Delhi High Court
Iqbal Chand vs Govt. Of Nct Of Delhi And Ors on 31 January, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No. 13834/2009 & conn.
% 31st January, 2013
+ W.P.(C) 13834/2009
IQBAL CHAND ..... Petitioner
Through: Mr. Bhim Sain, Adv.
versus
GOVT. OF NCT OF DELHI AND ORS ..... Respondents
Through: Ms. Sangeeta Sondhi, Adv. for R-1.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
+ W.P.(C) 157/2010
J P SHARMA ..... Petitioner
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND OTHERS ..... Respondents
Through: Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 241/2010
VED PRAKASH BANSAL ..... Petitioner
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND OTHERS ..... Respondents
Through: Mr. S.C.Gupta, Adv. for DTL.
Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 259/2010
HARNAM SINGH ..... Petitioner
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Adv.
with Mr. Piyush Royal, Adv. and Mr.
Narayman, Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 260/2010
N.L. KUBETKAR ..... Petitioner
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND OTHERS ..... Respondents
Through: Mr. S.C.Gupta, Adv. for DTL.
Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 294/2010
J N AGARWAL ..... Petitioner
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND OTHERS ..... Respondent
Through: Mr. Sumeet Pushkarna, Adv.
with Mr. Piyush Royal, Adv. and Mr.
Narayman, Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 322/2010
J S DADWAL(DECEASED) THORUGH LEGAL HEIRS ..... Petitioners
Through: Mr. L.D.Adlakha and Ms. Ripu Adlakha,
Advocates.
versus
DELHI POWER CO LTD AND ORS ..... Respondents
Through: Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
Mr. Sandeep Sethi, Sr. Adv. with Mr.
Anupam Varma and Mr. Nikhil Sharma,
Advocates for NDPL (TPDDL)
+ W.P.(C) 2594/2010
MURLI DHAR MISHRA ..... Petitioner
Through: Mr. Bhim Sain, Advocate.
versus
GNCT OF DELHI AND ORS ..... Respondents
Through: Mr. S.C.Gupta, Adv. for DTL.
Mr. Sumeet Pushkarna, Adv. with Mr.
Piyush Royal, Adv. and Mr. Narayman,
Manager Pension Trust.
+ W.P.(C) 6131/2010
JANAK SINGH RANA ..... Petitioner
Through: Mr. Anil Verma, Adv.
versus
DELHI TRANSCO LTD ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. The limited issue which is urged for seeking the reliefs prayed by the
petitioners in these writ petitions is of the entitlement of employees of erstwhile
Delhi Vidhyut Board (DVB) who retired before the circulars dated 23.7.1997 and
21.12.1999 for grant of benefit as per these circulars. By these circulars the Delhi
Vidhyut Board had granted enhancement in scale of pay to its employees with
effect from a retrospective date i.e 1.4.1994. The issue is whether the employees
who have retired in the period from 1.4.1994 to 1997/1999when the circulars were
issued are or are not entitled to the monetary benefits given by these circulars.
2. This issue is no longer res integra and decided in terms of the
judgment of a Division Bench of this Court in the case of Govt. of NCT of Delhi &
Ors Vs. K.R.Jain & Ors (2006 IV AD (Delhi) 529). By this judgment, the Division
Bench set aside the judgment of a learned Single Judge of this Court dated
23.11.2004 passed in CMs 8463-64/2004 in W.P(C) No. 2337/2004 whereby the
learned Single Judge had fixed the liability with respect to the employees of DVB
whose services were transferred to the DISCOMS not on the DISCOMS but upon
M/s Delhi Power Company Limited. The judgment of the learned Single Judge
dated 23.11.2004 was passed on the applications seeking clarification as to on
whom would the liability fall in terms of the judgment which was passed on
23.3.2004 allowing the writ petition W.P.(C) 2337/2004 holding that the
employees of DVB who ceased to be in service between 1.4.1994 and 23.7.1997
would be entitled to the benefits of time bound promotion policy contained in the
circulars dated 23.7.1997 and 21.12.1999. In fact, the original order dated
23.3.2004 passed in W.P(C) No. 2337/2004 simply reiterates the earlier decision in
W.P.(C) No. 4316/2001 titled as D.S.Chauhan Vs. Delhi Vidyut Board dated
11.2.2004.
3. The judgment of the Division Bench in the case of Govt. of NCT of
Delhi & Ors Vs. K.R.Jain & Ors (supra) was taken in challenge before the
Supreme Court and the judgment of the Supreme Court is reported as North Delhi
Power Limited Vs. Govt. of National Capital Territory of Delhi & Ors. (2010) 6
SCC 278. The Supreme Court has upheld the judgment of the Division Bench of
this Court and held that all service related benefits, including terminal benefits of
the employees, are the liability of the DISCOMS. Paras 52, 60 and 61 of the said
judgment are relevant and which read as under:-
"52. A glance at these sub-rules is sufficient to come to the
conclusion that the liabilities have undoubtedly been
transferred to the DISCOMs which include both NDPL as
well as BSES. A feeble argument was raised that sub-rule
(8) does not contemplate pension or any liability on account
of the revised pay scale or interpretation of respective scheme
of promotion so far as existing pensioners or the erstwhile
DVB are concerned to the DISCOMS. Considering the
board language of the Rule, we do not think that such
contention is possible."
60. The transfer of personnel and all the principles,
therefore, are governed by Rule 6 alone. As provided in
Rule 6(2), there are lists wherein the personnel have been
classified into five groups based on the principle of "as is
where is", where a specific reference is to be found to
GENCO, TRANSCO and the three DISCOMS. Very
significantly, there is no reference to DPCL. Thus, no
employee was transferred to DPCL. This is in case of the
existing employees. Sub-rule (8), however, takes into sweep
not only the existing employees, who find the reference in the
lists prepared under Rule 6(2), but also makes a reference to
the employment related mattes including provident fund,
gratuity fund, pension and any superannuation fund or special
fund created or existing for the benefit of personnel and the
existing pensioners. There was no question of existing
pensioners being covered under the lists prepared under Rule
6(2).
61. By using the words "existing pensioners" and by
providing that the relevant transferee would 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, the legislative intention is very clearly displayed to
the effect that the existing pensioners on the day of transfer
were also covered and stood transferred to the DISCOMS
and not to DPCL and it is only the transferee DISCOM who
would substitute for the Board. Once these Rules are read in
proper perspective, there is hardly any doubt about the
liability of DISCOMs in respect of existing pensioners on the
day of transfer. There can be no dispute that those who
retired and those who were serving with the Board would
stand transferred in respect of their liabilities, etc. to the
successor company i.e DISCOM 3. The High Court has
correctly appreciated this position."
(underlining is added)
4. In view of the above, there can really be no dispute that the liability
with respect to monetary benefits which are claimed in these writ petitions by those
employees who retired prior to issuance of the circulars in the year 1997 and 1999
have to necessarily fall upon DISCOMS or the relevant transferee company
including M/s Delhi Transco Ltd., M/s BSES Rajdhani Power Limited, BSES
Yamuna Power Company Limited (BYPL) and NDPL Limited are the DISCOMS
and reference in this judgment to DISCOMS will include reference to the
DISCOMS and the transferee companies.
5. On behalf of the DISCOMS and the transferee companies, two main
arguments were urged for dismissal of the writ petitions as under:-
(i) The petitioners have approached this Court with considerable
delay and laches inasmuch as the benefits of the circulars dated 23.7.1997 and
21.12.1999 are being claimed in the year 2009 onwards.
(ii) The second argument is that the liability for all monetary
benefits payable to the employees of erstwhile DVB in the nature of gratuity and
terminable benefits is not the liability of the DISCOMS or the transferee
companies but of the concerned Pension Fund of 2002.
6. So far as the second argument that the liability is not of the
DISCOMS or the transferee companies, and in fact of the relevant Pension Fund of
2002, I need not adjudicate upon this issue in the present petitions, inasmuch as,
the Supreme Court in the judgment of North Delhi Power Limited (supra) has
specifically in paras 60 and 61 held that the liability will be of the DISCOMS, and
therefore, the liability in the present writ petitions have to be fastened on the
DISCOMS or the transferee companies. However, I may add that if the DISCOMS
feel that by virtue of the transfer scheme they are entitled to seek reimbursement of
its claim from the relevant Pension Fund of 2002, then, if permissible in law, the
DISCOMS and the relevant transferee company can take appropriate action for
recovery of those amounts from the concerned Pension Fund towards seeking that
such trust fund may directly make payment to the petitioners. This will however
strictly be between the DISCOMS and the transferee companies on the one hand
and the concerned Pension Fund of 2002 on the other, however, for that reason,
there cannot be delay in clearing of any liability to the petitioners in this case.
Accordingly, I reject the argument raised by the DISCOMS and the transferee
companies with the aforesaid observations that against the DISCOMs and the
transferee companies the petitioners are not entitled to the reliefs claimed in these
writ petitions of terminal benefits pursuant to the circulars dated 23.7.1997 and
21.12.1999. For the sake of completion of narration I must refer to the fact that the
counsel for the Pension Fund has referred before me a judgment of a learned
Single Judge of this court in the case titled as Babu Ram Jain Vs. BSES Yamuna
Power Ltd in W.P.(C) 1597/1998 decided on 4.8.2011 and first para of this
judgment directs deletion of Delhi Vidyut Board Employees Provident Terminal
Fund 2002 and substitutes in its place BSES Yamuna Power Ltd. (BYPL) ie
holding the liabilities for the terminal benefits etc to be of the
DISCOMS/transferee companies and not of the Pension Fund. While disposing of
the W.P.(C) 1597/1998, the learned Single Judge also in para 11 specifically
directs the DISCOMS ie M/sBYPL to pay to the petitioners all consequential
benefits by way of arrears of salary and other retiral benefits.
7. So far as the issue of delay and laches is concerned, learned senior
counsel appearing on behalf of DISCOMS relies upon the judgment of the
Supreme Court in the case of U.P.Jal Nigam and Anr. Vs. Jaswant Singh and
Anr. (2006) 11 SCC 464, paras 6,13 and 16 which read as under:-
6. The question of delay and laches has been examined by
this Court in a series of decisions and laches and delay has been
considered to be an important factor in exercise of the
discretionary relief under Article 226 of the Constitution. When
a person who is not vigilant of his rights and acquiesces with the
situation, can his writ petition be heard after a couple of years on
the ground that same relief should be granted to him as was
granted to person similarly situated who was vigilant about his
rights and challenged his retirement which was said to be made
on attaining the age of 58 years. A chart has been supplied to us
in which it has been pointed out that about 9 writ petitions were
filed by the employees of the Nigam before their retirement
wherein their retirement was somewhere between 30-6-2005 and
31-7-2005. Two writ petitions were filed wherein no relief of
interim order was passed. They were granted interim order.
Thereafter a spate of writ petitions followed in which employees
who retired in the year 2001, 2002, 2003, 2004 and 2005, woke
up to file writ petitions in 2005 and 2006 much after their
retirement. Whether such persons should be granted the same
relief or not?
13. In view of the statement of law as summarized
above, the respondents are guilty since the respondents have
acquiesced in accepting the retirement and did not challenge the
same in time. If they would have been vigilant enough, they
could have filed writ petitions as other did in the matter.
Therefore, whenever it appears that the claimants lost time of
whiled it away and did not rise to the occasion in time for filing
the writ petitions, then in such cases, the court should be very
slow in granting the relief to the incumbent. Secondly, it has also
to be taken into consideration the question of acquiescence of
waiver on the part of the incumbent whether other parties are
going to be prejudiced if the relief is granted. In the present case,
if the respondents would have challenged their retirement being
violative of the provisions of the Act, perhaps the Nigam could
have taken appropriate steps to raise funds so as to meet the
liability but by not asserting their rights the respondents have
allowed time to pass and after a lapse of couple of years, they
have filed writ petitions claiming the benefit for two years. That
will definitely require the Nigam to raise funds which is going to
have serious financial repercussions on the financial management
of the Nigam Why should the court come to the rescue of such
persons when they themselves are guilty of waiver and
acquiescence?
16. Therefore, in case at this belated stage if similar relief is to
be given to the persons who have not approached the court that
will unnecessarily overburden the Nigam and the Nigam will
completely collapse with the liability of payment of these persons
in terms of two years' salary and increased benefit of pension and
other consequential benefits. Therefore, we are not inclined to
grant any relief to the persons who have approached the court
after their retirement. Only those persons who have filed the writ
petitions when they were in service or who have obtained interim
order for their retirement, those persons should be allowed to
stand to benefit and not others. We have been given a chart of
those nine persons, who filed writ petitions and obtained stay and
are continuing in service. They are as follows:
1. Shri Bhawani Sewak Shukla
2. Shri Vijay Bahadur Rai
3. Shri Girija Shanker
4. Shri Yogendra Prakash Kulshresht
5. Shri Vinod Kumar Bansal
6. Shri Pradumn Prashad Mishra
7. Shri Banke Bihari Pandey
8. Shri Yashwant Singh
9. Shri Chandra Shekhar
And the following persons filed writ petitions before retirement
but n o stay order was granted:
1. Shri Gopal Singh Dangwal (WP No. 35384 of 2005 vide
order dated 5-5-2005)
2. Shri R.R. Gautam (WP No. 45495 of 2005 vide
order dated 15-6-2005)"
8. In my opinion, in the facts of the present case, I am not inclined to
dismiss the writ petitions on account of delay and laches and it will be sufficient if
I order that while the writ petitions are allowed, the petitioners will not be entitled
to any interest on the monetary benefits which they have to get till the writ
petitions were filed. After the filing of these petitions in terms of my subsequent
observations, since the writ petitions have been contested, interest will be payable
to these petitioners.
9. The judgment relied upon by the DISCOMS of U.P.Jal Nigam &
Anr. (supra) dealt with a case where benefit of increase of service age up to the
age of 60 years was sought by the persons/employees who had already retired.
Such employees had come to the Court well after the retirement. Such persons
therefore had not worked for the period for which the service would have been
extended for them up to the age of 60 years. There would have been therefore
huge liability with respect to persons who never worked up to the period of 60
years who were claiming the benefit of extension of service up to 60 years. It is in
those circumstances that the Supreme Court applied the doctrine of delay and
laches to deny the service benefits to such employees who already stood retired.
However, in the present case, it is not as if the petitioners in the present case have
to do any positive act whether towards serving the erstwhile employer or in any
manner bring about a positive act before any monetary benefits can be claimed.
The monetary benefits which are claimed are actually only consequential benefits
to the implementation of the circulars dated 23.7.1997 and 21.12.1999 and nothing
further is required to be done. I may note that the Supreme Court has held in a
catena of judgments that grant of pensionary benefits and terminal benefits to
retired employees is not a bounty but is a legal right of such retired employees.
Therefore, the consequential benefits of the circulars dated 23.7.1997 and
21.12.1999 which will translate to terminal benefits to be given to the retired
employees falls within the realm of the duties to be performed by the DISCOMS
and the transferee companies, and therefore, the writ petitions cannot be dismissed
on the ground of delay and laches although as already stated above, no interest will
be payable to the petitioners from the dates on which the circulars came into force
till the time the respective writ petitions were filed.
10. Another reason for me not to accept the argument of delay and laches
is that it is only in 2010 that the Supreme Court decided as to who was liable ie the
liability was held to be of the DISCOMs/transferee companies and thus there was
no certainty before 2010 as to the entity which will be liable. Thus it cannot be
said that there is such delay and laches for denying the service/terminal benefits to
the employees.
11. In view of the aforesaid discussion, the writ petitions are allowed.
Petitioners are directed to be paid the entire consequential monetary benefits on
they being given the benefits of the circulars dated 23.7.1997 and 21.12.1999. The
petitioners will also be entitled to interest at the rate of 6% per annum simple till
the payment of the monetary benefits payable to them from the dates of filing of
these petitions provided that such monetary benefits are paid on or before a period
of three months from today. In case, there is delay in payment of the monetary
benefits to the petitioners beyond three months, then the petitioners will be entitled
to interest at the rate of 9% per annum simple for the period after three months.
It will be open to the DISCOMS and the transferee companies to
approach the relevant Pension Fund so that the DISCOMS and the transferee
companies know the dues which would be payable to the petitioners, however at
the same time making it clear that this would not affect the directions with respect
to the time of payment and the interest as stated above.
12. The writ petitions are allowed and disposed of with the aforesaid
observations, leaving the parties to bear their own costs.
JANUARY 31, 2013 VALMIKI J. MEHTA, J.
ib
