Dtc v. Sh.Gurbachan Lal & Ors

\\ {< % IN THE HIGH COURT OF DELHI AT NEW DELHI ludqment Reserved On: .zgy-t,'J.d.," 2070 Iudqment Delivered On: 70th Auoist. 2070 w.P.(c) 227L|ZOLO DELH I TRAN SPORT CORPORATION ...., Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS SH.GURBACHAN LAL & ORS. ..... Respondents Through: Mr.N.L.Bareja,Adv. CORAM: h HoN'BLE MR. JusrtcE 'RADEE' NANDRAJ'G HON'BLE MR. JUSTICE MOOL CHAND GARG

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

¶2To be referred to RePorter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAIOG, I. For orders, see W.P.(C) No.l'402712009. ^ea.'"i t\ ( (PRADEEP NANDRAJOG) JUDGE AUGUST LO, 2OLO mm rf HAN 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. \Y * INI THE H!GI{ COURT OF DELHI AT NEW DELI'II % ludoment Reserved On: 29th tullr. 2070 '" ludqment Delivered On: 70th Auaust. 2070 w:P.(c) L4027lzgos DELHI TRANSPORT CORPORATION ...... PctitiONCT hrough: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate VCTSUS ...,. Respondent '' MADHU BHUSHANaliit?: Ms'Kittu Bajaj, Adv' I ... k= + W.P.(C) 4OL/2O1O DTC "" Petitioner Through: Mrs'Avnish Ahlwawat, Ms' Latika ChaudharY, Advocate versus SUDERSHAN LAL SHARMA "' Respondent Through: Ms'Rekha Aggarwal,' Mr'D'S'Kauntae, Advs. + W.P.(c) 56sl2oLo DTC "" Petitioner r lrrouoh' x;:fl"ili??,ily#?:'" Latika i1, ersus SURESH CHANDER ""' Respondent Throuqh: Mr.S.N.Sharma,Adv. + w.P'(c) 598/20L0 DELHI TRANSPORT.CORPORATION '', PctitiONCT , Through: Mrs.Avnish Ahlwawat, Ms.Latika' Chaudhary, Advocg.te VCTSUS ZILE SINGH ...'. ResPondent Through: Mr.N.L.Ba;eja,Adv. W..P,(C) No.t4O27/2009 & Connected Matters \9 -r-w.P. (cl 7s4l2ol0 Ah i ;. ;:ll'' illlil,,' o, Chaudhary, Advocate VCTSUS , JAG SHORAN i + w.P.(c) Le02lzoLo DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika *- + ChaudharY, Advocate ' versus SURENDER KUMI\R .... ResPondent Through: Ms.Kittu Bajaj, Adv. + , 1/Y.P. (C) 227&|2OLO DFiLHI TRANSPORT CORPORATION .'... Petitioner . Through: Mrs.Avnisit Ahlwawat, fvls'Latika Chaudhary, Advocate : versLls 'SH".GURBACHAN !-At. & ORS. .'." Respondert't-s Tltrough: Mr.[rl.L.Bareja, Adv. : J-W.P.(c) 3919/20Lo DELHI TRANSPORT CORPORATION '."' Petitioner Throiigh: Mrs.Avnish Ahlwawat, Ms.Latika Clraudhary, Advocate , VCTSUS I ' ;, Kitru guiui, Respondenl I W.P.(C) No.L402.712009 & Connected Matters \1 + w,F.tc) 423l2OLO DELHI I-RANSPORT CORPORATION ..... PCtitiONCT fhrough: Mrs.Avnish Ahlwawat,'Ms.Latika Chaudhary, Advocate VCTSUS SAryA PRAKASH KHURANA ResPondent Through: Ms.Kittu Bajaj, adv. + w. P. (c) 756/2OLO DELHI TRANSPORT CORPORATION ..'.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika versus chaudharY' Advocate SOM DUTT ..'.. ResPondent Through: Ms.DeePali GuPta, Adv' + W.P,(c) 832/2010 DELHI -I'RANSPORT CORPORATION ..'. Petitioner Through: Mrs.Avnish Ahlwawat, lvls'Latika Chaucihary, Advocate VCTSUS SH RAM AWAR SHARMA ...'. Respondetrt Throtrglr: Mr.S.N.Sharma',adv' l + w.P. (c) 752120L0 DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through:. Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VCTSUS J,L.DHUPAPR '.,. ResPondent Through: Mr.Narottam VYas, ' Mr.Vikramjeet Sikand, Adl's' f W.P.(C) No.L402-7 /2009 & Connected Matters -t + w. P. (c) 793|2OXO DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika , ChaudharY, Advocate VCTSUS BHAGWATI PRASAD ..... Respondent Through: Ms.Kittu Bajaj, Adv. + w.P.'(c) L38412OLO D.T.C. .... Petitiongf . Through: Mrs.Avnish Ahlwawat,. Ms,Latika Chaudhary, Advocate-VCTS.US t SH.RAJENDER SINGH ."'. Respondent T'hrough: Mr.N.L.Bareja, Ad';. . .F w.P.(c) 13S6 t2O1'O DELHI TI1ANSPCRT CORPOF,ATION .'... PetitioneT Through: Mrs.Avnish Ahlwawat, Ms.Latika ' ChaudharY, Advocate VCTSiJS st-l,NANU RAI\4 SHARMA ..... Respondeni Through: Mr.N.L.Bareja,Arlv. + W.P.(C) 2osl/20i-O ..... Petitioner DTC -l-hrough: Mrs.Avnish Ahlwawat, Ms.Latika ChaudharY, Advccate ,a-. VefSUS RANDHIR SINGH "... ResPondent Through: Ivlr.N.L.Bareja, A'dv" * ' t;;l tffittli*tilo*ro*orroN petitiorrer Through: Mrs.Avnish Ahlwawat, Ms'Latika ChaudharY, Advocate. VCTSU5 RAMESH CHAND jAiN ..... Respondent 'l-hrough: Mr.N.L..Bareja, Ady' W.P.(C) ino.!4O2712009 & Connected lvlatters Page. 4 of 27 Lb . w.P.(c) 468elzaLo DEBI SINGH ..... Petitioner Through: Ms.Deepali Gupta, Adv. VCTSUS DELHI TRANSPORT CORPORATION ..... Respondent Through: Mrs:Avnish Ahlwawat, Ms,Latika ChaudharY, Advocate + W.P.(c) L639/2oL0 . CHARANIIT BATRA ..... Petitioner / CHARANJIT BATRA ., Through:. Ms.Kittu Bajaj, Adv, VCTSUS t DELHT TRANSPORoT coRPoRATloN ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + W.P.(c) 1729lzaLa CHARAN KAMAL .'... Petitioner Through: Ms.Kittu Bajaj, adv. VETSUS DTC ..... ResPondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate ' rt' + W.P.(C) 3339/20L0 a D r c rhrouoh: Mrs.Avnish ;hi;:ll:l,nil-r t-,'0, ChaudharY, Advocate VETSUS PULAK MUKHERjI '..'. ResPondent Through: Mr.Anrit Kumar, Adv. ' CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR.JUSTICE MOOL CHAND GAR,G

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

¶2fo be referred to RePorter or not? W.P.(C) No.t4O27 /2009 & Connected Matters \1 I

¶3Whether the judgnnent should be reported in the Digest? PR,ADEEP NAI{DRAJOG, J. L. With the promulgation of the Delhi Municipal Corporation Act 1957 artd the Constitution of the Municipal Corporation of Delhi, municipal functions in Delhi except NDMC area and the area ialling under the jurisdiction of the Cantonment Board were vested in the Municipal Corporation of Delhi, which included the function of providing public transport in the city of Delhi. As a separate.wing of the Corporation, the Delhi Transport Undertaking was constituted with a separate budget and separate s.taff. As the city of Delhi grew, it was. thoi-rght advisable'to corporatize public transpQrt in Delhi and thils the Dellri Transport Corporation yras formed as a bctdy corpora'te and it took over ihe functioning of the Dellri 'l-ransport Undertaking. The said Corporation had in place a ' Contributory Proviclent Fund Scheme for its employees and nee,Jless to state each tnonth a fix amount was deducted from tl-re salary of the emprloyees and with a matching contribution by the Corpclration was creclited in the funcl and in the accr.li;nt of the employee, wlto needless to state \^/as a riiemhrer of the Contributory Provident Fund, The enrployees of the Corporation agitated iOr long that the pension scheme of the Governrnent of'lrrdia, which vvas exterrded to Lhe municipal enrployees be also extended to them and in respect of whiclr claim they had petitioned the'supreme Court, when in the year 1992 the Corporation gave an assurance to the Su,preme Court that it would introduce a pension scheme for its employees, including the retired ehrployees and pursLlant thereto issued office o.rder No.16 dated 27.11.1992 notifying that a pension scheme stood notified which would be bperated b)' the L.ife ,f W.P.(C) No.1,4027/2009 & Connected Matters \$ t lnsurance Corporation of India (LlC), The office order reads as under:-"No.Adm-l-5 (4)192 Dated 27 .LL92 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-I20I9121/BB-TAG dated 23.]-1.92 as on the sa me pattern as for the Central Govt. employees subject to ' the following,conditions:-

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

¶2The date of effect of Pension Scheme would be

3.8.1981.

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

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f,23.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 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. 'The total amount to be refunded by the retired employees/existing employees would be the amqunt that would have accrued, had they not withdrawn the employer's share. )/V.p.(c) No.1.402712009 & Connected Matters '*j^ PageT of 27 $ -t^ 7, Excess amount of gratuity, if already paid io ex-employee5 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 tl'rem B. A due ancj 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, wherefiom the employee had retired fi-om service.

¶9lf on;r of the ernployee of DTC, who does not exercise any option withirr 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. l-le shail be deemed to have opted the Pension Schetne' Benefits. Application fornrs 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 Un'it of their present working/whclre frtjnr thev retired, within a period clf 30 clays from the date of issue of this Office order. The Unit Officers, after receiving the option from the ex-employees, will take fuither necessary action for gettirrg the necessary forrns completed, wlrich will be supplied to thern by tlre LIC for Pension etc. they wil! also ensure the recovery of EPF and Gratuity from the Ex-ernployees before forwarding their applications as mentioned abr:ve. The cases of all officqrs will be: deait with at Headquarters. The options received from the existing ernployees for not opting Pension n'tay be kept in their Personal file and entry made in their Service Bock'"

¶2A perusal of the schenne shows that as regards the retired employees, they, had to specifical'ly clpt to be paid pension ancl had to simultaneously refund to-tlre Corporaiion, if,e enlployers' slrare received by them as nrembers cf tlre C.ontributory Providerrt Fund Scheme together. wit'n intei-est W.P.{C) Nc.L4027 i2009 & Connectecl Matt-ers . (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 from 23.11-.1992 and as regards the existing serving employees, vide para 9, it was stated that those who do not submit any option would be deemed to have opted for the pension scheme. Thus, it is apparent that as regards the existing employees of the Corporation who were still in service when the office order dated 27.t.l-.t.992 was promulgated, if they desired to continue to be the me,mbers of the Contributory Provident Fund Scheme they had to specifically say 5o, for the reaSon, their silenCe was to be treated ai 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 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 to be a member of the Contributory Provident Fund Scheme, post haste, the Corporation notified a voluntary retirement scheme 'r on 3.3..1993 contents whereof read as under:-"Sub:-Voluntary Retirement of Employees of Del[i ,Tra nspo rt CorPoration 'The rnatter pertaining to the introduction of vOluntary Retirement Scherhe for the employees has been under the consideration of Delhi Transport corporation. Salient Features'of the proposed voluntary Retirement Scheme are as under:-

¶1Applicability: , The scheme will be applicable to all regular employees of'the corporation i;e. workers and W.P.(C) No.1.4027/2009 & Connected Matters I executives who are appointed against regular ' vacancies in the corporation.

¶2Eligibility: .An employee nrust have compleied ten years of service in this corporation or completed 40 years of age to qualify for consideration under the Scheme' For this purpose, period of 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) Volurntary retirement will be normal!y 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) Voiuntary retirement cannot be claimed by any employee as a matter of right. The corporation will have the right not to grant Voluntary Retirement for reasons to be recorded in writing. Under no reasons will the relief under tlris scheme be allowed frorn a' date earlier than the date of passing the orders. :

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

¶4An empioyee vyl'ro had taken voluntary retirenre'nt wili be eligible to the following refundsipavrnents:- Balance in'his PF Accourrt as per rules of

(a) provident furrd applicable to hint.

(b) Encashnrent of refused leave and accLtmulated earneci ieave as per rules cf the corporation applicable to him as if fre re'tiles under the rrorrnal rules of retirernent. \l/.P.(C) No.1402712009 & Connected Matters Page IO of 27 .t-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 ployment.

(e) An Ex-Gratia payment equivalent to I-Il2 month's basic pay plus DA for such completed year of service limited to one month pay multiplied by the number of whose month of service left before norrnal date of. 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/hei postihg to the place where heishe intends to settle down in India.

(g) Fensionary benefits as per office order lrfo. J.6 dt"27 "3"L.92. (Emphasis supplied) All amourrts due to the corporation will be adjusted against the payments r.tnder (d) & (e) above and the lemployee concerned should clear any outstanding 'clr,res/advanc'es taken before the date of effect of vol r-r nta ry reti rement. Employees working on the post of Conductor in the Corporation are proposed to, be covereC under the Voluntary Retirement scheme in the 'tirst instarlce. Such Conductors who are desirous of sbel<ing voluntary retirement in the proposed Scheme lnay give their opiion in the prescribed Performa tlrrough Iroper channel within 15 days to be concerned Unit officer who will foriryard the same to the secretary, DTC Boa rd This issue with the aPProval a uthority. " competent

4.. Needless to state, the VRS Schetne 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 a(g) of the VRS Scheme). Page LI of 27 tln. t of W.P.(C) No.L4O27/2009 & Connected Matters ,2

¶5Soon thereafter vide office memorandum dated

1.6.3.1993 the VRS Scheme notified on 3.3.1993 was made epen, for offers to be submitted hry all employees of the Corporation. The officer memorandum datecl 16.3.1993 reads as under:- "Now, it has been decided to cover all the employees of tlre Corporation under the proposed Voluntary Retirement Scheme. Such employees w.ho 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." .y.

¶6\A/hen DTC notified the pension schenre'on

27.11.1992, the respondents of W.P.(C) Nos.L4027 2009, 40rl70ia, 565!2.01a, 598/2010, 75412.010, 1902/2010, ?2'741?.010 (3 in number) and 391912010 specifically opted for the pension scheme, The respondents of W.P.(C) . Nos.423l2OJ.0, 756l2OIrJ, 832120l-0, 752l2ol'0, 7 93120l-0, I3B412A1O, 1386/2010 and 205712010 clid not submit any .cptions and hence wer'e to be'treated aS deerned optees for ., pension. ,/\

¶7may be noted that the writ petitioners of \ /.P.(C) lrlos.1639l2010 and 1.729120L0 also did not submit any opliotts \^r and lrence would be deerned to be optees for pension. It may also be noted that the respondeni of W.P.(C) B.

¶9No.4906 12010 and the writ petitioner of W.P.(C) No.468912010 submitted their options expressly stating that they cic not opt for the pension scheme, meaning thereby, they indicated positively that they would lil<e io continue to be mernbers of the Contributory Provident Fr,rnd Scheme. On differerit dates, but all in the respondents of ali , the writ petitions No.1639 i2A1,A, \i/.P.(C) No.1729 !20t0 W.P.(C) No.t4O2-/!2009 & Connected N4atters year 1993 ihe except W, P.(C) and W.P.(C) 'Page LZ of 27 )A h .: No.333912010 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.

¶10It is thus apparent that if request for voluntary retirement was accepted, the said respondents and the writ petitioner of W.P.(C) No.46B9 20f0, would or would not be entitled to pension would depend upon whether ttrey dr 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 27,11.1992 clearly stated that those who specifically opted for the pension scheme ahd those who sr-rbmitted no option whatsoever would be treated as opting for the pens.ion scheme and only those who specifically bpted to continue to be mgmbers 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 appar"ent that the respondent of W.P.(C)

¶11scheme.

¶12No.490612010 and the writ petitioner of W.P.(C) No.468912010, having.exercised a positive option to continue to be retain'ed as lTembers under tlre Contributory Provident Fund Scheme, could under no circumstance claim benefit under the pension ln the year 1994, by and under a notifica-tion dated

5.12.!994, all employees of the Corporation except Officers, .Traffic Supervisors, TlS, ATls, Vehicle Examiners and Drivers, were given another chance to opt for Voluntarlf Retirement by submitting letters of offer. The scheme notified'stateci that all terms as per the VRS Scheme dated 3.3.1993 would apply. But, the said notification expressly stipulated the following condition:- : Page !3 of 27 W.P.(C) No.t4O27/2009 & Connected Matters ' , : " lt is also notified for infonmation of all such . employees who opt for VRS ttrrat they would not be entitled to. join Pension Scherne if they are allowed retinernent 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 23.72.1,994 another circular was issued extending the right to make offer by all the employees pertaining to the VRS Scheme . notified on 5.72.1994. Thereafter on 815.1995, to a specified category of employees stipr-rlated in the scheme were qiven 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.163912010 and 112912010, wlto were deerned optees ur,rder the pension s;cheme, having exercisecJ no option at uit pursuant to the notification dated 27.11-.1992, submitted'offer to be volun[arily retired on 4.1.1995 and 17.10.1995.

¶15-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.1639/2010 and 1.729PA70, 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 exterrjed from time to time in the year 1993.

¶16As regards W.P.(C) No.333912010, the respondent thereof had,retired on 70.7.1991 i.e. b'efore the notification clatecl '27.L1-.1992 was issued and as regards him, vide para 6, if he did not specifically opt for the pension scheme rruithin 30 days of the notification dated 27.11.1992 he would,have got no benefit under the pensicn scheme for the reason on his W.P.(C) No.L4027/2009 & Connected N4atters .( ?age t4 of 27 retirement he was paid over the due i.e. the amount to his credit under the Contributory Provident Fund Scheme. Had he exercised such an option he was obliged to have refunded the management's contribution credited to his accou,nt under the Contributory Provident Fund Scheme. Thus, we can conveniently segregate the litigating partiqs 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.333912010 whose case has to be dealt with de-hors the Voluntary Retirement Schemes. i^

¶18We deal with the grievance of the Corporation ' pertaining to W.P.(G) No.3339 2010, the respondent whereof ha.s got benefit from the Central Administrative -[ribunal, yhere 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 notifierJ on 27.11.1992

¶19No discernable reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has .l treated his entitlement in terms of .clause 9 of the pension scheme dated 27.1-l-.1992, 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.!ltlrgg2, were required to exercise a positive o.ption to be given pension with concomitant act of refunding the management's share received. by t'hem under the Contributoryr Provident Fund Scheme, vide para 6 of the notification dated 27.11.1992. Incleed, tltis has bqen so treld by a Division Bench of this Court in the decision dated

16.3.2000 in LPA No.33/199 B DIC Vs. Sh.Aaiinath Bharaav 8t Ors.. which decision has been upheld by the Supreme Court in

¶17'-f'r W.P.(C) NoJ-4C27/2009 & Connected l/latters Page L5 of 27 ,r7 I the decision reported as (2001) 6 SCC 61 DTC Retired

¶20Thus, as regards W.P.(C) No.3.339 /2010 is concerned, noting that the respondent therein coulcl not be treated as a deemed optee for the pension scheme and having not specifically optec for the pension scheme and having received all dues payable to him when he retired as per the amount lyirrg to his credit as a nnember of the contributory Provident Fund schenie and obviously he having not opted for the pension scheme ancl thus not having returneci the managernent's contribution pertaining to him and as credited in'his account as a memlcer of the corrtributory Provident Fund, Scheme, sai,C respondent would have no case at ait. 7_r. Thus, W.P.(C) No.333912010 is allowed. tmpugned judgment and. order dated 15.1.2010 allowing TA No.120912009 is set aside and TA No.120912009 is dismissed,

¶22We take up tlre case of the petitioners'of W.P,(C) ' Nos.1639/2010 and 1729120l-0, who were in service as on

27.ILI992 and did not subr.nit any option under the notification dated 27.11.1992 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 voluntaiily retired by submitting offers on 4,1.1995 and 17.10,1995 respectively. lt is further to be noted that by then the voluntary retirenrent schemes notified earlier. had lapsed and they could seek voluntqry retirernent as per the scheme notified on 23.I2.1994 and 8.5.1995 respectively i.e. tlre VRS Schemes notified prior to the dates 4,1.1-995 and 1'l.1,0.1995. As is noteci irereinabove both schemes under which they applied specifica!ly excluded entitlement for pensir:n inasmuch as the tvvo'schernes cleariy staLed that employees opting for voluntary retirernent under the two F ..- ociation W.P.(C) No.1.40?-7/2Q09 & ConnecteC Maiters Page 16.of 27 I schemes would not be entitled to pension; and as regards the other terms' and conditions it was mentioned that the sa:me 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 23.12.1994 and 8.5.1995 except clause 4(g), for the reason in the two VRS Schemes in question, there is a specific reference to.not being entitled to pension. We may re-note the conditions/terms of the said two schemes with reference to the language urhich 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 jbin the pension scheme if they are allowed to retire under the said schemes and' that other salient features of the scherne would be the same as per the office circular dated 3.3.1993

25.

¶26It may be noted that the pension scheme notified on 27.ILI992 could not be implemented because LIC backed out and it was oniy 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 whetlrer or not pension would have been paid remained inchoate till, 31. 10. 1995. Having retired pursuant to the VRS Schemes notified on 5.I2.I994 and 8.5.1995, we see no scope folLhe petitioners of 'W.P.(C). Nos.1639/2010 and !7291207.0 to be entitled to receive any peirsion and we hold that the Tribunal has correctly dismissed their claim petitions.

¶27To be fair to the said writ petitioners, we may note that tlre only submission urged by their counsel was that the orders relieving the.rr and enclosing the amount lying to tlreir credit in the Contributorv Provident Fund Scheme referreci to W.P.(C) No.1,4027/2009 & Connected rVlatters , Page !7 of 2,v the fact that they were being retired as per the VRS Scheme 'dated 3.3.1993 and as extended to all the. employees on

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

¶28Suffice would it be. to state that a bare perusal.'of the orders referrecj to by learned counsel, evidence that a printed proforma has'been used. The same pertained to the earlier VRS Sclremes. lt is settled law that rights are determined not lvitli reference to the language of the proforma but the statute or the scheme applicable. The said two petitioners submittecl offers to be voluntarily retired under the schemes notified on 5 .I2.Igg4 unO'8.12.1995. Further, they receivecj the cheques tendered to tlrem which included tlre management's share in the Contributory Provident Fund Acccunt. -['hese cheques were received by thenn on 3]..3.1995 and 31.10.1995 respectirrely. They encashed the cheques, We may note that these two petitioners had filed writ petitions in the year 2005 'anC 2007 respectively laying a claim for pension whicl'r were transferred to Lhe Central Adrninistratlve Tribunal and registered as TA No.6B9/2009 and TA No.1385 ,2A09 respectively, which have been disn'lissed by the Trib,unal vide impugned order dated 23.9.2009. The claim of tlrese writ petitioners vvouid even otherwise be bari"ed by the law of limitatircn. The principle ihat right to receive pension is a continuous ca-use crf action is not available to thern inasmuch as c.luo thei'n, the issue was whetlrer tlrey were entitled to receive dues as per Contributory Provident Fund,Sr:lreme or under the pension scheme. They were paid full dues when they retire<j on 31..3.1995 arrcl 31.10.i995 respectively as ner the Contributory t-'rovident Furrd Scheme and if the.v l'iad any v ..q W.P.(C) No.\4O?-ll /20Og & Curnc':cLed Matters grievance pertaining to the same, it had to be brought before a Competent Court within at most 3 years thereafter.

¶29Thus, W,P (C) Nos.1639/2010 and ]-72gl20]r0 are dismissed. 30,. Pertaining to the remaining 18 writ petitions, we may divide the sa1.ne into 3 further categories which emerge from the facts noted by us in para 6 and B above. The said 18 writ petitions are divided: Category 1-R,espondents of W.P.(C) Nos.1402712009, 40112010, 565/2010, 59812010, 75412010, 790212010, 227412010 and 39I91?-010 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 \^/as made applicable by reference to the subsequent schemes notified in the'year 1993. Category 2-Respondents of W.P.(C) Nos.423 l2O7O, 75612010, 83212010, 75212010, 7931201Q, I3B4I20IO, 1386/2010 and 2051/2010 who having not submitted any options have to be treated as deemed optees. for the pension scheme when they submitted tlit,eir 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 tlre year 1993. Category 3-Respondents of W.P.{C) No.4906 120]-0 and the writ petitioner of W.P.(C) No.46B9 2AI0 who specifically opted to be retained in the Contribr-rtory Provident Fund Scheme.

¶31We take category 3 first. Surprisingly, one claimant being the respondent of W.P.(C) No.4906120l-0 has succeeded brefore the Tribunal and the other i.e. the petitioner of W.P.(C) No.46B9l20l0 has lost, -notwithstandin,g their cases being identical. W.P.(C) .No.1,4027/2009 & Connected Matters 'f-Page L9 of 27 -t-9\

¶32Having perused the reasons given by the Tribr-rnal in favour of the respondent of w.p.(c) No.490612010 as per para 22 of the impugned order dated 13,4.2010, suffice wourd 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

7.5.1gg3 which refer to those who have given no option whatsoever to be treated as optees under the pension scheme. We faii to urrderstand as to how said decisions can apply to the respondent of W,P.(C) No.490612010 who specifically opted to be retained. as a member under. the Contributory Provident Fund Scheme. Noting further that said respondent received the full amount payable to hirl as a mernber of the Contrjbutor"y Provident Fund Scheme whicl'r included the managem,ent'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 anc! received full dues in tlre sarne year he could not rake up the issue when he filerl OA No.20531?-009 in the year 2009 before the Tribunal. We concur with the rdasoning given by the Tribunal pertaining to the writ petitioner of V/.P.(C) No.4689l207O when OA No.237.112009 filed by him was dismissed vide ordei' dated'

18.2.2010

¶33Thus, W.P.(Ci No.a 68912010 is dismissed.

¶34'\A-t.P.(C) No;4906120L0 is allowed. The impugned order dated 13.1.2C10 allowing OA No.205312009 is set aside and OA No.2053/2009 is disnrissed.

¶35T!'re claim of the resporrdents in categcry 1 and category 2 may be tal<en up together for the reason whethei' they exercised a positive option to be brought urrdei-the pension scheme or having exercisecl no optiorr wl'iatsoeirer and he-.nce as deemeC optees lreing brouglrt under the pension schenre, their status would L:e the same as entitlerj ro be W. P. ( C) N o|L4O2'7 / 2009 & Co n n e cted l\4atte rs t F'ayp 2O af 27 { brought under the pension scheme under the notification' dated 27.Ilr.1gg2. Sin.u 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 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 uncjer the 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 thal-they intend to opt out of the pension scheme and be retained as members under the Contributory Provident Fund Scheme and thus on accepting their offers to be voluntarily retired the Corporation paid over to them not onl,y their share in the Contributory Provident Fund Account but even the r' management's share, which they accepted withoett demur and hence coulcj not rake up the is,sue after L2 to 15 years i.e. when they filed either writ petitions in this Court which were transferred to the Central Administrative Tribunal or filed Original Applications before the Central Administrative Tribunal. Qua these respondents, it may be noted that the I l' I

¶36respondent of W.P.(C) No.1402712009 submi'tted 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 paid as per his CPF Acco'unt, The respondent of W.P.(C) No.565/201.0 likeurise W.P.(C) No.L4027/2009 & Connected Matters t i" I q submitted a letter on 12.7.1995. The respondent cf W.P.(C) No.59812010 likewise submitted a letter in the year'1994 and reatfirmed the said fac'L in the letter dated. 5.11.1998, The' respondent of W.P.(C) No .75412010 lilcewise submitted a ietter on 20'.4.1995. The respondent of W.P,(C) No.1g}zf}]O likewise submitted a letter on 14.7,1995. The 3 respondents of W,P.(C) No.2 274-AIO likewise submitted letters on

11.3.Igg4,. 15.3.1994 and 9.6.1995 respectively' The respondent of W.P.(C) No.391-9l20J-0 likewise ,submitted q letter on 22.7.1996. The respondent of W.P.(C) No.423l20i0 likewise submitted a letter on 5,10.1994. The respondent of W.p'(C) No,756/2010 likewise submitted a letter on 15.3.1994 as claimed by tlre DTC but cjenied. by said responden.t. Vlie note that DTC has proouced sairl letter ancl adclitionally has relied upon a list prepared orl I2.4.I994 where the name of saicJ responclent is at serial No.11: anci notes his optirrg out for perrsion. The respcnCent of W.P.(C). No.832120rc likewise submitted a letter on 5.9.1995. The respondent of .W.P'(C) No.75212010 likewise sUbmitted a letter on 7.12.1993' The respondent of W.P.(C) trlo.4QI\20IA also opted out csf the pension scherne, thougir the date when he did so is not on record

¶37lt may be noted that all aforesaid respondent5 except the respondent of \o/.P.(C) No.756/20.10, 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 Corporatioh that he optec.i out of the. pensiotr .schemer, have pleaded that they wrote the letters out of compulsion because it was. uncertain whether at all the pension sc.heme would be I introcluced and there was complete uncertainty urheihes at all V/. P. ( C) No.i.402' I /?-009 & Co n t-re cte d M atte rs Page 22 cf 27 -N V\ the pension scheme would be ihtroduced and if yes, from which date.

¶38I Qua the stand taken by the respondent of W.p.(C) Nb.75 6120l-0, 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 spe.cific 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 anO th.ereafter received the CPF dues and kept quiettill 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. 1-

¶39Proceeding.further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 79312010, 138412010, 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 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 tlre.y did so because it was not certain as to whether at all pens'ion scheme would be brought into force when they voluntarily retired in the year 1993. 40, In a nut-shell all these respondents plead that they were under compulsion to opt out of the pension scheme after they had submitted their offer to be voluntarily retired and after the same was accepted and they stood retired; compulsion bein'g the uncertainty of pension being paid and their pressing need for funds. The legal argulnent advanced W.P.(C) No.I4O27'/2009 & Connected Matters 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 notified on 3.3.1993, Which specifically stated tlrat such retirees would be entitled to pension. They claim that later on, the contract 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.

¶41. 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 otfer under the scheme being, to retire on the terms notified as per the scheme. On being accepted, the letter of offer results in the contract being concluded and the employees become entitled to the dues as per the VRS Scheme. But, nothing prevents the parties to novate thb contract. In the instant case the con,tract 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 pensirrn 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 them is the uncertainty of pension being released. As noted hereinabove tfte pension \,V.P.(C) No..I4O27 /2009 & Connected Matte rs L1- ./.. l-I * scheme notified on 27.7r.1992 could not take off because LIC did not fund the scheme as envisaged and later on the central Government agreed to fund the scheme on 31.10.1995 and indisputably those who retired after 1.11.1995 were paid pension. Thus, the compulsion resulting as the consequence of the uncertainty of pension being released, which may have been uncertain when 'the said respondents opted. out to receive pension and reverted to receive benefit under CPF, came to an' end on 1,11,1995. The silence of these respondents for periods ranging from 12 to 15 yedrs when they took recourse to legal action is clearly indi,cative 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 take the benefit of a few who likewise went to Court andr 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 coniidering -the further issue of contract being novated

¶44ln our opinion these respondents have no claim whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension scheme and DTC accepted the same and paid to them.even the management's share in the CPF account. Their claims are hit by delay, laches and limitation. They are hot 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 I. ) the Court or the Tribunai 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 accourrt of the uncertainty in the implementation of the pension scheme, they ought to have sought a declaration that their act of opting ou.t of the pension scheme be declared null and void, being o'ut 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 responclents have admittedly not done so. lt is only in the rejoinder filed by them to the reply to their respective OA that a bald plea has be€n set forth that they acted out of compulsion when they opted out o,f the pension scheme.

¶46Accordingly, vve hold that the said writ petitions have to be allowed 47 . We allow W.P.(C) Nos.I402712009, r,0U20I0, 56512AL0, 59812010, 75412010, l-9021?0l-0, 227 4l2jr0 3919/201.0, 423120i0, 75612010, . 83212010, ' 75212010, 793|2OIO, 1.38412014, f 3B6/2010 and 2051/201C and set aside the impug,ned crciers ciated 30.6.2009,3.8.2009,

3.9.2009, 23.9.2009, 25.9.2009, 8.10.2009, 13.10.2009,

4.It.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 Applications allowed in favour of the respective respondent(s).

¶48To summarize the 21 writ petitions stand disposed of as uilder,- A. W.P.(C) No.15391201A, W.P.(C) No.1729l20l-} and yd.P.(C) f'lo .468912010 are dismissed. W.P.(C) Nct.1,4O27!2009 & Connectcd Matt€.rs -4 B. W.P.(C) No.1402712009, W.p.(C) No.40rl2}r}, W.P.(C) No,5 65120 0, W.P.(C) No.59B/2010, W.p.(C) No.75412010, w.P.(c) No.1902 12010, w.p.(c) No.227 4l2oro W.P.(C) No.3919120]-0, W.P.(C) No.42312010, W.p.(C) No.75 612010, W.P.(C) No.832l2010, W.p.(C) No,75 zlZOtO, W.P..(C) No.793/2.010, W.P.(C) No.1384120l-0, W.p.(C) No.1386 I2OIO, W.P.(C) . No.2 05112010, W.P.(C) No.4906 l2OI0' and W.P.(C) No.33391201-0 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

¶49f ,*ft, dt-'€ ouo, g Sl lt t h'la v7 $l r'tut ( tt/cfe t I i ,^.- / / CA 4{o t f tr (r outoS"' F There shall be no orders as to costs. (,-;;;*x,oc) JUDGE I AI,GUST L0, 20tr O mm L CHtrwD GARG) JUDGE W.P.(C) No.L4O27/2009 & Connected Matters Page27 of27