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[Cites 7, Cited by 2]

Delhi High Court

D.K.Puri vs Govt. Of Nct Of Delhi And Ors on 16 April, 2013

Author: Rajiv Shakdher

Bench: Rajiv Shakdher

$~23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 2167/2013
       D.K.PURI                                       ..... Petitioner
                          Through: Mr Salim Inamdar, Mr Vedanta Varma
                          & Mr Vibhor Kush, Advs.

                          versus

       GOVT. OF NCT OF DELHI AND ORS                ..... Respondents
                     Through: Ms Avnish Ahlawat & Mr Vibhav Misra,
                     Advs. for R-1/GNCTD.
                     Mr Parag Tripathi, Sr. Adv. with Mr Sumeet
                     Pushkarna, CGSC, Mr Kunal Bahri & Mr Surender
                     Babbar, Advs. for Resp./ Pension Trust.
       CORAM:
       HON'BLE MR. JUSTICE RAJIV SHAKDHER
                  ORDER

%                 16.04.2013

CM No. 4116/2013 (Stay)

1. By way of the captioned application the petitioner seeks a stay of the impugned communication dated 25.03.2013 issued by respondent no. 1, i.e., the Government of NCT of Delhi (in short GNCTD).

1.1 Before I advert to the facts which are largely not in dispute, I may only notice that the petitioner had approached this court on 05.04.2013, for seeking a stay of the impugned communication. The urgency adverted to, at that stage, was that the total tenure of the petitioner, as the trustee of respondent no. 2, was a period of three years; out of which, more than two- third of the tenure had expired, and that, the remaining period would expire within the next nine (9) months.

WP(C) 2167/2013 Page 1 of 19

1.2 Having regard to the above, respondent nos. 1 and 2, who were represented by a counsel on the said date, were given a week's time to file a reply. The matter was made returnable today, i.e., 16.04.2013.

2. It may be pertinent to note, while respondent no. 2 has filed its return, there is no return on record filed by respondent no. 1. Ms Ahlawat, who appears for respondent no. 1, however, submits that the counter affidavit was filed, though late. To be precise, the counter affidavit was filed on 15.04.2013. However, the net effect is that there is no counter affidavit on record of respondent no.1. Ms Ahlawat did try to furnish a photocopy of the counter affidavit, which in my view would serve no purpose as the petitioner would have had no opportunity to file a rejoinder, therefore, I have to go by oral submissions of Ms Ahlawat.

3. As indicated above, at the end of the arguments advanced by Ms Ahlawat, the sense that I got was that there was no dispute qua the material facts, as pleaded in the petition and/or the captioned interlocutory application.

3.1 Therefore, let me advert to the broad facts, which are necessary for the present.

3.2 The Delhi Vidyut Board (in short DVB), which was constituted under the provisions of Section 5 of the Electricity (Supply) Act, 1948, was unbundled and re-organized in consonance with the provisions of the Delhi Electricity Reforms Act, 2000 (in short the Reforms Act). The result was that several successor entities of DVB were created. The erstwhile employees of DVB were compulsorily transferred to the successor entities in terms of the transfer scheme, which was formulated and notified by the GNCTD, in exercise of its power under Section 60 read with Section 15 and 16 of the Reforms Act.

WP(C) 2167/2013 Page 2 of 19

3.3 The aforesaid statutory re-organization of DVB ushered in apprehensions both founded and unfounded in the minds of the erstwhile employees of the DVB. In order to allay the fears of the erstwhile employees of the DVB, a tripartite agreement dated 28.10.2000, was executed between GNCTD, DVB and the Joint Action Committee of workers, supervisors, engineers and officers of DVB. 3.4 The said tripartite agreement, inter alia, under clause 3(d) provided for creation of a pension fund, which was to be given a form of a Trust. The purpose with which the Trust was to be created was to ensure that the pensionary benefits of the employees of DVB, who were absorbed by the new entities, would be paid out of the pension fund to be created by the GNCTD. Importantly, clause 3(d)(1) of the tripartite agreement inter alia provided that the Chairperson of the Board of Trustees of the said Trust, would be the Principal Secretary (Power) of GNCTD and that it would have, amongst others, representatives of the "employees", as trustees. The relevant part of clause 3(d) reads as follows:

".....(d). The Government shall create a Pension Fund in the form of a trust and the pensionary benefits of absorbed employee shall be paid out of such Pension Fund:
1) The Principal Secretary (Power) of the GNCT of Delhi shall be the Chairperson of the Board of Trustees which shall include representatives of the Departments of Finance, Personnel, Labour, the employees and exerts in the relevant field to be nominated by the Government...." (emphasis supplied) 3.5 To be noted, clause 3(h) of the said tripartite agreement expressly provided that existing welfare benefits to retired employees shall continue and that, inter alia, the obligation in that regard, would be the responsibility WP(C) 2167/2013 Page 3 of 19 of the corporate entities and the trust, which in turn would be guaranteed by the GNCTD.
4. It is in the background of the said tripartite agreement that respondent no. 2 was formed. A trust deed dated 26.03.2002 (in short the trust deed) was executed with the view to provide terminal and retirement benefits to the erstwhile employees of DVB. Accordingly, respondent no. 2 was given the long title of Delhi Vidyut Employees Terminal Benefit Fund, 2002. In terms of clause 2 of the trust deed, the Terminal Benefit Rules (in short the Rules) were framed.

4.1 In part II of the Rules, provisions were made for the purpose of facilitating the administration of the fund. Since the arguments in the petition and in the interlocutory application veer around the interpretation to be given to some of the provisions contained in part II of the Rules, I may only make a brief reference to the relevant Rules in this regard. Rule 3(a) provides that the total number of trustees would not be more than fifteen (15), which would include the chairman, five (5) persons who would be representatives of employees, out of which one (1) will be the representative of the pensioners/family pensioners. The remaining members are required to be from Department of Finance, Personnel, Administration, Labour, Law and an expert in the relevant field to be nominated by GNCTD. 4.2 As per Rule 3(b), a trustee can be appointed for a period not exceeding three (3) years at a time. The trustee is, however, eligible for re- appointment.

4.3 Rule 3(d), provides that the quorum would be a minimum of three trustees present in person.

4.4 Rule 3(e), which is the Rule which GNCTD has invoked to remove the petitioner, inter alia, speaks of various situations in which a person may WP(C) 2167/2013 Page 4 of 19 cease to act in the capacity of a trustee. The said Rule provides for various situation, such as: (i) a trustee may retire from the trust after giving a notice of 7 days to the GNCTD and the chairperson of the trust; (ii) the office of the trustee would stand vacated if, a trustee were to permanently leave India or by reason of his illness, infirmity or insolvency; (iii) if the trustee, in the opinion of other trustees, has become incompetent and incapable of acting as a trustee; and (iv) lastly, the government (GNCTD), removes a trustee if, it considers that the concerned trustee, "is not competent to discharge his duties as a trustee". It is the last part of Rule 3(e) which, admittedly, GNCTD has taken recourse to in passing the impugned communication.

5. Continuing with the narrative, it appears that vide a notification issued on 28.06.2002, the GNCTD, appointed trustees qua the trust, i.e., respondent no. 2, which included the petitioner and a retired employee of DVB (to be noted at this stage the unbundeling process was not completed), one, Sh. Hira Lal Sharma. The period of appointment was limited to one (1) year.

6. Apparently, on 22.04.2004, yet another notification was issued by GNCTD, whereby it regularized the continuance of trustees on the said trust beyond 28.06.2003. This notification clearly provided that the persons named therein would continue till 31.03.2005. The petitioner's name was included in this notification as well, alongwith Sh. Hira Lal Sharma, as the representative of retired employees of erstwhile DVB. 6.1 It may be pertinent to note at this stage that the petitioner retired from service of the new entity on 31.08.2005.

6.2 It appears, in the interregnum, GNCTD has issued a notification dated 12.05.2005 which was superceded by a notification dated 29.08.2006, whereby the Board of Trustees was reconstituted. Suffice it to say that the WP(C) 2167/2013 Page 5 of 19 petitioner alongwith one Dr. Deepak Rao, a retired employee, formed part of the re-constituted Board of Trustees.

6.3 This position obtained even in the subsequent notification dated 29.05.2007 which, inter alia, provided that the re-constituted Board of Trustees would continue till 31.08.2009.

7. Apparently, a fact which is not disputed by the counsel for the petitioner, is that, for a short period, in 2010, the petitioner was not on the Board of Trustees.

7.1 Apparently, on 26.10.2009, GNCTD issued a notification reconstituting the Board of Trustees, though this time around, according to the petitioner, nominees of the successor entities of DVB, were appointed as representatives of the employees instead of the nominees of the employees themselves. Since this action of GNCTD, according to the petitioner, defeated the entire intent and purpose of granting a representation to the employees on the Board of Trustees, a writ petition was filed, being: WP(C) 13300/2010, to quash the notification dated 26.10.2009. A single Judge of this court vide judgment dated 28.10.2010, while disposing of the writ petition, issued briefly the following directions:

(i) That the petitioners before him, which was the workers union would in the first instance amongst themselves finalize the names of four (4) persons by consensus, who according to them should represent the employees on the Board of Trustees.
(ii) On completing the exercise set out above, they would meet the Labour Commissioner of GNCTD with the said proposal. This exercise of providing the names of the representative had to be conducted within period of three (3) weeks of the date of the order, i.e., on or before 18.01.2010.
WP(C) 2167/2013 Page 6 of 19
(iii) The Labour Commissioner of GNCTD, was to convene a meeting on 22.11.2010, with the representatives of the said petitioners to finalize the names of the employees of the representatives to be included on the Board of Trustees.

(iv) The Labour Commissioner would then, in turn, forward the names to the Chief Secretary of the GNCTD.

7.2 It may be relevant to note that, during the pendency of the aforementioned writ petition, i.e., WP(C) 13300/2010, GNCTD had re- constituted the Board of Trustees on 12.04.2010, which was also challenged by seeking an amendment to the writ petition.

8. Evidently, as a result of the aforementioned order of this court, a notification was issued on 05.01.2011, which partially modified notification dated 12.04.2010. Consequently, the Board of Trustees was re-constituted and, inter alia, the petitioner was included as a representative of employees. Apart from the petitioner, there were three (3) other persons who were included as representatives of the employees being: Sh. Kuldeep Kumar, Sh. Sunil Dwivedi and Sh. S.P. Singh. In addition, to these four (4) gentlemen, one Sh.Hari Ram Bhardwaj was included in the Board of Trustees, as a representative of the pensioners/family pensioners.

9. Importantly, notification dated 05.01.2011 provided that the term of the trustees mentioned therein would be a period of three (3) years from the date of issuance of the said notification. Therefore, ordinarily, the petitioner's term would come to an end on January, 2014. The petitioner was, however, sought to be removed by the impugned communication dated 25.03.2013, within a little over two (2) months of the Board of Trustees being re-constituted.

WP(C) 2167/2013 Page 7 of 19

10. In the background of the aforesaid facts, submissions have been made by the counsels. The petitioner was represented by Mr Salim Inamdar, while respondent no. 1, as indicated above, was represented by Ms Avinash Ahlawat. Respondent no.2 was represented by Mr Parag Tripathi, Senior Advocate, instructed by Mr Sumeet Pushkarna. At the outset, I may notice that the learned counsel for the petitioner submitted that, since respondent nos. 3 to 6 were supportive of the cause put forth by the petitioner, he wishes to drop them from the array of parties. Having regard to the said submission, it is ordered accordingly. Respondent nos. 3 to 6 are deleted from the array of parties.

11. Mr Inamdar, in support of his prayer for grant of urgent interim relief, made three brief submissions. First, the petitioner was a representative of the employees and, therefore, in terms of notification dated 05.01.2011, he ought to have been allowed to complete his tenure in the interest of the employees, whom he represents. The GNCTD could, if at all, remove a trustee only in terms of Rule 3(e). The impugned communication does not set out any ground which would fall within the purview of Rule 3(e). 11.1 Second, the impugned communication purports to remove the petitioner from the Board of Trustees on the ground that: the provision in Rule 3(a), which requires that the Board of Trustees would comprise of five persons who will be representatives of the employees, out of which one would be the representative of pensioner/family pensioners; would imply that the petitioner being a retired employee, could not continue as a trustee as there was already a representative of the retired employees/ pensioners on the Board of Trustees. This interpretation, according to the learned counsel for the petitioner, apart from being flawed was contrary to the petitioner's own understanding of the said provision.

WP(C) 2167/2013 Page 8 of 19

11.2 Learned counsel for the petitioner thus submitted that between 2002 to 2009, and thereafter, from 05.01.2011, onwards GNCTD had found no difficulty in having petitioner as the representative of the employees on the Board of Trustees despite being aware of the fact that the petitioner stood retired from service, on 31.08.2005.

11.3 The third submission, which the learned counsel for the petitioner made, was that, since the petitioner as the representative of the accounts committee of the pension fund, had raised some inconvenient questions, the impugned action was being taken against the petitioner. Reference in this regard is made to the averments made in paragraphs XXII to XXIV of the writ petition.

12. Mr Parag Tripathi, learned senior counsel on behalf of respondent no. 2, submitted that having regard to the conduct of the petitioner no relief under Article 226 of the Constitution of India could be granted to the petitioner. In this behalf he referred me to the letter issued by the trustees representing the employees, which included the petitioner. This was a communication dated 27.02.2013 issued to the auditors of the respondent no. 2/trust. Mr Tripathi found fault with content of the letter, in particular, the tone and tenor of the last part of the said communication, wherein the said trustees, which included the petitioner, had indicated to the auditors that if they failed to perform their duty to ensure that the accounts reflected a true and fair picture, they would take up the matter with the CAG. In this connection, reference is also made to the response of the auditors dated 26.03.2013, which was addressed to the chairperson of the trust. 12.1 That apart, Mr Parag Tripathi, learned senior counsel submitted that, since the appointment was erroneous, and the appointment to the trust was at the pleasure of GNCTD, the petitioner could be removed without more, as WP(C) 2167/2013 Page 9 of 19 he had no vested right in continuing as a trustee. Mr Tripathi submitted that the only exception to the above proposition is, where an allegation of malafide is made. He submitted that, if such a situation arose, then perhaps the principles of natural justice would have had to be adhered to before removing the petitioner. The learned counsel placed reliance on the judgments of the Supreme Court in the case of Krishna Bulaji Borata vs State of Maharashtra & Ors. AIR 2001 SC 695 and the judgment in the case of Ramesh Gajendra Jadhav vs Secretary late S.G.S.P. mandal, & Ors. AIR 2010 SC 3502. The last judgment was cited to buttress the point that if an appointment is made, which was founded on a mistake, the mistake committed in that behalf would not create an indefeasible legal right in the appointee.

13. Ms Ahlawat, on the other hand, contended that the removal of the petitioner was not triggered on account of the communication dated 27.2.2013 addressed to the Chairperson of the trust qua the auditors, to which reference was made by Mr Parag Tripathi. Ms Ahlawat though submitted that the conduct could be looked into by the Court, while coming to the conclusion whether or not a petition under Article 226 ought to be entertained.

13.1 Ms Ahlawat, however, defended the impugned communication on the ground that, the petitioner had lost competence to discharge his duties as a trustee since he was a retired employee, who could not be a representative of the employees in terms of Rule 3(a). Ms Ahlawat seemed to indicate that, this situation arose on account of a complaint received by GNCTD from some pensioners that the trustees, who were representing the employees, were not representing the welfare of the retirees on account of vested financial and political interest. Ms Ahlawat submitted that this triggered a WP(C) 2167/2013 Page 10 of 19 re-examination of the issue and a re-look at the relevant rules and, it is because of this, that the impugned communication had been issued for removal of the petitioner. Learned counsel in support of her submissions relied upon the judgment of the Supreme Court in the case of State of U.P. & Ors. vs Smt. Ram Sukhi Devi (2005) 9 SCC 733 and Secretary, UPSC & anr. vs S. Krishna Chaitanya dated 05.08.2011 passed in Civil Appeal No. 6349/2011. These judgments were cited to contend that no interim order could be passed at an interim stage which would ordinarily have the effect of granting final relief. The last submission though ignored the fact that such a situation has arisen on account of respondent no. 1 not adhering to the time schedule fixed by the court.

14. Briefly, in the rejoinder, learned counsel for the petitioner apart from reiterating his submissions made in the opening, submitted that if, the interpretation of GNCTD were to be accepted, that only employees in service could be the "representative of employees", then in the near future there would be no representative in that category as most of the employees would have retired. Such an interpretation would not only lead to absurdity but would also defeat the very purpose with which such a provision is incorporated in the Rules.

Reasons:

15. Having heard the learned counsels for the parties, what clearly emerges is as follows:

(i) That the petitioner continued as a trustee on the Board of Trustees, uninterruptedly, from June, 2002 till 31.08.2009.
(ii) This phase included a period between June, 2002 and 31.08.2005 when he was an employee of the erstwhile DVB and, thereafter, an employee of the unbundled entity.
WP(C) 2167/2013 Page 11 of 19
(iii) Post 31.08.2005, the petitioner continued even though there was already one representative on the Board of Trustees as a representative of the pensioners/ family pensioners.
(iv) In 2009 an attempt was made to reconstitute the Board of Trustees by a notification dated 26.10.2009, which was challenged by way of a writ petition filed in this court being: WP(C) 13300/2010. As indicated above, the court by its judgment dated 28.10.2010, issued certain directions for a consensual nomination of the representatives of the employees after having the same finalized, by the Labour Commissioner of GNCTD.

15.1 It is because of the aforesaid regime being put in place by this court that the notification issued in the interregnum dated 12.04.2010 was partially modified, with the issuance of notification dated 05.01.2011. By virtue of this notification the petitioner was included as a trustee alongwith three other persons, who represented the employees. In addition to these representatives, one person by the name of Shri Hari Ram Bhardwaj stood included as the representative of the pensioner/family pensioners. Therefore, over a period of nearly a decade, GNCTD has adhered to a particular interpretation of the Rule which inter alia seems to suggest that representatives of the employees could also include a retired employee and not necessarily a person who is in service i.e., in employment of the unbundled entity. The fact that there is one another person on the Board of Trustees, who is also a retired employee and who specifically represents the interest of the pensioners/ family pensioners, would not impede nomination of the petitioner who, admittedly, is a retired employee as, representing the interest of employees. The interpretation sought to be advanced by GNCTD, in my view, prima facie, is an interpretation which does not accord with the WP(C) 2167/2013 Page 12 of 19 provision of Rule 3(a). For the sake of convenience Rule 3(a) is culled out hereinbelow:

"3(a) The number of Trustees shall not be more than fifteen including the chairman, five of whom will be representatives of employees out of which one will be the representative of pensioners/ family pensioners. The other members shall be from department of Finance, Personnel, Administration, Labour, Law and an expert in the relevant field to be nominated by the Govt. of NCT of Delhi. However, the principal Secretary, (Power) of Government of National Capital Territory of Delhi shall be the chairperson of the Board of Trustees."

15.2 A close reading of the Rule 3(a) would show that while, it provides that out of the five (5) persons on the Board of Trustees, who represent the employees, one of them would be the representative of the pensioners/family pensioners - it does not prevent the person(s) representing the employees, being retired employees. The attributes of the representatives, as a matter of fact, have not been described in the Rules. It is perhaps for this reason that, this court in its judgment of 28.10.2010, called upon the petitioners in that case, to choose by consensus their (4) four nominees and, have the same finalized in consultation with the Labour Commissioner of GNCTD. It is not in dispute before me that, the petitioner, was chosen as one of the four nominees. It is also not contended before me that, the judgment of the court dated 28.10.2010, was challenged by the GNCTD. Therefore, in my opinion, prima facie, the action of GNCTD is not in consonance with the plain reading of Rule 3(a).

16. Ms Ahlawat, in her submissions made it quite clear that the impugned communication which has been issued for removal of the petitioner, has been issued based on the interpretation now sought to be placed on Rule 3(a) by GNCTD. Ms Ahlawat also contended before me that, the source of WP(C) 2167/2013 Page 13 of 19 power for removal is traced to the following limb of Rule 3(e). For the sake of convenience Rule 3(e) is extracted hereinbelow:

"3(e). A trustee may retire at any time after giving seven days notice in writing to the Government and Chairperson of the Trust. The office of a Trustee shall be vacated if a Trustee shall permanently leave India or by reason of his illness, infirmity or insolvency shall, in the opinion of the other Trustees, become incompetent or incapable of acting as a Trustee. The government may also remove a Trustee if it considers that he is not competent to discharge his duties as a Trustee."

16.1 A plain reading of the last limb of Rule 3(e) (which is set out in bold) would show, when read with the preceding part of the said Rule, that the expression, "competent to discharge his duties", would not entail a situation which is now being thought of by GNCTD. This is specially so, in view of the fact that, there is no reference to Rule 3(e), in particular, the last limb of that Rule, which is sought to be referred to as the source of power, in the impugned communication. A plain reading of the impugned communication would show that, it is pivoted on a new interpretation, so to say, put by GNCTD, on Rule 3(a). This interpretation if accepted, as contended by the learned counsel for the petitioner, could lead to a curious situation in times to come, which is that, after a period of time most of the erstwhile employees of DVB would have retired. If this contention were to be accepted there would be no employees, who would be in service (i.e. in employment) to represent the interest of the employees and, therefore, necessarily on the Board of Trustees, the retirees would be represented only by one person, while all others would be representatives of interest other than those of the retirees. This would certainly defeat the very purpose of constituting the said trust.

WP(C) 2167/2013 Page 14 of 19

17. This brings me to the argument made by Mr Tripathi that the petitioner is not entitled to a relief under Article 226 of the Constitution of India. As indicated above, in this behalf, reference is made to communication dated 27.02.2013 by Mr Tripathi. This communication was addressed to the Chairman of the Trust not only by the petitioner, but also by other trustees, who also represent the interest of the employees. Having read the communication in totality, I am not persuaded by the submission of the learned senior counsel that the relief sought ought to be denied because of the language used in the last part of the said communication. The trustees are the guardians of the interest of the employees. In discharge of that duty, certain issues have been brought to fore, which may require examination, both by the chairperson of the said trust as well as the auditors; notwithstanding the language used, as long as the issues raised are germane. It is not to say that the language used has my approval, but that by itself, cannot be a ground to deny relief to the petitioner if, otherwise he is entitled to it, at least at this stage. As indicated hereinabove, the petitioner has raised issues with regard to the accounts of the pension fund maintained by the trust.

18. I am also not persuaded, at this stage, in view of what is stated by me hereinabove, that the appointment of the petitioner was erroneous and, therefore, he had no right to continue as the trustee. The judgments cited by Mr Parag Tripathi are, therefore, distinguishable as the facts obtaining in the present case are not pari materia with those set out in the said judgments.

19. During the course of arguments, I had asked Ms Ahlawat as to whether the impugned decision had been notified, i.e., whether the Board of Trustees had been reconstituted pursuant to the said decision. Ms Ahlawat informed me that the decision had the approval of the Lt. Governor. She WP(C) 2167/2013 Page 15 of 19 was, however, not able to place any notification before me which would show that pursuant to the impugned decision the Board of trustees has been reconstituted.

20. As indicated at the very outset, GNCTD failed to adhere to the time line granted by this court to file their return in the matter. Ms Ahlawat informed me that, apparently, the counter was only filed yesterday, i.e., 15.04.2103, and, therefore, obviously it could not be placed on record. The petitioner was also not been given a copy of the same. Ms Ahlawat made an attempt to serve the petitioner in the court during the course of arguments. Ms Ahlawat sought to rely on the photocopy of the reply filed. I have perused the counter affidavit filed by GNCTD. The submission of Ms Ahlawat are broadly in consonance with the stand taken in the counter affidavit.

21. This brings me to two judgments cited by Ms. Ahlawat to contend that, no interim relief, could be granted to the petitioner as it would tantamount to granting the final relief itself. One cannot quibble with this proposition. Having said so, the Courts have also held, which includes the Supreme Court, that in certain cases the converse may also be true, which is that, denial of interim relief would amount to the dismissal of the petition itself. Therefore, what is required to be examined at this stage is that:

whether the petitioner has made out a strong prima facie case. This would be apart from the other two tests which would necessarily have to be applied, which are: that the petitioner should be able to show that the balance of convenience is in his favour, and that, denial of interim relief would cause irreparable injury to him.

22. In the present case, having regard to the fact that, not only the plain reading of the Rule 3(a) shows, that a retired employee could represent the WP(C) 2167/2013 Page 16 of 19 interest of serving employees, and that, the said Rule does not prevent inclusion of more than one retired employee on the Board of Trustees, the fact that, this understanding of the Rule has held the field for nearly a decade establishes a strong prima facie case, at least at this stage, in favour of the petitioner. What provides additional support to the petitioner's case is the fact that, the petitioner was chosen as a nominee to represent the interests of the employees pursuant to the judgment of this court dated 28.10.2010; at which point of time the respondents were cognizant of the fact that, the petitioner had already retired way back, on 31.08.2005. Thus, it cannot be said that, the petitioner has not raised a serious issue requiring adjudication. This, however, will not suffice as the petitioner would also have to satisfy the other two tests, which is, that the balance of convenience is in his favour and he would come to irreparable harm if, the interim relief is not granted as prayed for.

23. As the facts detailed out above would demonstrate, the petitioner's term would come to an end in January, 2014. Barely nine (9) months are left for completion of the petitioner's tenure. Denial of relief at this stage would tantamount to rendering the writ petition infructuous. The petitioner has continued in the new term since January, 2011. I am informed that presently, the total number of persons appointed to the trust are twelve (12) in number. Concededly, the respondents even with the inclusion of the petitioner hold a sway over the Board of Trustees. Therefore, continuation of the petitioner as a trustee at this stage cannot in any way seriously impact the administration of the pension fund; at least from the point of view of respondents. On the other hand, non-denial of relief would, as indicated above, seriously harm the interest of the petitioner. I am fortified in my view by the observations of the Supreme Court in the case of Deoraj vs WP(C) 2167/2013 Page 17 of 19 State of Maharashtra JT 2004 (4) SC 440. This was a case where the appellant in that case had approached the Supreme Court, being aggrieved by the fact that the Division Bench of the Bombay High Court, had refused to grant interim relief. The appellant claimed that, his being a single nomination, which was not withdrawn, he ought to have been declared the Chairman of the Board of Directors (BoD), notwithstanding the lack of quorum at the meeting of BoD, at which the elections were to be declared, as it was a mere formality. The Supreme Court noticed this fact, and also, the fact that, the term of the Chairman was one year, out of which, one-half of the period had already expired. The observations of the Supreme Court being apposite are extracted hereinbelow:

"....12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, WP(C) 2167/2013 Page 18 of 19 where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent....." (emphasis supplied)

24. I have at this stage refrained from discussing the issues with regard to the funds managed by the trust, even though assertions have been made in the writ petition as the arguments have been advanced, as indicated hereinabove, confined to the aforementioned aspects by both sides. Having regard to the facts and circumstances obtaining in this case, I am of the view that the impugned communication ought to be stayed. It is ordered accordingly. The captioned application is, accordingly, disposed of.

25. Needless to say, the observations made hereinabove, are prima facie in nature; the full impact of which would be ascertained only at the stage of final adjudication of the writ petition.

WP(C) 2167/2013 Learned counsel for respondent no. 1 shall ensure that counter affidavit is brought on record. Petitioner will be at liberty to file a rejoinder to the counter affidavit filed on behalf of respondent nos. 1 and 2.

List on 04.07.2013.

RAJIV SHAKDHER, J APRIL 16, 2013 Kk/s.pal WP(C) 2167/2013 Page 19 of 19