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Delhi District Court

Ranveer Singh S/O Sh. Narain Dutt Sharma vs Bses Rajdhani Power Ltd on 28 February, 2012

              IN THE COURT OF HARJYOT SINGH BHALLA
             CIVIL JUDGE-01, SOUTH DISTRICT, NEW DELHI

Suit No. 49/10
Case ID No.02406C0313682010
In The Matter of:
Ranveer Singh S/o Sh. Narain Dutt Sharma
R/o Village Shahjad Pur,
Post Sandal Kalan,
Tehsil Sonepat (Haryana)                 .................Plaintiff

                                      Versus

1. BSES Rajdhani Power Ltd.
Through CEO/CMD/MD/Director/Addl. Manager,
HR, BSES Bhawan, Nehru Place,
New Delhi-19.

2. M/s. DVB ETB Fund,
(Pension Trust),
Through its Manager / A.R.
Rajghat Power House,
New Delhi-110002.

3. The State (NCT of Delhi)
Through Hon'ble Lt. Governor of
NCT of Delhi at:
L.G. House, Civil Lines,
Delhi.                                   ..............Defendants

                   SUIT FOR MANDATORY INJUNCTION

Date of Institution               :      04.10.2010
Date of reserving the Order       :      Oral
Date of pronouncement             :      28.02.2012

JUDGMENT (Oral):

By this judgment I shall dispose of the above suit filed by the Ranveer Singh Vs. BSES & Ors Page 1 of 35 Suit No. 49/10 plaintiff seeking mandatory Injunction against the Defendants for release of arrears of his salary and pension and other terminal benefits. Brief Background:

2 On 01.07.2002, the Delhi Vidyut Board ("DVB" in short and successor of Delhi Electricity Supply Undertaking) was unbundled to give room to several smaller distribution companies for the purpose of distribution of electricity within Delhi. The exercise was carried out for the purpose of privatizing the activity of supply of electricity, which activity was hitherto being carried out by DVB.

3 This entire exercise was preceded by passing of Delhi Electricity Reforms Act 2000 (hereinafter the Act) which came into force on 08.03.2001. Under Section 15 of the Act there was a provision made for preparation of transfer scheme for transferring the existing generation, transmission and distribution system or part thereof to any company. Under such scheme, the property interests, assets and liabilities could be transferred to the companies which were to take up the responsibility of generation, transmission and distribution of electricity or any one of these functions.

Under Section 16 of the Act, the transfer scheme(s) could also provide for transfer of personnel from DVB to any of the companies provided the terms and conditions of service applicable to them were not less favourable to them then those applicable before the transfer. The benefits of service already accrued before transfer had to be recognized and protected. (See Judgment dated 03.05.2010 passed by the Hon'ble Supreme Court of India in North Delhi Power Ltd. Vs. Govt. Of NCT of Delhi & Ors. CA No. 4269/06 (hereinafter referred to as NDPL II decision)) 4 Accordingly, a transfer scheme called Delhi Electricity Reforms Ranveer Singh Vs. BSES & Ors Page 2 of 35 Suit No. 49/10 (Transfer Scheme) Rules 2001 came into existence (hereinafter referred to as "the Scheme"). There was some apprehension shown by the employees of the erstwhile Delhi Vidyut Board qua protection of their service, hence a tripartite agreement was executed on 28.10.2000 and 09.11.2000 between the Govt. of NCT of Delhi (GNCTD), DVB and DVB Joint Action Committee. After the Act and the Scheme came in place, the Request For Qualification (RFQ) document was floated on 15.02.2001. The RFQ, providing the manner of privatization, specifically and expressly provided that "DVB was being offered to private companies as ongoing concern on business valuation method" and entailed transfer of the past, future and present liabilities including those of existing employees as well as the retirees. Even the details of the employees as on 01.01.2000 was provided. The DVB ultimately unbundled into 6 companies. See NDPL II decision (Supra). The Defendant No. 1 before me is one of the transferee companies which has taken up the distribution work, earlier carried out by DVB, in a part of Delhi. Brief Averments culled out from the pleadings:

Plaintiff's case as per Plaint:

5 Plaintiff was employed with the BSES, the Defendant No.1 herein on the post of Driver. He remained sick from 21.07.2005 to 02.07.2006 and he was not in a position to resume work and accordingly moved an application seeking voluntary retirement from service (hereinafter referred to as "VRS") under Rule 48A of CCS (Pension) Rules, by moving an application. His application was accepted by the defendant no. 1 on 26.08.2006. 6 On 07.08.2007, plaintiff moved an application before the defendant no. 1 for his arrears of salary and again on 13.12.2007 for arrears of pension but the requests were not entertained. On 10.08.2008, plaintiff Ranveer Singh Vs. BSES & Ors Page 3 of 35 Suit No. 49/10 made written request through a letter but to no avail. On 26.03.2008, plaintiff made representation in writing to APIO, Delhi Transco Ltd. but again of no avail.

7 On 26.03.2008, plaintiff preferred an application under the Right to Information Act and he was advised to contact defendant no.1 and 2. On 01.07.2008/02.07.2008, plaintiff had approached the defendants but plaintiff got no positive response. Legal notice was got issued on 23.08.2008 through registered AD which was served on all the defendants. Only defendant no. 2 sent a reply.

8 It is stated that defendant no.1 and 2 are governed by defendant no. 3 and as such all the defendants are liable towards the plaintiff. Plaintiff had earlier filed a suit for mandatory injunction at Karkardooma Court wherein defendants had filed a written statement, however, the same was withdrawn on 12.08.2010 with liberty to file a fresh suit due to technical defects in the plaint. Hence, the present suit has been filed. 9 Plaintiff has prayed that (a) mandatory injunction be passed against defendant no. 1 directing defendant no. 1 to release the arrears of the salary from 1999 and pension and other benefits; (b) mandatory injunction directing defendant no. 1 and 2 to prepare and supply details of amounts of pension and to start paying the same, (c) mandatory injunction directing defendant no. 2 to release the GPF and other retirement benefits etc. (d) A mandatory injunction against defendant no. 3 directing defendant no. 3 to release arrears of salary of the plaintiff from the year 1999 and other benefits with upto date interest.

Defendant no. 1 BSES's case as per Written Statement : 10 Defendant no. 1, BSES has not disputed the facts averred by the Ranveer Singh Vs. BSES & Ors Page 4 of 35 Suit No. 49/10 Plaintiff. It has, however, denied its liability to pay by setting up a defence. It is averred that defendant no. 1 is not liable to pay any amount. It is averred that the case of the plaintiff had been forwarded to SVRS RTBF 2004 (a trust meant for employees who had opted for Voluntary Retirement under Special Voluntary Retirement Scheme, hereinafter referred to as "SVRS") after processing the same and it was returned with the remark that SVRS RTBF 2004 is meant for SVRS employees only and not for employees seeking voluntary retirement under any other rule or scheme. 11 It has taken a stand that, when the DVB was unbundled in the year 2002, a Pension Trust namely DVB Employee Terminal Benefit Fund Trust 2002 (the Defendant No. 2 herein and hereinafter referred to as "DVB ETBF 2002") was created to cater to the issue of disbursement of retirement benefits to employees of DVB who came into the rolls of the Transferee Companies like the Defendant No. 1. It is averred that any liability in the present case is of the Pension Trust.

12 It is averred that under Rule 48A of CCS Pension Rules 1972, an employee who has completed twenty years of qualifying service may seek voluntary retirement (VRS). The plaintiff had accordingly requested for voluntary retirement which was accepted and he retired on 26.08.2006. It is averred that although the Pension Trust / defendant no. 2 herein was making payments to all the retirees including those who had sought voluntary retirement, all of a sudden the Defendant no. 2 stopped making payments to employees seeking VRS.

13 It is averred that Govt. of NCT of Delhi, defendant no. 3 issued an order no. F.11(01)/2009/Power/2901 dated 03.11.2009 directing the defendant no. 2 to make the payments in cases of VRS as well. It is averred Ranveer Singh Vs. BSES & Ors Page 5 of 35 Suit No. 49/10 that after order dated 03.11.2009 was passed by Delhi Government, file was sent to Pension Trust, DVB ETBF 2002 (the Defendant No. 2 herein) and Defendant No.2 ought to have paid. The defendant no. 1 has thus taken a stand that although the plaintiff was its employee and took VRS as alleged in the plaint, Defendant no. 1 is not liable to make the payment and it is defendant no. 2 which is liable to pay.

Defendant no. 2 DVB ETBF 2002's case as per Written Statement 14 Defendant no. 2 has also filed its written statement. Its stand is that payment in the cases of VRS under Rule 48A of CCS (Pension) Rules is to be borne by the employer until the employee taking VRS reaches the age of superannuation. It is averred that the plaintiff shall reach his date of superannuation in the year 2017, and the defendant no. 2 shall be liable to pay the retirement benefits only after the date of superannuation, and up to that date the Defendant No. 1 has to bear the liability. 15 The defendant no. 2 has averred that its Trust Deed does not cover the cases under Rule 48A of CCS Pension Rules. It is averred that the defendant no. 2 is a superannuation trust and only liable to pay in cases of superannuation, after the age of superannuation is reached or otherwise on the happening of contingencies such as death or incapacitation. 16 It has been averred that VRS was sanctioned by defendant no. 1 and amounts to a pre-mature separation, therefore, it is the employer who is responsible to pay all benefits uptill the employee reaches the age of superannuation. It is averred that GPF has already been paid to the plaintiff by the Defendant No.2, but the pension can be paid by Defendant No.2 only after the Plaintiff reaches the age of superannuation. The defendant no. 2 is only a disbursing authority and releases amounts subject to Rules, the Ranveer Singh Vs. BSES & Ors Page 6 of 35 Suit No. 49/10 provisions in the Trust Deed and appropriate funding from the employer. Trust Deed does not cover cases of VRS under Rule 48A and the trust is not even funded for the purpose.

Defendant no. 3 Govt. of NCT's case as per Written Statement 17 Defendant no. 3, Govt. of NCT of Delhi also filed its written statement. It is stated that plaintiff was an employee of defendant no. 1 and defendant no. 1 is liable to pay the amount. The plaintiff was transferred to the Defendant No. 1 under the provisions of Delhi Electricity Reforms (Transfer Scheme) Rules 2001. It has been averred that the plaintiff took over the business of the DVB as ongoing concern on business valuation method and all past, future and present liabilities including that of existing employees as well as of retirees were taken by the plaintiff. Reliance has been placed upon the decision of the Hon'ble Supreme Court in NDPL II (Supra). 18 It is averred that the balance of Provident Fund standing in the credit of Plaintiff was transferred from defendant no.3. The defendant no.3 has already discharged its liability under the Act and Scheme towards funding of Pension, Gratuity and GPF as assessed by actuarial valuation done by SBI Caps. As the plaintiff had taken VRS after the transfer, rather, four years after the transfer, the liability rests with the transferee company i.e. the Defendant No.1. The defendant no. 3 has denied that it is in control of defendant no. 1. Question to be determined:

19 In a nut shell the dispute in the present case is qua liability towards payment of pension to the Plaintiff who is an ex-employee of the BSES (Defendant No.1) who opted for VRS under Rule 48A of CCS (Pension) Rules. The defendant no. 2 DVB ETBF, 2002 is a Pension Trust claiming to be a superannuation fund only. The defendants in the case are Ranveer Singh Vs. BSES & Ors Page 7 of 35 Suit No. 49/10 passing on responsibility, as to payment of pension to the plaintiff, to each other.

Proceedings in the suit:

20 Before the stage of framing of issues, a direction was given to the Defendant No.1 on 1.10.2011. The said order is relevant and is being reproduced hereinbelow:

"01.10.2011 Present:Sh. Satender Kumar Sharma, Advocate for the plaintiff.

Sh. Ashok Verma, Proxy counsel for defendant no. 1 alongwith Sh. Rohit Verma, Legal Officer.

Sh. Sumit Pushkarana, Sh. K.S. Taneja, Ld. counsels for defendant no. 2.

Sh. Himanshu Bajaj, Ld. counsel for defendant no. 3.

It has been submitted by the counsel for defendant no. 2 & 3 that in case of one Sh. Chandra Mohan employee no. 23226, the claim was entertained by defendant no. 1 and the benefits cannot be denied to the plaintiff in the present case. The counsel have orally made a prayer for discovery of documents under Order 11 Rule 12 of CPC with regard to the documents pertaining to the VRS and grant of retirement benefits to Sh. Chander Mohan and all other employees of BSES in whose case retirement benefits were given even on VRS being opted for after the formation of BSES and unbundling of DVB.

I have perused the provisions of Order 11 Rule 12 of CPC. The application can be made without an affidavit and therefore in my view the same can be made orally as well.

Even otherwise, Order 11 Rule 14 of CPC empowers the court to order production of documents on oath.

In my view, the acceptance of similar claim of other employees of BSES by the BSES is a relevant fact. It is accordingly ordered that defendant no. 1 shall produce all documents in their possession, on oath, Ranveer Singh Vs. BSES & Ors Page 8 of 35 Suit No. 49/10 which pertain to acceptance of claim for retirement benefits to employees of BSES who opted for VRS under Rule 48 A of CCS (Pension) Rules.

List for compliance of order on 15.10.2011. Copy of this order be given Dasti." (Emphasis Supplied) Thereafter on 19.11.2011 the following order was passed:

"19.11.2011.

Present:Proxy Counsel for plaintiff.

Counsel for defendants.

The defendant BSES is reminded that the order dated 01.10.2011 has to be fully complied with in as much as details of all cases of VRS under Rule 48A of CCS Pension Rules has to be provided in which retirement benefits were released by BSES to the said employees.

Ld. Counsel for BSES is also directed to ensure that the affidavit should indicate as to whether any claim has been preferred to Govt. Of NCT in view of the observations made by the Hon'ble High Court of Delhi in para no. 72 of the orders in W.P. Relied upon by Counsel for BSES on interpretation of provision under Section 48A of CCS Pension Rules.

At this stage, all the parties submit that this matter can be decided without leading evidence as it only requires interpretation of the tripartite agreement and rules and judgments and the documents already placed on record by the parties which are not in dispute. The effect of non compliance of orders of production of documents shall also be considered at the stage of final hearing.

All the documents on record being admitted, the compliance of the order dated 01.10.2010 and the directions given today may be made by BSES within three weeks failing which legal consequences shall follow.

List on 07.01.2012 for final arguments." (Emphasis Supplied) Ranveer Singh Vs. BSES & Ors Page 9 of 35 Suit No. 49/10 However, instead of complying with the order the Defendant No.1 filed an additional affidavit running into 18 pages and filed documents running into almost 250 pages. However, the affidavit as well as documents were not taken on record vide order dated 25.2.2012. The relevant portion of the order is reproduced herein below:

Even by this order BSES was only directed to file response to a query made by the Court on affidavit and the query is limited as is apparent from the order. The query was whether or not BSES had filed any claim with Government of NCT in view of the observation made in para 72 of the decision in WP(C)-4827/05. In fact, on that very day, it had been submitted by counsel for the parties while giving up their right to lead oral evidence and while admitting all the documents already on record that the matter be listed for final arguments and be decided without recording any oral evidence as the dispute was a pure question of interpretation of the documents in the light of the judgment, if any, pronounced by the Higher Courts.

On the next date 07.01.2012, the direction to file an affidavit in terms of order dated 19.11.2011 was reiterated and one more opportunity was being given to the defendant as the query was relevant to the dispute. However, on 04.02.2012, the defendant filed a long additional affidavit accompanied by a sheaf of documents. Ld. Counsel has forgotten that the matter has already crossed the stage of production of documents and recording of evidence in view of the submissions made by the counsel for all the parties recorded in order dated 19.11.2011 closing their right to lead oral evidence rightly or wrongly. Now an additional affidavit along with application under Order 8 Rule 1A of CPC and documents, to my mind, cannot be taken on record in these proceedings for the reasons which follow. As far as the affidavit is concerned:

1. the contents are beyond the query put vide order dated 19.11.2011;

2. As it discloses additional facts not mentioned in the written statement, the same cannot be Ranveer Singh Vs. BSES & Ors Page 10 of 35 Suit No. 49/10 in read without any amendment being made to the written statement. It is settled law that parties can only succeed on the case pleaded and no new facts can be introduced without amending the pleadings;

3. The affidavit which has been filed amounts to oral evidence and cannot be treated as a document and the stage for leading oral evidence in this matter is long gone and there is no application by the Counsel recalling order dated 19.11.2011 whereby right to lead evidence of all the parties was closed with the consent of the applicant and other parties;

4. Before the affidavit can be read, law would require that the person deposing the affidavit be permitted to be cross examined by the plaintiff without which it is of no value and cross examination cannot be permitted at this stage.

As far as the application under order 8 Rule 1A and documents are concerned:

1. as per CPC, documents have to be filed by a party at the stage of filing of pleadings i.e. plaint or written statement and not thereafter. In the present case, these documents have been filed at the stage of final arguments.

2. In exceptional circumstances, if the parties are able to satisfy the court that they could not produce these documents at any earlier stage due to circumstances beyond their control, they can still be permitted to file the documents before recording of evidence. However the application offers no explanation as to why these documents could not be placed on record at the time when the written statement was filed or at any time after the filing of the written statement and before the date on which they were actually filed.

3. Grave prejudice may be caused to the plaintiff Ranveer Singh Vs. BSES & Ors Page 11 of 35 Suit No. 49/10 if these documents are taken on record as this would also amount to reopening of the case and sending it back to the stage of trial.

4. It ought not be forgotten that plaintiff has given up his right to lead oral evidence in view of the agreement between the counsel that there were no other evidence to be produced in the matter. Now the defendant may want to enter the witness box to prove these documents, but can that right be reopened for the plaintiff as well without any application on his part is a question which leads to a legal nodus.

5. Ld. Counsel for BSES has submitted that there was an error on judgment on the part of earlier counsel who made the concession and gave up right to lead evidence without fully understanding the complexity of the matter. But the argument is without any force. In my view, parties definitely take a chance when they pick a counsel to represent them.

Counsel may be well versed with law or he may not have excellent legal acumen but that is not a ground for reopening of trial in any event. If the parties, reap benefits of the skills of their counsel, they must also suffer for the disability from which their counsel may be suffering.

6. It has to be kept in contemplation that the order dated 19.11.2011 has not been challenged at any stage right up till now. In fact the submissions is that affidavit is in compliance of that order although it does not so comply but goes beyond. It cannot also be forgotten that the authorized representative of the defendant has been appearing in the matter and has appeared even after passing of the order dated 19.11.2011 and therefore, the defendant is well aware of the order and Ranveer Singh Vs. BSES & Ors Page 12 of 35 Suit No. 49/10 concession given by the counsel and yet there has been no application to reopen the case for trial. What prayer has not been made directly cannot be allowed by the court indirectly without any application to that effect. However, at this stage, it is stated that the judgments filed by defendant can always be read. All other documents are not taken on record. Arguments heard on behalf of the counsel for the defendants present today. Let written synopsis be filed within two days not exceeding three pages. List for arguments by Defendant No. 3 and clarifications, if any, on 28.02.2012 at 2 pm."

Thus, oral arguments were addressed by the counsel for the parties and I have proceeded to dictate the order in their presence. No issues were framed in the matter. However, admittedly the only issue which arises for consideration is "which of the defendant is liable to pay the pension and other benefits to the plaintiff." Arguments have been restricted by the parties to this issue alone.

Oral Arguments:

21 Ld. Counsel for the defendant no. 1 relied upon the decision in North Delhi Power Ltd. Vs. Govt. of NCT of Delhi, 142 (2007) DLT 65 (hereinafter referred to as NDPL-I judgment or (VRS judgment). Ld. Counsel has relied upon para no. 72 of the judgment. Counsel for the defendant no. 2 has also relied upon para no. 72 alongwith para no. 56, 85 and 93 of the said judgment. Both the counsel have submitted that para no. 72 is in favour of the defendant they represent. As per counsel for defendant no. 1, para no. 72 provides that in cases of voluntary retirement from service (VRS) under Rule 48A, the liability is of the Pension Trust and also that of Govt. of NCT of Delhi. Counsel for defendant no. 2 has submitted that as per para no. 72 when read with the other paras, the liability is not of the defendant no. 2 but of Ranveer Singh Vs. BSES & Ors Page 13 of 35 Suit No. 49/10 the DISCOMS i.e. defendant no.1.

22 I would now like to elaborate the arguments advanced before me. Ld. Counsel for defendant no. 1 has submitted that Rule 48A is an essential service condition and the scheme of transfer, which gave protection and continuity to the rights of the employees who were absorbed by DISCOMS at the time of transfer pursuant to the unbundling duly protects the said right. Ld. Counsel submits that as per para no. 72, the Hon'ble High Court has held that the inherent right of the employee could not be restricted by the Trust Deed. The purpose of the tripartite agreement was to grant continuity and accordingly held that in the event of a short fall in the corpus of the Pension Trust, the Govt. of NCT of Delhi had to bear the liability whenever recourse was made by transferred employee Under Rule 48A of CCS (Pension) Rules.

23 Ld. Counsel for the defendant no. 2 on the other hand argued that para no. 72 itself records that the Trust Rules gave a restricted definition of the expression "retirement", entitling only superannuated employees to pension from the Trust, but that could not rob or divest those eligible to pension in terms of Rule 48A of Pension Rules to the benefits, therefore, the liability is clearly not of the defendant no. 2. The further observation that in such cases GNCT has to bear the liability to the extent that the Trust was unfunded would also not enure to the benefit of defendant no. 1 in view of the subsequent decision of the Hon'ble Supreme Court in NDPL-II (Supra). Ld. Counsel has further submitted that in para no. 56 of the judgment in NDPL-I (Supra), it was observed by the court that the question being determined was whether the liability of the respondents to pay terminal dues was confined to cases of superannuation, death or incapacitation of the employees of Ranveer Singh Vs. BSES & Ors Page 14 of 35 Suit No. 49/10 DISCOMs/ transferees or it also extended to cases of voluntary retirement. It has been argued that court was only seized of a dispute arising out of payment of retiral benefits to ex-employees who had obtained retirement under Special Voluntary Retirement Scheme (SVRS) which scheme had been floated by the DISCOMS and was not part of the service conditions of the employees absorbed at the time of transfer. The court ultimately decided against the DISCOMS in the case treating the cases under SVRS as a separate class on the basis of the contractual nature of the scheme. 24 Ld. Counsel has argued that the ratio of the decision of Delhi High Court in NDPL I (Supra) is therefore limited to the dispute before the court and the decision arrived at i.e. in SVRS cases the liability was that of the DISCOMS including defendant no. 1. He has argued that the court also came to a prima facie view that the liability was not of the Trust and the observation that the liability would be of the GNCT of Delhi is also not a final decision and merely obiter as this issue was not even required to be decided on the facts of the case and in view of the order dated 24.11.2009 in Contempt Case (Civil) no. 686/09 arising out of the decision in NDPL-I (supra). Ld. Counsel has submitted that even if it was assumed that the findings that the Govt. of NCT would have to fund the Trust to the extent it was unfunded were final, the view expressed therein would not hold good in view of the subsequent decision of the Hon'ble Supreme Court in NDPL-II (supra) which has determined the extent of overall liability of Govt. of NCT of Delhi pursuant to the scheme of unbundling vis-a-vis the DISCOMS.

25 It is argued that in the NDPL-II (supra) decision, Hon'ble Supreme Court held that the transfer of personnel and all the incidents thereto were governed by Rule 6 alone. Sub Rule (8) of Rule 6 covered not only Ranveer Singh Vs. BSES & Ors Page 15 of 35 Suit No. 49/10 existing employees but also made reference to all the employment related matters including Provident Fund, Gratuity, pension and any superannuation fund or special fund created or existing for the benefits of personnel and the existing pensioners. The Supreme Court held that there was no dispute that those who retired or those who were serving with the board, stood transferred in respect of their liabilities etc. to the DISCOM. Ld. Counsel has submitted that the said decision fastens the liability of existing pensioners on account of revised pay scale or interpretation of respective scheme of promotion on the DISCOM even though the employees had retired before the DISCOMS came into picture, therefore, the liability qua the existing employees would naturally stand transferred on the DISCOMS.

26 This is also the stand taken by the Govt. of NCT of Delhi, the defendant no. 3, in the written statement filed by it, and must be noted at this stage itself even though no oral arguments have been advanced by the Counsel for the Defendant No. 3.

27 Ld. Counsel for the Defendant no. 2 has argued that the pension trust which is strictly governed by the terms and conditions of the Trust Deed is only a mechanism of disbursal of liability upon superannuation, death, incapacitation of an employee of the DISCOMs / other transferee. In case, an employee's case is not covered by Trust Deed, the liability would be of the DISCOMs.

28 Ld. Counsel for Defendant no.2 has also relied upon para no. 85 of the judgment where it has been stated that even a voluntary retirement under rule 48A of Pension Rule has to be accepted by the employer and individual is retire only if the offer is accepted. Ld. Counsel has argued that like in the case of SVRS, any in roads in the funds of the Trust even under Ranveer Singh Vs. BSES & Ors Page 16 of 35 Suit No. 49/10 Rule 48A of the Pension Rule may prejudice the contributors. Ld. Counsel for Defendant no.2 has argued that it was open for the defendant no. 1 not to accept the offer for VRS under Rule 48A but it was done on the assumption that the liability would be of the Trust. Ld. Counsel has argued that the High Court speaking though a Hon'ble Single Judge has categorically recorded in NDPL-I that the Trust was designed to cater to normal contingencies such as superannuation and to a negligible percentage of person on account of death and incapacitation. He has further submitted that in terms of the definition of the term 'retirement' in the Trust Deed, which refers to cases covered by Rule 35 of the Pension Rules only, the liability under Rule 48A is not covered by the Trust Deed and Rules. He has also relied upon part 5 of Trust Deed which talks about grant of benefits on superannuation alone except in cases of death or incapacitation.

29 Ld. Counsel for defendant no. 2 has also argued that even though the decision in NDPL-I (supra) is based on the premise that the existing condition of the service have to be protected, it cannot be understood that the liability to bear the extra cost other than superannuation would be of the Trust. Undoubtedly the right of the employee to seek retirement has to be protected but that would only imply that he cannot be deprived of the benefits and it does not logically follow that the liability would continue to be that of the Govt. of NCT of Delhi or would stand transferred on the trust even though there is no provision in the Trust Deed.

30 The stand of the Defendant No. 3 per written Statement is also on similar lines.

31 Ld. Counsel for the Defendant No. 2 has further relied upon Minutes dated 23.01.2009 pertaining to meeting dated 15.01.2009 which have Ranveer Singh Vs. BSES & Ors Page 17 of 35 Suit No. 49/10 been filed by the defendant no. 1, although it is a document not permitted to be taken on record. In the said minutes, it is recorded that the defendant no. 1 and NDPL (DISCOMS) had raised the issue of introducing amendment to the Trust Deed of the Pension Trust to include Rule 48A of CCS Pension Rules Optees within the ambit of the Trust Deed. Therefore the defendant has itself been acting on the basis that the Trust Deed as it exists does not cover cases of Optees under Rule 48A of CCS Pension Rules. 32 Ld. Counsel for defendant no. 2 has last submitted that the defendant no. 1 has already admitted that in two cases of retirement under 48A, it has paid the monthly pension benefits and one time terminal dues and they are estopped from pleading to contrary.

Findings:

33 Having heard the arguments, my findings are as follows :

On the unbundling of the DVB and pursuant to the scheme of transfer, the defendant no. 1 DISCOM emerged as one of the successor / transferee companies in terms of the request for proposal. The transfer was as ongoing concern on business valuation method whereby all the past, future and present liabilities including those of the existing employees as well as retirees were also transferred to the DISCOMS including the defendant no. 1. The defendant no. 1 is therefore, clearly responsible to all those personnel who have been transferred to it, including the plaintiff before this court, and this proposition cannot be disputed in view of the observations made by the Hon'ble Supreme Court in para no. 15 of decision in NDPL-II (supra). It is pertinent to note that in NDPL-II (supra), the Hon'ble Supreme Court was dealing with the responsibility / liability of the DISCOMS qua existing pensioners, on account of revised pay scale or interpretation of respective Ranveer Singh Vs. BSES & Ors Page 18 of 35 Suit No. 49/10 scheme of promotion, even though the employees in question had retired before the DISCOMs even came into picture,

34 The relevant portion of the judgment, where some of the submissions made by the DISCOMs as to their liability were considered and rejected pursuant to the transfer, is re-produced hereinbelow:

"22. Shri Rao and Shri Patwalia then urged that the whole scheme of disinvestment brought in by the DERA, 2000 was based on the consent of the interested private parties. The Act had postulated joint venture companies with private investment and participation to take over the task of entire distribution of electricity. For that purpose, bids were invited and the terms of the transfer were settled by mutual consent taking note of the Tripartite Agreements and the bid agreement and it was then that the scheme was notified in the shape of Rules under the Act. Under such circumstances, there can be no further amendment to the scheme involving additional liability which has to be essentially only with the consent of the partners of the joint venture.

23. We have absolutely no quarrel with this proposition. However, this could be true if there was no "additional liability"

brought in. For the reasons which follow, we do not think that in clothing the NDPL with a liability regarding the personnel who were retired, compulsorily retired or otherwise dead, dismissed etc. could be termed as "additional lilability". In fact the reading of the Rules and, more particularly, Rule 6(8) would indicate that liability was innate and accepted by the DISCOMS.

26. The language is extremely clear. It not only specifies the employment related matters but also clarifies what those matters would be which include pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners. The words `existing pensioners' are extremely important. A plain reading of this Rule would leave no manner of doubt in respect of the liability having been transferred to transferee company and the NDPL is certainly the one. The language is Ranveer Singh Vs. BSES & Ors Page 19 of 35 Suit No. 49/10 broad enough to include all dismissed, dead, retired and compulsorily retired employees. As if that was not sufficient, sub- Rule (9) requires the Government to make appropriate arrangements in terms of the Tripartite Agreements in regard to the fund of terminal benefits to the extent it is unfunded on the date of transfer from the Board. Rule 9(a) and (b) are also very significant and are as under:

"9. The Government shall make appropriate arrangements as provided in the tri-partite agreements in regard to the funding of the terminal benefits to the extent it is unfunded on the date of 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" mean all the persons eligible for the pension as 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" mean the gratuity, pension, dearness and other terminal benefits to the personnel and existing pensioners."

27. 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 the 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 broad language of the Rule, we do not think that such contention is possible." (Emphasis supplied) Ranveer Singh Vs. BSES & Ors Page 20 of 35 Suit No. 49/10 35 In fact, the observations made in para no. 32 and 33 of the judgment indicate that transfer is on as is where is basis and a liability not mentioned in Schedule-F would also stand transferred to the DISCOMS including defendant no. 1. The paragraphs are re-produced hereinbelow:-

32. It was tried to be suggested by Shri Rao, learned Senior Counsel that under Section 15(1) of the Act, any property, interest in property, rights and liabilities which immediately before the effective date belonged to the Board, stood vested in the Government with effect from the date on which the Transfer Scheme came into existence by way of its publication. It was also suggested that under sub-Section (2) of Section 15 of the Act, it was for the Government to transfer such property and interest in the property, rights and liabilities to any company established under Section 14 of the Act. It was then tried to be urged that such transfer of undertaking has been taken care of in Rule 5 of the Transfer Scheme Rules, 2001. It was then pointed out that as per the Schedules, the transfer was effected and in case of the present appellant, the transfer was effected as per Schedule `F'. The learned Senior Counsel very earnestly suggested that this was all that was transferred and, therefore, a liability which was not covered under Schedule `F' could not be said to have been transferred to the appellant. It was then pointed out by reference to Rule 2(t) that `undertaking' includes "wherever the context so admits the personnel". It was, therefore, urged that the personnel transferred to the appellant company were only the ones who were included in the lists. It was also suggested that under Rule 2(r), the `transferee' includes not only DISCOMS, like the present appellant, but also the Holding company like Delhi Power Company Limited. It was, therefore, urged that considering the provisions of Rule 5 read with Rule 2(r), 2(t), Schedules `F' and `G', was be all and end all of the matter. It was urged that in the absence of any liability allocated to DISCOM 3 in Schedule `F' and in terms of para 2 of Schedule `G', allocating of residuary liabilities to the Holding company, the liability in respect of existing pensioners would devolve on the Holding company, i.e. DPCL and Ranveer Singh Vs. BSES & Ors Page 21 of 35 Suit No. 49/10 not on the present appellant. The argument is clearly incorrect.

We have already pointed out that Schedule `F' cannot be read as the exhaustive list of transfers as regards the assets and liabilities. This is because of the peculiar language of Rule 3(1) and Rule 3(2). Rule 3(2) very specifically provides that in the matter of personnel and personnel related matters, Rule 3(1) would be of no consequence. What is provided in Rule 4, on which the heavy reliance was being placed, is relatable to Rule 3(1) alone. Same logic applies to Rule 5, which provides for transfer of undertaking. It flows only from Rule 4. A reading of Rule 5 and, more particularly, Clauses (a) to (g) of Rule 5(1) correspond to Clauses (a) to (g) in Rule 4(1). Rule 4(1) is again specific and takes into sweep only sub Rule (1) of Rule 3. It is very clear that Rule 3(2) makes all the difference and in the clearest possible language, Rules 4 and 5 relate to the assets, liabilities and proceedings covered only under Rule 3(1). Rule 5 also has to be read in that context.

33. 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 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 matters 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). 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 Ranveer Singh Vs. BSES & Ors Page 22 of 35 Suit No. 49/10 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. (Emphasis supplied) 36 Once the Supreme Court has so adjudicated upon the position as above, the liability to pay retirement benefits to all its employees would ordinarily be of the DISCOMS unless covered by any other scheme or rule to that effect. One such scheme is the Trust Deed governing Defendant no. 2 Trust. As long as a case or liability is covered by Trust Deed the liability is not of the defendant no. 1, but once it is found that a case is not covered by the Trust Deed, the liability can only be of the defendant no. 1 who is the employer of the employee seeking benefits and the transferee in terms of Hon'ble Supreme Court decision.

37 The issue whether the government is required to fund, as far as the proposition that Govt. of NCT of Delhi would be liable to fund is concerned, the liability to fund is distinct from liability to pay an employee. Defendant no. 1 is the employer and the plaintiff is the employee and therefore, liability is of the defendant no. 1 alone, in case, the case is not covered by Trust Deed. It may be an altogether different matter that the defendant no. 1 may have a claim against Govt. of NCT of Delhi for funding the Trust or for amendment or creation of a new trust for cases covered by Rule 48A of CCS Pension Rules or even otherwise but the benefits cannot be denied to the plaintiff by defendant no. 1.

38 In fact, this view finds support in the decision of the Learned Single Judge of Hon'ble High Court in NDPL-I (supra) wherein his lordship Ranveer Singh Vs. BSES & Ors Page 23 of 35 Suit No. 49/10 concluded that the intention of the scheme was to protect the employees and guarantee continuation of existing service conditions. To my mind, the protection required by an employee would be the right to seek voluntary retirement under rule 48A of CCS Pension Rules and consequent post retirement benefits he may be entitled to in case the same is accepted. That the liability to pay must be of the Govt. of NCT of Delhi or the Pension Trust is not a necessary corollary of the guarantee. In fact continuation of service conditions would require that the liability which vested with Govt. of NCT of Delhi up till the date of transfer would also stand transferred on the transferee DISCOMS including defendant no. 1 in all cases under 48A CCS Pension Rules unless it can be shown by defendant no. 1 that there was an agreement to the contrary. (See decision in NDPL-II (supra)). 39 I am also in agreement with the contentions raised, before me qua para no. 72 in the NDPL-I decision, by Ld. Counsel for defendant no. 2. The factual dispute before the Hon'ble High Court was about the liability towards payment of pension benefits to those seeking voluntary retirement under the SVRS Scheme floated by defendant no.1. That was the controversy before the Court, as is apparent from para No. 2 of the judgment and I quote the same:

"The question requiring decision by the Court in these proceedings is the liability for payment of pension and terminal benefits on the basis of the Special Voluntary Separation Scheme (hereafter called 'the Scheme') formulated in almost identical terms by the DISCOMS, namely, the New Delhi Power Limited ('NDPL'); BSES Rajdhani Ltd ('BSES') and BSES Yamuna Power Ltd ('BYPL') on 29.11.03 and 18.12.2003."

The said paragraph lays down the background in which the issue framed in para no. 56 of the said decision has to be understood.

40 In my humble view, that was the only question before the Hon'ble High Court and the ratio of the case therefore would be that SVRS cases are not covered by the Trust Deed which was a superannuation trust. Any observation made on aspect other than the issue before the court cannot be said to be the ratio of the said case. It is settled law that a judgment cannot be read as statute and reliance cannot be placed on every sentence and observation made by a court as if the same were not the words of a judgment but of a statute laying down the law.

41 A Full Bench of the Delhi High Court has extensively dealt with the process of distinguishing the ratio of a case from obiter dicta and culling out binding precedents in Ex NK Dilbag vs UOI and Ors., 152 (2008) DLT 148 (FB). The Full Bench speaking through Hon'ble Mr. Justice Vikramjit Sen observed and I quote:

"5................It is trite that we are duty-bound to apply the ratio decidendi of these pronouncements of the Apex Court. We must, therefore, be clear in our minds of the manner in which the ratio decidendi of a decision is to be drawn. Municipal Corporation of Delhi v Gurnam Kaur, AIR 1989 SC 38, lays down that the ratio decidendi is the principle upon which the case is decided and statements which do not partake of this character are obiter dicta which do not have authoritative force.

6. The frequently quoted opinion of the House Lords in Quinn v. Leathem, 1901 AC 495: 1900-3) All.ER 1 is to the effect that "every judgment must be read as applicable to the particular facts proved or assumed to be proved .... The other is that a case is only an authority for what is actually decides". These quotations have been reiterated in Goodyear India Ltd. v. State of Haryana, 1990) 2 SCC 71 and State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647. In the latter case, the Court explicitly opined that "a decision on a question which has not been argued cannot be treated as a precedent". Their Lordships, in turn, referred back to the opinion in Rajput Ruda Meha v. State of Gujarat, AIR 1980 SC 1707 in which had similarly been stated that where an issue Ranveer Singh Vs. BSES & Ors Page 25 of 35 Suit No. 49/10 has neither been raised nor argued any decision by the Court, even after pondering over the issue in-depth would not become a binding precedent. Similar observations have been made by the Bench in Padmasundara Rao (Dead) & Ors. v. State of T.N. & Ors., 2002 (3) SCC 533, as is evident from the following extract:

"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board, (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."

7. Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. & Ors., (2003) 2 SCC 111, cautions that, "a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision". In Director of Settlements, A.P. & Ors. v. M.R. Apparao & Anr., (2002) 4 SCC 638, a Three-Judge Bench has opined that "Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all Courts within the Territory of India. The aforesaid article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has "declared law"

it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the Ranveer Singh Vs. BSES & Ors Page 26 of 35 Suit No. 49/10 judgment was delivered. An "obiter dictum" as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case". The Constitution Bench has also reiterated this view in Islamic Academy of Education vs. State of Karnataka, (2003) 6 SCC 697, viz. that the ratio decidendi of a judgment can be obtained only from a reading of its entirety. The opinion of the Apex Court in Bharat Petroleum Corporation Ltd. & Anr. v. N.R. Vairamani & Anr., VI (2004) SLT 586=(2004) 8 SCC 579, is in similar vein. Their Lordships observed that, "Observations of Courts are neither to be read as Euclid‟s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated.

Judgments of Courts are not to be construed as statutes". This is also the opinion of the Court in Punjab National Bank v. R.L.Vaid & Ors., (2004) 7 SCC 698. In State of Gujarat and Ors. v. Akhil Gujarat Pravasi V.S. Mahamandal and Ors. AIR 2004 SC 3894, the Hon‟ble Supreme Court has observed that "any observation made during the course of reasoning in a judgment should not be read divorced from the context in which they were used". In Zee Tele Films Ltd. & Anr. v. Union of India & Ors., II (2005) SLT 200=AIR 2005 SC 2677, the Apex Court has unequivocally declared that "a decision is not an authority for the proposition which did not fall for its consideration". In A-One Granites v. State of U.P. & Ors., II (2001) SLT 360=AIR 2001 SC 1203=(2001) 3 SCC 537, it had been contended that the controversy was covered on all fours by a previous decision of the Court. The contention was rejected in these words:-

This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, and it was laid down that when no consideration was given to the question, the decision cannot be said to be Ranveer Singh Vs. BSES & Ors Page 27 of 35 Suit No. 49/10 binding and precedents sub silentio and without arguments are of no moment. Following the said decision, this Court in the case of Municipal Corporation of Delhi v. Gurnam Kaur, (1989) 1 SCC 101:AIR 1989 SC 38, observed thus (at p. 43 of AIR).

"In Gerard v. Worth of Paris Ltd. (K), (1936) 2 All ER 905 (CA), the only point argued was on the question of priority of the claimant"s debt, and on this argument being heard, the Court granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal in Lancester Motor Co. (London) Ltd. v. Bremith Ltd., (1941) 1 KB 675, the Court held itself not bound by its previous decisions. Sir Wilfrid Greene, M.R., said that he could not help thinking that the point now raised had been deliberately passed sub silentio by Counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier Court before it could make the order which it did; nevertheless, since it was decided "without argument, without reference to the crucial words of the rule, and without any citation of authority, it was not binding and would not be followed. Precedents sub silentio and without argument are of no moment. This rule has ever since been followed." In State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139, reiterating the same view, this Court laid down that such a decision cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution of India and observed thus: "A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141." In the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488: (2000 AIR SCW 2037:AIR 2000 SC 2264:2000 Cr.LJ 2971), while examining the binding effect of such a decision, this Court observed thus (Para 20):

"A decision not expressed, not accompanied by reasons Ranveer Singh Vs. BSES & Ors Page 28 of 35 Suit No. 49/10 and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined............"

8. We have gone into some detail on the principle of stare decisis since it is our considered opinion that the Division Benches have incorrectly applied the above mentioned decisions of the Supreme Court. It is imperative that the facts of each case must first be noticed with clarity and precision and only thereafter, in the context of the facts determinative of the decision, should the enunciation of the law by the Court be distilled. It also seem plain to us that Their Lordships whilst passing „Order‟ in contra- distinction to the „judgment‟ intend to dispose of the controversy before them restricted to the fact situation therein, with no intention to lay down any principle of law." (emphasis supplied) 42 This view if further fortified by the order dated 24.11.2009 whereby the contempt application in Cont Case (C) No. 686/09, which relied upon the observations made in para 72 of the decision in NDPL I (supra) qua Rule 48A Optees, was dismissed when reliance had been placed upon para no. 86, 72 and 56 of the NDPL - I judgment (supra) by the counsel for the proposed contemnors / respondents. In fact, in para no. 64 and 65 of the NDPL -I judgment (supra), observations have been made to the effect that the textual analysis of the Trust Deed as well as Tripartite Agreement support the contention of the Trust and Govt. of NCT of Delhi that their liability is restricted to payment of terminal benefits only to those employees who superannuates from their services in the normal course. I am quoting the relevant portion of para No. 64 and 65 of NDPL -I judgment (supra):

The Trust, which was formed on 28.3.2002 framed its rules. The tenor of those rules no doubt appear to be restrictive.

This is borne out by Page 1824 reference to definition of retirement; retirement date and provisions of Part V all of which point to payment of superannuation pension, indicated by Rule 35 of the CCS Pension Rules. That means retirement of the employee on his attaining the age of retirement, specified in the rules.

A textual analysis of provisions of the Trust and the Tripartite agreements undoubtedly lend support to the contention by the Trust and the GNCT that their liability is restricted to payment of terminal benefits, only of those employees who superannuate from their services in the normal course.

43 To my mind, even if it was held that the liability to pay optees of VRS under Rule 48A of CCS (Pension) Rules was that of the defendant no. 1, the finding would not undermine the continuity in service conditions, for the concern of the employee is only to retain the right to so apply for retirement and receive the benefits. The benefit of the employee is not in securing the source from which the liability has to be satisfied, but in protecting the right itself. The Trust Deed has to be interpreted applying the rule of plain and grammatical construction unless any ambiguity is pointed out. In fact, para no. 53 to para no. 55 of the judgment in NDPL-I (supra) reproduce the relevant terms of the Trust Deed as well as the relevant provision of the CCS Pension Rules. The court concluded in para no. 55 that concept such as retirement, terminal benefits, qualifying service and superannuation have been borrowed from CCS (Pension) Rules and the Trust Rules incorporated those provisions. I am quoting the relevant portion of judgment for ease of reference.

"53. Before proceeding to consider the rival submissions, it would be necessary to extract the relevant provisions of the Trust Deed and the pension rules. As noticed earlier, the Trust Deed was executed on 26.03.02. Part (b) of the Ranveer Singh Vs. BSES & Ors Page 30 of 35 Suit No. 49/10 preamble indicates that the Government of NCT decided to establish Page 1818 a superannuation fund for the benefit of those entitled to pension in accordance with the pension scheme of DVB, as detailed in the rules of the fund (annexed to the Trust Deed which are referred to hereafter as the 'Trust Rules'). Clause (3) of the Deed enjoins the Trustees to pay pension and other terminal benefits in accordance with the Trust Rules. The Trust Rules, inter alia, define actual service by referring to Rule 30 of the CCS (Pension) Rules; the duration of pension payable, by Clause 2 (x) is provided by Rule 54 (6) of the CCS (Pension) Rules; 'eligible members' under Clause 2 (xi) is defined as those covered by the CCS (Pension) Rules. The term 'qualifying service' has been defined as what is contained in Rule 3 (q) of the CCS (Pension) Rules. The expression 'retirement' and 'normal retirement date' have been defined as follows:

(xxvi)'RETIREMENT' as defined under Rule 35 Central Civil Services (Pension) Rules, 1972, as amended from time to time.

(xxvii) 'NORMAL RETIREMENT DATE' shall mean the date of retirement as defined in Fundamental Rules, 1956.

54. Rule 4 deals with contributions to the fund by the corporation and the members. It refers to the fund being a superannuation fund. Rule 4 (b) (c) empowers the Trustees with the authority to fix additional contribution amounts to be paid by the 'new entity' i.e. DISCOM S and other successors, from time to time in consultation with the Government. Part V of the Trust Rules outlines the benefits. Rule 6.1 provides that a member, on superannuation would be entitled to pension and other terminal benefits as available to the existing employees on the retirement commencing from the month following superannuation, as per the Fundamental Rules. Rule 6.2 states that to qualify for benefit on superannuation, employees should have completed a minimum reckonable service as defined by Rule 14 of Ranveer Singh Vs. BSES & Ors Page 31 of 35 Suit No. 49/10 the CCS (Pension) Rules. The relevant parts of Rule 6 are extracted below:

6.1. A member on superannuation will be entitled to pension and other terminal benefits as available to the existing employees on the retirement commencing from the month following superannuation as per Fundamental Rules, 1956 as amended from time to time. A member would be entitled to pension life time. 6.2. TO QUALIFY FOR BENEFIT ON SUPERANNUATION:

Employees must have completed a minimum reckonable service as per Rule 14 of the Central Civil Services (Pension) Rules, 1972 and any other applicable Rule as amended from time to time.

xxxxx xxxx xxx 6.6. MINIMUM PENSION: In no case pension shall be less than the amount of pension payable as per Rule 40 (3) of Central civil Services (Pension) Rules, 1972 and any other applicable Rule as amended from time to time. 6.7. On separation from service of a member by his resignation before completion of the qualifying service as specified in Rule 14 of Central Civil Services (Pension) Rules, 1972, shall be dealt with as per Rule 26 of Central Civil Services (Pension) Rules, 1972 and any other applicable Rule as amended from time to time. 6.8. On separation of a member who is dismissed/removed from the services of the Corporation and/or has otherwise lost his lien on his employment with the Corporation, the member shall be dealt with as per Rule 24 of Central Civil Services (Pension) Rules, 1972 and any other applicable Rule as amended from time to time.

55. From the above, it is apparent that the concepts such as the retirement, terminal benefits, qualifying service and superannuation have been borrowed from the CCS (Pension) Rules. Indeed the Trust's rules have incorporated those provisions. The relevant provisions of CCS (Pension) Rules are extracted below:

3. DEFINITIONS 3 (q) 'Qualifying Service' means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules;

xxxx xxxxx xxxx CHAPTER V CLASSES OF PENSIONS AND CONDITIONS GOVERNING THEIR GRANT

35.Superannuation pensions A superannuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retirement.

44 Chapter V of the trust deed, when read with the other provisions of the Trust Deed and the relevant provisions of the CCS (Pension) Rules, is clearly not providing for grant of benefits to a member who has not superannuated. The words 'retirement' and 'superannuated' are not one and the same and the expression "retirement" as used in Clause-6.1 of Part V of the Trust Rules has to be understood in the light of the definition clause which is contained in Chaper 2 (xxvi), i.e., 'RETIREMENT' as defined under Rule 35 Central Civil Services (Pension) Rules, 1972, as amended from time to time.

45 It is, therefore, obvious that the retirement has been understood in terms of the Rule 35 of CCS (Pension) Rules and mere retirement is not sufficient for a person to obtain benefits from the Trust under the Trust Deed. As per Trust Deed, a person retiring is entitled to the benefits which are available to an employee at retirement commencing from the date of superannuation, therefore, a person seeking retirement under Rule 48A cannot claim benefits under this provision unless he also attains Ranveer Singh Vs. BSES & Ors Page 33 of 35 Suit No. 49/10 superannuation.

46 In fact in the Minutes dated 23.01.2009 pertaining to meeting dated 15.01.2009 filed by the Defendant No.1, the fact that even as per the understanding of the Defendant No. 1 the Trust Deed was not equipped to cater to the cases under Rule 48A is reflected. It is settled proposition of law that a document produced by a party and relied upon by it can aways be read against it without formal proof of the same or the same having been tendered in evidence. The said document lends further support to the interpretation of the Trust Deed.

47 Defendant no. 2 being a creature of the Trust Deed cannot be compelled to transgress its powers and violate the duties imposed upon it by the Trust Deed. If, there is any defect in the framing of Trust Deed, and if, defendant no. 1 is aggrieved by the said fact or the fact that the funding to the Trust is not adequate to cover cases like the present one even after an amendment is made to the Trust Deed, then the remedy would be to have a determination inter-se the Defendant no. 1, Defendant no. 2 and Defendant no. 3 and plaintiff should not be made to suffer till these differences are sorted out between the defendants. The entire tenor of the decision in NDPL-I (supra) or even NDPL-II (supra) has been directed to protect the rights of the existing employees as well as existing pensioners. 48 The definition as well as time for disbursal of benefit is only upon superannuation is fortified by recital (b) of the Trust Deed. It cannot be forgotten that defendant no. 2 admitted that it has paid the benefits to two of its employees which are similarly situated as plaintiff in the present case and this admission can always be used against defendant no. 1 more so in the light of the statutory rules, scheme, judicial pronouncement and the Ranveer Singh Vs. BSES & Ors Page 34 of 35 Suit No. 49/10 documents determining the rights of the parties before me. Relief:

49 As far as first part of prayer no. 1 is concerned, the suit for recovery of arrears of salary is ex facie barred by limitation. It is not in dispute that plaintiff had retired on 26.08.2006 and no salary would be due after this date. As far as the second part of prayer (i) is concerned and the prayer clause (ii) is concerned, the suit is decreed directing the defendant no. 1 to supply the details of pension admissible to the plaintiff and to pay the same w.e.f. the date of the decision as also directing the defendant no. 1 to release all other terminal benefits, other than GPF, to the plaintiff. 50 As far as release of arrears of pension and retirement benefits is concerned, plaintiff has only prayed for the relief of injunction and has not sought relief of recovery of the amount. However, as no objection was ever raised as to the frame of the suit by the defendants either in written statement or at the state of arguments, ends of justice would be met in case plaintiff is directed to pay the court fees on the relief as if the same was a prayer for relief of recovery of arrears of pension and benefits. The defendant shall file a calculation of arrears of pension admissible to the plaintiff upt the date fo filing of the suit, as well as the amount that might have become due up till the date of decision, within one week from today and plaintiff shall furnish the court fees within one week.

51 Suit is decreed accordingly. Decree sheet be prepared on court fees being furnished. File be consigned to record room.

Dictated in the open Court Harjyot Singh Bhalla, dated 28.02.2012 Civil Judge-1, South District, New Delhi.