Govt. Of Nct Of Delhi And Ors. vs K.R. Jain And Ors.
2006 Latest Caselaw 608 Del

JUDGMENT

Shiv Narayan Dhingra, J.

Page 1189

1. This LPA has been preferred against the impugned judgment of the learned Single Judge dated 23.11.2004 by which he allowed the miscellaneous applications of NDPL holding that NDPL was not liable to pay the dues of respondent No.1 and it was the appellants who were liable for the same.

2. Shri K.R. Jain, respondent No.1 was working with Delhi Vidyut Board and had retired after attaining the age of superannuation on 31.7.1996. He filed a writ petition in 2004 bearing Number WP (C) No.2337/04 before this Court alleging that he was discriminated by the Delhi Vidyut Board and was not given higher scale to which he was entitled before his retirement under the Time Bound Promotion Scheme in terms of office order No.216 dated 16.7.1997 notified on 23.7.1997. He prayed for issuance of a Mandamus for giving him the higher scale, arrears of pay and allowances/emoluments as accrued to him along with 18 % interest and prayed that the office order dated 7.2.02 denying him benefits due be set aside and quashed. His petition was allowed by the learned Single Judge vide order dated 23.3.04 which reads as under:

Page 1190

23.03.04

Present: Mr. L,.D.Adlakha for the petitioner.

Ms. Avnish Ahlawat for the respondent.

WP (C) No.2337/2004

Issue raised in this writ petition is covered by a decision of this Court in W.P. (C) No. 4316/2001, D.S.Chauhan v. Delhi Vidyut Board. By judgment and order dated 11th February, 2004, it has been held that in terms of the resolution of the DVB as notified in the office order dated 23rd July,1997, benefit of time bound promotion envisaged under the scheme has to be implemented w.e.f. 1st April ,1994. It has been held that persons who had ceased to be in service of DVB between 1.4.1994 and 23.7.1997 are entitled to the benefit of time bound promotion policy.

Writ petition is allowed. Mandamus is issued to the successor-in-interest company NDPL of DVB to forthwith give benefit to the petitioner as the petitioner had retired on 31st July,1996. The arrears would be paid within four months from the date of this order failing which the arrears would be paid with interest @ 6 p.a from the date of this order till date of payment. Needless to state, pensionary benefits of the petitioner would be suitably revised.

No costs.

March 23,2004

Sd/-

Pradeep Nandrajog, J

3. After passing of this order two applications were made on behalf of North Delhi Power Ltd. (NDPL) (successor in interest of DVB in respect of North and North West zone) that NDPL was not liable to pay the amount as directed by the judgment. Miscellaneous applications were disposed of by the impugned order against which the present LPA has been preferred. By the impugned order the learned Single Judge came to the conclusion that in view of the scheme laid down by the Delhi Electricity Reform (transfer Scheme) Rules, 2001 under Delhi Electricity Reform Act 2000, the liability to pay the amount of arrears of pay of the retired personnel shall be of the Delhi Power Company Ltd and issued a mandamus against Delhi Power Company Ltd for the payment of arrears of pay as prayed by the appellant.

4. The question which arises in this appeal is who shall be responsible to pay the claim of a retired employee of DVB, who retired before the transfer scheme came into force, in the light of DERA 2000 & DERR 2001 as amended in 2002.

In order to understand the liabilities of transferee companies, the entire scheme of transfer of assets & liabilities is to be understood.

5. The Delhi Electricity Reform Act 2000 (DERA 2000) came into force on 3.11.2000 and after its coming into force, the entire structure of generation, transmission and distribution of electricity was re-organized and five companies namely; GENCO,TRANSCO,DISCOM1, DISCOM 2 AND DISCOM 3 were incorporated and Delhi Vidyut Board (DVB) was disbanded. The three DISCOM Companies were constituted for distribution of electricity Page 1191 in different areas of Delhi . DISCOM 1 was to distribute electricity in Central and East Delhi, DISCOM -2 in South and South West Delhi while DISCOM 3 in North and North West Delhi. The initial names DISCOM 1, 2 & 3 were later on changed. The name of DISCOM 3 was changed to NDPL.

6. GENCO was the company to look after the power generation (Indraprastha Power Generation Company Ltd.) Transco was the company to look after the transmission of electricity supply from power stations to different localities. A company fully owned by the Government was constituted and named as Delhi Power Company Ltd. While all other companies namely 3 DISCOMS GENCO and TRANSCO were handed over to private hands, Delhi Power Company Ltd was the holding company with the principle object of holding shares in the above companies in terms of Rule 2 (j) of Delhi Electricity Reforms Rules,2001, which states:

2(j) holding company means Delhi Power Company Limited , a company incorporated under the Companies Act, 1956 (1 of 1956) with the principal object of holding shares in GENCO, TRANSCO and DISCOMS and liabilities of the Board;

7. Delhi Electricity Reforms (Transfer Scheme) Rules 2001 (DERR 2001) were framed by the Govt. in exercise of powers under Section 60 of DERA 2000 to regulate transfer and vesting of assets, liabilities, proceedings and personal of DVB in the successor entities. There can be no doubt that awarding of any compensation, arrears of unpaid wages or any other amount in a suit, proceeding or writ creates a liability. Since DVB has been disbanded and does not exist, this kind of liability has to be discharged either by the newly created five companies or by the holding company i.e. Delhi Power Co. Ltd.

8. Rule 2 (k) defines liability as under:

liabilities include all liabilities, debts, duties, obligations and other outgoing including contingent liabilities, statutory liabilities and government levies of whatever nature, which may arise in regard to dealings before the date of the transfer in respect of the specified undertakings;

The liabilities thus include obligations and statutory liabilities of the erstwhile DVB which may arise (in future) in respect of dealings before the date of transfer. We are of the opinioin that 'dealings' include dealing with previous employees as well and statutory liabilities include statutory liabilities towards employees as no exception has been made.

9. Rule 2(n) defines proceedings as follows :

proceedings include all proceedings of whatever nature, suits, appeals, complaints, petitions, applications, conciliatory, arbitration-whether civil or criminal or otherwise;

Rule 2(n) is also inclusive and no exception has been made.

10. Rule 2 (l) defines personnel as follows:

personnel means workmen, employees, staff and officers of the Board by whatever name called, and includes trainees and those on deputation from the Board to other organization and institutions;

Page 1192

11. Rule 3 provided for transfer of the assets and liabilities in the following terms:

3(1) On and from the date of the transfer to be notified for the purpose, all the assets, liabilities and proceedings of the Board shall stand transferred to and vest in, the Government absolutely and in consideration there of the loans, subventions and obligations of the Board tot he Government shall stand extinguished and cancelled, which shall be in full and final settlement of all claims whatsoever of the Board.

(2) Nothing in Sub-rule (1) shall apply to rights, responsibilities, and obligations in respect of the personnel and personnel related mattes, which have been dealt in the manner provided under Rule 6,

12. Rule 4 reads as under:

4. Classification of undertakings- (1) The assets, liabilities and proceedings transferred to the government under Sub-rule (1) of Rule 3 shall stand classified as under:

(a) Rights and interest in Pragati Power Project as set out in Schedule 'A

(b) Generation Undertaking as set out in Schedule 'B'

(c) Transmission Undertaking as set out in Schedule 'C'

(d) Distribution Undertaking as set out in Schedule 'D'

(e) Distribution Undertaking as set out in Schedule 'E'

(f) Distribution Undertaking as set out in Schedule 'F'

(g) Holding Company with assets and liabilities as set out in Schedule 'G'

(2) If the assets classified are subject to security documents or arrangements in favor of third parties for any financial assistance or obligation taken by the Board and the liabilities, in respect thereof are to be classified in different transferees, the Government may, by order to be issued for the purpose, provide for the apportionment of the liabilities secured by such assets between the different transferees and upon such apportionment, the security shall be applicable to the apportioned liability only.

13. A reading of Rule 3 & 4 together would make it clear that assets and liabilities as given in schedule A to G of different companies do not relate to the liabilities regarding personnels vide Rule 3(2). Rights and responsibilities of the personnel have been dealt with in Rule 6. Therefore, we cannot fall back on schedules under Rule 4 to determine the liabilities in respect of personnel even if they are retired personnel and pensioners.

14. Section 16 DERA 2000 and Rule 6 DERR 2001 reproduced below provided for the responsibilities and obligations regarding the personnel.

Section 16- Provisions relating to personnel- (1) The Government may by a transfer scheme provide for the transfer of the personnel from the Board to a company or companies established as the case may be, under Section 14 and distribution Page 1193 companies (hereinafter referred to as transferee company or companies) on the vesting of properties, rights and liabilities in a company or companies established as the case may be, under Section 14 or the distribution companies.

(2) Upon such transfers the personnel shall hold office in the transferee company on terms and conditions that may be specified in the transfer scheme subject, however, to the following, namely:

(a) that the terms and conditions of the service applicable to them in the transferee company shall not in any way, be less favorable than or inferior to those applicable to them immediately before the transfer;

(b) that the personnel shall have continuity of service in all respects; and

(c) that the benefits of service accrued before the transfer shall be fully recognized and taken in account for all purposes including the payment of any and all terminal benefits.

15. Rule 6 reads as under:

6.Transfer of Personnel- (1) The transfer of personnel to the transferee shall be subject to the terms and conditions contained in Section 16 of the Act.

(2) By order No. F. 11/99/2001-Power/PF-III/2849 dated the 15th November, 2001 of the government hereinafter referred to as the said order , the personnel have been classified into five groups based on the principle of as is where is basis, the place of work, suitability, experience and other relevant consideration as under:

a) Personnel to be transferred to the services of GENCO, as detailed in Appendix A to the said Order.

b) Personnel to be transferred to the services to TRANSCO, as detailed in Appendix 'B' to the said Order.

c) Personnel to be transferred to the services of DISCOM 1, as detailed in Appendix 'C' to the said Order.

d) Personnel to be transferred to the services of DISCOM 2, as detailed in Appendix 'D' to the said Order.

e) Personnel to be transferred to the services of DISCOM 3, as detailed in Appendix 'E' to the said Order.

3) With effect from the date of the transfer to be appointed for the purpose, the personnel shall stand transferred to, and absorbed in, the GENCO, TRANSCO and DISCOMS, as the case may be, in accordance with the said Order made by the Government without any further Act, deed or thing to be done by the Board, the Government, the transferee's or the personnel, as the case may be.

4) The Government shall constitute a committee within two months from the date of the transfer to receive representations from the personnel if any, in regard to any grievance on the permanent absorption in the transferee's and make recommendations in regard Page 1194 to such matters. The government shall be entitled to pass such orders as it may consider appropriate based on the recommendations of the committee including the transfer of the personnel to another transferee and to provide that any personnel transferred to a transferee under Sub-rule (3) shall be deemed to have been transferred to, and absorbed in, another transferee specified by the Government from the date of the transfer appointed for the purpose.

5) The transfer of personnel to the transferees shall be subject to any orders that may be passed by the Courts or Tribunals in any of the proceedings pending on the date of the transfer.

6) Subject to the provisions of these rules, the personnel transferred to a transferee shall cease to be in the servile of the Board and shall not assert or claim any benefit of service under the Board.

7) Subject to the provisions of the Act and these rules, the transferees may frame regulations governing the conditions of service of the personnel transferred to the transferee's under these rules which shall not in any way be less favorable or inferior to those applicable to them immediately before the transfer and till such time, the existing servile conditions of the Board shall mutates mutants apply.

8) Subject to Sub-rule (9) below, in respect of all statutory and other schemes and employment-related matters including the provident fund, gratuity fund, pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners, the relevant transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of such transferee and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-rule.

9) The government shall make appropriate arrangements as provided in the tripartite agreements in regard to the funding of the terminal benefits to the extent it is unfunded on the date of the transfer from the Board. Till such arrangements are made, the payment falling due to the existing pensioners shall be made by the TRANSCO, subject to appropriate adjustments with other transferees.

For the purpose of this sub-rule, the term-

a) existing pensioners means all the persons eligible for the pensions on the date of the transfer from the Board and shall include family members of the personnel as per the applicable scheme; and

b) terminal benefits means the gratuity, pension, dearness and other terminal benefits to the personnel and existing pensioners.

10) On the effective date of transfer all the existing welfare schemes, like the scheme for Death Relief Fund, DESLU Engineers Page 1195 benevolent Fund Scheme, or similar schemes which are in operation in the Board shall be continued by the transferees on the same terms and conditions and shall be given full effect and shall not be discontinued on account of deficiency in funds to maintain such schemes.

11) All proceedings including disciplinary proceedings pending against the personnel prior to the date of the transfer from the Board to the transferees, or which may relate to misconduct, lapses or acts of commission or omission committed before the date of the transfer, shall not abate and may be continued by the relevant transferee.

12) The personnel transferred to the transferees, shall be deemed to have entered into agreements with the respective transferee's to repay loans, advances and other sums due or otherwise perform obligations undertaken by them to the Board which remain outstanding as on the date of the transfer, on the same terms and conditions as contained in the agreements or arrangements with the Board.

13) The employees of the Government or the Central Government working under the Board, who are assigned to electricity generation, transmission, sub-transmission, distribution and supply-related or any other activities of the Board shall not be governed by these rules except that such employees shall continue to work on deputation in the transferee to whom they have been assigned under the said Order of the Government on the same terms and conditions as were i n the Board till such time the services are required by the transferee or till the expiry of the period of deputation whichever is earlier.

16. There could be the following categories of personnel required to be dealt with:

(a) existing employees of DVB on the date of transfer scheme who were on roll and working;

(b) Employees under suspension and facing disciplinary / departmental proceedings at the time of the transfer scheme.

(c)Employees terminated/ dismissed as a consequence of departmental proceedings and who had initiated litigation/cases proceedings against DVB & such proceeding/litigation was pending at the time of disbanding of DVB.

(d) Retired employees who after retirement filed cases in courts claiming some benefits or dues, and such cases were pending at the time of the transfer scheme.

(e) Retired/dismissed employees of DVB who filed court cases after the transfer scheme and such case got decided in their favor.

There is no dispute in respect of personnel at (a). However, Mr. Raj Birbal, learned senior counsel for NDPL contends that the responsibility of NDPL is only in respect of those personnel who have Page 1196 been transferred to NDPL as per the list mentioned in appendix E. We do not agree with this contention.

17. It is evident from Section 16 DERA and Rule 6 DERR that except for Rule 6, (8) (9) & (11), these provisions deal with the existing working personnel of DVB at the time of transfer. Rule 6 (11) read with 2(n) shows that it is in respect of those employees regarding whom proceedings were pending in the court. The proceedings could be of any character or nature as defined in Rule 2(n) and not only necessarily disciplinary proceedings. However, disciplinary proceedings were included but Rule 6 (11) is not limited only to those proceedings which arose out of disciplinary actions. In our opinion, these proceeding could be in respect of reinstatement dues or claims of more salary or allowances filed by existing or erstwhile employees and pending before courts, tribunals etc. The employees of category (b) & (c) are taken care of by Rule 6(11). While Rule 6 (11) is in respect of proceedings concerning employees of the erstwhile DVB, Rule 8 DERR generally covers all kinds of pending suits and proceedings. Rule 8 reads as under:

8-Pending Suits, Proceedings (1) All proceedings of whatever nature by or against the Board pending on the date of the transfer shall not abate or discontinue or otherwise in any way prejudicially be affected and the proceedings may be continued, prosecuted and enforced, by or against the transferee to whom the same are assigned in accordance with these rules.

(2) The proceedings mentioned in Sub-rule (1) may be continued in the same manner and to the same extent as it would or might have been continued, prosecuted and enforced by or against the Board if the transfers specified in these rules had not been made.

(3) Notwithstanding anything contained in these rules including the schedules, the liabilities arising out of litigation, suits, claims, etc, pending on the date of the transfer and/ or arising due to events prior to the date of the transfer shall be borne by the relevant distribution company viz DISCOM 1, DISCOM 2 and DISCOM 3 respectively, subject to a maximum of Rs. 1 crore per annum. Any amount above this shall be to the account of the Holding Company in the event for any reason the Commission does not allow the amount to be included in the revenue Requirement of the DISCOM .

18. It is argued by learned Counsel for the appellant that legal proceedings filed by Shri K.R. Jain giving rise to liability were covered by Rule 8. Rule 8 (1) is an omnibus rule and makes no exception in respect of any kind of legal proceedings. However, Rule 8 (3) limits the liability of three DISCOM transferee companies to the tune of Rs. 1 crore. The respondent company NDPL can only refuse to pay the amount as ordered by the court if the total liability in that year has crossed Rs. One crore. If the total liability has not crossed Rs. 1 crore, NDPL cannot escape its liability. It is not the case of NDPL that the liability in that year exceeded one crore.

19. The contention of Raj Birbal, Sr. Adv. for the respondent is that Rule 8 of DERR covers litigations only in respect of the cases between DVB and Page 1197 consumers / contractors / third parties and not those cases which were between DVB & its retired employees.

20. This contention of Mr. Raj Birbal cannot be accepted. There is no reason to read in the rule what is not there. All proceedings of whatever nature in Rule 8(1) cannot be read as All proceedings - between DVB and customer / contractor / third persons. All proceedings of whatever nature shall include those proceedings pending in respect of retired / terminated / prematurely or compulsory retired employees.

21. It is further argued that if this liability had been of the employees, Rule 8(3) would not have limited the liability only to DISCOMS to one crore and it would have mentioned TRANSCO & GENGO also. This arguments also must be rejected since the limit of one crore was fixed at the representation of DISCOMS , only in respect of them. The Court has to read the provision as it exists and cannot read what is not there.

22. Rule 5(2) provides that :

(2) On such transfer and vesting of the undertakings in terms of Sub-rule (1) the respective transferee shall be responsible for all contracts, rights, deeds, schemes, bonds, agreements and other instruments of whatever nature, relating to the respective undertaking and assets and liabilities transferred to it, to which the Board was party, subsisting or having effect on the date of the transfer, in the same manner as the Board was liable immediately before the date of the transfer, and the same shall be in force and effect against or in favor of the respective transferee and maybe enforced effectively as if the respective transferee had been a party thereto instead of the Board.:

The above rule also makes it abundantly clear that after the transfer came to effect the entire responsibility of DVB in respect of everything of that area became the responsibility of the transferee DISCOM company. The rules specifically relates to all contracts, rights, deeds, schemes, bonds agreements and other instruments of whatever nature relating to the respective undertakings to which the Board was a party. This would include those schemes which were for the benefit of employees and those agreements, if any, which had been entered into between the employees union and the management. This is further clear from Sub-rule 8 of Rule 6 which provides that in respect of all statutory and other schemes and employment-related matters, including the provident fund, gratuity fund, pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners, the relevant transferee shall stand substituted for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters .

23. It is a settled principle of interpretation that a word or expression that appears in a statute or rule should be construed in the sense in which it is generally understood in common parlance. The words appearing in this rule namely litigation, suits, claims, cannot be construed to limit the meaning of suits, litigation to mean the suits or claims pending between Page 1198 the consumer/contractor and DVB. The elementary principle of interpretation of statutes is that where the language is clear, the intention of the legislature is to be gathered from the language used. Attention has to be paid to what has been said and also what has not been said. The plain words 'proceedings' , ' litigation', 'claim' etc. used in Rule 6(11) and Rule 8 cannot be read so as to limit their meaning and that is also not the intention of the framer of the rules.

24. The Hon'ble Supreme Court in (2005) 10 Supreme court cases 437 State of Jharkhand v. Govind Singh as under:

10. When the words of a statute are clear, plain or unambiguous i.e. They are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said.

11. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided,. As was noted by the Privy Council in Crawford s. Spooner

We cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there

The view was reiterated by this Court in State of M.P. v. G.S. Dall and Flour Mills and State of Gujarat v. Dillipbhai Nathjibhai Patel. Speaking briefly, the court cannot reframe the legislation , as noted in J.P. Bansal Case for the very good reasons that it has no power to legislate.

12. It is said that a statute is an edict of the legislature. The elementary principle of interpreting or construing a statute is to gather the means or sententia legis of the legislature.

13. Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to communicate a particular thought. The task is not easy as the language is often misunderstood even in ordinary conversation or correspondence. The tragedy is that although in the matter of correspondence or conversation the person who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also declare its meaning , but that can be done only by making another law or statute after undertaking the whole process of law-making.

14. Statute being an edict of the legislature, it is necessary that it is expressed in clear and unambiguous language. In spite of courts saying so, the draftsmen have paid little attention and they still boast of the old British Jungle

Page 1199

I am the parliamentary draftsman

I compose the country's laws

And of half the litigation

I am undoubtedly the cause

which was referred to by this Court in Palace Admn. Board v. Rama Varma Bharathan Thampuran SCC at P.244, para 21: AIR AT p.1195, OPARA 21. In Kirby v. Leather the draftsmen were severely criticized in regard to Section 22(2)(b) of the UK Limitation Act, 1939 , as it was said that the section was so obscure that the draftsmen must have been of unsound mind.

15. Where, however, the words were clear, there is no obscurity,, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so . (See frankfurter: Some Reflections on the Eading of Statues in Essays on Jurisprudence, Columbia Law Review, p. 51.)

16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs All ER at p. 542 c-d:

It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest.

17. Where, therefore, the language is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitutions of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here. (See Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests AIR at p. 1752, Shyam Kishori Devi v. Patna Municipal Corporation AIR at p 1682 and A.R. Antulay v. Ramdas Sriniwas Nayak SCC at pp. 518, 519). Indeed, the court cannot reframe the legislation as it has no power to legislate. {See State of Kerala v. Mathai Verghese SCC at p. 749 and Union of India v. Deoki Nandan Aggarwal AIR at p. 101).

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18. The question is not what may be supposed and has been intended but what has been said. Statues should be construed, not as theorems of Euclid , Judge Learned had said, but words must be construed with some imagination of the purposes which lie behind them . (See Lenigh Valley Coal Co. v. Yensavage.) the view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama SCC p.284, para 16

19. In D. R. Venkatchalam v. Dy. Transport Commissioner. It was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

20. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See CST v Popular Trading Co.) The legislative casus omissus cannot be supplied by judicial interpretative process.

21. Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statue or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. An intention to produce an unreasonable result , said Danckwerts, L.J. In Artemiou v. Procopiou All ER p. 544 I, is not to be imputed to a statute if there is some other construction available Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result , we must do some violence to the words and so achieve that obvious intention and produce a rational construction. {Per Lord Reid in Luke v. IRC where at AC p. 577 All ER p. 664 I he also observed: 'This is not a new problem, though our standard of drafting is such that it rarely emerges.'}

22. It is then true that, when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt . But , on the other hand, it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom . (See Fenton v. Hampton.) A casus omissus Page 1201 ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bids existit praetereunt legislatores, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such state-casus omissus et oblivioni datus dispositioni communis Jurisdiction relinquitur; a casus omissus , observed Buller, J. in Jones v. Smart TR at p. 52: ER at p. 967, can in no case be supplied by a court of law, for that would be to make laws .

25. From the scheme of the Act and Rules it is clear that not only the assets and liabilities were transferred to the transferee company, the entire past and future litigation was also transferred to the transferee company, be that litigation in respect of employees , consumers and other parties. The scheme of the rules provided that all corresponding employees were transferred by way of forming a list in respect of the employees who were working in the respective areas. All employees who were under suspension or termination and in respect of whom any kind of proceedings as defined in Rule 2(n) were pending at different stages were also specifically made the responsibility of the transferee companies under Rule 6 (11).

26. Rule 5 (2) specifically provided that the transferee company shall be responsible for all contracts, rights, deeds, schemes, bonds, agreements and other instruments of whatever nature relating to the respective undertaking and assets and liabilities transferred to it. Section 15 of the Act specifically provided that after the coming into effect of the transfer scheme all debts and obligations incurred ,all contracts entered into, and all matters with or for the Board, or a company or companies established as the case may be, shall be deemed to have been incurred into and done by the transferee company. It is specifically provided that all suits and other legal proceedings instituted by or against the Board or the transferee company as the case may be , may be continued or instituted by or against the Government or the concerned transferee company.

27. In view of the above provisions, there is no escape from concluding that even in all those suits which were pending or filed by the retired employees in the court claiming for their service benefits, thereby creating liability of DVB, the respective transferee company, transferee company shall be substituted instead of DVB.

28. The question arises as to how it will be decided and to which transferee company shall be responsible for the erstwhile employee. In order to determine as to which company shall be responsible for retired/terminated employee, it would be considered as if the employee had not retired or dismissed, then to which company, he would have been transferred. Rule 12(1) provides (1) If any doubt dispute, difference or issue shall arise in regard to the transfers under these rules, subject to the provisions of the Act, the decision of the government thereon, shall be final and binding on all parties. The government in exercise of its power under Rule 12(1) give decision vide letter dated 21.1.04. The letter dated 21.1.04 reads as under:

Page 1202

GOVERNMENT OF NCT OF DELHI

(DEPARTMENT OF POWER)

DELHI SECRETARIATE 8TH LEVEL, B-WING

I.P ESTATE, NEW DELHI

No. F.11(94)/2003 Power/202

dated January 21/22,2004

To

The Director (ILR)

Delhi Transco Ltd.

Shakti Sadan, Kotla Road,

New Delhi.

Sub: Removal of doubt, dispute and difference under the provisions of Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 and issue of clarificatory order by the Govt. under rule 12.

Sir,

A reference has been received from Delhi Transco Ltd, seeking clarifications from the Govt with respect to the competent authority new entity to deal with vigilance/disciplinary/court cases in relation to the employees of erstwhile DVB who could not become part of any of the Companies on 1.7.02 in terms of Delhi Electricity Reform (Transfer Scheme) Rules, 2001 due to retirement /dismissal /removal / compulsorily retirement by the then DVB

In exercise of the powers conferred by Section 60 read with Sections 15 and 16 of the Delhi Electricity Reform Act, 2000 (Delhi Act No.2 of 2001) and Rule 12 of Delhi Electricity Reform (transfer Scheme) Rules, 2001 made there under and in supersession of directions issued vide No.F.11(94)/2003/Power/103, dated 9.1.2004, it is hereby ordered and clarified to avoid any ambiguity in certainty to deal with such cases, that vigilance/disciplinary/ court cases in respect of employees of then DVB who could not become part of any of the companies, namely Delhi Power Co. Ltd,. Delhi Transco Ltd, Indraprastha Power Generation Co. Ltd, BSES Yamuna Power Ltd, BSES Rajdhani Power Ltd and North Delhi Power Ltd on 01.07.2002 on the date of restructuring due to retirement /dismissal/ removal /compulsorily retirement, etc shall be processed and decided by such company who would have been the Controlling Authority of the employee but for their requirement /removal /dismissal /compulsorily retirement, etc as per schedule 'B', 'C', 'D', 'E' & 'F 'of Delhi Electricity Reform (Transfer Scheme) Rules, 2001.

Yours faithfully, Sd/-

(Y. V. V. J. Rajasekhar) Deputy Secretary (Power)

29. We hold that it would be NDPL which would be responsible for the payment of the amount as per the directions of the learned Single Judge to respondent No. 1 and not the Delhi Power Company Ltd. The order of the learned Single Judge is set aside and the appeal is allowed.