Central Administrative Tribunal - Delhi
Shri Om Prakash Gupta vs Delhi Transport Corporation on 4 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.2469/2009 New Delhi, this the 4th November, 2011 CORAM: HONBLE MR. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Om Prakash Gupta, S/o Shri Bhajan Lal, 1608/115, Ganesh Pura Trinagar, Delhi 35 Applicant (By Advocate: Ms. Kitoo Bajal) Versus Delhi Transport Corporation, Through its Chairman I.P. Estate, New Delhi Respondent (By Advocate: Shri N.K. Singh) O R D E R
By Dr. Veena Chhotray:
The Applicant, a retired employee of the DTC, seeks through this OA directions for grant of pensionary benefits. The following reliefs have been sought:
8. A. Direct the respondent to release the pension to the Applicant with effect from 1.6.1993 and all other pensionary benefits with interest @ 12% p.a., compounded annually therefrom.
Direct the respondent to provide complete due and drawn statement to reflect the correct and exact amount of arrears payable to the Applicant whilst giving him the benefit of commutation, with compound interest @ 12% p.a. Direct respondent to pay pension to the Applicant month by month, and in case of default, to quash the order of acceptance of Voluntary Retirement and reinstate the Applicant with full back wages.
Any other writ/order(s) the Honble Court deems fit be also passed. Learned counsels, Ms. Kitoo Bajaj and Shri N.K. Singh representing Mrs. Avnish Ahlawat would argue respectively for the applicant and the respondent.
2. The brief factual matrix of the case is that the applicant had initially been appointed in the DTC as an Assistant Cashier. He retired voluntarily w.e.f. 31.5.1993.
2.1 As regards the claims for pension are concerned, the case of the applicant is that as a deemed optee he was entitled to the benefits of the 27.11.1992 Pension Scheme of the DTC. Further, it is stated that while applying for VRS in 1993 he had specifically requested for grant of pension. While admitting about his release of retiral dues like leave encashment, ex-gratia notice salary, gratuity etc.; it is stated that at that point of time the necessary papers for pension had been submitted by him and they were under process in the DTC. However, subsequently pension was not released to the applicant.
There is an oblique mention in the OA about the applicant having subsequently opted out of the Pension Scheme vide his letter dated 1.12.1993. A discreet silence with regard the follow-up steps is noted.
The applicant, however, had been making representations from to time in this regard.
2.2 In their counter reply the respondents have not disputed the fact of the applicant being a deemed optee under the 27.11.1992 Scheme or his submission for benefit of pension while applying for the VRS. However, they have highlighted the fact of the applicant having filed an application on 1.12.1993 opting out of the Pension Scheme. A copy of the relevant application has been annexed as Annex. R/3 with the Counter. Accordingly necessary orders had been issued for releasing benefits on 20.12.1993 (Annex. R/2/CA).
The Chairman-cum-Managing Director, Delhi Transport Corporation, I.P. Estate, New Delhi - 2 (THROUGH PROPER CHANNEL) Sir, It is bring to your kind notice that due to my family circumstances it is not possible for me to stand on my option for pension which was given at the time of seeking voluntary retirement.
As such, it is humbly requested that I may be allowed to withdraw my provident fund i.e. both shares employers share as well as employees share in addition to gratuity benefit as admissible to the employees who have not opted for pension.
An early action in the matter will be highly appreciated.
Yours faithfully, Sd/-
(O.P. Gupta) Ex. Asstt. Incharge, P.T.No.939 1608/115, Trinagar, Delhi 110035 cc to: Dy. Manager (Personnel), CWS-I, Dy. Manager (Pension Cell), H.Qrs with the request to take necessary action as requested above so that I may able to get the benefit as admissible to the employees who have not opted pension. As per the respondents, according to the Office record the applicant had withdrawn his option for pension and had been paid all necessary retiral benefits.
3. As legal arguments, the OA makes mainly the contentions: (i) that in pursuance of the judgment of the Honble High Court in Baijnath Bhargava Vs DTC, even the employees who had retired prior to 27.11.1992 and had withdrawn their share of provident fund, had been granted pension after adjusting the managements share of PF already drawn by them; (ii) Relying upon the High Courts decision in Satyabir Singh Vs DTC it would be contended that pension is neither a bounty nor a matter of grace, but a deferred portion of salary earned or payment of compensation for services rendered; (iii) In the context of the applicants letter of withdrawal dated 1.12.1993 opting out of the Pension Scheme; it would be argued that the respondents had no right to accept the said withdrawal. Further, this action of the respondents would be averred to be a deliberate breach of the terms and conditions of the VRS.
3.1. Additional arguments have also been made in the written submissions dated 30.8.2011. The decisions of the Honble Delhi High Court in DTC vs Vir Bhan as well as DTC vs Kishan Lal Seghal & Ors have been cited to contend that in the case of identically placed employees, the Honble High Court had held that once the DTC had accepted the offer of the employee to release his pension, no other offer could have been accepted. The reaffirmation of this view in LPA and dismissal of the SLP has also been referred. Besides, the decision in DTC vs Girwar Singh has been cited wherein the Honble High Court had taken into account the fact of the DTC not placing on record any circular empowering it to accept the offer of employees to opt out of the pension scheme.
3.2 On the strength of these judgments, further three-fold argument has been built upon by the learned counsel for the applicant: (i) Having implemented pension in the aforesaid cases, DTC cannot discriminate within its employees. The same would be in violation of the Articles 14 and 21 of the Constitution of India, as pension is a right of an employee; (ii) The judgment of the Honble Delhi High Court in DTC vs Madhu Bhushan Anand would not be applicable in the present case, as it had not considered the preceding judgments nor distinguished the facts therefrom. (iii) The DTC being a statutory body, has to be guided by rules, regulations and circulars. No rule or circular has been shown showing the competence of any Officer of DTC to accept any offer by an employee subsequent to the Circular dated 27.11.1992.
4. On behalf of the respondents, it has been contended that once the applicant had opted out of the Pension Scheme and had been paid all retiral dues accordingly, he could not start claiming pension in the year 2002.
4.1 As a legal argument, the claims in the instant OA are averred to be barred by limitation. In support, the common decision dated 10.8.2010 of the Division Bench of the Delhi High Court in CWP No.14027/2009 Delhi Transport Corporation Vs Madhu Bhushan Anand and several other Petitions has been relied upon. Rejecting such pleas about right to receive pension being a continuous cause of action, it had been held:
44. . Their claims are hit by delay, latches 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. 4.2 It is also the case of the respondents that the issue regarding the DTC employees who had opted out of the Pension Scheme and taken retiral dues under the CPF, not being entitled to the benefits under the 27.11.1992 Pension Scheme has already been finally settled in different pronouncements from the High Court and the Apex Court. Mainly the following decisions have been cited:
4.2.1 DTC Retired Employees Association & Ors etc Vs Delhi Transport Corporation & Ors etc. Vs Delhi Transport Corporation {2001 (6) SCC 61}. This had inter alia dealt with the Writ Petition No.499 of 2000 in which some of the petitioners who had initially opted for the Pension Scheme but later on opted out wanted to exercise fresh option for the scheme which was not allowed by the Court and the Writ Petition and the other Appeals were dismissed. Negating the pleas of Pension not being a bounty or charity, the Honble Apex Court had observed:
Those employees who had received the benefit of employers provident fund scheme failed to exercise their option and thus disentitled themselves from getting the Pension benefit. . (para 25) 4.2.2 Another round of Writ Petitions filed by the DTC Retired Employees Association, were decided against such claims, in the year 2002. This refers to the decision of the Delhi High Court in the Writ Petition No.686/2002 along with several others {DTC Retired Employees Association & Ors Vs DTC} decided on 26.2.2002, specifically this very proposition had been dealt with Whether the employees of the DTC who had opted for the pension scheme of 1992 and later withdrew from the same are entitled to once again be covered under the pension scheme as per their request made subsequently?.
As per the Ld. Single Judge the issue was no more res integra as ramifications of withdrawal had been considered in the earlier judgment of 8.5.2001 by the Honble Apex Court:
Assuming that there were no such petitioners before the Supreme Court the ramifications of such a withdrawal has been considered by the Supreme Court relating to compulsion of the employees to opt out of the scheme on account of delay and their economic constraints. In my considered view the issue thus raised in the present petition is no more res intergra. Parties having opted on the withdrawal, accepted the same and availed of the benefits cannot now be permitted to resile from the same and contend that the scheme shall be made applicable to them. The Supreme Court in the said judgment clearly observed that it is not for the courts to interfere with the pension scheme and the scheme has to be implemented in the form in which it is formulated. (emphasis supplied) Again in the LPA 330 of 2002 vide the Division Benchs Order dated 17.4.2002, the aforesaid view had been affirmed:
..Once the members of the petitioner association and second and third petitioners opted for Contributory Fund scheme, they have no right to switch back to the pension scheme, especially when the petitioners have availed of the benefits under the Contributory Provident Fund Scheme after opting out of the pension scheme. The SLP against these orders had been dismissed.
4.2.3 The Delhi High Courts decision dated 10.8.2010 in the batch of Petitions including the CWP 14027/2009 DTC Vs Madhu Bhushan Anand reported at 2010 (172) DLT 668.
In this case various aspects raised in various judgments and relied upon by individual officials including the judgment of Kishan Lal Sehgal & Ors had been considered and the claims of the employees not found entertainable.
4.2.4 The decision of the Full Bench of the Tribunal vide its Order dated 24.3.2011 in the OA 3088/2009 {Shri Raj Kumar Vs Delhi Transport Corporation} along with three other cases has also been relied upon. The following reference had been considered by the Ld. Full Bench:-
This issue which has come up for consideration before us is whether an employee of the Delhi Transport Corporation (DTC), who had sought voluntary retirement under the voluntary retirement scheme of 03.03.1993, which provided for pension as per the pension scheme of 27.11.1992, would be eligible for pension as per the pension scheme of 27.11.1992, would be eligible for pension if he/she had opted for the same in the first instance, or deemed to have opted for the same, but later he/she had withdrawn the option by opting for the Central Provident Fund Scheme and accepted the benefit thereof. The view taken was that the issue already stood resolved by the judgment of the Honble Delhi High Court in the Writ Petition (Civil) No.14027/2009 along with the batch petitions and upheld by the Honble Apex Court and hence there was no need to consider it further. It was reiterated:
7. ..The law, as laid down by the Delhi High Court and upheld by the Honourable Supreme Court, in the matter would be that an employee of the Delhi Transport Corporation, retiring on seeking voluntary retirement under the scheme of 03.03.1993, will not be eligible for pension as envisaged in order dated 27.11.1992, even though he/she had opted or deemed to have opted for it, in case he/she later withdrew the option for pension and accepted the retirement benefits of the CPF. . 4.3 As regards the applicants reliance on Kishan Kumar Sehgals case, the respondents have rebutted the same. They have also placed a copy of the recent decision dated 20.9.2011 by the Delhi High Court (a three Judge Bench) in the LPA No.708/2002 {R.D. Gupta & Ors Vs Delhi Transport Corporation & Ors}. By this judgment, perceiving a manifest conflict between the decisions in DTC Vs Kishan Lal Sehgal (supra) and the DTC Vs Madhu Bhushan Anand (supra) the decision in the former was overruled and the view taken in the latter upheld.
5. We have carefully considered the respective submissions, the material on record and the various decisions on the subject cited before us. However, the claims in the OA are not found to be tenable. The reasons therefore, are as below:
5.1 Barred by limitation, delay and latches:
The applicant had voluntarily retired in the year 1993 and had accepted the retiral dues as per the CPF Scheme. Through this OA filed in the year 2009 the applicant is agitating claims pertaining to his entitlement for pension under the DTC Scheme of 1992 which got implemented in the year 1995.
Belated agitation of such claims had not found favour with the Honble Delhi High Court (DB) in Madhu Bhushan Anands and other batch writ petitions on any ground whatsoever the plea of the said employees withdrawing the earlier option under compulsion, or even the plea of pension being a continuous cause of action. Some of the observations from Para 44 of this judgment have been extracted by us para 4.1 above. The Honble High Court had in no uncertain terms deprecated such belated litigations. The relevant extracts from Para 43 are reproduced as here under:
43. 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 .. The Honble Apex Court in its recent Judgment in D.C.S. Negi Vs Union of India & Ors (Civil Appeal No.7956 of 2011) decided on 7.3.2011, condemned entertaining Applications by the Tribunals in disregard of the limitation prescribed under Section 21 of the Act. The following observations were made:
Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the Applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21. ..
Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under section 21 (3). The contention that the applicant had been making series of representations during the period 1993 2008 followed by a legal notice dated 6.11.2008 would not in any way remedy the bar of limitation, as per the settled law on the subject.
5.2 Basic Issue No more res integra:
The basic issue involved i.e. the entitlement for pension of a DTC employee, who had opted for it or was a deemed optee, and had also voluntarily retired under the DTC 1993 Scheme; but subsequently had withdrawn such option and received the corresponding retiral benefits under the CPF Scheme stands finally settled. Even though in course of the litigation trajectory, some different judgments got delivered; however, considering the judicial pronouncements being cited by the respondents as mentioned in Para 4.2 above, it is quite clear that the final view taken is not in favour of such claims.
5.2.1 While the decisions of the Apex Court in the Writ Petitions filed by DTC Retired Employees Association (Judgment dated 8.5.2001) and the subsequent batch of Writ Petitions from the Association only decided in 2002 have been elaborated in Paras 4.2.1 and 4.2.2 above; it would be apt to dwell further on the Division Bench of the High Courts judgment in Madhu Bhushan Anand and batch of other Writ Petitions decided by the common judgment dated 10.8.2010, as it has a direct bearing on the issues at hand.
Para 35 of the order had dealt with two categories of Writ Petitions i.e. those in which the petitioners had specifically opted in favour of the 27.11.1992 DTC Pension Scheme or who were deemed optees under clause 9 of the Circular. Subsequently they had filed applications intending to opt out of the Pension Scheme and requesting for being retained under the CPF Scheme. On their offers being acceded to by the authorities, they had also accepted the corresponding retiral dues including the Employers share of the CPF. These facts are identical to the ones in the present OA.
In support of their claims for pension, it had been pleaded that due to uncertainty of implementation of the Pension Scheme they had been compelled to opt out. Besides, a legal argument that the Corporation could not have accepted their subsequent withdrawals had also been advanced. Para 40 runs as under:
40. .. 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. The Honble High Court had considered the argument but rejected it for the reason that nothing prevented the parties to novate the contract. Para 41 of the judgment had elaborated the reasons for this view:
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 forgo claim for pension and instead entire due under the CPF Scheme be paid. We find the decision in Madhu Bhushan Anands case as of direct bearing to the issues raised in the present OA. Besides, the identical facts, the Honble High Court had also dealt with the plea now being raised by the applicants learned counsel about the legal un-sustainability of respondent-Corporations decision of accepting the subsequent withdrawal options by the employer.
The view taken by the Honble High Court has attained finality and reiterated on more than one occasions as borne out by the dismissal of the SLP filed against this judgment. The above view also stands endorsed by the clear view laid on the subject by the Full Bench of the Tribunal in 24.3.2011 Order.
5.3 Plea of alleged discrimination relying upon certain earlier judgments of the High Court not tenable in the light of the Delhi High Courts Larger Benchs recent decision dated 20.9.2011 in the LPA 708 of 2002 (R.D. Gupta & Ors Vs DTC).
5.3.1 It has been pleaded on behalf of the applicant that having once accepted the applicants offer for voluntary retirement under the 1993 Scheme, the DTC had no right to accept the subsequent withdrawal from the Pension Scheme. The same constituting a breach of the terms and conditions of the VRS and hence being void and inoperative has also been contended.
Flowing from this argument, reliance has been placed on the decisions of the High Court in DTC vs Vir Bhan as also DTC Vs Kishan Lal & Ors where a similar view had been held. The decision in Girwar Singhs case has also bee adverted where the non-placement of record of any Circular empowering the DTC to accept the subsequent opting out offer had been factored in.
On all these grounds three fold arguments have been built by the learned counsel for the applicant in her statement in the Written Arguments dated 30.8.2011:-
Alleged discrimination qua implementation of Pension Scheme in these cases;
Judgment in Madhu Bhushan Anand not being applicable as it had not considered the earlier decisions;
The DTC being a statutory body, not empowered to act without any relevant rules, guidelines and circulars, and hence acceptance of the subsequent withdrawal offer being vitiated in law.
5.3.2 The respondents have, however, brought to our notice the recent decision of a three Judge Bench of the Delhi High Court presided over by the Honble Chief Justice in the LPA 708 of 2002 {R.D. Gupta & Ors vs DTC & Anr} delivered as recently as on 20.09.2011.
By this Judgment the Honble High Court held:
In our considered opinion, Clause 9 of the scheme cannot be carried so far as to have an absurd impact on the scheme. Once the said benefits are availed of, the principle of opting out has to be made applicable. When an employee accepts the benefits out of his own volition without any coercion, he cannot take a somersault and claim to have the benefits taking recourse to Cause 9 that he is deemed to be within the pension scheme. Thus analyzed, we are of the considered opinion that the decision in Madhu Bhushan Anand (supra) lays down the law correctly. The law laid down in Kishan Lal Sehgal and Ors. (supra) and Vir Bhan (supra) is not correct and, accordingly, the said decisions and the decisions on the said lines are overruled. (emphasis supplied) Considering its critical significance to the issues at hand we would elaborate it further.
5.3.3 Perceiving a manifest and irreconcilable conflict between the decisions rendered in Kishan Lal Sehgals case and Madhu Bhushan Anands case, the question had been framed by the Division Bench for delineation by one Larger Bench:
What is the effect of receipt of payment including higher ex-gratia amount and employers share of provident fund to employees who had applied and opted for voluntary retirement under the VRS 1993, though the said employees were entitled to pension as per office order No.16 dated 27th November, 1992? 5.3.4 The background for introduction of the 1992 Pension Scheme by the DTC, the Voluntary Retirement Scheme of 1993 and its aftermath with the features of these Schemes and the trajectories of implementation had been considered at length by the Honble High Court. Further, the decisions rendered in Kishan Lal Sehgals case with its reliance on Vir Bhans case as also the subsequent decision in the batch Petitions along with Madhu Bhushan Anands case had also been considered from close quarters.
5.3.5 The non-interference by the Apex Court with the decision rendered in Madhu Bhushan Anands case when assailed in SLP (C) No.31241/2010 by the employees had been found worth nothing.
No ground is made out for our interference with the impugned judgment. The special leave petitions are dismissed. Further, referring to the decision in the LPA No.330/2002 decided on 17.4.2002 {DTC Retired Employees Association Vs DTC} its view about their being no right to switch back was noted with emphasis:
..Once the members of the petitioner association and second and third petitioners opted for Contributory Fund Scheme, they have no right to switch back to the pension scheme, especially when the petitioners have availed of the benefits under the Contributory Provident Fund Scheme after opting out of the pension scheme. The refusal of the Apex Court to interfere with the aforesaid order when assailed in SLP (C) No.16135/2002 had also been noted.
5.3.6 From the aforesaid pronouncements of law in the field by various Division Benches, it was noticed that the decision rendered in Kishan Lal Sehgal & Ors (supra) had not taken note of the earlier decision rendered in DTC Retired Employees Association (supra), which as per the well settled principle of law was a binding precedent.
5.3.7 The decision in Kishan Lal sehgal & Ors was not found endorsable from another aspect too. Para 18 only had gone on to say how the decisions in Kishan Lal Sehgals case and Vir Bhans case had laid emphasis on Clause 9 of the Office Order dated 27.11.1992. However, the affirmative act of an employee applying for getting the benefit under the Contributory Provident Fund and availing its benefits was not held to come within the purview of the deemed option for pension provision. Besides, such an act amounting to novation of contract of volition (as per the Madhu Bhushan Anands case) and these employees having no right to switch back to the Pension Scheme after having opted out of it {DTC Retired Employees Association} had been found to be relevant considerations. The concluding observations and final view taken by the Honble High Court in Para 18 of the Order are extracted as below:
18. There is subtle distinction between deemed inclusion to be under the pension benefit scheme but it would be an anathema to hold that even if an employee has voluntarily opted out and availed the benefits still he can take a somersault and claim to be brought within the pension scheme. As has been in the case of Madhu Bhushan Anand (supra) the same amounts to novation of contract of volition. To hold that who had applied and opted for the voluntary retirement under VRS 1993 and received all payments would still be entitled to pension regard being had to Clause 9 of the Office Order dated 27.11.1992 would result in placing a farfetched interpretation on Clause 9. In the case of DTC Retired Employees Association (supra) the Division Bench has clearly opined that such employees have no right to switch back to the pension scheme after they have opted out of the pension scheme. As we have indicated earlier, the decision in Madhu Bhushan Anand (supra) and DTC Retired Employees Association (supra) have not been interfered with by their Lordships of the Apex Court. In our considered opinion, Clause 9 of the scheme cannot be carried so far as to have an absurd impact on the scheme. Once the said benefits are availed of, the principle of opting out has to be made applicable. The concept of switch on and witch off has to be ostracized. When an employee accepts the benefits out of his own volition without any coercion, he cannot take a somersault and claim to have the benefits taking recourse to Clause 9 that he is deemed to be within the pension scheme. Thus analyzed, we are of the considered opinion that the decision in Madhu Bhushan Anand (supra) lays down the law correctly. The law laid down in Kishan Lal Sehgal and Ors (supra) and Vir Bhan (supra) not correct and, accordingly, the said decisions and the decisions on the said lines are overruled. 5.4 In light of the clear pronouncements of law on the subject as elaborated above (4.21, 4.22, 5.2 & 5.3) we do not find it necessary to deal with the other cases relied upon by the applicants learned counsel to press the claims in the OA. Further, the legal arguments built on the strength of such cases would also lose their steam.
6. To conclude, after a detailed examination, the claims in the OA are found to be grossly hit by delay and latches and barred by limitation. Further, the issue being raised stands finally settled and is no more res integra. The applicant had voluntarily retired in the year 1993 and had subsequently in the same year by a written application withdrawn his earlier option for pension in preference to the benefits under the Contributory Provident Fund. On acceptance of the same by the authorities and disbursement of the corresponding retiral dues accepted by the applicant subsequently after a gap of 15-16 years, agitation of claims for pension is not tenable in law.
The OA is devoid of merit and dismissed hereby with no orders as to costs.
(Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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