Debi Singh v. Delhi Transport Corporation

x % IN THE HIGH COURT OF DELHI AT NEW DELHI w.P.(c) 4689l2oLo DEBI SINGH ..... Petitioner Through: Ms.Deepali Gupta, Adv. versus DELH I TRAN SPORT CORPORATION ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate . 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 NANDR,AIOG, I. For orders, see W.P.(C) No.L402712009. -1nr's'-lo'{ (PRADEEP NANIo#ntocl JUDGE (MOOL AND AR JUDGE AUGUST LO, 2OLO mm '5 { ment Reserv ment Delive Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. ( X IN THE HIGH COURT OF DELHI AT NEW DELHI % ludqment Reserved On: 29th lulv, 2070 ludoment Delivered On: 70th Auaust. 2070 + w.P.(c) L402712009 DELHI TRANSPORT CORPORATION ..... PCtitiONCT . Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocbte versus MADHU BHUSHAN ANAND ..... Respondent Through: Ms.Kittu Bajaj, Adv. + , W.P.(c) 4OLlzoLo 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) s6s/2oL0 DTC ". Petitioner Through: Mrs.Avnish Ahlwawat, Ms. Latika Chaudhary, Advocate VCTSUS SURESH CHANDER ..... ResPondent Through: Mr.S.N.Sharma,Adv. + W.P.(c) s98/2or.o DELHI TRANSPORT CORPORATION ..'.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus ZILE SINGH W.P.(C) No.L4027/2009 & Connected Matters Page L of 27 d lo + w.P.(c) 7s4l20Lo D.T.C. '.... Petitioner Through: Mrs.Avnish Ahlwawat, Ms'Latika Chaudhary, Advocate VETSUS JAG SHORAN ..... ResPondent Through: Ms.Kittu Bajaj, Adv. + W.P.(C) LgozlzOLO DTC ,.... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS SURENDER KUMAR ..... ResPondent Through: Ms.Kittu Bajaj, Adv. ' + w.P.(c) 2274|2OLO DELHI TRANSPORT CORPORATION ..... PCtitiONCT Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS SH.GURBACHAN LAL & ORS. ....' Respondents Through: Mr.N.L.Bareja,Adv. + w.P.(c) 39r.9/2ot O DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS RAJO SAINI ..... ResPondent Through: Ms. Kittu Bajaj, adv. W.P.(C) No.L4O27/2009 & Connected Matters Ll ( + w.P.(c) 423{2OLO DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SATYA PRAKASH KHURANA ..... Respondent Through: Ms.Kittu Bajaj, adv. + w.P.(c) 7s6l20Lo , DELHI TRANSPORT CORPORATION ..,.. Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SOM DUTT ..... Respondent Through: Ms.Deepali Gupta, Adv. + w.P.(c) a3a20Lo DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SH RAM AWAR SHARMA ..... Respondent " Through: Mr.S.N.Sharma, adv. + w.P.(c) 7s2l2oLo DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS J.L.DHUPAPR ..... *"rpondent Through: Mr.Narottam Vyas, Mr.Vikramjeet Sikand, Advs. W.P.(C) No.L4o27 /2009 & Connected Matters t> { + w.P.(c) 793|2OLO DELHI TRANSPORT CORPORATION ..... Petitioner . Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VETSUS BHAGWATI PRASAD ..... ResPondent Through: Ms.Kittu Bajaj, Adv. + w.P.(c) L384{2OLO D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate VCTSUS SH.RAJENDER SINGH ..... Respondent Through: Mr.N.L.Bareja,Adv. + W.P.(c) 1386/2010 DELHI TRANSPORT CORPORATION .,... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus SH.NANU RAM SHARMA ..... Respondent Through: Mr,N.L.Bareja,Adv. + w.P.(c) zosLl2oLo DTC ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versuS RANDHIR SINGH ..... ResPondent Through: Mr.N.L.Bareja,Adv. + w.P.(c) 4906/20I.0 DELHI TRANSPORT CORPORATION ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus RAMESH CHAND JAIN ..... Respondent Through: Mr.N.L.Bareja, Adv. W.P.(C) No.t4O27/2009 & Connected Matters t3 { + w.P.(c) 46a9l20LO DEBI SINGH .,... Petitioner Through: Ms.Deepali Gupta, Adv. versus DELHI TRANSPORT CORPORATION ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + w.P.(c) 1639/2010 CHARANJIT BATRA ..... Petitioner Through: Ms.Kittu Bajaj, Adv. versus DELHI TRANSPOROT CORPORATION ..... Respondent Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate + w.P.(c, L729|2OLO CHARAN KAMAL .... Petitioner Through: Ms.Kittu Bajaj, adv. versus DTC ..... Respondent . rhroush: u;:fi"nsl, t!'xz:.T' Ms Latika + w.P.(c) 3339/20LO D.T.C. ..... Petitioner Through: Mrs.Avnish Ahlwawat, Ms.Latika Chaudhary, Advocate versus PULAK MUKHERJI ..... Respondent Through: Mr.Amit Kumar, 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? W.P.(C) No.L4027/2O09 & Connected Matters \ )-. t tt {

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

¶1With the promulgation of the Delhi Municipal Corporation Act 1957 and the Constitution of the Municipal Corporation of Delhi, municipal functions in Delhi except NDMC area and the area falling 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 staff. As the city of Delhi grew, it was thought advisable to corporatize public transport in Delhi and thus the Delhi Transport Corporation was formed as a body corporate and it took over the functioning of the Delhi Transport Undertaking. The said Corporation had in place a Contributory Provident Fund Scheme for its employees and needless to state each month a fix amount was deducted from the salary of the employees and with a matching contribution by the Corporation was credited in the fund and in the account of the employee, who needless to state was a member of the Contributory Provident Fund. The employees of the Corporation agitated for long that the pension scheme of the Government of India, which was extended to the municipal employees be also extended to them and in respect of which claim they had petitioned the Supreme Court, when in the year 1992 the Corporation gave an assurance to the Supreme Court that it would introduce a pension scheme for its employees, including the retired employees and pursuant thereto issued office order No.16 dated 27.1-7.1-992 notifying that a pension scheme stood notified which would be operated by the Life W.P.(C) No.14O27/2Q09 & Connected Matters t) t 'a lnsurance Corporation of lndia (LlC). The office order reads as under:-"No.Adm -l-5(4)192 Dated 27.IL92 Sub : Introduction 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-T2OI9|2I|BB-TAG dated 23.1I.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 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 Employees Contributory Provident Fund as at present, within 30 days from the date of issue of this O.O. for the implementation of the Pension Scheme as approved by the Govt. of India.

¶4The Pension Scheme would be compulsory for all the new employees joining DTC w.e.f. 23.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 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 amount that would have accrued, had they not withdrawn the employer's share.. W.P.(C) No.La027/2009 & Connected Matters PageT of 27 ( bL J'1

¶7Excess amount of gratuity, if already paid to ex-employees and which is not admissible under the Pension Scheme, will have to be refunded by them before any benefit under the Scheme, is granted to them, B. A due and drawn statement would be prepared in respect of retired employees opting for Pension Scheme and the amount to be paid/refunded, would be worked out by the concerned unit, wherefrom the employee had retired from service.

¶9lf any of the employee oi oTC, who does not exercise any option within the prescribed period of 30 days or quit service or dies without exercising an option or whose option is i.ncomplete or conditional or ambiguous. He shall be deemed to have opted the Pension Scheme Benefits. Application forms for exercising option would be available with the Unit Officers and all employees including retired employees wishing to exercise option, should do so within the Unit of their present working/where from they retired, within a period of 30 days from the date of issue of this Office order. The Unit Officers, after receiving the option from the ex-employees, will take further necessary action for getting the necessary forms completed, which will be supplied to them by the LIC for Pension etc. they will also ensure the recovery of EPF and Gratuity from the Ex-employees before forwarding their applications as mentioned above. The cases of all officers will be dealt with at Headquarters. The options received from the existing employees for not opting Pension may be kept in their Personal file and entry made in their.Service Book."

¶2A perusal of the scheme shows that as regards the retired employees, they had to specifically opt to be paid pension and had to simultaneously refund to the Corporation, the employers' share received by them as members of the Contributory Provident Fund Scheme together with interest W.P.(C) No.MO27/2009 & Connected Matters A\ (vide para 6 of the scheme). As regards the existing employees, it was stated vide para 4, that the pension scheme would be compulsory for those who joined service under the Corporation with effect from 23.I1.I992 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 .II.1992 was promulgated, if they desired to continue to be the members of the contributory Provident Fund scheme they had to specifically say so, for the reason, their silence was to be treated as a deemed option to opt for the 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 on 3.3.1993 contents whereof read as under:-"Sub:-Voluntary Retirement of Employees of Delhi Tra nspo rt Co rPoration. The matter pertaining to the introduction 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 all regular employees of the corporation i.e. workers and W.P.(C) No.1402712009 & Connected Matters executives who are appointed against regular vacancies in the corporation. Eligibility: An employee must have completed ten years of service in this corporation or completed 40 years of age to qualify for consideration under the Scheme. For this purpose, period of 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. Qonditions covering voluntary retirement,

(a) Voluntary 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) Voluntary 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 this scheme be allowed from a date earlier than the date of passing the orders.

(c) An employee in whose case any disciplinary case is pending will not be considered under this scheme until the disposal of the same. An employee who had taken volunt-ary retirement will be eligible to the following refunds/payments:-

(a) Balance in his PF Account as per rules of provident fund applicable to him.

(b) Encashment .of refused leave and accumulated earned leave as per rules of the corporation applicable to him as if he retires under the normal rules of retirement. W.P.(C) No.L4O27/2009 & Connected Matters Page LO of 27

2.

¶3AI o

4.

(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 employment.

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

(g) Pensionary benefits as per office order No.L6 dt.27.LL.92. (Emphasis supplied) All amounts due to the Corporation will be adjusted against the payments under (d) & (e) above and the employee concerned should clear any outstanding dues/advances taken before the date of effect of voluntary retirement. Employees working on the post of Conductor in the Corporation are proposed to be covered under the Voluntary Retirement Scheme in the first instance. Such Conductors who are desirous of seeking voluntary retirement in the proposed Scheme may give their option in the prescribed Performa through proper channel within 15 days to be concerned Unit Officer who will forward the same to the Secretary, DTC Board. This issue with the approval of competent authority."

¶4Needless to state, the VRS Scheme clearly notified that those who opt for voluntary retirement would be entitled to pension as per the office order No.16 dated 27.II.I992 (vide para 4(g) of the VRS Scheme). W.P.(C) Noj-4021/2009 & Connected Matters Page LI of 27 .tq

¶5. Soon thereafter vide office memorandum dated

16.3.1993 the VRS Scheme notified on 3.3.1993 was made open, for offers to be submitted by all employees of the Corporation. The officer memorandum dated 16.3.1993 reads as under:- "Now, it has been decided to cover all the employees of the Corporation under the proposed Voluntary Retirement Scheme. Such employees who are desirous of seeking voluntary retirement in the proposed scheme may give their option in the prescribed proforma through proper channel within 15 days to the concerned Unit Officers, wh.o will forward the same to the Secretary, DTC Board."

¶6When DTC notified the pension scheme on 27 .ILL992, the respondents of W.P.(C) Nos.1402712009, 40u2010, 56512010, 598/2010, 754120]-0, 190212010, 227412Or.0 (3 in number) and 3919120l-0 specifically opted for the pension scheme. The respondents of W.P.(C) Nos,423l20I0, 756120l-0, 832120l-0, 752120l-0, 793120t-0, 138412010, 1386/2010 and 205I\20IO did not submit options and hence were to be treated as deemed optees pension.

¶7lt may be noted that the writ petitioners of W.P.(C) Nos.16391201-0 and I729|2OI0 also did not submit any options and hence would be deemed to be optees for pension.

¶8lt may also be noted that the respondent of W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C) No.4689/2010 submitted their options expressly stating that they do not opt for the pension scheme, meaning thereby, they indicated positively that they would like to continue to be members of the Contributory Provident Fund Scheme.

¶9On different dates, but all in the year 1993 the respondents of all the writ petitiohs except W.P.(C) No.1639/2010, W.P.(C) No.172912010 and W.P.(C) W.P.(C) No.I4O27/2O09 & Connected Matters Page L2 of 27 any for No.3339/2010 and the writ petitioner of W,P.(C) No.4689120t.0 submitted offers under the VRS Scheme afore-noted and requested to be relieved from service. It is thus apparent that if request for voluntary K retirement was accepted, the 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 Provident Fund Scheme. We say so for the reason, pertaining to the existing employees, the pensio.n scheme notified on 27.II.7992 clearly stated that those who specifically opted for the pension scheme and those wllo submitted no option whatsoever 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)

10.

11.

¶12No.4906/2010 and the writ petitioner of W.P.(C) No.4689120l-0, having exercised a positive option to continue to be retained as members under the Contributory Provident Fund Scheme, could under no circumstance claim benefit under the pension scheme. ln 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 Voluntary Retirement by submitting letters of offer. The scheme notified stated that all terms as per the VRS Scheme dated 3.3.1993 would apply. But, the said notification expressly stipulated the following condition:- W.P.(c) No.L4O27/2009 & Connected Matters ,< "lt is also notified for information of all such employees who opt for VRS that they would not be entitled to join Pension Scheme if they are allowed retirement under VRS. Other salient features of the proposed VRS will remain the same as announced earlier vide this office circular dated

03.03.1993." (Emphasis added)

¶13On 23.12.1994 another circular was issued extending the right to make offer by all the employees pertaining to the VRS Scheme notified on 5.I2.7994. Thereafter on 8.5.1995, to a specified category of employees stipulated in the scheme were given the option to submit offers under the Voluntary Retirement'Scheme. But there was an express condition therein that these employees would not be entitled to join the pension scheme. L4, The writ petitioners of W.P.(C) Nos.1639/2010 and l729l2OIO, who were deemed optees under the pension scheme, having exercised no option at all pursuant to the notification dated 27.11-.1992, submitted offer to be voluntarily retired on 4.1.1995 and 17.10.1995.

¶15To put it in a nut-shell, all employees who are litigating under the various petitions either as the petitioner or as the respondents, except the two petitioners of W.P.(C) Nos,1639120l-0 and ]-729120]-0, submitted offer letters to be voluntarily retired under the VRS Scheme notified on 3.3.1993, which contained the terms of the scheme and as extended from time to time in the year 1993. As regards W.P.(C) No.3339120I0, the respondent thereof had retired on 10.7.1991 i.e. before the notification dated 27.II.1-992 was issued and as regards him, vide para 6, if he did not specifically opt for the pension scheme within 30 days of the notification dated 27.11-7992 he would have got no benefit under the pension scheme for'the reason on his

¶16W.P.(C) No.L4027/2009 & Connected Matters Page L4 of 27 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.3339/2010 whose case has to be dealt with de-hors the Voluntary Retirement Schemes. We deal with the grievance of the Corporation 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. 17, Thus, we can conveniently segregate the litigating

¶18pertaining to W.P.(C) No.3339l20I0,.the respondent whereof has got benefit from the Central Administrative Tribunal, where vide order dated 15.1.2010 his claim has been allowed by holding that he is a deemed optee for pension as per the pension scheme notified on 27.11.1992

¶19No discernable reasons are forthcoming from the decision of the Tribunal save and except that the Tribunal has treated his entitlement in terms of clause 9 of the pension scheme dated 27.11.1992, 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.II.I992, were required to exercise a positive option to be given pension with concomitant act of refunding the management's share received by them under the Contributory Provident Fund Scheme, vide para 6 of the notification dated 27.Il-.1992. Indeed, this has been so held by a Division Bench of this Court in the decision dated

16.3.2000 in LPA No.33/1998 DTC Vs. Sh.Baiinath Bharaav & Ors. which decision has been upheld by the Supreme Court in W.P.(C) No.L4027/2009 & Connected Matters the decision reported as (2001) 6 SCC 61 DTC Retired Emplovees Association & Ors. Vs. DTC & Ors. Thus, as regards W.P.(C) No.3339/2010 is (

¶202r. concerned, noting that the respondent therein could not be treated as a deemed optee for the pension scheme and having not specifically opted for the pension scheme and having received all dues payable to him when he retired as per the amount lying to his credit as a member of the Contributory Provident Fund Scheme and obviously he having not opted for the pension scheme and thus not having returned the management's contribution pertaining to him and as credited in his account as a member of the Contributory Provident Fund Scheme, said respondent would have no case at all. Thus, W.P.(C) No.3339/2010 is allowed. lmpugned o ) judgment and order dated 15.1.2010 allowing TA No.1209/2009 is set aside and TA No.1209/2009 is dismissed.

¶22We take up the case of the petitioners of W.P.(C) Nos.163912010 and L72912010, who were in service as on

27.71.1-992 and did not submit any option under the notification dated 27.II.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 retirement schemes notified earlier had lapsed and they could seek voluntary retirement as per the scheme notified on 23.I2.I994 and 8.5.1995 respectively i.e. the VRS Schemes notified prior to the dates 4.1.1995 and

17.10.1995. As is noted hereinabove both schemes under which they applied specifically excluded entitlement for pension inasmuch as the ,two schemes clearly stated that employees opting for voluntary retirement under the two W.P.(C) No.t4O27/2009 & Connected Matters Page L6 of 27 ,,'{ schemes would not be entitled to pension; and as regards the other terms and conditions it was mentioned that the same would be as per the scheme notified on 3.3.1993'

¶24It is apparent that the terms of the VRS Scheme notified on 3.3.1993 are incorporated by reference under the VRS Schemes notified on 23.I2.I994 and 8.5.1995 except clause 4(g), for the reason in the two VRS Schemes in question, there is a specific reference to not being entitled to pension. We may re-note the conditions/terms of the said two schemes with reference to the language which expressly stated that it was notified for information of the employees that all those who opt for VRS under the two schemes would not be entitled to join the pension scheme if they are allowed to retire under the said schemes and that other salient features of the scheme would be the same as per the office circular dated 3.3,1993. It may be noted that the pension scheme notified

¶25on 27.11.1992 could not be implemented because LIC backed out and it was only on 31.10.1995 did the Central Government provide the necessary fund and only those employees who retired after 1.11.1995 started receiving pension. In other words whether or not pension would have been paid remained inchoate till 31.10.1995.

¶26Having retired pursuant to the VRS Schemes notified on 5 .I2.1994 and 8.5.1995, we see no scope for the petitioners of W.P.(C) Nos.1639120t0 and l-72912010 to be entitled to receive any pension and wd hold that the Tribunal has correctly dismissed their claim petitions.

¶27To be fair to the said writ petitioners, we may note that the only submission urged by their counsel was that the orders relieving them and enclosing the amount lying to their credit in the Contributory Provident Fund Scheme referred to W.P.(C) No.L4027/2009 & Connected Matters PageLT of27 .< the fact that they were being retired as per the VRS Scheme dated 3.3.1993 and as extended to all the employees on

16.3.1993. Predicated thereon was the submission that these employees have been treated as having voluntarily retired under the VRS scheme notified on 3.3.1993 which stated that pension would be paid. 28, Suffice would it be to state that a bare perusal of the orders referred to by learned counsel, evidence that a printed proforma has been used. The same pertained to the earlier VRS Schemes. lt is settled law that rights are determined not with 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 5.72.1994 and 8.12.1995. Further, they received the cheques tendered to them which included the management's share in the Contributory Provident Fund Account. These cheques were received by them on 31.3.1995 and 31.10.1995 respectively. They encashed the cheques. We may note that these two p.etitioners had filed writ petitions in the year 2005 and 2007 respectively laying a claim for pension which were transferred to the Central Administrative Tribunal and registered as TA No.6B9/2009 and TA No.1385/2009 respectively, which have been dismissed by the Tribunal vide impugned order dated 23.9.2009. The claim of these writ petitioners would even otherwise be barred by the law of limitation. The principle that right to receive pension is a continuous cause of action is not available to them inasmuch as qua them, the issue was whether they were entitled to receive dues as per Contributory Provident Fund Scheme or under the pension scheme. They were paid full dues when they retired on 31.3.1995 and 31,10.1995 respectively as per the Contributory Provident Fund Scheme and if they had any W.P.(C) No.L4027 I 2009 & Connected Matters .v 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.163912010 and I729'l2Ol0 are dismissed

¶30Pertaining to the remaining 18 writ petitions, we may divide the same into 3 further categories which emerge from the facts noted by us in para 6 and B above. The said 18 writ petitions are divided: Category 1-Respondents of W.P.(C) Nos.14027 12009, 401120l-0, 565120]-0, 598/2010, 754120]-0, 190212010, 227 412010 and 39t9l2}t0 who specifically opted for the pension schemes when they submitted their offer for being voluntarily retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in the year 1993. Category 2-Respondents of W.P.(C) Nos.423l2010, 75612010, 832120l-0, 75212010, 79312010, 138412010, 1386/2010 and 205112010 who having not submitted any options have to be treated as deemed optees for the pension scheme when they submitted their offer for being voluntarily retired as per the terms and conditions notified in the VRS Scheme notified on 3.3.1993 which was made applicable by reference to the subsequent schemes notified in the year 1993. Category 3-Respondents of W.P.(C) No.4906/2010 and the writ petitioner of W.P.(C) No.46B9l20I0 who specifically opted to be' retained in the Contributory Provident Fund Scheme, We take category 3 first. Surprisingly, one claimant

¶31being the respondent of W.P.(C) No.4906120l-0 has succeeded before the Tribunal and the other i.e. the petitioner of W.P.(C) No.46B9/2010 has lost, notwithstanding their cases being identica l. W.P.(c) No.L4027/2009 & Connected Matters Page L9 of 27

¶32Having perused the reasons given by the Tribunal in { favour of the respondent of W.P.(C) No.4906/2010 as per para 22 of the impugned order dated 13.4.2010, suffice would it be to state that 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 fail to understand as to how said decisions can apply to the respondent of W.P.(C) No.4906/2010 who specifically. opted to be retained as a member under the Contributory Provident Fund Scheme. Noting further that said respondent received the full amount payable to him as a member of the Contributory Provident Fund Scheme which included the management's contribution in the fund pertaining to his account, it would be another reason to hold against him and lastly that having retired in the year 1993 and received full dues in the same year he could not rake up the issue when he filed OA No.205312009 in the year 2009 before the Tribunal. We concur with the reasoning given by the Tribunal pertaining to the writ petitioner of W.P.(C) No.4689l2010 when OA No.237112009 filed by him was dismissed vide order dated

18.2.2010.

¶33Thus, W.P,(C) No.4689/2010 is dismissed.

¶34W.P.(C) No.4906/2010 is allowed. The impugned order dated 13.4.2010 allowing OA No.205.3/2009 is set aside and OA No.2053/2009 is dismissed,

¶35The claim of the respondents in category 1 and 'category 2 may be taken up together for the reason whether they exercised a positive option to be brought under the pension scheme or having exercised no option whatsoever and hence as deemed optees being brought under the pension scheme, their status would be the same as entitled to be W.P.(C) No.t4027/2009 & Connected Matters { brought under the pension' scheme under the notification dated 27.ILI992. Since all these respondents applied for being voluntarily retired when the scheme notified on 3.3.1993 was extended from time to time in the year 1993, they certainly would be entitled to pension for the reason clause 4(g) of the scheme notified on 3.3.1993 clearly stated that such persons would .be entitled to pensionary benefits. But, there are certain further facts which need to be noted qua them. The case of the Corporation is that having opted under the pension scheme or deemed to have opted under the pension scheme, the said respondents specifically opted out from the pension scheme and by the time they retired under the Voluntary Retirement Scheme, the pension scheme had not been formally brought into effect (as noted above it was formally brought into effect for the retirees who retired post

1.11.1995), they filed applications specifically stating that they intend to opt out of the pension scheme and be retained as members under the Contributory Provident Fund Scheme and thus on accepting their offers to be voluntarily retired the Corporation paid over to them not only their share in the Contributory Provident Fund Account but even the management's share, which they accepted without demur and hence could not rake up the issue after 12 to 15 years i.e. when they filed either writ petitions in this Court which were transferred to the Central Administrative Tribunal or filed Original Applications before the Central Administrative Tribunal. Qua these respondents, it may be noted that the

¶36respondent of W.P.(C) No.1402712009 submitted a letter dated

2.3.1995 specifically stating that he does not want to opt for the pension scheme and desires his dues to be paid as per his CPF Account. The respondent of W.P.(C) No.565/2010 likewise W.P.(c) No.t4o27/2009 & Connected Matters Page 2L of 27 submitted a letter on 12 .7.r.995. The respondent of W.P.(C) No.59B/2010 likewise submitted a letter in the year 1994 and reaffirmed the said fact in the letter dated 5.11.1998. The respondent of W.P.(C) No.754l2010 likewise submitted a letter on 20.4.1995. The respondent of W.P.(C) No.1902/2010 likewise submitted a letter on 1.4.7.1995. The 3 respondents of W.P.(C) No.227 412010 likewise submitted letters on

11.3.1994, 15.3.1994 and 9.6.1995 respectively. The respondent of W.P.(C) No.3919/2010 likewise submitted a letter on 22.7j-996. The respondent of W.P.(C) No.423120],0 likewise submitted a letter on 5.10.1994. The respondent of W,P.(C) No.756/2010 likewise submitted a letter on 15.3.1994 as claimed by the DTC but denied by said respondent. We note that DTC has ploduced said letter and additionally has relied upon a list prepared on 12.4.1994 where the name of said respondent is at serial No.113 and notes his opting outfor pension. The respondent of W.P.(C) No.B32l2Ol-O likewise submitted a letter on 5.9.1995. The respondent of W.P.(C) No.75212010 likewise submitted a letter on 7.I2.1993. The respondent of W.P.(C) No.40U2010 also opted out of the pension scheme, though the date when he did so is not on record. 37 . lt may be noted that all aforesaid respondents except the respondent of W.P.(C) No.756/2010, who claims not to have written letter dated 15.3.1994, and the respondent of W.P.(C) No.401/2010 who is silent on the aspect of his having opted out i.e. has chosen not to rebut the plea of the Corporation that he opted out of the pension scheme, have pleaded that they wrote the letters out of compulsion because it was uncertain whether at all the pension scheme would be introduced and there was complete uncertainty whether at all W. P.(C) N'o.14027 / 2009 & Con nected Matters A the pension scheme would be introduced and if yes, from which date.

¶38Qua the stand taken by the respondent of W.P.(C) No.756/2010, suffice would it be to state that DTC has produced the letter written by him under his signatures. lt is a handwritten letter. He has not denied that the writing is not his. He has not denied his signatures thereon. His vague denial that he never wrote the letter, without taking specific stand is neither here nor there. Further, as we would be noticing qua the other respondents he received the CPF dues when he retired with effect from 31.5.1993 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.1449/2009

¶39Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 7931201-0, 1-38412010, 138612070 and W.P.(C) No.205Il20lO 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. fhey also claim that they did so because it was not certain as to whether at all pension scheme would be brought into force when they voluntarily retired in the year 1993.

¶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. after the same was accepted and they stood retired; compulsion being the uncertainty of pension being paid and their pressing need for funds. The legal argument advanced W.P.(C) No.14027/2009 & Connected Matters v 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 that such retirees would be entitled to pension. They claim that later on, the contract could not be modified and thus their subsequent letters to opt out of the pension scheme and revert back to the CPF Scheme could not be accepted. 4L. The argument of the said respondents has to be noted and rejected for the reason nothing prevented the parties to novate the contract. lt is settled by now that a VRS Scheme has an element of contract. The VRS Scheme is an invitation to offer. The employees make an offer under the scheme being, to retire on the terms notified as per the scheme. On being accepted, the letter of offer results in the contract being concluded and the employees become entitled to the 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 that one manner of accepting an offer is to perform the obligation to be pefformed as per the offer. Thus, by making payment under the CPF Scheme the Corporation accepted the I offer of these employees to forego claim for pension and instead entiredue under the CPF Scheme be paid.

¶42There remains then the issue to be decided whether the said respondents were under a compulsion and if yes the affect thereof.

¶43The compulsion alleged by them is the uncertainty of pension being released. As noted hereinabove the pension W.P.(C) No.t4O27/2009 & Connected Matters -* T scheme notified on 27.11.l-992 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 years when they took recourse to legal action is clearly indicative of there being no compulsion. The silence of these respondents speaks for itself. lt is apparent that with the passage of time these respondents became clever by a dozen and thought why not 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 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 respondents have no claim whatsoever to receive pension. They novated the contract by volition when they subsequently opted out of the pension scheme and DTC accepted the same and paid to them even the management's share in the CPF account. Their claims are hit by delay, laches and limitation. They are not entitled to plead that right to receive pension is a continuous cause of action, for the reason, in law either pension can be received or benefit under the CPF account. lf the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach W.P.(C) No.t4027/2009 & Connected Matters 1\ +. the Court or the Tribunal within a maximum period of 3 years bbing the limitation prescribed to file a suit.

¶45That apart, if it was the case of the respondents that they were compelled to opt out of pension scheme on account of the uncertainty in the implementation of the pension scheme, they ought to have sought a declaration that their act of opting out of the pension scheme be declared null and void, being out of compulsion and for said prayer they ought to have made the requisite pleadings entitling them for such a declaration. Needless to state an act out of compulsion is a voidable act and not a void act. The respondents have admittedly not done so. lt is only in the rejoinder filed by them to the reply to their respective OA that a bald plea has been set forth that they acted out of compulsion when they opted out of the pension scheme.

¶46Accordingly, we hold that the said writ petitions have !o be allowed. 47 . We allow W.P.(C) Nos.1402712009, 40l'120:.0, 565/2010, 598/2010, 754120L0, l-90212010, 227 412010 3glgl2o1o, 423120t0, 756120:10, B32l2ot}, 752/2OrO, 793/2010, ].384120l-0, 1386/2010 and 2O5Il2OlO and set aside the impugned orders dated 30.6.2009, 3.8.2009,

3.9,2009, 23.9.2009, 25.9.2009, 8.10.2009, 13.10.2009,

4.IL2009 and 26.11.2009 i.e. the singular or composite orders disposing of one or more Transferred Application or Original Application before the Tribunal and as a consequence dismiss all the Transferred Applications or Original Applications allowed in favour of the respective responderit(s).

¶48To summarize the 21 writ petitions stand disposed of as under:- A. W.P.(C) No.1639/20I0, W.P.(C) No.1729l2010 and W.P.(C) No.4689/2010 are dismissed. W.P.(C) No.t4O27/2009 & Connected Matters a h, -t B. W.P.(C) No.1402712009, W.P.(C) No.401/2010, W.P.(C) No.565/2010, W.P.(C) No.59B/2010, W.P.(C) No.754l2010, W.P.(C) No.1902/2010, W.P.(C) No.227412010 W.P.(C) No.3919/2010, W.P.(C) No.423l2010, W.P.(C) No.756/2010, W.P.(C) No.832/2010, W.P.(C) No.752l2010, W.P.(C) No.793/2010, W.P.(C) No.1384/2010, W.P.(C) No.13B6/20I0, W.P.(C) No.205ll20lo, W.P.(C) No.4906/2010 and W.P.(C) No.3339/2010 are allowed and the impugned orders passed by the Central Administrative Tribunal which are challenged in the said writ petitions are set aside and the respective Transferred Petition or Original Application are dismissed.

¶49There shall be no orders as to costs. (PRADEEP NANDRAJOG) JUDGE (MOOL CHAND GARG) JUDGE AUGUST LO, 2OLO mm F',uf R'P' >t" ' /*ft tr/rr L1 +lo vz Rt 55 *'ng#'* /r c-^1 W.P.(C) No.t4O27 /2009 & Connected Matters