Delhi District Court
Brahma Nand Sharma vs State Of Nct Of Delhi on 9 June, 2016
1
IN THE COURT OF MS.HEMANI MALHOTRA/SPECIAL JUDGE
(PC ACT)(ACB)/CENTRAL05/TIS HAZARI COURTS/DELHI
Criminal Appeal No. 13/16
CC No. 71/3
Under Section 630 of the Companies Act
Case ID No. 02401R0204772016
Brahma Nand Sharma
Quarter No. G31, TypeII,
Tripolia Colony,
Delhi110007 .....Appellant/Convict
Versus
1. State of NCT of Delhi
2. BSES Yamuna Power Ltd.
Shakti Kiran Building,
Karkardooma,
Delhi110003 .....Respondents
Date of Institution : 19.03.2016
Date of receiving by this Court : 19.03.2016
Date of conclusion of final arguments : 06.06.2016
Date of pronouncement of Judgment : 09.06.2016
JUDGMENT
1. Present appeal has been preferred against the impugned judgment of conviction dated 06.02.2016 and order on sentence dated 20.02.2016 passed by learned ACMM in CC No. 71/13 titled as BSES Yamuna Power Ltd. Vs. Brahma Nand Sharma whereby the appellant was convicted for the offence punishable u/s 630 of the Companies Act and was directed to hand over possession of Quarter No.G31, TypeII, Tripolia Colony, Delhi110007 (hereinafter referred to as 'Premises in question') failing which to undergo simple imprisonment for one year.
Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 1 of 10 22. The brief facts necessary for disposal of the present appeal are that the complainant company M/s BSES Yamuna Power Ltd. filed a complaint u/s 630 of the Companies Act against the convict Brahma Nand Sharma alleging that he was a retired employee of erstwhile Delhi Electricity Supply Undertaking (DESU) which was subsequently converted into Delhi Vidyut Board (DVB). The convict was alloted Quarter No.G31, TypeII, Tripolia Colony, Delhi7 by DESU in terms of Allotment Letter dated 22.08.1978 till his employment with erstwhile DESU or its successor. The convict retired from his service on 31.08.1990 and was accordingly served a notice to vacate the premises occupied by him by the predecessor of the complainant i.e. DESU. Even the Estate Officer of erstwhile DESU had passed orders of eviction against the convict under Public Premises Act but despite the notice and the order, the convict did not hand over the possession of the said premises. Since, after coming into force of the Delhi Electricity Reforms Act, 2000 and Delhi Electricity Reforms (Transfer Scheme), Rules 2001, the complainant company named as Distribution Company3 (DISCOM3) took over the charge of distribution of electricity in North and NorthWest Delhi from DVB and also since all the rights, titles, interests, claims, liabilities and demands etc. qua all the properties/assets belonging to and/or owned by the erstwhile DVB against its employees were transferred/assigned to the complainant w.e.f. 01.07.2002 (vide notification No. F.11(99)/2001Power/PFIII/2081 dated 13.11.2001 and notification No.F.11/1999/2001POWER/2867 dated 20.11.2001), a legal notice was sent to the convict but to no avail. As the convict failed to vacate and hand over the possession of the said premises to the complainant company, complaint u/s 630 of the Companies Act was filed by the complainant.
3. After filing the complaint, the complainant examined Sushil Kumar, Legal Assistant/BSES YPL as CW1 in its presummoning evidence. Pursuant to which, the convict was summoned and in reply to notice u/s 251 Cr.P.C., the convict pleaded not guilty and claimed trial u/s 630 of the Companies Act. Whereafter, the complainant and the convict both led their evidence and Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 2 of 10 3 statement of the convict u/s 313 Cr.P.C. was recorded. After hearing the final arguments, the learned Trial Court passed the impugned judgment of conviction and order on sentence which have been challenged by way of present appeal before this Court.
4. To prove its case, the complainant examined Sushil Kumar as CW1 who adopted his presummoning evidence in which he had reiterated the contents of the complaint. He testified that by virtue of Delhi Electricity Reforms Act 2000, the assets of erstwhile DVB were transferred to BSES Yamuna Power Ltd. Vide notification dated 13.11.2001 (Ex. CW1/9), the BSES was also entrusted to deal with the flats/quarters in the residential colony of Tripolia, New Delhi and to get the same vacated from its unauthorised occupants. He also proved all the documents pertaining to the allotment of the premises to the convict and the notices and letters exchanged between the parties. In his crossexamination, CW1/Sushil Kumar admitted that at the time of retirement, the convict was not an employee of the complainant company and that the complainant had no liability to pay the retirement benefits and pension etc. to the retired employees who had retired prior to the incorporation of the complainant company i.e. before July 2002. He also admitted that at the time of retirement, the convict was an employee of DESU. In his further cross examination, he denied the suggestion that the premises in question was constructed under Low Income Group Housing Scheme which was floated by Union of India and the same was to be transferred in the name of the convict. He also denied having knowledge of Resolution passed by DESU dated 27.12.1989 (Mark D1) resolving to transfer the flats falling in Low Income Group Housing Scheme in favour of persons such as the convict.
5. In defence, the convict examined Shyam Lal Bhandari, Section Officer, Housing & Urban Poverty Alleviation, Nirman Vihar, New Delhi as DW1 and Gurnani, Record Clerk in the office of Chief Minister of Delhi as DW2 to prove the scheme for Low Income Group Housing of year 1954 and related circulars.
Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 3 of 10 46. From the careful scrutiny of the testimonies of CW1/Sushil Kumar, DW1/Shyam Lal Bhandari and DW2/Gurnani, the following facts are admitted by both the parties:
(a) The convict was an employee of the erstwhile DESU and had retired on 31.08.1990.
(b) The premises in question was alloted to him by virtue of his employment under DESU with the condition that he was to retain the said premises till he remained in the services.
(c) Ex. CW1/9 (Notification No. F.11(99)/2001Power/PF III/2081 dated 13.11.2001) came into effect on 01.07.2002 vide which all the rights, titles, interests, claims, liabilities and demands etc. qua all the properties /assets belonging to and/or owned by the erstwhile DVB and all the claims, rights, liabilities and demands of DVB against its employees were transferred/ assigned to the complainant.
(d) There was a resolution passed by DESU dated 1999 resolving to transfer the flats falling in Low Income Group Housing Scheme in favour of the allottees by virtue of their employment in DESU.
7. It was firstly argued by the learned counsel for the convict that since the convict was not an employee of the complainant, Section 630 of the Companies Act was inapplicable and the complainant had no locus standi to evict the convict.
8. Per contra, it was argued by learned Counsel for the complainant that by virtue of the notification No. F11/99/2001Power/PFIII/2828 dated 13.11.2001 (Ex.CW1/9), all the assets and liabilities of the erstwhile Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 4 of 10 5 DESU /DVB were transferred to the complainant and hence, Section 630 of the Companies Act was applicable in the present case to evict the convict who was a retired employee of DESU.
9. There is certainly no merit in this argument of learned counsel for the convict. In the case of North Delhi Power Ltd. Vs. Govt. of NCT of Delhi & Ors., reported as 169(2010) DLT 575 (Supreme Court), the respondent No.3 i.e. Sh. K.R. Jain, an erstwhile employee of DESU who had superannuated from service on 31.07.1996 had filed a writ petition before the Hon'ble Delhi High Court claiming that even though he had been superannuated on 31.07.1996 i.e. much prior to NDPL having been incorporated and inheriting the distribution along with the assets, liabilities, personnel and proceedings, he was covered under the time bound Terminal Scale Scheme dated 23.07.1997. His writ petition was allowed by the Hon'ble Delhi High Court even though NDPL had not been made a party holding that respondent No.3 was entitled to avail the benefits under the Time bound Promotional Scale Scheme (TBPS) and that DVB had unjustly denied him his dues. Holding the NDPL as successor of DESU/DVB, Writ of Mandamus was issued against NDPL to implement its judgment. On an appeal filed by the NDPL against the judgment dated 23.03.2004 passed by the Hon'ble Delhi High Court, the issue "whether the appellants are responsible for meeting the liability relating to employees who ceased to be employees of erstwhile DESU (predecessor of DVB) prior to 01.07.2002 on account of their retirement/removal/dismissal or compulsory retirement in accordance with the provisions of Delhi Electricity Reforms Act 2000?" was dealt with by the Hon'ble Supreme Court. The Hon'ble Supreme Court in this judgment (supra) referred to various rules of Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 and observed as follows:
"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 Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 5 of 10 6 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 broad enough to include all dismissed, dead, retired and compulsorily retired employees. As if that was not sufficient, Subrule(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 tripartite 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 subrule, 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."
A glance at these subrules 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 Subrule (8) does not contemplate pension or any liability on account of the revised payscale 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.
Again relying on Rule 2(R) it was feebly tried to be suggested that the DISCOMS were not the only transferees but it was also the holding company, namely, the Delhi Power Company Ltd (DPCL). The argument is obviously incorrect as no employees were ever transferred to the DPCL. All transferees came only to the DISCOMS like the NDPL under the transfer scheme. The High Court has correctly interpreted these Rules and has correctly come to the conclusions that the liabilities would rest with the DISCOMS including NDPL and BSES."
(emphasis supplied)
10. From the ratio of the aforesaid judgment (supra), it is more than crystal clear that all the liabilities of the erstwhile DESU/DVB after the notification dated 13.11.2001 came into effect, vested in the DISCOMS which include Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 6 of 10 7 both NDPL as well as BSES. Thus, keeping in mind the observations of the Hon'ble Supreme Court in the judgment cited above, it necessarily follows that the officers or employees of DISCOMS (NDPL and BSES) include ex officers or exemployees of DESU/DVB and as the assets of the erstwhile DESU/DVB after the notification dated 13.11.2001 vested in the DISCOMS, therefore, the complainant had every right to invoke Section 630 of the Companies Act against the convict who was an exemployee of BSES. Otherwise also, on a query put to the convict during the course of the arguments, it was admitted by the convict that he has been receiving pension from the complainant. Meaning thereby, that he had accepted himself to be an exemployee of the complainant. Hence, an inference that the complainant is the employer of the convict and that the premises in question is an asset of the complainant can be safely drawn. In similar circumstances, the Hon'ble High Court in Criminal Revision Petition No. 323/2013 and Crl. M.(B) No.1154/2013 titled as Ram Gopal Vs. State and Another decided on 10.09.2013 dismissed the revision of the retired employee of DESU who was unauthorisedly holding on to the quarter alloted by erstwhile DESU/DVB. In the said judgment, the petitioner was employed as a Mazdoor by DESU and was alloted residential accommodation. Upon superannuation in March 2003, petitioner was to vacate the subject quarter but he failed to do so. The trial court imposed a penalty on account of his unauthorised occupation and also directed him to vacate the subject quarter failing which he was directed to undergo simple imprisonment. The order of the trial court was upheld by the appellate court. Thereafter, the petitioner filed a revision petition against the said order before the Delhi High Court. It was pleaded before the Hon'ble Delhi High Court that the petitioner was not an employee of respondent No.2 and erstwhile DESU/DVB was taken over by NDPL so trial court's order as well as appellate court's order deserve to be set aside. The Hon'ble High Court upon hearing both the sides and relying upon the notification dated 13.11.2001 dismissed the revision petition.
Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 7 of 10 811. Secondly, it was argued by the learned counsel for the convict that the premises in question is covered under the Low Income Group Housing Scheme, therefore by virtue of Ex. DW/1A (copy of the Scheme pertaining to Low Income Group Housing of the year 1954), Mark B1 (Resolution passed by DESU dated 27.12.1989 resolving to transfer the flats falling in Low Income Group Housing Scheme in favour of allottees and in view of the letter of Chief Minister of Government of NCT Delhi dated 11.04.1996 permitting the allottees of official residential accommodation, of the local bodies of DESU to continue occupying the premises and not to evict them, the complainant cannot claim any right over the premises in question. To counter the argument of the convict, the learned Counsel for the complainant relied upon a judgment dated 04.09.2014 titled as Birma Nand Sharma Vs. Lt.Governor Govt. of NCT & Ors. passed in W.P.(Crl.) 1397/2014, C.M. Nos. 1069710698/2014 and submitted that the issue raised by the convict has already been settled in the said judgment. He brought para Nos.11 and 12 of the judgment (supra) to the notice of the court wherein it was observed by the Hon'ble High Court that:
"11. At the outset, this Court notices that the petitioners do not question Section 15; nor do they state that the Notification is in any manner ultra vires the provisions of the Reforms Act, 2000. What is sought to be urged is that that the prior Resolutions of the Govt. of NCT of Delhi and in some instances the MCD and even DESU, resulted in superior entitlement of the petitioners to claim rights over the properties, precluding the creation of license in favour of the transferee companies. In this Court's opinion, the observations of the Supreme Court in the judgment reported as Jagdish Prasad & Ors. v. MCD (supra), are conclusive; the same are as follows: "5. We have considered the arguments advanced by Learned Counsel for the parties and have thoroughly perused the record. It is not in dispute that the petitioners were allotted the houses in view of the fact that they were employees of the DESU. It is also not disputed that the petitioners during all these periods were paying rent to the respondents. The petitioners have failed to show that any resolution was ever passed by the Delhi Electricity Supply Committee for selling of the quarters in question to the petitioners or had passed any resolution for giving such quarters on hire purchase basis. The petitioners have no legal right under the scheme of 1954 to claim any right of ownership in the quarters occupied by them. Though it may be desirable and wishful thinking that the welfare state may provide house to every citizen and specially the persons belonging to low income group and falling in the lower strata of the society. However this is a stupendous task looking to the vast population of this country and the limited financial resources and as such no direction can be given by the courts in this regard on the basis of a broad submission that the petitioners were entitled to such right as an Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 8 of 10 9 ordinary citizen. Resolution No. 868 dated 14.1.1970 was passed by Municipal Corporation of Delhi in respect of their own employees and the same cannot be applied to the employees of DESU. There is no question of applying the principle of equality in such matters where the employer of the petitioners is different and the DESU had not passed any resolution of transferring the ownership of the houses in respect of its employees. It is not the case of the petitioners that in respect of any other low paid employees of DESU similarly circumstanced as the petitioners had been given ownership of any houses."
The petitioners' submissions are that the above observations would not preclude examination by this Court as to their entitlement to claim allotment. Such an argument, in the opinion of this Court, is inadmissible and insubstantial. Irrespective of whether the Resolution was placed before the Court or not - an aspect which was emphasized during the course of submissions, the ratio in Jagdish Prasad's matter is categorical, in that, an employee cannot base his claim to the ownership of the properties of a public employer, merely on the basis of a Resolution - howsoever, benevolent the intention behind it might be. Furthermore, this Court is of the opinion that there are other public policy considerations which outweigh such claims, i.e., that if the public employers are to be constrained to part with the immovable assets in the form of residential quarters and other such properties, to employees, they would be unable to cater to the residential needs of the existing employees. In these circumstances, the petitioners' submissions with respect to their alleged prior entitlement over the properties occupied by them, precluding the creation of license through the Notification, is without force.
12. The second submission - and the subsidiary one - appears to be that creation of licenses is itself arbitrary. At best, this is a vague argument, since it is premised upon the argument that the Notification, to the extent that it empowers the licensee distribution companies to take steps to maintain the properties and also includes the power of evicting unauthorised occupants and trespassers is arbitrary. Once the creation of licenses is authorised by Statute - which is not being questioned - the impact of that would necessarily be, that in exercise of the powers conferred under Clauses 2(d) and 2(e), the licensee has to take steps to ensure that the properties are secure."
12. From the aforesaid judgment (supra), it is evident that the convict who is an exemployee/retired employee of DESU/DVB cannot base his claim to the premises in question on the basis of Resolutions (Ex.DW1/A, Mark D1 and Resolution dated 11.04.1996) and, therefore, the argument of the learned counsel for the convict in this regard also deserves to be outrightly rejected.
13. In view of my aforesaid discussion, facts and circumstances, I do not find any illegality or perversity in the impugned judgment of conviction and order on sentence passed by the learned ACMM. The appeal is accordingly Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 9 of 10 10 dismissed. The convict is directed to hand over the vacant and peaceful possession of the premises in question i.e. G31, Type III, Tipolia Colony, Delhi110001 to the complainant company by 20th June, 2016 failing which he shall undergo simple imprisonment for one year. Trial Court Record be sent back along with the copy of this judgment. Appeal file be consigned to Record Room.
Announced and signed in the open Court on 9th June, 2016 (HEMANI MALHOTRA) Special Judge(PC Act)(Central)05, Tis Hazari Courts, Delhi Criminal Appeal No.13/16; Brahma Nand Sharma Vs. State & Anr. Page 10 of 10