Central Administrative Tribunal - Delhi
Lal Singh vs Govt. Of G.N.C.T. Of Delhi on 22 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.4293/2011 with O.A. No.4482/2011 Order Reserved on 13.09.2012 Order Pronounced on: 22.03.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) OA No.4293/2011 Lal Singh S/o late Shri Rati Ram, Village Yakootpur Mawi, P.O. Modi Nagar, Tehsil Modi Nagar, Distt. Ghaziabad (U.P.). -Applicant (By Advocate: Shri R.K. Shukla) Versus 1. Govt. of G.N.C.T. of Delhi, Through its Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002. 2. Delhi Transport Corporation, Through its Managing Director, I.P. Estate (D.T.C. Headquarter), New Delhi-110002. 3. The Depot Manager, Delhi Transport Corporation, Hasanpur Depot, Delhi-110092. -Respondents (By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat) OA No.4482/2011 Mohan Lal, S/o late Shri Sultan Singh, R/o 736/3, Jheel Khurenja, Delhi-110051. -Applicant (By Advocate: Shri R.K. Shukla) Versus 1. Govt. of G.N.C.T. of Delhi, Through its Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi-110002. 2. Delhi Transport Corporation, Through its Managing Director, I.P. Estate (D.T.C. Headquarter), New Delhi-110002. 3. The Depot Manager, Delhi Transport Corporation, Hasanpur Depot, Delhi-110092. -Respondents (By Advocate: Shri N.K. Singh for Mrs. Avnish Ahlawat) O R D E R Mr. Sudhir Kumar, Member (A):
These two OAs came to be linked up together for hearing after the orders dated 16.12.2011 were passed in MA No. 3369/2011, filed in OA No.4482/2011, praying for the matters to be clubbed together for hearing. MA No.3369/2011 for clubbing of the two cases having been allowed, these cases were heard together, and were reserved for orders together, and are, therefore, being disposed of through this common order. In order to trace the history of the origin of this controversy, we may borrow from the judgment of the Honble Delhi High Court dated 10.08.2010 in Delhi Transport Corporation vs. Madhu Bhushan Anand, CWP No.14027/2009; in which in the opening paragraph itself the Honble Delhi High Court had summarized the genesis of the problem as given below:-
With 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 27.11.1992 notifying that a pension scheme stood notified which would be operated by the Life Insurance Corporation of India (LIC).
2. The further facts of the cases can be described in detail from the first OA, i.e., OA No. 4293/2011 and in brief from the second OA No. 4482/2011.
OA No.4293/20113. The case of the applicant is that he joined Delhi Transport Corporation (DTC, in short) as a Conductor, and was later appointed as Lower Division Clerk (LDC, in short), on consolidated wages w.e.f. 15.06.1972. He was later promoted to the post of Upper Division Clerk (UDC, in short), and retired from service of the Respondent-Corporation with effect from 31.07.2010.
4. Under the orders passed by the Honble Supreme Court in the case of DTC Retired Employees Association & Ors. etc. etc. vs. Delhi Transport Corporation etc: 91 (2001) Delhi Law Times 484 (SC), the respondent-Corporation agreed for retrospective introduction of a Pension Scheme for its employees w.e.f. 03.08.1981, and the Govt. of India, Ministry of Surface Transport conveyed the Govt. of Indias approval dated 23.11.1992 to DTC for introduction of the Pension Scheme for the DTC employees to be operated by the LIC. An office Order No.16 dated 27.11.1992 was issued by the DTC for implementation of the Scheme, and options were sought from the employees for the Pension Scheme from the retrospective date. All the existing employees of the Corporation, including those who had retired in between, w.e.f. 03.8.1981 onwards, had an option to opt either for the Pension Scheme, or for the ongoing CPF Scheme. For the new employees of DTC, who had joined on or after 23.11.92, it was made compulsory for them for joining the new Pension Scheme.
5. The applicant did not opt for the said Pension Scheme, and had opted to be continued with the Contributory Provident Fund (CPF, in short) Scheme. Since all the employees of the Respondent-Corporation were not fully confident about the future functioning of the Pension Scheme to be managed by LIC on behalf of the respondent Corporation, many of them did not opt for the Pension Scheme, and continued to be covered by the CPF.
6. Later on, when the LIC refused to implement the Scheme, as formulated by the DTC, its Board decided to operationalize the Pension Scheme, as per the directions of the Honble Supreme Court, by itself, and the Central Government conveyed its modified sanction for the operation of the Scheme by DTC themselves, vide their letter dated 31.10.1995.
7. Since the options of the employees had earlier been called for by the DTC in response to the Scheme notified on 27.11.1992 when that Scheme was to be operationalized, no fresh options were called for after the Central Government on 31.10.1995 permitted the DTC themselves to operate the Scheme. However, the DTC agreed for employees to change over from the Pension Scheme to the CPF Scheme, while not allowing vice versa.
8. The applicants before us have argued that the MCD, the Delhi Vidyut Board, and the Delhi Jal Board had, on the other hand, twice extended opportunities to their employees to opt for the Pension Scheme. Their further contention is that according to the various provisions of the CCS (Pension) Rules, after the implementation of the recommendations of the IVth & Vth Pay Commissions recommendations for the DTC employees, the Contributory Provident Fund beneficiaries are deemed to have automatically come over to the Pension Scheme. The applicants before us had submitted that there are about a thousand employees in the DTC, who had not opted for the family Pension Scheme earlier, but now wanted to change over to the Pension Scheme, as they neared their retirement. The Respondent-Corporation, however, issued a Circular dated 16.02.1994, before the 1995 take over of the new Pension Scheme by the DTC themselves, stating as follows:-
DELHI TRANSPORT CORPORATION (A GOVT. OF INDIA UNDERTAKING) I.P. ESTATE : NEW DELHI No. DY. CGM (P&A)/94/170 dated 16.02.1994 CIRCULAR Requests from a few employees have been received for treating them not opted pension category. The matter has been considered and it has been decided that the employees covered under the Pension Scheme, who are not interested now to be covered under it, may continue to be covered by the Contributory Provident Fund Scheme. Such employee may, therefore, submit their request to the Manager (A) Pension, DTC Head Quarter, I.P. Estate, New Delhi by 15.03.1994 through their Unit Officers. Any requested received thereafter will not be considered.
9. It was much later, after many such requests were received, that the respondents issued a comprehensive Office order dated 28.10.2002 (Annexure A/3) on the subject, which has been impugned by the applicant before us in the present OA, which stated as follows:-
DELHI TRANSPORT CORPORATION (GOVT. OF N.C.T. OF DELHI) I.P. ESTATE: NEW DELHI No. Pension Cell/Option/2002/440 Dated: 28.10.02 OFFICE ORDER In compliance of the orders conveyed by Sh. Abhijit Sarkar, Secretary to the Minister (Transport, Tourism and Power), Govt. of N.C.T. of Delhi vide letter No.PA/MOTP/2002/11117 dated 4.10.2002; it has been decided that the option from all the existing employees including those who are covered under the RPFC Scheme may be obtained on the following conditions:
i) All the existing employees who are not covered under the existing DTC Pension Scheme may exercise their option in writing in case desire to opt DTC Pension Scheme.
ii) The employees who have drawn the employers share, under the EPF Act, partly or wholly shall have to refund the same with interest in the event of their opting for the DTC Pension Scheme. The total amount to be refunded by the employees would be the amount that would have accrued, had they not withdrawn the employers share.
iii) Inviting/exercising option shall be provisional and subject to exemption from the RPFC and refund of the amount held with them. In case, no exemption is received from RPFC, this option shall become redundant, and the status of an employees shall be the same as is before the issue of these orders.
iv) The Unit Officers/Depot Manager, after receiving the options, shall send the list of existing employees who exercised their option in favour of DTC Pension Scheme to the Pension Cell within a week of closing the date of option.
v) All employees who are on the rolls of this Corporation on the date of issue of this Office Order shall be eligible to opt DTC Pension Scheme and to exercise their option within 30 days from the date of issue of this Circular.
After receiving the list of employees exercising their option in favour of DTC Pension Scheme, the matter would be examined. The decision of the management shall be final.
Sd/-
(Ramesh Chander) Addl. Chief Accounts Officer
10. Since the Regional Provident Fund Commissioners jurisdiction under the EPF Act was involved, the Condition Nos. (i) to (iii) in the above Office Order, as reproduced above, had prescribed for exemption from the Regional Provident Fund Commissioner to be obtained by the employees who wanted to switch over from the CPF Scheme to the DTC Pension Scheme, apart from refunding any amount drawn by them finally from their CPF accounts earlier.
11. The applicant fairly submits that those incumbent employees of the Respondent-Corporation, who had given their option to be covered under the New Pension Scheme, had since been ordered to be paid pension, and in their cases, payments of monthly pension had already been started. The applicant has submitted that through Annexure A-5 dated 24.05.1999, he had earlier requested that his option for Contributory Provident Fund may be deemed to be cancelled, and he may be treated as having opted for DTC Pension Scheme, but on that no decision had ever been communicated to him. Later, after the above reproduced office order dated 28.10.2002, on 05.11.2002, the applicant again made a request through Annexure A-4, stating that since no final decision has yet been taken on his option, which was pending for a long time, he may be classified under the Pension Scheme. He had represented in this regard on 19.06.2000 also through Annexure A-6.
12. Later, the applicant again represented on 09.02.2005 that as and when the DTC Pension Scheme is introduced, he should be informed, and the amount which had been drawn by him from his Contributory Provident Fund may be recovered from him along with interest, and once again on 04.10.2005, he again made a representation that he may be granted the family pension, but both these representations at Annexure A-7 and A-8 have not been acted upon, and the respondents have wrongly treated him to be under the CPF Scheme.
13. The applicant has, therefore, submitted that in a recent decision the Honble Apex Court has observed that cases of even those who had already enjoyed the CPF amount can be considered, if they want to take a monthly pension now, after obtaining an undertaking to the effect that they are willing to refund the said amount along with interest, which was admissible on the amounts of Provident Fund, but the same has not been given effect to in his case. He further submitted that Pension is not a bounty, and it is in the nature of an award for the services of the employee, during the period of his retirement. He has alleged that the action of the respondents in not taking decision with regard to change of his option to put him under the Pension Scheme introduced by the DTC is bad in law, as the applicant has given sufficient relevant proof for his request for change of option, which is lying pending with the respondents since 1999, and it amounts to a discrimination by the Corporation in not deciding his case with mala fide intentions. He had, therefore, taken the ground that keeping his representation for change of option pending since 24.05.1999 is bad in law, and had the DTC introduced the Pension Scheme by itself at the initial stage, without the LIC, i.e., in the year 1992 itself, nobody would have given an option that he may not be treated under the Pension Scheme, and that he would also have initially itself opted for the Pension and Family Pension Scheme under the control and supervision of DTC. He submitted that when on 29.09.2003 the DTC Management invited fresh options of intent, then also he had exercised his option for DTC Pension Scheme, but unfortunately no decision was taken even on that, in spite of the applicant continuing to seek redressal of his grievance from 1995 onwards. In the result, the applicant had prayed for the following reliefs:
(a) to quash and set aside the impugned order dated 10.11.2009 commanding the respondents to consider the grievance of the applicant for grant of pension in terms of rules and regulations;
(b) to direct the respondents to extend the benefits of Apex Court Decision passed in CA3717-18/2001 dated 8.5.01 and respondents may be directed accordingly to give opportunity to the applicant to submit their undertaking to the effect that he is willing to refund C.P.F. amount alongwith interest which was forcibly transferred to his account;
(c) to allow the Original Application of the applicant in terms of para 4, 5 and 1 of the O.A.;
(d) to award the cost in favour of the applicant and against the respondents; and (e) to pass any other and further order which this Honble Tribunal may deem fit and proper in favour of the applicant and against the respondents.
14. The respondents filed their counter reply on 18.05.2012. In this they had enclosed as Annexure R-1 a copy of the applicants option form, in which it was clearly indicated that he had not opted for the pension scheme, which entry was made in his service book, and at the same time the name of his wife had been entered as the nominee under the CPF Scheme, and photocopies of the service book was also produced by the respondents at Annexure R-2. It was further submitted that on 05.07.2004, the Provident Fund Settlement Committee had accorded its approval for releasing of both the employees and employers shares of the CPF to the applicant, which had been duly received also by the applicant through Annexure R-3. Annexure R-4 was the order dated 23.07.2004 ordering for release of CPF to the applicant soon after his retirement on 30.06.2004.
15. It was submitted that the present OA is not maintainable on the short ground that the applicant has already availed of all the retiral benefits from the respondent-Corporation, including the Employers share of CPF, as he had not specifically opted for the DTC pension Scheme, and that now, after his having received the said amount, the applicant is not entitled to plead that the right to receive pension is a continuous cause of action, for the reason that in law both the benefits cannot be received by any person, and either pension can be received, or benefits under CPF account, which the applicant had already drawn after his retirement. It was submitted that this aspect is fully covered by the judgment of the Honble Delhi High Court in CWP No.14027/2009 DTC v. Madhu Bhushan Anand against the judgment of this Tribunal in TA-816/2009, and a batch of similar matters, in which the Writ Petitions of the respondent-Corporation were allowed, setting aside the judgment of the Tribunal. It was further submitted that this decision of the Honble Delhi High Court has since been further upheld by the Honble Apex Court while dismissing the SLP on 03.12.2010. It was, therefore, submitted that this present OA is liable to be dismissed, more so in the light of the recent judgment of the Honble Apex Court in the case of Union of India v. M.K. Sarkar, (2010) 2 SCC 59.
16. Giving further details, the respondents had pointed out that the cases of a number of employees including the two applicants herein, who had not opted for a pension scheme, came to be filed by some Unions and some DTC employees before the Honble High Court, and in LPA No.33/1998, along with connected LPAs, the Division Bench of the Honble High Court has since decided eight identified issues. One of these 8 issues was that the employees who had sought voluntary retirement under the VRS Scheme of 1993, and had opted out of the pension Scheme, and had left the Corporation after taking their retiral benefits, whether they could be given a chance to opt for the Scheme or not. After the LPAs were decided by the Honble High Court in favour of the Corporation the matter was taken in appeal before the Honble Apex Court in DTC Retd. Employees Association and others v. DTC: 91 (2001) Delhi Law Times 484 (SC); had in which the Honble Apex Court had in its judgment dated 08.05.2001, decided four appeals and one Writ Petition (Civil) NO.499/2000 Shri Jai Chand Verma & Ors. v. D.T.C. It was submitted that the Honble Apex Court had dealt with the present issue before us in its judgment in para-5, and paras 25 and 26, while dismissing all appeals and the Writ Petition.
17. Thereafter, another round of litigation was started by DTC Retd. Employees Association even after the Honble Apex Court judgment, and many Writ Petitions came to be filed before the Honble Delhi High Court, by DTC employees praying that they should have been allowed to participate in the Pension Scheme, as they are covered under the Scheme, whereas the DTC had taken a stand that once they had opted for withdrawal from the Scheme, and the said withdrawal had been accepted, and the respondent-Corporation had also made payment of all the retrial dues, the petitioners cannot in that case be allowed to re-agitate the issue, which already stands covered by the earlier judgment of the Honble Apex Court, decided on 08.05.2001.
18. On 26.02.2002, the Learned Single Judge of the Delhi High Court had dismissed all the Writ Petitions, holding that the issues stood decided by the Honble Apex Court judgment, and someone, who had withdrawn from the Scheme, cannot now be allowed to claim pensionary benefit in the freshly announced Scheme on 27.11.1992. Letters Patent Appeal No.33/2002 DTC Employees Association vs. DTC was also dismissed on 17.04.2002 with the Division Bench of the Honble High Court also holding that once members of the petitioner Association and the other petitioners had opted for the CPF Scheme, they had no right to switch back to the Pension Scheme, especially after having availed of the benefits under the CPF Scheme. The matter was further carried before the Honble Apex Court again by filing a SLP, which also came to be dismissed on 02.09.2002.
19. It was further submitted that this issue with respect to those employees who had opted out, or had specifically not opted for the Pension Scheme, and had drawn their retiral benefits under the CPF Scheme are not entitled to the benefits under the Scheme of 27.11.1992, is now finally settled in the above two rounds of litigation up to the Honble Apex Court.
20. In spite of that, one Bench of this Tribunal, while deciding a batch of OAs before it, allowed the OAs on the ground that the issue was not decided on merits by the Honble Apex Court in the second round of litigation. The respondents have submitted that the concurrent Bench had lost sight of the fact that in Paragraphs 6, 25 & 26 of their earlier judgment dated 08.05.2001, the Honble Apex Court had comprehensively dealt with the contentions of the individuals concerned. This was the matter, which was carried by the respondents before the Honble High Court of Delhi in CWP No.14027/2009 DTC vs. Madhu Bhushan Anand, against the judgment of this Tribunal in TA No.816/2009 & a batch of cases, and the Honble Delhi High Court allowed the Writ Petitions, which has since been upheld by the Honble Apex Court also, by dismissing the SLP on 03.12.2010. The respondents, therefore, submitted that applying the ratio laid down in Union of India vs. M.K. Sarkar (supra), the present applicant cannot be allowed to revive a stale or dead issue, which has become time barred.
21. The Respondents further cited the Honble Apex Court judgment in D.C.S. Negi & Ors. vs. Union of India in SLP (Civil) No. 7956/2011 that delay, has to be seen by this Tribunal as the first aspect, before proceeding to decide a case. They had, therefore, prayed that since the applicant has failed to raise and resolve the issue prior to the date of his retirement, and subsequently received all his retiral dues, including CPF, and his option form dated 16.12.1992 had become final, and an entry to the same effect had also been made in his service book, along with the name of his CPF nominee, as produced at Annexure R-2. Replying to all the contentions para-wise, the respondents had thereafter prayed that the OA is devoid of merit, and is liable to be dismissed with exemplary costs.
22. The applicant thereafter filed a rejoinder on 24.05.2012, submitting that the judgments relied upon by the respondents are not applicable to the instant case, and that this Tribunal could still issue a direction as to whether in terms of Circular dated 28.10.2002, since the applicant had tendered his fresh option, the same can be acted upon, and applicant can be permitted to change his option. It was further submitted that the judgment relied upon by the respondents was not passed on the basis of the Circular dated 28.10.2010 now issued by the respondents, which has been impugned in the present OA. It was submitted that the instant case is covered by the judgment in DTC Welfare Union & ors. vs. DTC & Ors., in which the OA was disposed of, directing the respondents to examine the issue afresh, after taking note of submissions made by the applicants in respect of availability of extra resources, including refund from the Regional Provident Fund Commissioner. He had also submitted that some identically placed persons had been permitted to submit their change of options. It was further submitted that if the applicant is ready to refund the CPF benefits with interest, and the option of the applicant was conditional, as he did not want the pension through LIC, but he wanted the pension through DTC, and in view of the subsequent development of the decision by DTC to grant pension by itself, the applicant can be permitted to change his options. He again reiterated that after the DTC itself took over the liability of pension, another clear Notification asking for fresh options and change of options should have been issued, which the Respondent-Corporation did not do, and, therefore, he prayed for the OA to be allowed.
OA-4482/2011
23. From the very beginning, the case of the applicant got tagged with that of the applicant of OA No. 4308/2011. There is not much of a difference in the facts of the case, except that the applicant of this OA retired as Travelling Ticket Collector (TTC, in short) on 30.06.2004, and he also claimed to have made a Representation on 24.05.1999 through Annexure A-5, and representation dated 19.06.2000 marked as Annexure A-6 of the OA, praying that his earlier option may be deemed to be cancelled, or he may be treated under the pension option. He had also given another representation dated 09.02.2005, offering to refund the requisite CPF amount, which had already been drawn by him on his retirement on 30.06.2004, and another representation dated 04.10.2005, praying for grant of family pension. His grievance also is that he has been continuously agitating for the change of his option from 1995 onwards, but the same has never been accepted. All the grounds taken by the applicant of this OA were also similar, and the following reliefs were prayed for:-
(a) to direct the respondents to treat the application of the applicant regarding change of option to cover up with family pension scheme as the earlier option was related for non-pension scheme in view of the facts that at that time L.I.C. was carrying out the liability of pension, in view of the subsequent developments since D.T.C. has carried out the liability of pension of employees, in the interest of justice, applicant is entitled to be permitted to change his option or to that his application is pending since 1999.
(b) to direct the respondents to implement the office order dated 28.10.2002 as he had opted for pension invoking the said notification as well.
(c) to direct the respondents to extend the benefits of Apex Court Decision passed in CA3717-18/2001 dated 8.5.2001 and respondents may be directed accordingly to give opportunity to the applicant to submit their undertaking to the effect that he is willing to refund C.P.F. amount alongwith interest which was forcibly transferred to his account;
(d) to direct the respondents to consider the claim of the applicant for grant of family pension either permitting him to change his option or treating him under opty of subsequent office order dated 28.10.2002.
(e) to allow the Original Application of the applicant in terms of para 4, 5 and 1 of the OA.;
(f) to award the cost in favour of the applicant and against the respondents; and
(g) to pass any other and further order which this Honble Tribunal may deem fit and proper in favour of the applicant and against the respondents.
24. The respondents filed their counter reply on 18.05.2012, more or less containing the same details and particulars as already described in detail above in the case of earlier OA, and praying for this OA also to be dismissed. By producing a photo copy of the applicants service book, the respondents had tried to prove that the applicant had not opted for pension, and accordingly the name of his CPF nominee had been entered in his service book also. It was prayed that this O.A. also deserved to be dismissed.
25. Heard the two cases in detail.
26. During arguments, our attention was drawn to a parallel case decided on 30.08.2012 Om Vir Singh vs. DTC in OA No.4308/2011, in which it was noted that the Scheme formulated on 28.10.2002 was only provisional in nature, and the final decision was left with the Management, and that the DTC Management had not taken any decision in the matter, and in view of this, the said OA, praying for similar reliefs, had been dismissed. A reference was also made in that OA to the judgment dated 07.03.2011 in OA No.1157/2010, in which only a direction had been issued to the respondents to examine the issue afresh, after taking note of the contentions and submissions of the applicants, therein, and the OA had been disposed of with observations. However, in its judgment dated 10.08.2010 delivered in W.P. (C) No.14027/2009 and related cases Delhi Transport Corporation vs. Madhu Bhushan & 20 other Writ Petitions, the Honble Delhi High Court had cited the piquant situation in these cases in the following paragraphs:-
37. It 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 the pension scheme would be introduced and if yes, from which date.
38. Qua 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. It 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.
39. Proceeding further, we note that the pleadings qua when the respondents of W.P.(C) Nos. 793/2010, 1384/2010, 1386/2010 and W.P.(C) No.2051/2010 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 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.
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 being the uncertainty of pension being paid and their pressing need for funds. The legal argument advanced 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.
41. The argument of the said respondents has to be noted and rejected for the reason nothing prevented the parties to novate the contract. It 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 managements share under the CPF Scheme. It is settled law that one manner of accepting an offer is to perform the obligation to be performed as per the offer. Thus, by making payment under the CPF Scheme the Corporation accepted the offer of these employees to forego claim for pension and instead entire due under the CPF Scheme be paid.
42. There remains then the issue to be decided whether the said respondents were under a compulsion and if yes the affect thereof.
43. The compulsion alleged by them is the uncertainty of pension being released. As noted hereinabove the pension scheme notified on 7.11.1992 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 years when they took recourse to legal action is clearly indicative of there being no compulsion. The silence of these respondents speaks for itself. It 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.
44. In 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 managements 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. If the management forces down the gullet of an employee payment under the CPF Scheme and the employee desires pension he has to approach the Court or the Tribunal within a maximum period of 3 years being the limitation prescribed to file a suit.
45. That 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. It 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.
46. Accordingly, we hold that the said writ petitions have to be allowed.
27. We are in respectful agreement with the ratio of the judgment of the Honble Delhi High Court, as reproduced above, which has since been confirmed by the Honble Apex Court also, while dismissing the SLP on 03.12.2010, as informed by the respondents. The applicants, herein, had given an option, when they very well knew that it was an irreversible option. Later on, a proposal was moved for an opportunity being given to change their option, but the decision was totally left with the Management, whether to allow to change of option or not, because it involved more than thousands of employees. The applicant of these two OAs retired, and soon thereafter their retirement, they availed of all their post- retiral benefits, and even drew the CPF amount to their credit in respect of both the portions of CPF contributions, i.e., employees as well as Employers contribution, without any protest. That being the case, as mentioned by the Honble Delhi High Court in its above reproduced judgment, the applicants cannot now be allowed to walk out from a contract, which they had entered into with the Respondent-Corporation at the time of accepting to opt out of the Pension Scheme, and to accept to continue with the Contributory Provident Fund Scheme, and which contract now fully stands satisfied and completed, by the applicants having even received, without protest, both their contribution to the CPF, as well as the Employers contribution.
28. As the respondents have rightly pointed out, the Honble Apex Court had held in Union of India vs. M.K. Sarkar (supra) that repeated representations cannot give rise to a fresh cause of action. If the applicants have merely continued to give representations even after their having retired, and having even received their retiral benefits, they cannot claim such repeated representations to be a legal basis for them to walk out of the contract entered into by them with the respondents, which stands fully completed and satisfied.
29. Further, as observed by the Honble Delhi High Court in Paragraph-44 of its judgment as reproduced above, the applicants are also not entitled to plead that their right to receive pension is a continuous cause of action, because of the reason that in law, either the pension can be received, or benefit of the CPF amount at their credit can be received, and after having received the benefit under the CPF scheme, the applicants have already forfeited any claim to their request for belated change over to the Pension Scheme. Therefore, it is clear that these two OAs are without merit, and are, therefore, dismissed, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.