Delhi High Court
Shanti Devi vs Delhi Transco Limited And Ors. on 28 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2619/2004
% 28th March, 2017
SHANTI DEVI ..... Petitioner
Through: Mr. Charan Jeet, Advocate.
versus
DELHI TRANSCO LIMITED AND ORS. ..... Respondents
Through: Mr. Sumeet Pushkarna, Standing
Counsel with Mr. Siddhartha Nagpal,
Advocate for R-2.
Mr. Sandeep Prabhakar and Mr.
Anupam Varma, Advocates for R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1. By this writ petition under Article 226 of the Constitution
of India, the petitioner, widow of the late employee Sh. Ram Sagar
Sharma, who died on 11.2.1992, seeks the relief of being granted
pension by converting the CPF entitlement of her late husband Sh.
Ram Sagar Sharma to pensionary benefit in terms of the office order
dated 22.8.1992 of the erstwhile Delhi Vidyut Board (DVB), and of
which entity the respondent no. 3/BSES Yamuna Power Limited
(BYPL) is the successor entity.
2. The case of the petitioner is that her husband was working
with DVB as a Bill Messenger and he died in harness on 11.2.1992.
Petitioner pleads that a pension scheme was subsequently taken out by
DVB on 22.8.1992 as a result of which petitioner's husband or the
petitioner became eligible to pension by refunding the CPF benefits
received along with interest. There was subsequently another office
order also issued by the DVB dated 20.5.1998 (wrongly written as
22.8.1998 in the writ petition) extending the period of exercising of the
option for converting from CPF scheme to pension scheme.
3. Petitioner pleads that there was the requirement of the
scheme of the petitioner to be informed and since the petitioner was
not informed by the DVB of her entitlement to change her option from
CPF benefit to pensionary benefit, therefore, petitioner who came to
know of the scheme for the first time in the year 2002 sent her legal
notice dated 29.11.2003 to the respondent no. 1 and since there was no
response hence the present writ petition was filed.
4. Originally, there were two respondents in the writ petition.
Respondent no. 1 was Delhi Transco Limited DVB Employees
Terminal Benefits Fund and respondent no. 2 was Delhi Transco
Limited. Taking the pleadings of respondent nos. 1 and 2, this Court
had allowed the writ petition as per its judgment dated 16.12.2013
when the respondent no. 3 was not a party. Respondent no. 3 hence
filed an appeal against the judgment dated 16.12.2013 in LPA
No.710/2014 and this appeal was therefore allowed, inasmuch as,
effectively there was a judgment against the respondent no. 3 without
the respondent no. 3 being made party to the writ petition. The
Division Bench hence vide order dated 9.2.2015 remanded the matter
for fresh decision on account of impleadment of the respondent no. 3
and after completion of pleadings qua the respondent no. 3.
5. Admittedly, respondent no. 3 is the legal entity which
after unbundling of DVB, is the successor entity of DVB so far as the
services of late Sh. Ram Sagar Sharma with DVB are concerned.
6. Respondent no. 3 in its counter affidavit has taken up two
main objections. The first objection is that the record of DVB stood
weeded out in terms of DVB office order dated 2.3.1998 and hence
dispatch and receipt registers maintained as on that date were to be
retained only for three years and thereafter were destroyed.
Accordingly, firstly it is contended that today in view of the absence of
records it is not possible to determine as to whether petitioner was or
was not informed for exercising of her option. Secondly, the writ
petition is argued to be dismissed on account of delay and laches as
petitioner has not given any specific reason as to why petitioner only in
the year 2002 came to know of the pension scheme of the years 1992
and 1998, and especially when the son of the petitioner, namely, Sh.
Om Prakash Sharma already had got compassionate appointment in the
year 1994 on account of death of petitioner's husband while working
with DVB. Since Sh. Om Prakash Sharma was an employee of DVB
from 28.12.1994, he would be deemed to know the pension scheme of
the year 1998, and it is seen that there is no averment of the petitioner
in the rejoinder affidavit that the petitioner's son Sh. Om Prakash
Sharma has not been residing with the petitioner for petitioner to have
knowledge of the 1998 pension scheme.
7. In my opinion, since earlier the writ petition was allowed
in the absence of respondent no. 3, and now the pleadings of
respondent no. 3 have come on record it is seen that the relevant
records in this case stood weeded out in the year 2001. Once, records
are weeded out, thereafter it is not possible for respondent no. 3, which
is a successor entity of DVB, to effectively rebut the stand of the
petitioner that petitioner was not informed. One of the rationales for
existence of the Limitation Act, 1963 is that evidence is lost after a
period of time, and once the evidence is lost it is difficult to decide
cases and hence suits filed beyond the period of limitation have to be
dismissed. Strictly though the Limitation Act does not apply to writ
petitions the underlying principles of the Limitation Act apply for
dismissing time barred writ petitions on the ground of delay and laches
and as held by the Supreme Court in the case of State of Orissa and
Another Vs. Mamata Mohanty (2011) 3 SCC 436, and the relevant
paras 52 to 54 of which judgment read as under:-
"52. In the very first appeal, the respondent filed writ petition on
11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f.
1.1.1986 without furnishing any explanation for such inordinate delay
and on laches on her part. Section 3 of the Limitation Act 1963, makes it
obligatory on the part of the court to dismiss the Suit or appeal if made
after the prescribed period even though the limitation is not set up as a
defence and there is no plea to raise the issue of limitation even at
appellate stage because in some of the cases it may go to the root of the
matter.
53. Needless to say that Limitation Act 1963 does not apply in writ
jurisdiction. However, the doctrine of limitation being based on public
policy, the principles enshrined therein are applicable and writ petitions
are dismissed at initial stage on the ground of delay and laches. In a case
like at hand, getting a particular pay scale may give rise to a recurring
cause of action. In such an eventuality, the petition may be dismissed on
the ground of delay and laches and the court may refuse to grant relief
for the initial period in case of an unexplained and inordinate delay. In
the instant case, the Respondent claimed the relief from 1.1.1986 by
filing a petition on 11.11.2005 but the High Court for some unexplained
reason granted the relief w.e.f. 1.6.1984, though even the Notification
dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.
54. This Court has consistently rejected the contention that a petition
should be considered ignoring the delay and laches in case the petitioner
approaches the Court after coming to know of the relief granted by the
Court in a similar case as the same cannot furnish a proper explanation
for delay and laches. A litigant cannot wake up from deep slumber and
claim impetus from the judgment in cases where some diligent person
had approached the Court within a reasonable time."
8. In my opinion, therefore, on account of huge delay of time
from the entitlement of the petitioner firstly in the year 1992 and
thereafter in 1998, yet petitioner having only approached this Court in
the year 2004 by filing this writ petition when the record of the
erstwhile DVB was already weeded out, in my opinion, this writ
petition is liable to be and is accordingly dismissed on the ground of
delay and laches.
9. I would also like to note that petitioner should be deemed
to be imputed with the knowledge with respect to entitlement of the
petitioner to switch over from CPF benefit to pensionary scheme,
inasmuch as, petitioner's son was employed with the DVB in the year
1994 and therefore they would surely have knowledge of the new
pension scheme which was issued in the year 1998. Petitioner, who is
the mother of Sh. Om Prakash Sharma since can therefore be imputed
the knowledge with respect to 1998 Scheme, and once that knowledge
is imputed and petitioner failed to apply within the permissible time
from changing the option from CPF scheme to Pension Scheme,
accordingly, petitioner cannot be granted pension under the pension
schemes of 1992 and 1998 of the DVB and now being implemented by
the respondent no. 3.
10. I may note that respondent nos. 1 and 2 are neither
necessary nor proper parties in the writ petition and therefore pleadings
of these respondent nos. 1 and 2 are immaterial for deciding this writ
petition.
11. I may also note that the present case may be a hard case as
against the petitioner but that has to be the effect of principles of
limitation and delay and laches. Also, it is not as if the petitioner is
very seriously prejudiced as petitioner from the year 1992 till date, i.e
roughly a period of around 25 years, has been enjoying the corpus of
the provident fund along with interest accrued thereon, and such
benefit being already available to the petitioner, and therefore denial of
pension to the petitioner in the facts of the present case would not be a
grave injustice upon the petitioner.
12. Accordingly, the writ petition being barred by limitation is
therefore dismissed by applying the doctrine of delay and laches and in
view of the judgment of the Supreme Court in the case of Mamata
Mohanty (supra).
13. The writ petition is accordingly dismissed, leaving the
parties to bear their own costs.
MARCH 28, 2017 VALMIKI J. MEHTA, J
AK
