondent(s)

¶48To summar-ize'the 21 writ petitions stand disposed of as under:- A. W.P.(C) No.1539 l2OtO, W.P.(C) No'1729 l2O]rO and V'i.P.(C) No .4689 12Q10 are dismissed' W.P.(C) No.1-4027/2009 & Connectcd Matte'rs I ).,\ no orders as to costs. -) "I-t'\/-:-:ti-/ \1. { I (PRADEEP NANDR,AJOG) JUDGE A|.|GUST L0, zOLO mm W.P.(C) No.t4O27 /2009 & Conneited Matters tt. CF ?{6lt s-o"f r ,rb B. W.P.(C) No.1402712009, W.p.(C) No.40 U20rO, W.P.(C) No.565/2010, W.p.(C) No.59B/2010, W.p.(C) No.75412010, w.P.(c) No.1902120]-0, w.p.(c) No.2274/2oro W.P.(C) No.39I9/20I0, W.p.(C) No.423/2010, W.p.(C) No.756i2010, W.P.(C) No.832/2010, W.p.(C) No.75212010, W.P.(C) No.793/2010, W.p,(C) No.I3B4jZ010, W.p.(C) No.138612010, W.P.(C) No.205L120I0, W.p.(C) No,4906 12010 and w.P.(c) No.333912010 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.

¶49There shall be f*.ff {IP F/D. t Lal" qz Rt vlvt s lttc?c k J*bt L CHFr\rD GARG) Page27 of27