Delhi District Court
Suit No. 62/14 vs Delhi Power Company Ltd on 19 January, 2016
IN THE COURT OF JITENDRA PRATAP SINGH,
CIVIL JUDGE09: TIS HAZARI COURTS: DELHI
Suit No. 62/14
Shri L.R. Mehta
S/o Late Brij Lal Mehta,
R/o H.No. 8, Pocket F17,
Sector - 8, Rohini,
Delhi - 110085.
Assistant Engineer (Retd.) NDPL,
E.No. 9514. .............Plaintiff.
Vs
1. Delhi Power Company Ltd.
Through its C.M.D cum Managing Director
Shakti Sadan, New Delhi.
2. North Delhi Power Ltd.
Through its C.E.O.,
Hudson Line, Kingsway Camp,
Delhi - 110009. ..........Defendants.
SUIT FOR DECLARATION AND MANDATORY INJUNCTION.
Date of Institution : 31/07/2012
Date of reserving judgment : 08/01/2016
Date of pronouncement : 19/01/2016
Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 1 of 30
JUDGMENT
Vide this Judgment, I shall be deciding the suit filed for seeking a decree of declaration to the effect that the plaintiff is entitled for grant of TBPS on 04/02/1980 (first TBPS), on 04/02/1988 (second TBPS) and on 04/02/1996 (third TBPS) as per rules of the department and that he is also entitled to all benefits including pensionary benefits along with interest at the rate of 15% per annum from the date of its filing till the realization.
A decree of mandatory injunction directing the defendant to release all the consequential benefits for grant of the said TBPS including pensionary benefits along with interest at the rate of 15% per annum from the date of filing of the sue due till the realization has also been sought. 2 Facts of the plaintiff's case as per the plaint are as follows : The plaintiff had joined the erstwhile Delhi Vidyut Board (DVB) on 04/02/1970 as an Inspector. He was subsequently promoted to the post of Superintendent in the month of June, 1985 and to the post of Assistant Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 2 of 30 Engineer in May 1992 and was granted TBPS in May 2002. He obtained retirement from North Delhi Power Limited (NDPL) i.e. the defendant no. 2 on 29/02/2014 under the voluntary separation scheme. It is stated that in the meantime, the post of Inspector was redesignated as Junior Engineer and the Junior Engineer was made entitled to become Assistant Engineer directly while the post of Superintendent in between was abolished. That it was decided that the benefits of second time bound scale on account of such redesignation will be given on completion of 18 years of service as on 24/08/1999. That the plaintiff became entitled for the grant of second time bound promotion grade on 04/02/1988 and for the third TBPS on 04/02/1996. The plaintiff was deprived of it on the notion that the same is permissible in respect of Inspectors who were designated as Junior Engineer on completion of 18 years of service on 24/08/1999. The same is not tenable as the plaintiff had become entitled for the same w.e.f. 04/02/1988 as has been made applicable in respect of other categories where merger was not involved. The plaintiff has pleaded that considering his date of joining dated 04/02/1970, he was to be granted first TBPS on 04/02/1980, second TBPS in the pay scale of AE w.e.f. 04/02/1988 and the Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 3 of 30 third TBPS in the pay scale of XEN w.e.f. 04/02/1996. The salary is to be revised in aforesaid manner in addition to the plaintiff being given promotional benefits. It is alleged that the defendant no. 2 had been adopting discriminatory policies as in some other similar cases of employees / officers, it had granted the release of promotional benefits. This had compelled the plaintiff to issue the legal notice dated 11/04/2012 upon the defendants whereby calling upon them to grant the pay scales along with all consequential benefits including pensionary benefits along with interest within two months.
3. The defendant no. 1 has sent a vague reply dated 30/05/2012 to the notice. When the aforesaid promotional scales were not given to the plaintiff, he filed the instant suit.
4. The defendant no. 1 has filed its written statement raising the following preliminary objections therein :
1. The plaint is liable to be rejected as the defendant no. 1 is neither a necessary nor a proper party to the suit and for this Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 4 of 30 reason, it does not disclose any cause of action.
2. As per the plaint, it is clear that the plaintiff had retired from the defendant no. 2. Therefore, all his claims are to be borne by the said transferee company as per the Delhi Electricity Reforms (Transfer Scheme) Rules 2001 and several judgments of the Hon'ble Supreme Court of India.
3. The erstwhile DVB was unbundled as per the Delhi Electricity Reforms Rules 2001 and the following entities came into existence w.e.f. 01/07/2002.
a. Delhi Power Company Limited (Holding Company). b. Delhi Power Supply Company Limited (now Delhi Transco Limited).
c. GENCO (Indraprastha Power Generation Limited) d. Central East Electricity Distribution Company Limited (Discom
- I) (now BSES Yamuna Power Limited).
e. South West Electricity Distribution Company Limited (Discom - II) (now BSES Rajdhani Power Limited).
f. North - North West Electricity Distribution Company Limited Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 5 of 30 (Discom - III) (North Delhi Power Limited i.e. now TPDDL).
That at the time of unbundling of the erstwhile DVB, its employees were transferred to five companies as per Rule 6, Rule 6(3) of Delhi Electricity Reform (Transfer Scheme) Rules. They were so transferred to five companies on "as is where is"
basis and as per rule 6(8), the relevant transferee stood substituted for DVB for all purposes regarding statutory and other schemes including employment related matters like PF, gratuity, pension, superannuation fund or special fund. As per rule 8 of the Transfer Scheme arising out of the litigation, suits, claims etc. pending on the date of transfer had to be borne by the Distribution Company. That this position has been strengthened by the Hon'ble High Court of Delhi in several cases. Rest of the averments of the plaint were either denied for being incorrect or for not pertaining to the defendant no. 1.
5. It is relevant to note that vide order dated 03/03/2014 of this Court which was upheld by the Hon'ble High Court in CMM no. 352 of 2014 Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 6 of 30 on 21/04/2014, the defence of the defendant no. 1 was struck off. 6 The defendant no. 2 in its written statement has raised the following preliminary objections :
1. The suit is without any cause of action.
2. It is barred by time under the provisions of the Limitation Act as the plaintiff has sought the relief of declaration regarding grant of first, second and third TBPS w.e.f. 04/02/1980, 04/02/1988 and 04/02/1996 respectively and the relief of mandatory injunction for all consequential benefits. The suit has been filed after the lapse of more than three years after taking the VSS on 29/02/2004. Even if the plaintiff had not taken the VSS, he would have superannuated on 28/02/2006 on completion of 60 years of age. Hence, the suit filed in July 2012 after the expiry of prescribed period of limitation is time barred.
3. Since the plaintiff has concealed the material facts from the Court, the suit is liable to be dismissed under Section 41 of the Specific Relief Act.
Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 7 of 30
4. The suit has not been properly valued for the purposes of Court fees and jurisdiction.
7. The redesignation of the post of Inspector as Junior Engineer is stated as matter of record. It is stated that the plaintiff was given first TBPS on 12/05/2002 and he would have been entitled to the second TBPS on 12/05/2010 which was not possible to be given on account of him already seeking VSS on 29/02/2004 and further on account of him attaining the superannuation (even if had not sought VSS) on completion of 60 years of age on 28/02/2006. That there is no merit in the plaintiff's claim as the orders for grant of first and second TBPS came on 23/07/1997 as per which the first and second TBPS came into force w.e.f. 01/04/1994. The orders of third TBPS came on 21/12/1999 which was in continuation with the order dated 23/07/1997 as per which third TBPS was to be granted after completion of eight years of service after availing the second TBPS. That the plaintiff had made a request dated 29/11/2011 upon which he was personally called and was made understood conditions of his ineligibility which he had accepted. The allegations of any discrimination on the part of Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 8 of 30 the defendant or its officials were denied. Rest of the allegations of the plaint were also denied.
8. In rejoinder to the written statement of the defendant no. 2, the plaintiff stated that although, he had sought grant of time scales w.e.f. 1980 but it is to be clarified that the grant of these scales came into operation through office orders in 1997 and onwards and they were to be implemented with retrospective effect. If the contention of the defendant no. 2 made in this regard would be accepted then no one would be entitled for such benefits from the past. He stated that such matter were still to be considered by the Distribution Company and the defendant no. 1 on merits irrespective of pertaining to the past period. He stated that the defendant no. 2 vide order dated 25/08/2010 has made the third TBPS effective w.e.f. 01/07/2010. That the plaintiff's representation dated 29/11/2011 was considered sympathetically by the NDPL and he was assured that as and when this situation was accepted by all DISCOMS and the DTL, his case could be considered on new circumstances and the issue at that moment was closed temporarily. He stated that on his representation dated Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 9 of 30 29/11/2011, the officer concerned of the defendant no. 2 observed as follows :
"The issue has been explained in person and as per present rules position, there is no claim due. However, the case is similar to that of Mr. M.S. Saini case wherein court has provided benefit. As and when, this situation is accepted by all Discoms and DTL we may consider his case based on new circumstances. The issue is temporarily closed."
9. From the above, it is apparent that the matter was still open and under consideration of the NDPL and till the date of rejoinder, no final decision was taken. That despite the assurance dated 10/01/2012 of the defendant no. 2 on the plaintiff's representation, no action was taken. He stated that the DTL has granted the benefits of second promotional time scale in the cadre of Executive Engineer w.e.f. 24/08/1999 of the office order dated DTL/1010/HR(G)/F.12/38 dated 03/04/2012 to fifty of its engineers in one stroke, several of whom were junior to the plaintiff. Hence, the benefits of the Tripartite Agreement and Electricity Act cannot be denied to the plaintiff. It is stated that the defendant no. 2 had derived a Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 10 of 30 wrong meaning of enforceability of the rules w.e.f. 01/04/1994.
10. On completion of pleadings, the following issues were settled for consideration :
1. Whether the suit is bad for misjoinder of parties and non joinder of parties, if so, effect thereof ? OPD1.
2. Whether the suit is without any cause of action ? OPD.
3. Whether the defendant no. 1 is not liable to any claim as raised by the plaintiff ? OPD1.
4. Whether the suit is barred by law of limitation ? OPD2.
5. Whether the suit is barred by Section 41 of the Specific Relief Act ? OPD2.
6. Whether the suit has been properly valued for the purpose of Court fee and jurisdiction ? OPP.
7. Whether the plaintiff is entitled to the relief of declaration as sought ? OPP.
8. Whether the plaintiff is entitled to the relief of mandatory Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 11 of 30 injunction as sought in prayer ? OPP.
9. Relief.
11. The parties were then called upon to lead evidence. To prove his case, the plaintiff has produced himself as the witness PW1 who in his evidence by way of affidavit has reiterated the averments of the plaint while placing reliance upon the following documents :
1. Copy of order dated 23/07/1997 as Ex. PW1/1.
2. Copy of order dated 21/12/1999 as Ex. PW1/2.
3. Copy of order dated 07/02/2012 as Ex. PW1/3.
4. Copy of order dated 11/03/2003 as Ex. PW1/4.
5. Copy of order dated 19/11/2010 as Ex. PW1/5.
6. Copy of order dated 25/03/2011 as Ex. PW1/6.
7. Copy of order dated 07/04/2011 as Ex. PW1/7.
8. Copy of order dated 02/08/2010 as Ex. PW1/8.
9. Copy of order dated 25/08/2010 as Ex. PW1/9.
10. Copy of order dated 29/11/2011 as Ex. PW1/10.
11. Copy of order dated 28/07/2008 of the Hon'ble High Court as Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 12 of 30 Mark A.
12. Legal notice dated 11/04/2012 as Ex. PW1/11.
13. Reply to the legal notice dated 30/05/2012 as Ex. PW1/12.
12. The defendant no. 2 has produced its Senior Manager (HR) Sh. Prashant Kulshreshtha as the witness DW1. The said DW1 has reporduced the averments of the written statement in his evidence by way of affidavit.
13. Both the witnesses have been crossexamined by the respective counsels for the opponent.
14. I have heard the Ld. Counsels and have perused the case file.
15. My issuewise findings are as follows : Findings on issue no. 1 Whether the suit is bad for misjoinder of parties and non Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 13 of 30 joinder of parties, if so, effect thereof ? OPD1.
Onus to prove this issue was placed upon the defendant no. 1.
16. The defendant no. 1 has stated that it is neither a necessary nor a proper party to the suit and as such the plaint is liable to be rejected for misjoinder and nonjoinder of parties. It is not explained to to what other person was required to be impleaded in the present suit but has not been impleaded so by the plaintiff. So,, the only question remains as to whether on account of impleadment of the defendant no. 1, the suit is bad for nonjoinder of parties.
17. As per Order 1 Rule 9 of the CPC, no suit shall be defeated by reason of the misjoinder or nonjoinder to parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
It is provided that nothing in this rule shall apply to nonjoinder of a necessary party.
18. In view of the aforesaid specific legal position, it cannot be said Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 14 of 30 that the suit is bad for misjoinder or nonjoinder of parties.
The issue stands decided accordingly.
19. Findings on issue no. 2 Whether the suit is without any cause of action ? OPD. Onus to prove this issue was placed upon the defendant.
20. In Liverpool & London S. P. & I. Association v. M.V. Sea Success I & Anr. Reported in (2004) 9 SCC 512, the Hon'ble Apex Court has observed that a cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. The Hon'ble Court further observed that for the purpose of cause of action, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence.
21. In the present case, the plaintiff has sought a declaration that he is entitled to three time bound promotional scales as well as the relevant pensionary benefits as these scales have been denied to him arbitrarily Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 15 of 30 and wrongly by the defendants. He has also sought a direction to the defendants to release the benefits to him. It is his claim that since his joining of service of the Delhi Vidyut Board on 04/02/1970, he became entitled to the said time bound promotional scales on 04/02/1980, 04/02/1988 and 04/02/1996. He has alleged that the defendants had denied the said scales to him arbitrarily.
22. In order to ascertain the cause of action, the averments of the plaint are to be considered. Considering the same in the instant case, this Court is of a view that the contents as cited in the plaint are sufficient to hold that the plaintiff has a cause of action to file the present suit. His ability to prove his entitlement for the reliefs claimed in the suit is a different aspect which shall be dealt with subsequently in the present Judgment. Thus, it cannot be said that the suit is without any cause of action.
Issue stands decided in aforesaid terms.
23. Findings on issue no. 3 Whether the defendant no. 1 is not liable to any claim as Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 16 of 30 raised by the plaintiff ? OPD1.
Onus to prove this issue was placed upon the defendant no. 1.
24. It is contended by the defendant no. 1 that as per the Delhi Electricity Reforms (Transfer Scheme) Rules 2001, it is not liable to pay any amount to the employees who stood transferred to the Distribution Company such as the defendant no. 2. In support of the contention, the defendant no. 1 has successfully relied upon the decision of the Hon'ble Supreme Court of India rendered in the case of North Delhi Power Limited Vs. Govt. of National Capital Territory of Delhi & Ors., civil appeal no. 4269 of 2006 coupled with the decision of BSES Rajdhani Power Limited & Anr. Vs. Govt. of National Capital Territory of Delhi & Ors., civil appeal no. 4270 of 2006 decided jointly on 03/05/2010. A perusal of the aforesaid decision of the Hon'ble Apex Court reveals that the Hon'ble Court was pleased to uphold the impugned Judgment of the Hon'ble High Court of Delhi wherein it was held that the Distribution Companies are responsible for meeting the liabilities relating to the employees who ceased to be employees of the erstwhile Delhi Electricity Supply Undertaking (predecessor of the Delhi Vidyut Board - DVB) prior to 01/07/2002 on account of their retirement, Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 17 of 30 removal, dismissal or compulsory retirement in accordance with the provisions of Delhi Electricity Reforms Act 2000.
25. In view of this categorical judicial pronouncement on the issue, this Court is of a conclusion that the defendant no. 1 is not liable to pay any dues with respect to the TBPS and other terminal benefits as claimed by the plaintiff. This view is further strengthened from the fact that the plaint is silent as to how the defendant no. 1 is liable to pay such dues to the plaintiff.
Issue stands decided in favour of the defendant no. 1.
26. Findings on issue no. 4 Whether the suit is barred by law of limitation ? OPD2. Onus to prove this issue was placed upon the defendant no. 2.
27. Ld. Counsel for the defendant no. 2 has argued that the plaintiff has filed the present suit on the basis of the office order dated 23/07/1997, Ex. PW1/1, by which the concept of the TBPS was introduced. It is submitted that the plaintiff has obtained the VSS on 29/02/2004 and at Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 18 of 30 that time, he was aware about the aforesaid circular dated 23/07/1997. Despite that, he has filed the present suit only on 31/07/2012 i.e. much beyond the period of limitation as prescribed under Article 58 of the Schedule appended to the Limitation Act 1963. It is further contended that even if he had not taken the VSS, he would have been superannuated on 28/02/2006 on completion of 60 years of age and even from that date, the suit is time barred.
28. On the other hand, the Ld. Counsel for the plaintiff has reilied upon the decision of the Hon'ble Supreme Court of India rendered in the case of Union of India & Ors. Vs. Tarsem Singh, VII (2008) SLT 303 to support his arguments that the delay, if any in filing the present suit deserves to be condoned.
29. In the case of Tarsem Singh (supra), the respondent Sh. Tarsem Singh was working in Indian Army and he was invalidated out of Army service in medical category in the year 1983 and he had approached the High Court in 1999 seeking a direction to the appellants to pay him the Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 19 of 30 disability pension. The High Court concerned allowed the writ petition dated 06/12/2000 directing appellants to grant him disability pension. Further, the relief was restricted to 38 months prior to filing of the writ petiton. The said decision was not contested by the appellants. The respondent Sh. Tarsem Singh filed a Letters Patent Appeal (LPA) against the decision contending that the pension ought to be paid from the date it fell due on 13/11/1983. The Division Bench accepted the claim of the respondent Sh. Tarsem Singh and further paid him the interest on the amounts claimed. The Union of India challenged the said decision of the Division Bench before the Hon'ble Supreme Court of India.
30. The Hon'ble Apex Court observed that normally a belated service related claim will be rejected on the ground of delay and latches or limitation but one of the exceptions to the said rule is a case relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date in which the continuing wrong, commenced, if such continuing wrong creates a continuing source of injury. Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 20 of 30 It was further observed that this exception is further subject to another exception that if the grievance is in respect of any order or administrative decision which related to or affected several others also and if the re opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. As an instance, their Lordships observed that if the issues relate to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of the third parties. But if the claim involved issues relating to seniority or promotion etc. affecting others, delay would render the claim stale and doctrine of latches / limitation will be applied.
31. In considered opinion of this Court, the case of the plaintiff does not fall within the category of continuing wrong as when for the first time, TBPS was allegedly denied to the plaintiff and despite that when he continued to work without any protest and accepting the subsequent pays and perks of the job, he is deemed to have accepted the denial to be correct.
Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 21 of 30
32. The plaintiff in support of the suit being within the limitation has also relied upon the decision of the Hon'ble High Court of Delhi rendered on 06/05/2014 in a bunch of Letters Patent Appeal i.e. LPA no. 311/13, 314/13, 322/13, 324/13 and 327/13 reported as "Rajender Kumar Sharma Vs. NDPL & Anr. He has also placed reliance on the decision of the Hon'ble High Court of Delhi in WP (C) no. 2237 of 2002 and CMM nos. 9043/2005, 4082/2007 and 7101/2008 titled as "M.K. Saini Vs. Indraprastha Power Generation Company Limited delivered on 28/07/2008. The Ld. Counsel for the plaintiff has further relied upon the decision of the Hon'ble Supreme Court of India delivered in the case of D.S. Nakara Vs. Union of India, AIR 1983 SC 130.
33. Having perused the aforesaid case laws, this Court is of a view that the decision of Rajender Kumar Sharma (supra) is not applicable to the present case as the appellants therein before the Hon'ble High Court of Delhi had not taken VRS or voluntary separation. However, the plaintiff in the present case has admittedly separated voluntarily from the defendant no. 2. The facts of the case of D.S Nakara (supra) are altogether different Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 22 of 30 from those of the present case and the issue before their Lordships in that case was the legality of the office memorandum dated 25/05/1979 which liberalized the formula for computation of pension but made it applicable to the Government servants who were in service on 31/03/1979 and retired from the services on or before that date. Dealing extensively with the issue, their Lordships held that there was no justification for arbitrarily selecting the criteria for eligibility for the benefits of the scheme dividing the pensioners all of whom would be retirees but failing on one or the other side of the specified date. The said classification on the basis of specified date was held violative of Article 14 of the Constitution.
34. On the other hand, in the instant case, there is no such arbitrary classification which has been alleged by the plaintiff nor any material supportive of the fact that the defendant or either of them have acted arbitrarily while dealing with the case of the plaintiff has been placed on record.
35. The facts like the instant case have been dealt with by the Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 23 of 30 Hon'ble High Court of Delhi in a bunch of Letters Patent Appeal (LPA) nos. 308/2013, 309/2013, 310/2013, 312/2013, 313/2013, 318/2013, 319/2013, 320/2013, 321/2013, 326/2013 and 328/2013 reported as Deepak Mohan Sethi Vs. BSES Rajdhani Power Ltd. & Anr. and delivered on 06/05/2014. In the said case, the appellants who were the employees of the respective respondent Distribution Company took voluntarily retirement under the VRS during the period 2003 to 2006. They filed the writ petitions in February 2013 claiming time bound promotional scales during the period 1992 to 2000. They claimed the TBPS on the basis of the office order dated 23/07/1997 and 21/12/1999. They did not make any claim at the relevant time when the TBPS became due to them. They also did not make any claim or demand even at the time of acceptance of voluntary retirement. They made the first representation for the claim of TBPS in April / May 2012. No explanation was given for the delay in filing the writ petitions and they were filed with a delay of more than 10 years.
36. While referring inter alia the decision of Tarsem Singh (supra), the decision of M.K. Saini (supra) as well as of the bunch of Letters Patent Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 24 of 30 Appeal viz. Rajender Kumar (supra), the Hon'ble High Court of Delhi has held that the appellants having taken the VRS, their claim falls with the exception to the exception in terms of the principle laid down in Tarsem Singh (supra) and in view of belated representation, the claims of the appellant were stale. It was observed that notwithstanding the inordinate and unexplained delay on the part of the appellants, the writ petitions were not maintainable as they had opted voluntarily for VRS which resulted in complete cessation of jural relationship between them and the respondents. It was further held that since they had declared their designation and income in the application form for VRS on the basis of which they accepted the dues. They did not protest and hence they could not raise the claim of TBPS which was clearly barred by the principle of estoppel and waiver.
37. In the case in hand, the plaintiff is seeking the TBPS on the basis of office order dated 23/07/1997. He had attained voluntarily retirement on 29/02/2004 under VRS and he had made the first representation after his VRS to claim the TBPS vide legal notice dated Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 25 of 30 11/04/2012. The suit has been filed on 31/07/2012. The aforesaid facts bring the plaintiff's case categorically within the ratio laid down in the case of Deepak Mohan Sethi & Ors. (supra) and it is clear that the suit of the plaintiff is barred by limitation.
Issue stands decided in favour of the defendants.
38. Findings on issue no. 5 Whether the suit is barred by Section 41 of the Specific Relief Act ? OPD2.
Onus to prove this issue was placed upon the defendant no. 2.
39. The defendant no. 2 has contended that the plaintiff has concealed the material facts from the Court and as such the suit is liable to be dismissed under Section 41 of the Specific Relief Act. During the course of arguments or at the time of leading of evidence of the parties in the matter, no material has been brought on record by the defendant no. 2 from which it can be inferred that the plaintiff has concealed the material facts from this Court. Whatever facts which were relevant for the decision of the present suit are present in the pleadings of the plaintiff and hence, Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 26 of 30 the instant issue stands decided against the defendant no. 2.
40. Findings on issue no. 6 Whether the suit has been properly valued for the purpose of Court fee and jurisdiction ? OPP.
Onus to prove this issue was placed upon the plaintiff.
41. The plaintiff has valued the suit for the relief of declaration at Rs. 200/ and at Rs. 130/ for the relief of mandatory injunction. The defendant no. 2 has objected to the same on the ground that the valuation is not proper as the plaintiff has also claimed consequential benefits along with interest.
42. To this Court, the submission of the defendant appears to be justified for the reason that the plaintiff should have disclosed in the suit, the amount to which he would be entitled if his claim was found maintainable and the suit is decided in his favour. The plaintiff must be aware of the benefits which he would be entitled in terms of money while making the instant claim. The Court is of a view that the plaintiff should Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 27 of 30 have sought the recovery of that specific amount valuing the suit according to the said amount. Since he has failed to do so, the instant issue stands decided against him.
43. Findings on issue no. 7 Whether the plaintiff is entitled to the relief of declaration as sought ? OPP.
Onus to prove this issue was placed upon the plaintiff.
44. The plaintiff's claim for a decree of declaration to the effect that he is entitled for grant of three TBPS as well as the pensionary benefits cannot be allowed for the reason that as noted above while deciding issue no. 4, the said claim is barred by limitation.
45. As has been observed by this Court in the decision of the said issue no. 4, the present relief of declaration cannot be granted for the following reasons :
1. The suit is barred by limitation.
2. While accepting the VRS, the plaintiff has accepted leaving the Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 28 of 30 service and abdication of his claim or rights in the same and that the scheme was negotiable.
3. The jural relationship between the parties ceased to exist when the plaintiff had accepted the voluntary retirement.
4. The plaintiff had been paid compensation calculated in the manner specified in the VRS as full and final settlement.
5. While accepting the VRS, without making any protest regarding his past rights, the plaintiff is estopped from making the claim in the Court of law and any such claim made subsequently like by instituting the present suit is barred by principle of waiver. For the aforesaid reasons, the instant issue stands decided against the plaintiff.
46. Findings on issue no. 8 Whether the plaintiff is entitled to the relief of mandatory injunction as sought in prayer ? OPP.
Onus to prove this issue was placed upon the plaintiff. Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 29 of 30
47. A direction to the defendant to release the consequential benefits for grant of TBPS including pensionary benefits with interest could have been made only if the plaintiff was held entitled for the grant of TBPS. Since he has been held not entitled for it as noted above, he cannot be held entitled to the relief of mandatory injunction. Relief.
As a sequel to the aforesaid discussion and decision of the issues, the suit of the plaintiff is dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open court
on 19.01.2016 (Jitendra Pratap Singh)
Civil Judge, Central (09)
Tis Hazari Courts, Delhi
19.01.2016
This judgment consists of 30 pages and all the pages are duly signed by me. Suit No : 62/14 L.R. Mehta Vs. Delhi Power Co. Page 30 of 30