Delhi District Court
Smt. Beena vs B.S.E.S. Yamuna Power Limited on 29 August, 2013
IN THE COURT OF SHRI ANIL KUMAR: JSCC: ASCJ:
GUARDIAN JUDGE (NORTH EAST) KKD COURTS, DELHI.
Suit No. : 21/11
In the matter of :-
1. Smt. Beena,
Widow of Late Sh. Mohan Lal Shama,
2. Master Kunal (Minor)
S/o Late Sh. Mohan Lal Sharma,
(Minor through his mother / natural guardian
Smt. Beena)
Both R/o H. No. 53, Gali No. 2,
Village Biharipur, Delhi. .......... Plaintiffs.
VERSUS
1. B.S.E.S. Yamuna Power Limited,
Through Its C.E.O. / Business Manager,
Shakti Kiran Building,
Karkardooma, New Delhi.
2. A.P.O. (HR)
B.S.E.S. Yamuna Power Limited,
Shanker Road, Karol Bagh,
New Delhi.
3. Sh. Sanjeev,
S/o Late Sh. Mohan Lal,
R/o S-229, 3rd Floor,
Pandav Nagar, Delhi- 110092. .........Defendants.
Suit No. 21/11 Page 1 of 10 pages
Date of institution of the suit : 12/01/2011
Final Arguments Heard on : 22/08/2013
Date of Judgment : 29/08/2013
SUIT FOR RECOVERY OF RS. 1,84,250/-
JUDGMENT :-
This is a suit for recovery of Rs. 1,84,250/- filed by plaintiffs against the defendants. Defendant no. 1 is a company and defendant no. 2 is its officer with designation APO (HR).
Initially this suit was filed under Order 37 CPC. Vide Order dt. 26/07/2011, defendants were granted leave to defend the present suit. The case of the plaintiffs is that plaintiff no. 1 is the widow of Late Sh. Mohan Lal Sharma and plaintiff no. 2 is the minor son of the deceased Sh. Mohan Lal Sharma, who died on 01/04/2001 during his service period and that time he was employed Delhi Vidhyut Board and he was posted at Chandni Chowk as Lineman. Plaintiffs applied for payments of dues regarding service benefits of deceased Mohan Lal Sharma vide application dt. 17/05/2001 and the concerned department was asked to make the payment. In response to the said letter the APO B-1, CCK, Delhi vide his letter dt. 26/06/2001 demanded succession certificate from the plaintiffs so that the dues could be made. Plaintiffs then filed succession petition and as per judgment dt. 25/02/2008, plaintiffs were ordered to be paid Rs. 1,50,000/- only. Plaintiffs have alleged that in the succession case, the DVB was served and appeared in the court through AR and the statement regarding service benefits filed by the DVB in that case. In meantime, in year 2002 the DVB was taken over by the defendant no.
Suit No. 21/11 Page 2 of 10 pages 1 i.e. BSES, YPL and all the assets and liabilities were also taken over the defendant no. 1. The defendant no. 1 was given notice of the above said case and the AR of the defendant no. 1 made statement dt. 14/09/2005 that there is no change in the dues as details given by the DVB earlier. It has been further alleged that plaintiffs have approached defendant no. 1 for release of payment as per succession certificate and the officials concerned told the plaintiff no. 1 that since the deceased Mohan Lal Sharma was posted at Chandni Chowk at the time of death therefore the dues will be paid from the office of defendant no. 2. Thereafter, plaintiffs moved an application dt. 24/10/2008 to defendant no. 2 for release of the payment but the payment was not made. The plaintiffs thereafter approached Manager F (GPF) having office at Rajghat, New Delhi vide application dt. 30/06/2008 and letter dt. 21/03/2010 and requested for release of the payment but the payment was not made. Plaintiffs were informed vide letter dt. 30/09/2008 and letter dt. 08/04/2010 issued by Assistant Manager Pension that the payment will be released by defendant no.
1. Plaintiffs repeatedly raised demand for release of dues / service benefits but defendants failed to release the same to plaintiffs and withheld the same without any cause and reason. Plaintiffs got served legal demand notice dt. 15/02/2010 through their counsel to the defendants but plaintiffs have not been able to get payment from the defendants. It has been further alleged that plaintiffs are entitled to Rs. 1,50,000/- as per succession certificate and since the defendants have withheld the payment without any cause therefore plaintiffs are also entitled to the interest @ 9% per annum upon the said amount Suit No. 21/11 Page 3 of 10 pages which is payable to plaintiffs. Plaintiffs have claimed interest w.e.f. 28/02/2008 till 27/12/2010 which comes to Rs. 38,250/-. Hence, the present suit.
2. Defendants have contested the present suit by filing their joint WS. In the WS, defendants have admitted the facts of the employment of Late Sh. Mohan Lal Sharma and his retirement before formation of defendant no. 1. Amount of dues also as claimed in the present suit has not been specifically denied. Defendants have taken defence that they are not liable to pay dues claimed in the present suit as BSES came into existence w.e.f. 01/07/2002 and Sh. Mohan Lal Sharma expired on 01/04/2001 before BSES came into existence and he was not an employee of the defendant no. 1 company. Defendants have alleged that responsibility to make the payment of terminal benefits of Late Sh. Mohan Lal Sharma lies with Delhi Vidhyut Board, ETBF, 2002 i.e. Pension Trust.
3. Plaintiffs have filed replication to the joint WS of the defendants and therein they have denied the contents of the WS which are in denial of the plaint and re-iterated the contents of plaint.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide Order dated 26/03/2012 :-
i). Whether the BSES i.e. defendant no. 1 and 2 are not liable to pay the dues as claimed for by the plaintiffs in the present suit ? OPD1 and 2.
ii). Whether the suit is bad for non joinder of Sh. Sanjeev Kumar and Pension Trust? OPD1 and 2.
iii). Whether the plaintiff is entitled for recovery of Rs. 1,84,250/- as Suit No. 21/11 Page 4 of 10 pages prayed for by the plaintiff in the plaint? OPP.
iv). Relief.
5. In support of plaintiff's case, plaintiffs has got examined plaintiff no. 1 as PW 1 and got proved on record copy of application dt. 17/05/2001 as Ex. PW 1/1, copy of letter sent by APO dt. 26/06/2001 as Ex. PW 1/2, the certified copy of the judgment dt. 25/02/2008 as Ex. PW 1/3, the succession certificate dt. 22/04/2008 as Ex. PW 1/4, certified copy of the orders dt. 29/11/2011 and 05/01/2012 are Ex. PW 1/5 and Ex. PW 1/6, copy of reply dt. 30/09/2008 as Ex. PW 1/7, copy of application dt. 24/10/2008 as Ex. PW 1/8, copy of letter dt. 11/12/2008 as Ex. PW 1/9, courier receipts are Ex. PW 1/10, legal notice dt. 16/01/2009 as Ex. PW 1/11, its registered AD receipt and UPC receipts are Ex. PW 1/13 and Ex. PW 1/13, copy of legal notice dt. 15/02/2010 as Ex. PW 1/13 A, its registered AD receipts and UPC receipts are Ex. PW 1/14 and Ex. PW 1/15 and copy of letter dt. 29/04/2010 as Ex. PW 1/17.
6. Other hand, in support of its case, defendants have got examined Sh. Vishnu Prasad, Accounts Assistant of BSES as DW 1.
7. I have heard the submissions of Ld. Counsel for both the parties and perused the entire material on record . My issue wise findings are as under :-
Issue (ii) : Whether the suit is bad for non joinder of Sh. Sanjeev Kumar and Pension Trust? OPD1 and 2.
Onus to prove this issue is on defendant no. 1 and 2. In the WS, defendants have taken preliminary objection that nothing was due and payable by the defendants to the plaintiffs and any claim of Suit No. 21/11 Page 5 of 10 pages plaintiffs can only be against Sh. Sanjeev or Pension Trust and not against the defendants. Defendants have alleged that in absence of Sh. Sanjeev and Pension Trust this suit is bad for their non joinder and liable to be dismissed.
It is not in dispute that LRs of deceased Mohan Lal Sharma approached the court for grant of succession certificate and earlier succession certificate dt. 22/04/2008 was issued by the competent court in which it was ordered by the court that plaintiffs in present suit will take Rs. 1,50,000/- from service benefits i.e. GPF, EDLIS, D/Gratuity from Sanjeev Sharma but copy of order dt. 29/11/2011 Ex. PW 1/5 clearly shows that this order was modified and it was ordered that Rs. 1,50,000/- shall be taken by present plaintiffs from GPF, EDLIS, D/Gratuity and name of Sanjeev Sharma deleted in respect to direction of payment. As such it is clear that amount of Rs. 1,50,000/- to be received by plaintiffs from the employer or successor in interest of employer and not by successor in interest of employee. Hence, in my opinion, Sanjeev @ Sanjeev Sharma is not necessary party. Further, I find that by way of this suit plaintiff has sought recovery of dues from the defendants claiming that the right and interest of DVB has been taken over by the defendant no. 1 company and hence defendants are liable to pay the dues. As such this suit involves the dispute on merits only whether defendants are liable to pay the dues or not. Defendants plea that Pension Trust is liable to pay the terminal benefits to LR deceased Mohan Lal Sharma makes no difference and in my opinion, Pension Trust is not necessary party to the present suit. Liability of defendants can be decided in the Suit No. 21/11 Page 6 of 10 pages absence of Pension Trust. Hence, it is hold that defendants have failed to discharge their onus. Accordingly, this issue is decided in favour of plaintiffs and against the defendants Issue (i) : Whether the BSES i.e. defendant no. 1 and 2 are not liable to pay the dues as claimed for by the plaintiffs in the present suit ? OPD1 and 2.
Onus to prove this issue is on defendant no. 1 and 2. Ld. Counsel for defendants have submitted that Late Sh. Mohan Lal Sharma was employed with Delhi Vidhyut Board and he expired before un-bundling of erstwhile DVB and emergence of defendant no. 1 company and hence, defendant no. 1 and its official defendant no. 2 both are not liable to pay any terminal benefits to LRs of deceased Sh.
Mohan Lal Sharma.
Other hand, Ld. Counsel for plaintiffs have submitted that Late Sh. Mohan Lal Sharma was employed with DVB and the office in which he was posted is now taken over by the defendant no. 1 company along with rights and liabilities of erstwhile Delhi Vidhyut Board, hence, defendants are liable to pay the dues as claimed in the present suit on account of terminal benefits to the plaintiffs. Placing reliance on judgment titled "North Delhi Power Ltd. Vs. Govt. of NCT of Delhi and Ors." 169 (2010) DLT 575 (SC). Ld. Counsel for plaintiffs has further submitted that Hon'ble Supreme Court of India has already settled the liability of power distributing companies in Delhi after un-bundling of Delhi Vidhyut Board in respect to employee retired prior to un-bundling of DVB and thereafter.
Other hand, Ld. Counsel for defendants has submitted Suit No. 21/11 Page 7 of 10 pages that in a similar case against the decision of Hon'ble High Court of Delhi, defendant no. 1 had filed SLPs (C) No. 17413-17414/2013 before Hon'ble Supreme Court of India and operation of order passed by Hon'ble High Court of Delhi has been stayed.
I have gone through above mentioned both the judgment / order passed by Hon'ble Supreme Court of India.
In North Delhi Power Ltd. Vs. Govt. of NCT of Delhi and Ors. case the question for consideration of Hon'ble Supreme Court of India was that whether BSES and NDPL were responsible for meeting the liabilities relating to employees who ceased to be the employees of erstwhile Delhi Electric Supply Undertaking (Predecessor of Delhi Vidhyut Board- DVB) prior to 01/07/2002 on account of their retirement, removal, dismissal or compulsory retirement in accordance with the provisions of Delhi Electric Reforms Act, 2000?
Hon'ble Supreme Court of India in this judgment pleased to confirm the findings of Hon'ble High Court of Delhi that the BSES and NDPL were alone responsible to meet above mentioned liabilities.
Case cited by Ld. Counsel for defendants can not be considered as having any bearing over the present case. In view of judgment passed by Hon'ble Supreme Court of India titled "North Delhi Power Ltd. Vs. Govt. of NCT of Delhi and Ors. 169 (2010) DLT 575 (SC)", I have no hesitation to say that the defendants are liable to pay to plaintiffs the dues claimed by them in the present suit. As such, it is held that defendants have failed to prove this issue. Accordingly, this issue is decided against the defendants and in favour Suit No. 21/11 Page 8 of 10 pages of plaintiffs.
Issue (iii) : Whether the plaintiff is entitled for recovery of Rs.
1,84,250/- as prayed for by the plaintiff in the plaint? OPP Onus to prove this issue is on plaintiffs. Plaintiffs have claimed Rs. 1,50,000/- along with interest on the basis of succession certificate Ex. PW 1/4 and judgment dt. 29/11/2011 Ex. PW 1/5 passed / issued by competent court in their favour. By way of these judgment and succession certificate, plaintiffs succeeded Rs. 1,50,000/- payable on account of GPF, EDLIS, D/Gratuity. Ex. PW 1/7 is a letter issued by Pension Trust. This letter clearly shows that family pension w.e.f. 01/07/2002 : Rs. 2,39,312/-, GPF accumulation : Rs. 1,81,842/-, EDLIS : Rs. 60,000/- were paid to the LRs of Late Sh. Mohan Lal Sharma by Pension Trust and family pension w.e.f. 02/04/2001 to 30/06/2002 : Rs. 57,996/- and death gratuity : Rs. 1,85,686/- were to be paid by BYPL (BSES) to LRs of Late Sh. Mohan Lal Sharma. Since D/Gratuity of Rs. 1,85,686/- is to be paid by BYPL (BSES) which is pre-unbundling liabilities in respect to employee Late Sh. Mohan Lal Sharma hence plaintiffs are entitled for Rs. 1,50,000/- on account of D/Gratuity as per Succession Certificate Ex. PW 1/4 and hence they are entitled to recover this amount from the defendants.
Plaintiffs have claimed interest @ 9 % per annum. In my opinion amount of Rs. 1,50,000/- payable by defendants has been illegally withheld by the defendants. Hence, defendants are liable to pay the interest @ 9 % per annum as claimed. Suit amount claimed in Suit No. 21/11 Page 9 of 10 pages present matter is a total of principal due amount of Rs. 1,50,000/- and interest @ 9 % per annum upto institution of suit, hence, plaintiff is entitled to recover suit amount of Rs. 1,84,250/- along with pendentelite and future interest @ 9 % per annum from the defendants. Accordingly, this issue is decided in favour of plaintiffs and against the defendants.
Issue (iv) : Relief.
In view of above observations, discussions and findings, this suit is decreed in favour of plaintiffs and against the defendants in the sum of Rs. 1,84,250/- along with pendentelite and future interest @ 9 % per annum. Costs of the suit is also awarded in favour of plaintiffs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (ANIL KUMAR)
on this 29th day of August 2013 JSCC/ASCJ/G.Judge (NE)
KKD Courts, Delhi.
Suit No. 21/11 Page 10 of 10 pages