Delhi District Court
Virender Nath Diwedi vs Bses Yamuna Power Ltd on 3 September, 2011
IN THE COURT OF SHRI T. S. KASHYAP
PRESIDING OFFICER : LABOUR COURTXIX (EAST)
KARKARDOOMA COURTS : DELHI
LCA No. 02/09
Unique Case I.D. No. 02402C0047282009
VIRENDER NATH DIWEDI
R/o 114, Opposite DESU Office,
Shakti Kiran Building, Karkardooma,
Delhi. ....................Claimant/Workman
Vs.
1. BSES YAMUNA POWER LTD.
Through: Chief Executive Officer,
Shakti Kiran Building, Karkardooma, Delhi.
2. DVB EMPLOYEES TERMINAL BENEFIT FUND, 2002
(PENSION TRUST)
Through Secretary, Trust
Rajghat Power House, New Delhi. .............................Managements
Date of Institution of case : 10.02.2009
Date of reserving the award : 26.08.2011
Date of pronouncement : 03.09.2011
Claim u/s. 33 C (2) of Industrial Disputes Act, 1947
O R D E R
This application/claim u/s. 33 C(2) of Industrial Disputes Act, LCA No. 02/09 1 of 13 pages 1947 (hereinafter referred as 'Act') has been filed by applicant/workman Sh. Virender Nath Diwedi against the aforesaid management with the prayer for computation of his retirement benefits including gratuity and monthly pension and to direct the management to pay the same with interest @ 12 % per annum submitting that he was an employee of erstwhile DESU/DVB and was lastly working as Assistance Line Man in zone No. 2501, district Laxmi Nagar as employee No. 27385. The erstwhile DVB was unbundled w.e.f. 01.07.2002 and in its place various companies had been formed as per transfer scheme 2002. The name of various companies so formed were :
a). Delhi Power Company Limited, in short DPCL i.e. Holding Company.
b). Delhi Transco Company Limited i.e. DTL.
c). Indraparastha Power Co. Limited, i.e. IPCL.
d). North Delhi Power Limited i.e. NDPL (DISCOM).
e). BSES Yamuna Power Ltd., & BSES Rajdhani Power Ltd., i.e. BYPL & BRPL (both DISCOMS).
It is claimed that after unbundling, the workman became an employee of BSES YPL i.e. management No. 1. The DVB employee terminal benefit fund, 2002 (pension trust) was also formed for the purpose of disbursement of pension of old employees of DVB and also for the employees who became the employees of various newly formed companies who retired from the service on attaining the age of superannuation or otherwise while in the employment of the management No. 2. While in the employment of management No. 1, workman sought voluntary retirement LCA No. 02/09 2 of 13 pages from the services of the management No. 1 w.e.f. 31.08.2003 on which he was retired on 31.08.2003 vide order dated 28.08.2003. However, in the said order, management No. 1 wrongly stated that retirement benefits to the workman will be released after decision in the case titled as 'Smt. Shyama Dewedi Vs. Virender Nath Dewedi (workman) pending in Hon'ble High Court of Delhi at that time. The said case was filed by wife of workman claiming maintenance which has nothing to do with the workman's official duty, as such it was wrongly mentioned in the order dated 28.03.2003 and the payment/retirement benefits have not been paid to him by the management No. 1 on account of pendency of the case. It has been submitted that the said case had been closed by Hon'ble High Court of Delhi vide order dated 09.11.2004 and there was no hindrance in making payment to the workman but his retirement benefits have not been paid which include pension w.e.f. 01.09.2003, leave encashment, provident fund, commutation of pension and other allied benefits. He had been approaching the management and making representations but hid dues are not released on the pretext that other company will make the payment. It has been submitted that as per clarifications issued by Govt. of NCT of Delhi vide its letter number P.11 (19)/2008/Power/Vol. II/2441, dated 07.10.2008, the DISOMS i.e. BSES YPL is required to release the payment of the employees of the DVB as per orders of Hon'ble High Court of Delhi but the management No. 1 is not making the payment on the ground that workman has superannuated LCA No. 02/09 3 of 13 pages on 31.08.2003 and in such case, management is not liable to make the payment and only management No. 2 shall make the payment. It is also submitted that the management No. 2 is also not making the payment on the ground that it is liable only to make the payment of retirement benefits after the actual date of superannuation which is 60 years. However, as per the clarifications issued from Govt. of NCT of Delhi referred above, management No. 1 only is liable to make the payment. It has been submitted that the workman has served demand notice on both the managements on 09.12.208 through UPC and Regd. AD and is entitled to receive following payments:
i) Gratuity Approximately Rs. 1,25,000/
ii) Monthly Pension Rs. 2,83,500/
@ 4500/ approximately per month
w.e.f. 01.09.2003 to 31.12.2008 ___________
Rs. 4,08,500/
___________
It has been prayed that directions be given to the workman accordingly.
2. Management No. 1 has contested the claim by filing reply submitting that it is not liable to make any payment to the workman as Pension Trust created in the year 2002 is responsible to make the payment of all the retiral benefits interalia of the employees of erstwhile DVB. In the year 2002 the DVB was unbundled into six companies including the answering management and Pension Trust i.e. DVB Employees Terminal LCA No. 02/09 4 of 13 pages Benefit Fund, 2002 was also created for the disbursement, settlement of retiral benefits of erstwhile DVB employees. Hence, liability qua the workman in respect of retiral benefit is solely of the management No. 2. The Board of Trustees DVB ETBF 2002 in its meeting held on 11.12.2004, resolved that the retiral benefits in cases of employees granted Voluntary Retirement under Rule 48 A of CCS Pension Rules or any such separation other than those provided under the trust deed and rules should be dealt in the same way as the SVRS issued of IPGCL has been decided by GNCTD. Therefore, all the liabilities in such cases are not to be covered under the Trust Deed and Rules and should be borne by the company approving such separation under relevant rules and the liabilities of such employees shall be taken over by the Pension Trust on reaching their notional date of superannuation or death whichever is earlier. It has been claimed that the management No. 1 is not liable to pay any retirement benefits to the petitioner as a matrimonial dispute is pending between the workman and his wife Smt. Shyama Diwedi. When the workman sought voluntary retirement, Smt. Shyama Diwedi had filed a petition before Hon'ble High Court of Delhi titled as Smt. Shyama Diwedi Vs. Virender Nath Diwedi whereby the management was restrained from releasing the retirement benefits to the workman. Accordingly, vide order dated 28.08.2003, it was specifically mentioned that retirement benefits of the workman shall be released only after decision of of the case pending before Hon'ble High Court. The LCA No. 02/09 5 of 13 pages workman duly accepted his release orders in terms of the letter dated 28.03.203 and same has become final and binding on the workman. The said case was withdrawn by petitioner therein i.e. Smt. Shyama Diwedi and she filed maintenance petition which is still pending in the court of concerned Ld. M.M. and vide order dated 29.08.2005 and 09.12.2005, court had restrained the answering management to release the retirement benefits to the workman except for the amount already released. The management No. 1 released Rs. 7783/ vide cheque No. 431032 dated 14.06.2005 on account of National Group Insurance Scheme. The GPF amount of the workman has already been settled by Pension Trust and paid through cheque No. 639460 dated 16.06.2005 which was received by the workman on 20.06.2005. The workman has not produced any document nor has communicated that the aforesaid orders have been vacated and or modified and said orders are still in operation. It has been claimed that nonpayment of the retirement benefits to the workman is on account of restraint orders passed by the court and answering management cannot be penalized for the same by imposing interest on them.
3. Management No. 2 has filed separate writtenstatement taking preliminary objection that the claim is not maintainable as the case is covered by direct judgment of Hon'ble High Court in the matter CWP 4827/2005 and 519899/2005, titled as BSES Vs. GNCTD & Ors, reported as 2007 (142) DLT 65: 2007(8) AD (Delhi) 605: 2008 LIC 1, wherein LCA No. 02/09 6 of 13 pages Hon'ble High Court has held that Rule 48 (A) of CCS Pension Rules is not covered under the existing Trust Deed and Rules and that Pension Trust (defendant herein) is strictly a Superannuation Trust and mandated to disburse for cases only covered by the Trust Deed and vide order dated 08.10.2007 (CWP 4827/2005 and 519899/2005) the Hon'ble High Court was even pleased to discharge the Pension Trust from the role of even disbursal of Pension, till the date of superannuation (age of 60 years) of the SVRS optee. The Hon'ble High Court further held that it was the employer which was responsible for paying pension till the date of superannuation and that also through a separate Trust body created for the purpose. The workman had taken voluntary retirement from its employer BSES YPL, as such no relief can be claimed against any other person till the date of actual superannuation and in the present case, the workman will attain superannuation only on 31.12.2011 and thereafter will get pension from the respondent only thereafter and that too if he is eligible under the Pension Rules and has completed the requisite qualifying service. It has been submitted that claim against the management No. 2 is not maintainable and claimant is not entitled for any interest at this stage because no amount whatsoever has become due from management No. 2.
4. On pleadings of the parties on 29.05.2009 my the then Ld. Predecessor framed the issues as under :
1. Whether the workman is entitled for retiring benefits as claimed? OPW.
LCA No. 02/09 7 of 13 pages
2. Whether claim of the workman is not maintainable in the eyes of law? OPM.
3. Relief.
5. In support of his claim, workman appeared in the witness box as WW1 and tendered his affidavit Ex. WW/A relying on documents Ex.
WW1/1 to Ex. WW1/6 and after his crossexamination, workman's evidence was closed.
On behalf of the management, MW1 Sh. Vishnu Prasad was examined who tendered his affidavit Ex. MW1/A relying on document Ex. MW1/1. On behalf of management No. 2, MW2 Sh. V.M. Cyriac also tendered his affidavit Ex. MW2/A relying on document Ex. MW2/1 (colly) and on his crossexamination, ME was closed.
6. I have heard submissions from Ld. ARs for the parties and gone through the record. My findings on the issues are as under : ISSUE NO. 1
7. Ld. AR for the workman has submitted that workman has corroborated his claim through his affidavit Ex. WW1/A and there is no dispute that he was in the employment of erstwhile DESU/DVB which was unbundled into six companies and BSES YPL the management No. 1 is one such company and after unbundling w.e.f. 01.07.2002, the workman became an employee of BSES YPL the management No. 1 and worked with LCA No. 02/09 8 of 13 pages it till 31.08.2003. He sought voluntary retirement from the service of management No. 1 which was accepted and he retired on 31.08.2003 vide order dated 28.08.2003 Ex. WW1/1. He made demand from the management about his retirement benefits but the management No. 1 refused to release the payment in view of the case titled as 'Smt. Shyama Diwedi & Anr. Vs. Virender Nath Diwedi (workman herein), pending before Hon'ble High Court of Delhi at New Delhi. He submitted that as per judgment dated 30.03.2006, passed by Hon'ble High Court of Delhi in case 'LPA No. 98/05, titled as Govt. of NCT of Delhi & Ors. Vs. K.R. Jain & Ors.', the liability to pay the retirement benefits is on the management No. 1 but the payments have not been released even though as per clarifications issued by the Govt. of NCT of Delhi vide its letter No. P.II (19)/2008/Power/Vol.II/2441, dated 07.10.2008, the DISCOMS i.e. BSES YPL is required to release the payment of employees of DVB as per orders of Hon'ble High Court. The said judgment has also been upheld by Hon'ble Apex Court in 'WP (C) 4827 & 23460/05, titled as North Delhi Power Ltd. Vs. Govt. of NCT of Delhi, decided on 02.07.2007', and therefore it is submitted that the the management No. 1 be directed to release the dues.
8. Ld. AR for the management No. 1, however, resisted the prayer submitting that meetings of various authorities under the Secretary (Power), issue is going on and no liability has been fixed on management No. 1 and therefore, management No. 1 is not liable to make the payment of retirement LCA No. 02/09 9 of 13 pages benefits of the workman.
9. Ld. AR for the management No. 2 has submitted that the liability of management No. 2 to pay the pensions benefits arises only on attaining the age of superannuation of the workman and that is subject to condition that he has rendered minimum qualifying service of 20 years. He has relied on the opinion given by Ld. Attorney General of India vide letter dated 29.04.2004, copy of which has been placed on record. In the said letter it has been opined that the Pension Trust is not liable to pay the liabilities arising on account of the VSS/SVRS floated by DISCOMS for the employees prior to the date of their superannuation. It cannot be utilised to pay pension liability under the provisions of rule 29, 48 & 48A of Central Civil Services (Pension) rules 1972. He submitted that the case of workman is pre mature as he has not attained the superannuation till date and management No. 2 is not is a necessary party at this stage.
Crossexamination of workman reveals that he has already received GPF amounting to Rs. 68,000/ approx besides Rs. 7000/ approx towards NGIS and thereafter, he received Rs. 44,000/ and a cheque for Rs. 3000/ was given to his wife in the year 2008 towards his salary. MW1 through his affidavit Ex. MW1/A has testified that management No. 1 has already released Rs. 7783/ vide cheque No. 431032 dated 14.06.2005 on account of National Group Insurance Scheme. The GPF amount of workman has already been settled by Pension Trust and paid through Cheque No. LCA No. 02/09 10 of 13 pages 639460 dated 16.06.2005 and the said cheque has been encashed by the workman on 20.06.2005. In his crossexamination MW1 Sh. Vishnu Prasad has admitted that no payment of retirement benefits have been made to the workman except pending salary of Rs. 44,589/, GPF of Rs. 68,000/, NGIS of Rs. 7000/ and miscellaneous payment of Rs. 3000/. Workman through his affidavit Ex. WW1/A has reiterated his claim and has alleged that management No. 1 is not making the payment and harassing him by withholding the payment indicating the pendency of his wife's case for non payment of his VRS and terminal dues. MW1 Sh. Vishnu Prasad appearing on behalf of management No. 1 has disowned the liability through his affidavit Ex. MW1/A. In reply to question of Ld. ARW asking him that Hon'ble court in judgment of K.R. Jain has decided that in such cases payment shall be made by respective DISCOMS and this witness stated that company had launched SVRS policy and according to that policy management No. 1 has made the entire payment in compliance of aforementioned judgment. However, he added that the claimant had not taken retirement according to SVRS policy but had sought retirement prior to launching of SVRS policy and therefore, management No. 1 is not liable to make the payment. Therefore, it is deemed admitted that the retirement dues of workman have not been paid till date. If the management No. 1 could pay the retirement benefit of workman who had opted for SVRS policy, there was no reason to withhold the retirement benefits of the LCA No. 02/09 11 of 13 pages workman, if he sought retirement prior to launching of SVRS policy because liability to pay dues is admitted by the management No. 1. Referring letter dated 21.01.2004 received from the Govt. of NCT of Delhi. Hon'ble High of Delhi in case 'LPA No. 98/05, titled as Govt. of NCT of Delhi & Ors. Vs. K.R. Jain & Ors.', has held that it would be NDPL which would be responsible for the payment of amount as per direction of Ld. Single Judge to the respondent No. 1 and not the Delhi Power Company Ltd. The said judgment has been upheld by Hon'ble Supreme Court. In the present case, it is the BSES YPL in place of NDPL who has been held responsible for the payment in the authority relied above and therefore, BSES YPL, the management No. 1 herein, is liable to pay the retirement benefits to the workman.
ISSUE NO. 2
10. Admittedly, the workman has not attained the age of superannuation as he will be attaining the age of superannuation on 31.12.2011 and therefore, management No. 2 has no liability at this stage. However, it is admitted fact that in the maintenance case titled as 'Smt. Shyama Diwedi & Anr. Vs. Virender Nath Diwedi (workman herein), Ld. MM vide order dated 09.12.2005 has restrained the management No. 1 from releasing the benefits on account of maintenance claim of wife and minor child of workman. The management has not disputed the claim of Rs. 4,08,500/ as raised by the workman as no separate calculation has been LCA No. 02/09 12 of 13 pages produced nor any discrepancy has been pointed out in the calculation made by the workman. However, management No. 1 cannot be wholely blamed for delay and there is no justification for granting any penal interest. However, management No. 1 cannot further delay the payment of retirement benefits to the workman on any ground. Therefore, management No. 1 is directed to make the payment of outstanding dues to the workman within 30 days from today subject to compliance of order of Ld. MM dated 09.12.2005 to the effect that whatever outstanding maintenance has not been paid by the workman to his wife and minor child, the same shall be deposited in the court of Ld. MM and after apprising the said court, arrangement shall be made for future payment for the maintenance. Ordered accordingly. In default, management No. 1 shall be liable to pay interest @ 9% per annum on unpaid amount till the date of payment.
11. Claim is answered accordingly. Case file be consigned to Record Room.
Announced in the open court on 03rd Day of September 2011.
(T. S. KASHYAP)
PRESIDING OFFICER, LABOUR COURTXIX
KARKARDOOMA COURTS, DELHI
LCA No. 02/09 13 of 13 pages