Delhi District Court
Sh. Bhim Sen vs M/S Bses Yamuna Power Ltd on 4 February, 2010
IN THE COURT OF SHRI T. S. KASHYAP :
PRESIDING OFFICER : LABOUR COURTXIX :
KARKARDOOMA COURTS : DELHI
LCA No. 118/06 (Old No. LCA 64/05)
SH. BHIM SEN
S/o Late Sh. Bhajan Singh
R/o C10/25, Yamuna Vihar, Delhi. ...........APPLICANT/ WORKMAN
Vs.
M/S BSES YAMUNA POWER LTD.
Through its Manager (Legal), Shakti Kiran Bldng,
Karkardooma, Delhi. ....................... RESPONDENT/ MANAGEMENT
Date of institution of the case : 19.03.05
Date of conclusion of arguments : 11.01.10
Date of passing the order : 04.02.10
O R D E R
This application/ claim u/s. 33C(2) of Industrial Disputes Act, 1947 (hereinafter referred as 'Act') has been filed by applicant/ workman Sh. Bhim Sen against the management with the prayer to compute amount payable to him as under :
LCA No. 118/06 (Old No. LCA 64/05) Page 1 of 13 pages
(a). Salary for one month of Jan, 2001. Rs. 8,402/
(a). Exgratia payment for 7 months w.e.f.
01.04.2001 to 31.10.2001 on prorata basis. Rs. 1,438/
(b). Incentive w.e.f. Aug, Sept & Oct., 2001 on account of late sitting as well as attending on Holidays/ Sunday for which details are available with the dept. Rs. 11,744/
(c). Commutation of Pension for 10 years as per CCS (Pension) Rules. Rs. 2,23,200/
(d). Gratuity for 36 years 10 months as per CCS (Pension) Rules. Rs. 2,24,895/ ________________ Total : Rs.4,69,679/ ________________ It has been submitted that the claimant was employed with the erstwhile management of DVB/ DESU and retired w.e.f. 31.07.2001 after rendering about 36 years of service. He was holding the post of Head Cashier in District Chandni Chowk under Revenue Officer in the pay scale of Rs. 650010900/ and his basic pay was Rs. 9,400/ but has alleged that his full retirement benefits have not been paid. LCA No. 118/06 (Old No. LCA 64/05) Page 2 of 13 pages Initially, he arrayed Delhi Power Co. Ltd. as respondent, on whose behalf objection was taken that since workman lastly worked as Head Cashier in the District Office of Chandni Chowk which now comes under BSES Yamuna Power Ltd and therefore, BSES Yamuna Power Ltd. has to be impleaded as necessary party and accordingly, my the then Ld. predecessor vide order dated 01.12.2006 allowed the application u/o 1 rule 10 CPC moved on behalf of claimant for impleading BSES Yamuna Power Ltd. as necessary party. While allowing the prayer for impleading BSES Yamuna Power Ltd. the prayer for deleting Delhi Power Co. Ltd. was also allowed and NDPL was deleted from array of parties.
2. On behalf of BSES Yamuna Power Ltd. claim has been contested by filing writtenstatement taking preliminary objections that the petition was frivolous and filed with malafide intention without any cause for payment of terminal. Criminal case u/s. 394/504/441 IPC vide FIR No. 289/2000 registered with PS Bhajanpura was pending against LCA No. 118/06 (Old No. LCA 64/05) Page 3 of 13 pages the claimant and till the disposal of the case he was not entitled for payment of regular pension and gratuity and at present nothing was due to the claimant towards salary, exgratia payment and incentive was not payable on the ground of delay and latches as it pertains to the period between Jan, 2001 to October, 2001; that the petition was liable to be rejected for nonjoinder of necessary party i.e. Pension Trust; and that BSES Yamuna Power Ltd. is not liable to make any payment to the claimant as he never worked with the answering respondent during his job tenure.
On merits it has been submitted that claimant Bhim Sen and not Bhim Singh as wrongly mentioned in petition was employed with erstwhile DVB who retired from services on 31.10.2001 and not on 31.07.2010. It has not been denied that the claimant was working as Head Cashier in District Chandni Chowk under Revenue Officer in the pay scale of Rs. 650010900/ and his basic pay was Rs. 9,400/. According to the respondent all terminal benefits of retired personnel of LCA No. 118/06 (Old No. LCA 64/05) Page 4 of 13 pages DVB are to be paid by the Pension Trust created in the name of DVB ETBF2002 for which the respondent was not liable. However, since the claimant was involved in criminal case, till the decision of that case, claimant was entitled only to provisional pension i.e. Rs. 4600/ plus D.A. as per CCS Pension Rules which is being regularly paid to him and therefore, he was not entitled to pension and gratuity till the decision in the criminal case.
3. Workman also filed rejoinder admitting pendency of criminal case but claimed that case is not in respect of any official duty and therefore, his pension cannot be withheld. He has admitted that date of retirement was wrongly typed in the statement of claim but has reaffirmed other averments.
4. On pleadings of the parties, my Ld. predecessor on 10.03.2006 framed following issues :
1. Whether the application filed by the applicant is not maintainable for the want of nonjoinder of necessary parties ? OPM LCA No. 118/06 (Old No. LCA 64/05) Page 5 of 13 pages
2. Whether applicant is entitled to money claimed by the applicant. OPW
3. Relief.
No other issue arose or pressed.
5. In support of his claim, workman has examined himself as WW1 and tendered his affidavit Ex. WW1/A in lieu of his examination inchief and relied on document Ex. WW1/1 & Ex. WW1/2 and his evidence was closed by Ld. AR for workman. On behalf of management, Sh. R.C. Kataria was examined as MW1 and management's evidence was closed.
6. I have heard arguments and also gone through the written arguments filed by the parties and my findings on the issues are as under :
ISSUE NO. 1 & 2 :
7. On behalf of workman, it has been submitted by Ld. AR that management has only disputed claim of workman in respect of item No. LCA No. 118/06 (Old No. LCA 64/05) Page 6 of 13 pages D & E i.e. gratuity payment and commutation pension and had not disputed the other claim mentioned against item No. A, B & C in para No. 3 of claim statement and therefore, admittedly, claimant was entitled for the same from either of the management. He submitted that Rule 69 of the Pension Rules provides that if any criminal or any other case is pending in any court of law gratuity is not be paid and the criminal case is pending against the workman for the last 15 years which has nothing to do with the official duty or work. Therefore, court may take any view regarding payment of gratuity considering the nature of case and period for which it is pending. Similarly, he has submitted that department has not yet finalized his final pension on account of pendency of criminal case. So the court may take a view in this regard since both these claims are interlinked. He also submitted that gratuity be also computed by taking similar view.
On behalf of management, it has been submitted that all those employees who had been in service of the erstwhile DVB and LCA No. 118/06 (Old No. LCA 64/05) Page 7 of 13 pages were not on roll at the time when transfer had taken place in favour of the nonapplicant/BSES were to be covered under Delhi Power Co. Ltd. and the issue as to which company shall be liable in respect of ex employees who had retired before the unbundling of DVB is pending before the Hon'ble Supreme Court in the form of inter alia SLP No. 11309/06 titled as NDPL Vs. GNCTD & Ors., SLP No. 116647/2006 titled as BSES Vs. GNCTD & Ors. Thus, the dispute with regard to the payment on account of contingent liability is still to be finally settled. It has also been submitted that Hon'ble Supreme Court in SLP No. 18202/06 titled NDPL Vs. M.L. Jindal & Ors. has ordered that "there shall be interim stay in the matter of SLP No. 11309/06 titled NDPL Vs. GNCTD & Ors. (KR Jain), since the payment towards the liability prior to 2002 had already been made by DPCL to Mr. K.R. Jain, the Hon'ble Supreme Court did not grant the stay of the judgment. Moreover, the payment of pension and gratuity is the responsibility of ETBF 2002 (Pension Trust). The said Trust is to continue to disburse all LCA No. 118/06 (Old No. LCA 64/05) Page 8 of 13 pages pension/family pensions to staff of erstwhile DVB and further disburse terminal benefits to the employees on roll as on 01/07/02 on their superannuation, death or incapacitation. The persons who had retired much prior to the said date were otherwise deemed to be the responsibility of the DPCL (holding co. or the Pension Trust). Hence, the defendant/ BSES has no role to play and is liable to be deleted from the array of the parties. As per Rule 69 of the Pension Rules, pension and gratuity are not payable to claimant because the claimant is admittedly involved in criminal case. Claimant has failed to prove his case qua ex gratia payment and incentive payment for late sitting etc. No record has been placed or summoned from the concerned office regarding late sitting i.e. the date, time, hours, purpose etc. and therefore, he has failed to prove this claim. He has filed on record the pay slip (Ex. WW1/1) issued by DVB for the relevant month where it is specifically stated that payment was stopped because of balance on account of GPF which as on date was Rs. 50,000/. Admittedly, the claimant was LCA No. 118/06 (Old No. LCA 64/05) Page 9 of 13 pages paid salary for later months as is also evident from Ex. WW1/2 which is a salary slip issued by DVB for the month of October, 2001 wherein balance on account of GPF is shown to be nil.
MW1 Sh. R.C. Kataria in his affidavit Ex. MW1/X has specifically stated that petitioner was not entitled for any relief as sought in the petition and is entitled only to provisional pension which is regularly paid by Pension Trust. MW1 has not been crossexamined on any of the averments on the remaining aspects and therefore, his testimony has remained uncontroverted and unchallenged and same deserves to be believed and lastly claim towards salary, exgratia payment and incentives on the ground of delay and latches was not payable.
It is admitted fact that criminal case is pending against the claimant u/s. 394/504/441 IPC vide FIR No. 289/2000 with PS Bhajanpura, Delhi and therefore, in terms of Rule 69 of Pension Rules, the gratuity and final retirement benefits shall be payable to the retired LCA No. 118/06 (Old No. LCA 64/05) Page 10 of 13 pages employee only on conclusion of departmental or judicial proceedings. The criminal proceedings pending before the concerned Metropolitan Magistrate are judicial proceedings and admittedly have not been concluded. Therefore, claim as per clause D & E in para 3 of statement of claim regarding commutation of pension and gratuity is not maintainable till the conclusion of the criminal proceedings.
The claimant through his affidavit Ex. WW1/A has merely corroborated the averments as made in the statement of claim and has not given any details regarding late sitting i.e. the date, time, hours, purpose etc. He has not summoned any record from the concerned office to corroborate his averments in claim. Therefore, there is no evidence on record to compute the claim as mentioned at clause 'C" in para 3 of claim statement. As regards claim at clause A & B in para 3 of claim statement, respondent has denied its liability relying on pendency of SLPs in Hon'bel Supreme Court i.e. SLP 116647/2006 titled as BSES Vs. GNCTD & Ors. filed by BSES, SLP No. 18202/06 titled NDPL Vs. LCA No. 118/06 (Old No. LCA 64/05) Page 11 of 13 pages M.L. Jindal & Ors. and SLP No. 11309/06 titled NDPL Vs. GNCTD & Ors. (KR Jain), wherein issue regarding liability of retirement benefits of employees of erstwhile DVB, has to be decided by Hon'ble Supreme Court and till then it is not possible to issue any direction to the respondent herein. It is pertinent to mention that respondent initially impleaded Delhi Power Co. Ltd. but when objection was taken by Delhi Power Co. Ltd. in the writtenstatement the application u/o 1 rule 10 CPC was moved on behalf of claimant to implead BSES Yamuna Power Ltd. as necessary party and the ordersheet dated 01.12.2006 shows that Sh. Harish Jain, AR for claimant had made submission to my the then Ld. predecessor. Although, he had not made specific request in the application filed but he desired that Delhi Power Co. Ltd. may be deleted as party in this case. In view of the submission made by him, his prayer was allowed by my Ld. predecessor. Thereafter, the claimant has not made any prayer to implead either Delhi Power Co. Ltd. or NDPL. On behalf of claimant, no application has been moved to implead LCA No. 118/06 (Old No. LCA 64/05) Page 12 of 13 pages the Pension Trust and the crossexamination of MW1 has been limited to the extent that criminal case was pending against the claimant for some assault and remaining averments made in his affidavit Ex. MW1/X have remained uncontroverted and unchallenged wherein he stated that claimant was not entitled for any relief. Therefore, in my considered view, claimant was not entitled for any relief at this stage against the respondent/management.
ISSUE NO. 3 :
8. In view of my findings on the above issues, claimant is not entitled for any relief. Claim/ application is accordingly dismissed. File be consigned to Record Room.
Announced in the open court on 04 Day of February, 2010 th (T. S. KASHYAP) PRESIDING OFFICER, LABOUR COURTXIX, KARKARDOOMA COURTS, DELHI.
LCA No. 118/06 (Old No. LCA 64/05) Page 13 of 13 pages