Delhi District Court
Parmukh Singh vs Bses Yamuna Power Limited on 29 June, 2015
In the Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
RCA No.30/2013
Unique Case ID No.02402C0251192013
In the matter of:
Parmukh Singh
s/o Shri Sohan Singh
r/o 238/2 Gali no. 5,
Bhola Nath Nagar, Shahdara,
Delhi . .....Appellant/Plaintiff
Versus
1. BSES Yamuna Power Limited
Shakti Kiran Building, Karkardooma,
Delhi - 32.
2. BSES SVRS Retirees Terminal Benefit Trust 2004
Rajghat Power House, New Delhi.
......Respondents/Defendants
Date of institution : 08.08.2013
Arguments heard on : 01.06.2015
Date of Judgment : 29.06.2015
J U D G M E N T
1. This is an appeal against the impugned judgment and decree dated 07.06.2013 passed by the court of Shri Vishal Gogne, ld. ACJCCJARC(East), KKD, vide which the Ld. Trial RCA: 30/2013 1 of 12 Court had dismissed the suit of the plaintiff.
2. Briefly stating, the facts of the case, relevant for the disposal of the present appeal are that the plaintiff had filed a suit for declaration and mandatory injunction to refund the illegal deduction of Rs. 25,234/ from the arrears paid to the plaintiff alongwith pendentelite and future interest on the averments that the plaintiff opted for the SVRS of defendant no.1 and was relieved on 31.3.2004, but the dues accruing from acceptance of his SVRS were not paid to him immediately after retirement. It is further averred that the plaintiff through the union of employees filed a Writ petition bearing no. 960 of 2005 before the Hon'ble High Court and vide judgment dated 2.7.2007, the Hon'ble High Court directed the defendant no.1 to pay interest on the terminal benefits i.e. gratuity, provident fund, commuted value of pension, arrears of pension @ 8% per annum from the date of entitlement till payment to employees whose SVRS had been accepted. Subsequently vide order dated 29.3.2010 in SLP 1960/09, Hon'ble Supreme Court directed the defendants to pay interest on the delayed payment @ 12% w.e.f. 1.4.2014 till the date of payment.
3. It is further averred that while implementing the judgment of the Hon'ble High Court, the defendant deducted some notional interest on excess pension paid w.e.f. 1.1.2004 to RCA: 30/2013 2 of 12 29.2.2008 amounting to Rs. 16,823/. This deduction is represented to be unlawful and further averred that a similar deduction of Rs. 8411/ was made by the defendants while implementing the order of the Hon'ble Supreme Court.
4. It is further averred that he was entitled to interest owing to the direction of Hon'ble High Court and Supreme Court, which could not have been denied to him by the defendants. Feeling aggrieved with the acts and conducts of the defendant, the plaintiff has filed the suit in the ld. Trial court and prayed for passing a decree of declaration that the deduction of Rs. 25234/ from the terminal benefits of the plaintiff is illegal and unauthorized and passing a decree of mandatory injunction directing the defendants, jointly and severally to refund the illegal deduction of Rs. 25234/ to the plaintiff, and award pendente lite and future interest @ 12% compounding monthly, on the amount of Rs. 25,234/ and also to award the costs of the suit.
5. Summons of the suit were issued to the defendants and the defendants had filed the written statement and admitted that the plaintiff had indeed opted for the SVRS and was relieved in December 2003 and further stated that the total commutation amount of the pension from January,20043 to February 2008 was represented to be 3.05,292/ out of which Rs. 2,74,392/ was RCA: 30/2013 3 of 12 paid in March 2008 and the balance amount of Rs. 30,000/ was paid alongwith interest in August, 2008 and further stated that the commuted pension of Rs. 1,03,000/ from January, 2004 to February, 2008 @ Rs.2060/ per month was recovered from the plaintiff as the pension had been paid without deducting the commuted amount and further stated that the interest was to be paid on the net commuted amount of Rs. 2,02,292/ and not on Rs. 3,05,292/ and the interest so calculated was Rs. 86,044/ which was paid to the plaintiff in August,2008.
6. It is further stated that confusion had occurred only because the defendant had shown the interest on the full commutation amount i.e. Rs. 91,464 + Rs. 11,433/ in the statement of payment of interest dated 31.8.2008 and then shown Rs.16,823/ as interest on the excess amount which had already been paid during the period of January2004 to February2008. It is further stated that the actual interest of Rs. 86,044/ was arrived at after adding of Rs. 91,464/ + Rs. 11,433/ and then subtracting Rs. 16,823/ from the same and further stated that in fact no deduction had been made from the interest paid to the plaintiff and the calculations were reflected in statement dated 31.8.2008 only for the purpose of easy understanding.
7. It is further stated that interest @ 12% in terms of the order of the Hon'ble Supreme Court dated 29.3.2010 had been RCA: 30/2013 4 of 12 paid on the same principle as applied to the initial interest paid upon the order of the Hon'ble High Court of Delhi dated 2.7.2007 and prayed for the dismissal of the suit.
8. The plaintiff filed the replication and denied the averments made in the written statement and reiterated the contents of his plaint and further refuted the calculation reflected in the WS in his replication an asserted that he was entitled to the interest amount of Rs. 91,464/ + Rs. 11,433/ i.e. Rs. 1,02,897/, whereas, the defendant only paid him Rs. 86,044/.
9. From the pleadings of the parties, the ld. trial court had framed the following issues:
(i) Whether the plaintiff is entitled to a decree of declaration as prayed for ?OPP.
(ii) Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP.
(iii) Whether the plaintiff is entitled to future interest @ 12% compound monthly on the amount of Rs. 25,234/?OPP.
(iv)Relief.
10. In order to prove his case, the plaintiff has examined himself as PW1. He was cross examined by the ld. Counsel for the defendant no.1.
11. Whereas, the defendants have examined Shri Suresh Kumar, Dy. Finance Officer, SVRS RTBF2004, BSES YPL, Rajghat Power House as DW1 and Shri Mohit Verms, Legal Officer for the defendant no.1 and 2 has closed the evidence of RCA: 30/2013 5 of 12 the defendants.
12. The ld. trial court vide it's impugned judgment and decree dated 7.6.2013 dismissed the suit of the plaintiff.
13. Feeling aggrieved, the appellant/plaintiff has filed the present appeal against the impugned judgment and decree.
14. The notice of the appeal was issued to the respondents, who have put their appearance through it's counsel. The respondent has not filed any reply to the appeal.
15. The record of the trial court is also requestioned and perused.
16. Heard the ld. counsel for the parties and perused the record.
17. In the appeal the main contention raised is only to the extent that the illegal deduction of Rs. 25,234/ from the arrears paid to the plaintiff be refunded with interest @ 12% compounded monthly on this amount.
18. During the course of arguments, it was argued that various Writs filed by the appellant were disposed of vide common judgment. One of the Writ was titled as Erstwhile DVB vs 2003 Employees vs BSES Rajdhani Power Limited and others. According to the order dated 2.7.2007, it was held that the VRS optees are entitled to interest on the terminal benefits i.e. gratuity, provident fund, commuted value of pension, arrears of RCA: 30/2013 6 of 12 pension, etc., @ 8% per annum from the date of entitlement till payment.
19. Against the said Judgment, some petitioners approached the Supreme Court of India and the interest was increased to 12% per annum from the date it became due.
20. According to the case of the appellant, without commuting his pension as per rule, his pension was fixed and was paid but after the judgment dated 2.7.2007, of the Hon'ble High Court of Delhi, pension was commuted and arrears of commuted value were given, out of which interest on excess pension given earlier prior to the commutation was deducted @ 12%, as per the order of the Hon'ble Supreme Court of India, which according to the counsel for the appellant was not allowed.
21. According to the observations of the ld. Trial court in para no. 20 of the impugned judgment the issue was whether the plaintiff was entitled to interest on the gross commuted pension of Rs. 3,05,292/ or of net commuted pension of Rs. 2,02,292/. But during the course of arguments, this issue was not emerged, rather it was revealed that the notional interest was taken as 16,823/ which has been charged by the respondent on the excess pension paid w.e.f. 1.1.2004 to 29.2.2008, which was taken @ 8% and if we take it @12%, then it comes to Rs. 25,234/.
RCA: 30/2013 7 of 12
22. According to the statement of account filed with the appeal at sl.no. 12, Notional interest recoverable on excess pension paid (40%) 1.1.2004 to 29.2.2008 has been shown as 16,823/. During the course of arguments, ld.counsel for the respondent has stated that this amount has been shown as notional and that has not been taken into consideration in the calculation but it is not so. According to calculation, the amount of Rs. 16,823/ has been shown and calculated, while total net payable, the appellant has been shown as Rs. 1,60,686/. The statement of account is not showing any interest charges notional or otherwise @ 12% per annum.
23. In the suit before the ld. Trial court the appellant has prayed to pass a decree of declaration praying that the deduction of Rs. 25234/ from the terminal benefits of the plaintiff is illegal and unauthorized and further to award pendente lite and future interest @ 12% compounding monthly, on the amount of Rs. 25,234/. So, the suit of the appellant was regarding the illegal deduction on account of interest charged by the respondent on the previous excess pension paid. Whereas, the ld. Trial court totally diverted the issue regarding the entitlement of the interest by the appellant either on the gross commuted pension of Rs. 3,05,292/ or of net commuted pension of Rs. 2,02,292/. Whereas, some notional interest was RCA: 30/2013 8 of 12 deducted on excess pension paid w.e.f. 1.1.2004 to 29.2.2008 amounting to Rs. 16,823/. The ld. Trial court further observed that the appellant cannot be permitted to claim interest on the gross commuted pension, when he does not challenge that it was only the net commuted pension, which was payable to him. Moreover, during his cross examination, PW1 admitted that due interest so calculated i.e. Rs. 86,044/ had been received by him. So, ld. Trial court has decided the matter on different footings. Hence the findings of the ld. Trial court are not sustainable in the eyes of law in any manner.
24. It is contended by the ld.counsel for the appellant that the respondent can not charge the interest on the excess pension paid prior to the commutation, however, notional interest was deducted on excess pension paid w.e.f. 1.1.2004 to 29.2.2008 amounting to Rs. 16,823/, so the same is illegal.
25. It is further argued that the excess pension could not be recovered only because of the order of the Hon'ble High Court of Delhi, vide which commutation of the pension was allowed from the date of entitlement and not from the date of the judgment. So, at the most respondent could have recovered the actual excess pension from the arrear of commuted value of pension and interest could not be charged by the respondent on the said amount. More over, the interest @ 8% was allowed on RCA: 30/2013 9 of 12 the arrear of pension commuted etc., by the Hon'ble High Court of Delhi vide Judgment dated 2.7.2007 it was further increased by Supreme Court of India to 12%. So it was not a voluntary act, rather, as the respondent has not complied with the service rules and has fixed the pension of the appellant and after the judgment dated 2.7.2007, of the Hon'ble High Court of Delhi, pension was commuted and arrears of commuted value were given, out of which interest on excess pension given earlier prior to the commutation was deducted @ 12%, as per the order of the Supreme Court of India, which was not allowed.
26. It is further argued that even arrears of excess pension paid could not have been deducted from the same but the appellant had not abjected the same. The excess pension paid already could have been recovered by other means from the appellant and not in this manner.
27. On the other hand, the ld.counel for the respondent has contended that as the interest was given on the commuted value of the pension, so the interest has been charged on the arrears of excess pension already paid that too notional and interest has not been deducted from the amount payable to the appellant.
28. I am not agreed with the contentions of the ld.counsel RCA: 30/2013 10 of 12 for the respondent as the notional interest shown at sl. no.12, interest of Rs. 16,823/ has been deducted actually from the amount payable to the appellant. Although the same has been shown as notional and the payment of interest on the part of the respondent was as per order of Hon'ble High Court of Delhi and Hon'ble Supreme Court of India and not otherwise, so on the ground of parity, the respondent was not entitled to charge interest on excess pension paid w.e.f. 1.1.2004 to 29.2.2008 amounting to Rs. 16,823/. Hence the deduction of Rs. 16,823/ was illegal and so the same is declared to be illegal and unauthorized and contradictory to the judgment of the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India. Statement of account, which has been filed in the court is not showing any deduction of Rs. 8411/, nor document has been produced by the appellant in this respect before the ld. Trial court or before this court . Statement of account filed before the court during the appeal by the respondent has not been disputed by the appellant in any manner. So the relief regarding the claim of Rs. 8411/ is declined.
29. Respondent is hereby directed to refund the illegal deduction of Rs. 16,823/ to the appellant alongwith interest @ 12% per annum.
30. Accordingly, the appeal is allowed . Suit of the plaintiff RCA: 30/2013 11 of 12 is decreed in the above said terms with cost. Trial court record be returned with the copy of the judgment. File be consigned to the record room.
Announced in the open Court on :29.06.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi RCA: 30/2013 12 of 12 RCA: 30/2013 13 of 12