Delhi District Court
Smt. Leela Wati vs The Bses Rajdhani Power Ltd on 15 October, 2018
IN THE COURT OF MS. CHARU AGGARWAL
ADDITIONAL DISTRICT JUDGE03:
TIS HAZARI COURT: DELHI.
RCA No. 160/17
In the matter of:
Smt. Leela Wati
W/o late Sh. Om Pal
R/o 16C, Shri Ram Marg,
Maujpur, Delhi110 053. ......... Appellant
Versus
The BSES Rajdhani Power Ltd.
BSES Bhawan
Nehru Place, New Delhi110 019 ........ Respondent
Date of institution : 08.09.2017
Date of decision : 15.10.2018
JUDGMENT
1. The present appeal alongwith an application u/s 5 of Limitation Act, has been filed by the appellant/plaintiff challenging the order dated 31.07.2013, passed by Ld. Civil Judge08 (West), Delhi and judgment/decree dated 06.06.2017, passed by Ld. Civil Judge07, West, whereby the suit of the appellant/plaintiff was dismissed.
2. There is delay of 61 days in filing the appeal. For the reasons mentioned in the application u/s 5 of Limitation Act and particularly having regard to the fact that appellant is a widow who seeks to enforce her legal rights get family pension of her late husband, the delay in filing the appeal is hereby condoned.
3. The parties to the appeal, hereinafter shall be referred with the same title as they were in the civil suit. Appellant was the plaintiff and Leelawati Vs. The BSES Rajdhani Power ltd. Page 1 of 7 respondent was the defendant in the civil suit.
4. The plaintiff had filed the suit for declaration and mandatory injunction against the sole defendant i.e. BSES Rajdhani Power Ltd., seeking declaration to the effect that her late husband Sh. Om Pal Singh, erstwhile employee of the DVB, be declared entitle for the pensionary benefits as per the CCS Rules and after his death his wife i.e. plaintiff is entitled for the same. For the relief of mandatory injunction, her prayer was that defendant be directed to pay the pensionary benefits alongwith interest @ 18% to the plaintiff.
5. The brief facts of the case emerging from the pleadings are that plaintiff is the wife of late Sh. Om Pal. Sh. Om Pal was employed with the defendant since 03.01.1984, at the post of Peon, Xen (D) Department, R. K. Puram, Delhi. After unbundling of DVB in the year 2003, the DISCOM floated a Special Voluntary Retirement Scheme (SVRS2003) for the employees of the DVB. Plaintiff's husband late Sh. Om Pal, opted under the SVRS scheme of the defendant and he was considered retired since 31.12.2003, after rendering almost 19 years 11 months and 28 days of service under the defendant. Late Sh. Om Pal unfortunately expired on 10.11.2004. After his death, the plaintiff being his legal heirs was given pension once on 16.11.2004, by the DVB ETBF 2002. But, thereafter, they stopped giving family pension to the family of late Sh. Om Pal on the ground that he had not completed 20 years of service as envisages under Rule 48 (A) CCS Pension rules. The plaintiff issued a legal notice dated 02.08.2006, to the defendant but despite service, the plaintiff did not get the pension of her late husband.
6. In the written statement filed by defendant BSES, it took the preliminary objections that the suit of the plaintiff is bad for misjoinder of parties since as per the SVRS Rules2003, DVB ETBF2002, pension trust is responsible to pay the pension and plaintiff has not impleaded the pension Leelawati Vs. The BSES Rajdhani Power ltd. Page 2 of 7 trust as necessary party. On merits, the defendant had stated that the said pension was not paid by the pension trust since late Sh. Om Pal had not completed 20 years qualifying service as per CCS Rules.
7. In view of the objection taken in the written statement by the defendant BSES regarding misjoinder of parties, the plaintiff filed an application u/O 1 Rule 10 CPC for impleadment of DVB ETBF2002. Vide order dated 01.10.2007, the Ld. Trial Court impleaded the DVB ETBF2002 as defendant no. 2. Vide order dated 18.01.2008, the issues were framed in the matter. However, the plaintiff moved an application u/O 6 Rule 17 CPC for amendment in the plaint. Vide order dated 19.10.2011, the said application of the plaintiff was allowed. Pleadings were again completed. Vide order dated dated 06.07.2012, the following 7 issues were framed by the Ld. Trial Court, out of which, the first 3 issues were treated as preliminary issues.
(i) Whether the defendant no. 2 is necessary and property party? OPD2.
(ii) Whether the suit is time barred?OPD1.
(iii) Whether the suit is not maintainable u/O 7 Rule 11 CPC and Specific Relief Act?OPD.
(iv) Whether the husband of the plaintiff has completed qualifying service for getting the pension as per CCS pension rules?OPD.
(v) Whether the plaintiff is entitled for a decree of declaration declaring Late Sh. Om Pal entitled for pensionary benefits as well as pension and after his death, his wife i.e. the plaintiff alongwith interest @18% per annum on the arrear of the pension and pensionary benefits Leelawati Vs. The BSES Rajdhani Power ltd. Page 3 of 7 from the date of accrual till the actual payment?OPP.
(vi) Whether the plaintiff is entitled for a decree of mandatory injunction directing the defendants to pay the aforesaid pension & pensionary benefits?OPP.
(vii) Relief.
8. The Ld. Trial Court, vide order dated 31.07.2013, decided the issue no. 1 in favour of defendant no. 2 and thereby deleted it from the array of the parties.
Now, in the present appeal, the order dated 31.07.2013 as well as the judgment/decree dated 06.06.2017, are under challenge.
In view of Section 105 CPC, the Appellate Court has power to examine even order dated 31.07.2013.
9. In order to prove her case, the plaintiff has examined 4 witnesses in her evidence. PW1 is plaintiff herself. PW2, PW3 and PW4 are plaintiff's sons, who all have filed their affidavits in evidence reiterating and affirming the same facts as stated in the plaint.
10. Defendant has examined only one witness Sh. R. C. Kataria, OSD (HR) as DW1, who has also filed his affidavit reiterating and reaffirming the same facts as stated in the written statement.
11. I have heard counsels for the parties and perused the record.
12. The admitted facts are that plaintiff's late husband Sh. Om Pal was employed with the DVB since 03.01.1984. He opted for the SVRS2003 floated by the DISCOM and got retired under the said scheme on 31.12.2003. He passed away on 10.11.2004, leaving behind plaintiff and his 3 children as Leelawati Vs. The BSES Rajdhani Power ltd. Page 4 of 7 his legal heirs (LRs). On the date of retirement of late Sh. Om Pal, he had completed 19 years, 11 months and 28 days.
13. The case of the plaintiff is that the defendant refused to give pension to the plaintiff on the ground that as per the CCS Rules, late Sh. Om Pal had not completed the mandatory period of 20 years in service, therefore, he is not entitled for the pension. The Ld. Trial Court dismissed the suit of the plaintiff solely on the ground that late Sh. Om Pal had not completed the 20 years in service, as per the CCS Rules.
14. The present case is squarely covered with the facts of the case titled as "Pawan Vohra Vs. Chairman, DVB Pension Trust" WP (C) No. 1680/12, decided on 17.05.2013 by Hon'ble Delhi High Court, which subsequently was upheld by the Division Bench of Hon'ble High Court in "BSES Vs. Pawan Vohra & Ors." in LPA No. 723/13, decided on 31.08.2015. In the said case also, the petitioner Pawan Vohra was employed with the DVB, who opted for the SVRS2003 of the DISCOM. On the date of retirement, Pawan vohra had completed 19 years, 10 months and 20 days. In the case of "Pawan Vohra" (Supra), the Hon'ble High Court gave benefit of Rule 49 (3) of CCS Rules to the petitioner Pawan Vohra.
The Rule 49 (3) CCS states that for calculating the length of qualifying service, fraction of a year equal to 3 months and above shall be treated as half year and reckoned as qualifying service.
15. Relying upon the decision of "Pawan Vohra" (Supra), late Sh. Om Pal is also entitled for the benefit of Rule 49 (3) CCS since he had also completed 19 years, 11 months and 28 days on the date of his voluntary retirement, opted by him under SVRS2003. Thus, late Sh. Om Pal will be considered to have completed 20 years of service on the date of his voluntary retirement, in terms of Rule 48 (A) CCS. Hence, late Sh. Om Pal was entitled Leelawati Vs. The BSES Rajdhani Power ltd. Page 5 of 7 for the pension under the Rules of SVRS2003.
16. The plaintiff has also challenged the order dated 03.12.2013, whereby defendant no. 2 pension trust was deleted from the array of the parties. Counsel for plaintiff has argued that defendant no. 2 pension trust was necessary party in the suit since as per the Rules of SVRS2003, it is the duty of defendant no. 2 to pay the pension to the plaintiff. In "TATA Power Delhi Distribution Vs. Rosy Jain" LPA No. 562/13, decided on 17.03.2016, the Hon'ble Delhi High Court has held that where the employees of DVB opts for SVRS2003, the pension trust is responsible to pay the pension to the employees. In the case in hand, earlier the pension trust had given the pension of late Sh. Om Pal to the appellant once on 16.11.2004 and thereafter stopped giving the pension to her for the reason that late Sh. Om Pal had not completed 20 years qualifying service. At this stage of the matter, this court does not consider it necessary to implead pension trust as party in the suit considering the judgment of Hon'ble Delhi High Court in "Rosy Jain" (Supra) that it is the responsibility of pension trust to pay the terminal benefits of the employees opted under SVRS2003 scheme and also considering that plaintiff has already fought her battle for almost 12 years for her legal and legible rights. In view of the judgment of "Rosy Jain" (Supra), the pension trust cannot evade from its liabilities to pay the pension to the plaintiff on the ground that it was not party in the present suit. The pension trust is bound by the said judgment which has attained its finality.
17. In view of aforesaid discussion, the present appeal is allowed. The impugned judgment/decree dated 06.06.2017, is hereby set aside. Late husband Sh. Om Pal Singh is held entitled for pension after his retirement consequently after his death on 10.11.2004. The pension trust ETBF2002 is directed to immediately release the pension of appellant's late husband to her Leelawati Vs. The BSES Rajdhani Power ltd. Page 6 of 7 within a period of 8 weeks from today and also continue to pay the same. If the entire arrears are not cleared within 8 weeks from today by the pension trust, the arrears will carry interest @ 6% per annum. No order as to cost.
Decree sheet be prepared accordingly.
TCR alongwith copy of this judgment be sent back to the concerned court.
Appeal file be consigned to record room.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date:
2018.10.16
16:06:04 +0530
Announced in the open court (Charu Aggarwal)
on 15th October, 2018 ADJ03/West/THC/Delhi
Leelawati Vs. The BSES Rajdhani Power ltd. Page 7 of 7