Allahabad High Court
U.P.Power Corporation ... vs Krishna Chandra Bhajpai And Ors. on 28 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1039
Bench: Shabihul Hasnain, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Reserved on : 06.03.2019 Court No. 9 Delivered on : 28.05.2019 Case :- SPECIAL APPEAL No. - 89 of 2018 Appellant :- U.P.Power Corporation Ltd.Lko.Throu,Chairman-Cum M.D.& Ors. Respondent :- Krishna Chandra Bajpai And Ors. Counsel for Appellant :- Dr.L.P.Misra,Vikrant Raghuvanshi Counsel for Respondent :- C.S.C,Kartikey Dubey,Mahima Pahwa,Pushpila Bisht AND Case :- SPECIAL APPEAL DEFECTIVE No. - 409 of 2018 Appellant :- U.P.Power Corporation Ltd. Lko. Throu.Chairman-Cum-M.D. & Ors. Respondent :- Pooran Chandra Pandey And Ors. Counsel for Appellant :- Laltaprasad Misra, Vikrant Raghuvanshi Counsel for Respondent :- U.K.Srivastava, Kartikey Dubey, Mahima Pahwa AND Case :- SPECIAL APPEAL DEFECTIVE No. - 410 of 2018 Appellant :- U.P.Power Corporation Ltd.Lko.Throu.Chairman-Cum-M.D.& Ors. Respondent :- Anand Kumar Mishra And Ors. Counsel for Appellant :- Laltaprasad Misra, Vikrant Raghuvanshi Counsel for Respondent :- C.S.C.,Brijesh Kumar Shukla, Pushpila Bisht AND Case :- SPECIAL APPEAL DEFECTIVE No. - 411 of 2018 Appellant :- U.P.Power Corporation Ltd.Lko.Throu.Chairman-Cum-M.D.& Ors. Respondent :- Smt.Pramila Singh Counsel for Appellant :- Laltaprasad Misra,Vikrant Raghuvanshi Counsel for Respondent :- Shachindra Pratap Singh AND Case :- SPECIAL APPEAL DEFECTIVE No. - 423 of 2018 Appellant :- U.P.Power Corporation Ltd.Lko.Throu.Chairman Cum M.D.& Ors. Respondent :- Smt. Sandhaya Singh And Ors. Counsel for Appellant :- Laltaprasad Misra, Vikrant Raghuvanshi Counsel for Respondent :- C.S.C. Rahul Srivastava AND Case :- SPECIAL APPEAL DEFECTIVE No. - 518 of 2018 Appellant :- U.P.Power Corporation Ltd.Lko.Throu.Chairman Cum M.D.& Ors. Respondent :- Ram Naresh Singh And Ors. Counsel for Appellant :- Laltaprasad Misra,Vikrant Raghuvanshi Counsel for Respondent :- C.S.C. Rahul Srivastava Hon'ble Shabihul Hasnain,J.
Hon'ble Chandra Dhari Singh,J.
Per Hon'ble Chandra Dhari Singh, J.
1. Since these Special Appeals arises out of a common judgment and order dated 06.02.2018 passed by learned Single Judge in a bunch of writ petitions leading Writ Petition No.5315 (S/S) of 2005, therefore, they have been heard together and are being decided by this common order. For the sake convenience, the facts of Special Appeal No.89 of 2018 is being taken up.
2. These appeals have been filed to examine the correctness of order dated 06.02.2018 passed by Learned Single Judge in bunch of writ petitions leading Writ Petition Service Single No.5315 of 2005 along with other connected petitions, whereby the writ petitions were allowed.
3. Heard Dr. L. P. Mishra learned counsel for the appellants - U.P. Power Corporation Limited as well as Shri Prashant Chandra, learned Senior Advocate assisted by Ms. Mahima Pahwa learned counsel for respondents - writ petitioners and Ms. Pushipla Bhist, learned counsel for respondents no. 1 to 3.
4. Brief facts of the case for proper adjudication are as follows:
5. A society namely Cooperative Electricity Supply Society Limited, Lucknow (''CESS' for short) was formed in the year 1970 under the provisions of U.P. Cooperative Societies Act, 1965 for the purposes of distribution of electricity for six blocks of District Lucknow. In the society, the Government of U.P. had 52.5 lakhs of share and the consumers' share was 48.65 lakhs. For the effective administration and working of the ''CESS', a large number of employees including the respondents - petitioners were appointed on different posts and the service benefits of those employees were governed as per the service conditions prescribed in the ''CESS'. The respondents - petitioners were the regular employees of the ''CESS'.
6. The Secretary of the ''CESS' sent a letter dated 12.03.1997 to respondent no.3 regarding the Employees Pension Scheme, wherein it was mentioned that the employees of CESS were getting the salary and other service benefits equivalent and similar to the employees of the U.P. State Electricity Board ('UPSEB' for short).
7. On 03.04.1997, a High Power Committee took a decision that the employees of CESS will start working in the 'UPSEB.' and further that the regular employees of ''CESS' would be absorbed in ''UPSEB'. The secretary of ''UPSEB' issued a letter directing the Executive Engineer to discharge all the duties of the employees of ''CESS' under his own control vide letter dated 23.04.1997. A letter dated 25.04.1997 was issued by the Executive Engineer, Electricity Distribution Division, UPSEB, Lucknow providing that the employees of ''CESS' would start working in ''UPSEB' and for all practical purposes, became the employees of ''UPSEB' and their salary and all other dues were also be paid by the ''UPSEB'.
8. On 07.08.1999, a decision was taken for abolition of ''CESS' and an official liquidator was appointed. Vide order dated 30.03.2000, the Deputy General Manager of the U.P. Power Corporation Limited (erstwhile U.P. State Electricity Board) wrote a letter clarifying that the employees of CESS will be designated equally in the Corporation and their service conditions were also be same to those of the employees working since beginning in the U.P. State Electricity Board and all the employees will be treated as one unit.
9. The Secretary of the U.P. Power Sector Employees Trust passed an order on 24.02.2003 cancelling the allotment of the G.P.F. Account Numbers, which were allotted to the respondents - petitioners and similarly circumstanced ''CESS' employees who had been absorbed in ''UPSEB'. The order dated 24.02.2003 was challenged by filing writ petition No.2144 (SS) of 2004 (Vidyut Mazdoor Panchayat, U.P. Lucknow vs. State of U.P. and others) before this Court and the vide order dated 21.11.2008, learned Single Judge has passed the following order:
"in the facts and circumstances of the case, I direct the petitioners to file a fresh comprehensive representation along with certified copy of this order as well as complete copy of the writ petition with all Annexures before opposite party no.1 within a week and on such representation being filed, as stipulated above, the concerned competent authority shall decide the same by a speaking and reasoned order within three weeks of the receipt of representation, as contemplated above, exercising its unfettered discretion on the basis of record before him and in accordance with relevant Rules, recent Government Orders, Scheme/Policy and the judgment of the Hon'ble Apex Court rendered in Civil Appeal No.3765 of 2001.
Subject to the above observations and directions, writ petition stands partly allowed by moulding the relief to the extent indicated above."
10. After filing of the contempt petition for compliance of order dated 21.11.2008, an order dated 27.11.2009 was passed by the U.P. Power Corporation Limited ('UPPCL' in short) providing therein that the respondents/writ petitioners and similarly circumstanced employees would be given all the service benefits as are admissible to and payable to the regular employees of the 'UPPCL'.
11. On 04.01.2013, the 'UPPCL' passed an order superseding/rescinding the earlier order dated 27.11.2009 stating that as merger of the CESS with the U.P. Power Corporation Limited had not been finally done and the matter was under consideration, therefore, till the matter of merger of CESS was pending before the State Government and till a final decision is not taken by the State Government, the employees of CESS would be governed by the bye-laws of 1970 i.e. CESS Bye Laws.
12. A writ petition No.5315 (SS) of 2005 (Krishna Chandra Bajpai and 2 others vs. State of U.P. and others) was filed before this Court. The learned Single Judge of this Court has passed the following orders:
"It is strange to notice that though the letter/order dated 27.11.2009 was passed by the U.P. Power Corporation in compliance of the order dated 21.11.2008, that too, only when the contempt proceedings were initiated for non compliance of the said judgement dated 21.11.2008, however, the said order itself has been superseded by the subsequent order dated 04.01.2013.
In these circumstances, let personal affidavit by the Director (Personnel and Administration) of U.P. Power Corporation Ltd. be filed explaining as to under what circumstances the order dated 04.01.2013 has been passed whereby earlier order dated 27.11.2009 has been superseded. The Director in the aforesaid affidavit shall also explain as to whether passing of the order dated 04.01.2013 would not amount to committing contempt of the Court.
The matter relating to absorption of employees of the Cooperative Society firstly with the U.P. Electricity Board and subsequently with U.P.Power Corporation has been pending since the year 1997, but no final decision has yet been taken.
In these circumstances, the Court expects the decision to be taken at the earliest for the reason that many of the employees working in the Cooperative Society after serving U.P.State Electricity Board or U.P.Power Corporation have retired.
List in the third week of July, 2013.
By the next date of listing, it is expected that decision at the level of State Government as also at the level of the Corporation in regard to absorption of employees of Cooperative Society shall be made. It may further be observed that while taking decision, the earlier decision embodied in the letter/order dated 27.11.2009 which has been annexed as annexure RA-7 to the rejoinder affidavit dated 20.03.2013 shall also be taken into account both by the State Government as well as U.P. Power Corporation."
13. A resolution dated 31.07.2013 was passed by the Board of Directors in its 100th Meeting, whereby order dated 04.01.2013 was withdrawn from the date of its issuance and certain recommendations were made for modifying the order dated 27.11.2009. The official liquidator/Registrar Cooperative approved the liquidation of the CESS vide order dated 08.01.2014.
14. A High Power Committee was constituted on 06.03.2014 to take a decision on the absorption of the CESS employees with the U.P. State Electricity Board and restoration of G.P.F. Account Numbers and pension facility including other post retiral benefits to the respondents - petitioners, as are being made admissible to the employees of the U.P. Power Corporation Limited.
15. On 06.12.2014, a committee constituted, recommended for following the decision that the CESS employees be adsorbed as Ex-cadre posts and they be given the benefit of pension after reviving their GPF accounts. However, vide 118th meeting on 01.04.2016, the Board of Directors of the U.P. Power Corporation has opined not to grant the pensionary benefits to CESS employees and has also refused to revive the GPF account of CESS employees vide office memorandum dated 27.04.2016.
16. As per the office memorandum dated 27.04.2016, date of absorption of the employees in the U.P. Power Corporation Ltd. would be 08.01.2014 and the employees who have retired/died prior to the said date would not be absorbed and their services shall be continued to be governed by the CESS Bye-laws and orders, if any.
17. The order refusing to treat the respondents employee as a regular employee of the U.P. Power Corporation Limited and refusing pensionary and other benefits were challenged in writ petitions before this High Court
18. Counter Affidavit to the writ petitions on behalf of 'UPPCL' was filed by the Under Secretary, U.P. Power Corporation Limited, wherein it is contended that the Cooperative Electricity Supply Society was constituted in the year 1970 for the distribution of the electricity supply in six development blocks and when some lapses were discovered, the society went into liquidation and the liquidation has been set aside on 10.07.2002 by the Appellate Authority (i.e. Joint Secretary Cooperative U.P Government) in Appeal No.19 of 1997 filed by the then Chairman of the Society and thereafter, the liquidator was removed and the administrator was again appointed in the CESS and as such, CESS again came into existence on 16.07.2002. It is further contended in the counter affidavit that the license granted to the CESS for the supply of the electricity to six blocks had come to end on 28.03.1997 and for renewal of the license granted to the CESS a meeting was held on 03.04.1997 and in that meeting the then Secretary of the CESS had apprised that there were many irregularities with regard to the financial and administrative functioning and also the agreement between the CESS and the UPSEB is going to be expired on 31.03.1997. After that the supply of electricity in the rural areas of Lucknow shall be done by the UPSEB. A decision was also taken that the employees of the CESS shall start working with the UPSEB in the same capacity and the daily wage worker shall work as the daily wager and the regular employees of the CESS shall be absorbed in the services of the UPSEB.
19. As per the decision taken in the meeting dated 03.04.1997, steps were taken to absorb the regular employees of the CESS into the services of the UPSEB and for that purpose, Ex-CESS Cadre was created for the regular employees of the CESS till the final merger of their services in the UPSEB which is now U.P. Power Corporation Ltd. (UPPCL) and in view of the same, the decision dated 01.04.2016 and the consequential order dated 27.04.2016 has been taken by the Board of UPPCL.
20. The State Government vide order letter dated 14.03.2014 has directed the UPPCL to decide the matter of (i) merger of the employees of the CESS into the services of the U.P. Power Corporation Ltd. and (ii) restoration of GPF facility and grant of pension through the Committee constituted for the purpose.
21. Vide order dated 21.08.2014, the UPPCL has constituted a committee to submit its recommendations in the matter of merger and payment of terminal benefits to the employees of the CESS. The report of the Committee dated 29.06.2015 was placed before the Board of Directors of UPPCL on 08.09.2015 and the Board of Directors decided to constitute a High Level Committee to examine various issues involved in the matter after studying the government orders, the decision and orders of the High Court in different writ petitions and contempt petitions as also the decision of Hon'ble the Apex Court. The High Level Committee submitted its report on 27.02.2016, which has been considered in the meeting of the Board of Directors held on 01.04.2016. The Board of Directors of UPPCL in its meeting held on 01.04.2016 considered each and every aspects of the case including legal bars. As per decision taken by the Board of Directors, necessary orders in the matter were issued vide office memorandum dated 27.04.2016. Relevant paragraph of the said memorandum is reproduced herein below:
Þ1- pwWfd lsl ds ifjlekiu dk vfUre vkns'k fnukad 08-01-2014 dks fd;k x;k gS] vr% lsl ds fu;fer dkfeZdksa dk m0iz0 ikoj dkjiksjs'ku fy0 esa lafofyuhdj.k blh fnukad 08-01-2014 ls fd;k tk;sxkA fnukad 08-1-2014 ds iwoZ lsokfuo`Rr@ fnoaxr gks pqds deZpkfj;ksa ij lafoy;u vkns'k ykxw ugha gksaxsA bl izdkj muds lsok izdj.k] ;fn dksbZ gksa] lsl ds ckbZykt ,oa vkns'kksa ls gh O;og`r gksaxsAß Þ9- pwWfd iwoZorhZ jkT; fo|qr ifj"kn ds fnukad 14-01-2000 dks fo|Vu ds i'pkr vfLrRo esa vk;s m0iz0 ikoj dkjiksjs'ku fy0 fnukad 14&01&2000 ;k mlds ckn fu;qDr dkfeZdksa dks isa'ku vuqeU; ugha gS] vr% mijksDrkuqlkj lafofy;u ds i'pkr lsl ds dkfeZdks Hkh ias'ku Ldhe ls vkofjr ugha gksaxs] vfirq mu ij m0iz0 ikoj dkjiksjs'ku fy0 dh va'knk;h Hkfo"; fuf/k ;kstuk ,oa ^n isesUV vkWQ xszP;qVh ,DV] 1972^ ds izfo/kku ykxw gksaxasA ß
22. As per section 72 of the Society Act, no cooperative society could be merged with any corporation or company and that the Cooperative Electric Supply Society Limited was finally wound up on 08.01.2014. It was decided inter alia that the regular employees of the CESS will be merged from this date i.e. 08.01.2014.
23. The Board of Directors of U.P. Power Corporation Limited decided to absorb the regular employees of the CESS with effect from 08.01.2014 and extended those terminal benefits which are admissible to regular employees of U.P. Power Corporation Limited appointed on or after 14.01.2000. It is further contended in the counter affidavit that the retired employees of the CESS before 08.01.2014 have been paid C.P.F. (Contributory Provident Fund), Leave Encashment, Gratuity and other retiral benefits by the Corporation as per the conditions of the Society.
24. A supplementary counter affidavit was also filed on behalf of the appellants - U.P. Power Corporation wherein the facts, which have been averred in the counter affidavit have been reiterated.
25. The respondents employees filed a Rejoinder Affidavit to the counter affidavit filed by the U.P. Power Corporation in the amended writ petition, wherein it has been contended that the office memorandum dated 27.04.2016 and the minutes of the meeting dated 01.04.2016 are absolutely illegal. It has also been contended that on account of the technicalities of non-merger of CESS with the UPPCL, which was delayed on account of internal complexities of the respondents - UPPCL, the employees cannot be deprived of their legitimate claim, which has accrued to them. It is contended that the employees of CESS were entitled for pension as per the decision taken by the CESS and the subsequent decision of UPPCL not to grant pension GPF Scheme after 14.01.2000 has no application in the present case. It is further contended that the order of winding up/liquidation, though has been issued on 08.01.2014 takes into consideration the cut-off-date 27.08.1997, when the entries assets of CESS were taken over by the UPSEB. It is contended that the first liquidation order was passed on 27.08.1997, which became the matter of litigation and therefore, the delay in ultimate issuance of the liquidation order cannot be deprive the petitioners of their claim. It is further contended in the Rejoinder Affidavit that the employees of the CESS were transferred to UPSEB/UPPCL and were on the same payrolls as the employees of the UPSEB/UPPCL. The payrolls and the G.P.F. was being maintained by the U.P. S.E.B./UPPCL itself and not by CESS. Further, the facility of pension had already been introduced in CESS and therefore, as per the provision of Section 6-A of the Indian Electricity Act, the employees were entitled for pension.
26. It is contended that the Board of Directors of CESS had taken a decision to introduce the pension scheme in the CESS department as was being applicable to the employees of UPSEB/UPPCL and the said decision as contained in the letter dated 12.03.1997 does not come in the way of giving pensionary benefits to the employees. The employees of the CESS had paid the contributory Provident Fund (CPF) up to year July 1997, when they were enjoying the status of the employees of CESS, thereafter on their retirement, the employees have been paid General Provident Fund (GPF) on attaining the age of superannuation while working in UPSEB/UPPCL. Therefore, the appellants cannot denied the fact that the GPF is not payable to the employees whose services were transferred from CESS to UPSEB/UPPCL.
27. As per the provision of Section 6-A of the Indian Electricity Act, 1910, the employees had became the employees of the UPSEB/UPPCL and, as such, they are entitled for the service benefits which are admissible to the employees of UPSEB/UPPCL, which is a licensee under the provisions of the Indian Electricity Act, 1910 and non-payment of pensionary benefits to the employees is nothing but an arbitrary exercise of power, which is not tenable in the eyes of law.
28. In the Rejoinder Affidavit, it is further contended that the letter dated 31.07.2001 specifically states that the whole account of the CESS previously being maintained by cooperative department has been allotted to the energy department of the State Government as the services of the employees have been merged with the UPPCL for all the practical purposes and bare perusal of order dated 30.01.2004 indicates that the employees have been retired from UPPCL on attaining the age of superannuation. Hence, on technical grounds, the employees cannot be refused the benefits for which they are entitled as all the assets of CESS have been taken over by the UPPCL without having extended the license under the Indian Electricity Act, 1910 and even its management and control vests with UPPCL, so the respondents cannot derive any benefit for their own inaction and deprive the employees of their legitimate claim.
29. It is further contended in the Rejoinder Affidavit that this Hon'ble Court has held that the employees of CESS who subsequently became the employees of the UPSEB ought to be treated at par with the employees of the U.P. Power Corporation and the same stands crystallized even by the Hon'ble Apex Court. Therefore, the matter became final after the order/judgment of Hon'ble the Apex Court.
30. After considering the entire facts and contentions advanced by the parties, the learned Single Judge has allowed the writ petition vide order dated 06.02.2018 declaring that all the respondents/writ petitioners and other similarly situated employees of CESS who were absorbed in UPPCL under the scheme notified, shall be treated to be absorbed under the UPPCL as employees of UPSEB and shall be given all benefits as available to the employees of UPSEB, including pension and G.P.F.
31. Aggrieved by order dated 06.02.2018 passed by the leaned Single Judge, the U.P. Power Corporation Limited has filed the instant Special Appeal on the ground that under the provisions of Co-operative Societies Act, a Co-operative society can only be liquidated under the provisions of the Act and the process of liquidation was yet to be completed, as such in the meeting held on 03.04.1997, it was decided that the regular and daily wage employees of the CESS will start working ''as it is' in the UPSEB till their subsequent absorption in the UPSEB and the services of the regular employee of CESS would subsequently be merged in UPSEB. The second ground of challenge is that in the service condition of the employees of CESS, there was no provision for GPF and pension and during the existence of the establishment of the UPSEB, the services of the respondents were not absorbed in the establishment of UPSEB and after the liquidation of the Cooperative Electric Supply Society, the original establishment of the respondents, the services of the respondents could not be absorbed in the establishment of the U.P. Power Corporation Limited, Lucknow. The service in the establishment of UPPCL is not pensionable nor the services of the respondents under the CESS were pensionable that being so, the respondents cannot at all be entitled to pensionary benefits, which is not available to the officers and employees of UPPCL, this very material aspect of the matter though pleaded had not been considered by the learned Single Judge while passing the impugned judgment.
32. The further ground is that this Hon'ble Court vide its order dated 23.11.2006 passed in writ petition No.450 (S/B) of 2004 (Thakur Prasad Vishwakarma and others vs. State of U.P. and others) directed the State Government to consider and decide the presentation. The State Government vide its order dated 12.09.2007 decided that the CESS is still in existence and the respondents/writ petitioners are employees of CESS and they are not the employees of the UPSEB and therefore, they are not entitled for pension.
33. The respondents/writ petitioners filed a counter affidavit to the Special Appeal and contended that contentions made in the Special Appeal are not admitted in the manner as stated therein and submitted that there is no illegality or infirmity in the order passed by the learned Single Judge. The all contentions made by the appellants - Power Corporation have been duly considered while passing of the impugned order dated 06.02.2018 by the learned Single Judge. It is contended in the counter affidavit that the High Level Meeting dated 03.04.1997 had taken a decision that the employees of CESS would start working in UPSEB and in pursuance of the said decision, the respondents - writ petitioners started working as employees of UPSEB. It is contended that the ''UPSEB' itself admitted, while filing the affidavit in the case of Pooran Chand Pandey and others vs. State of U.P. and others, that the employees of CESS had become the employees of UPSEB. Therefore, the UPSEB now cannot take the plea that the employees of CESS was not absorbed by the UPSEB and therefore, they were not entitled for the benefits of the service conditions as per the employees of the ''UPSEB'.
34. It has also been stated in the counter affidavit that the CESS went into liquidation on 27.08.1997 but liquidation of CESS has no bar on the employees of CESS being taken over by the UPSEB and on the contrary UPSEB itself had taken over the assets of CESS on 27.08.1997 and continued to enjoying the said assets even the final order of liquidation was passed on 08.01.2014. It is further contended in the counter affidavit filed by the respondents - petitioners that a specific affidavit has been filed by the UPSEB in the case of the Pooran Chand Pandey (supra) and others that the employees of the CESS had been observed as employees of the UPSEB. Paragraph 4 of the said affidavit reads as under:
".................... in this way, the Board order dated 28.11.1996 a copy of which has been called as Annexure 5 to the writ petition, has been complied with and the employees of the Corporation Electricity Supply Society have been given the same status and benefit of regularization in the similar manner or it was given to the employees of the Board."
35. It has further been contended that the judgment rendered by the learned Single Judge in the case of Pooran Chand Pandey (supra) has been confirmed by the Hon'ble Supreme Court. The relevant portion of the said judgment is being quoted as under:
"..................Once the work with regard to the supply of the electricity earlier being performed by the Cooperative Electric Supply Society has been taken over by the Cooperative Electric Supply Society and since the employees have also been taken over, it is the duty of the U.P. State Electricity Board to provide the same facility to the petitioners which it is providing to its own daily wage employees. There seems to be no reasonable ground for discrimination between two sets of employees who are daily wagers, more particularly when they are performing the functions which they were earlier performing with the Cooperative Electric Supply Society. Hence, it is just and reasonable to issue a direction to the U.P. State Electricity Board to act in accordance with its decision contained in Annexure 5, within a period of four months. The writ petition is accordingly finally disposed of with the above direction."
36. It is also contended that merely by stating that the GPF Accounts have been opened by mistake cannot be justified in any manner as the GPF Account can only be opened in respect of the persons who are government servant whether on temporary basis or on regular basis as per the CAG. It is further contended in the counter affidavit that the deductions from the salary of the respondents/writ petitioners continued till their retirement and the money deposited in their GPF accounts was duly paid to the respondents, therefore, the plea taken by the appellants - Power Corporation that the GPF account was opened by mistake is erroneous.
37. It is contended that the judgment rendered in the case of U.P. State Electricity Board vs. Pooran Chand Pandey and others (2007) 11 SCC 92 has not been overruled and only the observations made therein have been held to be an obiter. On perusal of the judgment and order passed in official liquidator vs. Daya Nand and others reported at 2008 (10) SCC 1 reveals that the comments and observations made in the case of UPSEB vs. Pooran Chand Pandey only pertaining binding character of Constitution Bench judgment in State of Karnataka vs. Uma Devi have been held to be an obiter. Otherwise maintaining the sanctity, the decision rendered in Pooran Chand Pandey is binding on the appellants.
38. The appellants - petitioners has filed a Rejoinder Affidavit by contending that in the High Level meeting dated 03.04.1997, it is nowhere mentioned that the terms and conditions applicable on the employees of the UPSEB shall also be applicable on the employees of the CESS but on the contrary, it is mentioned in the minutes of the meeting dated 03.04.1997 that all daily wager and regular employees of CESS will start working "as it is" in UPSEB and with regard to the absorption of the regular employees of CESS the decision will be taken up later on, and it is further submitted that the affidavit filed by the UPPCL in the case of Pooran Chandra Pandey was with regard to the regularization of services of the daily wage employees working with CESS and the services of these daily wager employee were regularized in the same manner in which the services of the daily wage employees of UPSEB were regularized who were working as daily wage employee and the benefit of the Board order dated 20.11.1996 by virtue of which it was provided that the muster roll and daily wage employees who have been working with the Board prior to 04.05.1990 shall be regularized were also granted to the daily wage employees of the CESS also.
39. It is further contended in the Rejoinder Affidavit that the final order of liquidation of the Society was passed on 08.01.2014 and the merger of society can be taken place only after its liquidation. It is wrong to say that the UPSEB was enjoying the assets of the CESS. It is also contended that in the High Level Committee dated 03.04.1997, a decision was taken that all daily wager and regular employees of CESS will start working "as it is" in UPSEB and with regard to the absorption of the regular employees of CESS, the decision will be taken up later on.
40. A separate written submissions on behalf of the appellants/ 'UPPCL' was filed by Dr. L. P. Mishra, learned Advocate on 04.04.2019, which is taken on record.
41. Learned counsel appearing on behalf of the respondents raised serious objection on submissions made by the learned counsel appearing on behalf of the appellants - UPPCL in the Special Appeal to make a new case at this stage, which was not raised before the learned Single Judge and the documents which were filed by the appellants during the arguments were not part of the pleading at the stage of writ petition. The submissions were not at all advanced before the learned Single Judge and, therefore, the appellants cannot be permitted to raise the new submissions for the first time in this Special Appeal.
42. Dr. L. P. Mishra, learned counsel for the appellants - U.P. Power Corporation, while answering the objection raised by the learned counsel for the respondents/writ petitioners submits that since the Special Appeal is the intra court writ appeal, therefore, any arguments which are necessary for proper adjudication of the matter may be placed before the Court. He further submits that there is no legal bar for taking consideration of any documents, which are required for proper adjudication of the Special Appeal by this Court.
43. We are not in agreement with the learned counsel for the respondents/writ petitioners in regard to her plea that new submissions cannot be taken for consideration by this Court. In our opinion, in a case in which the facts pleaded going to the root of the matter, this Court possesses discretion to go into that.
44. In this regard Hon'ble the Apex Court in the case of Union of India vs. Ibrahim Uddin and another; (2012) 8 SCC 148, has held that:
"Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
45. Dr. L. P. Mishra, learned counsel for the appellant - U.P. Power Corporation Limited submitted that the State Government and the respondents/writ petitioners are bound by the terms and conditions of the Government Order dated 13.03.1995 and the decision dated 03.04.1997. The Government order dated 13.03.1995 on reproduction reads as under:
la[;k 810 ih&3@95&23&35 ,e-,l-,-@94 y[kuÅ fnukad& 13 ekpZ] 1995 foKfIr pw¡fd Hkkjrh; fo|qr vf/kfu;e dh /kkjk 28 dh mi/kkjk¼1½ ds v/khu foKfIr la[;k 3529ch@23&ih- ch- 211@69 fnukad% 6 vizSy] 1970 }kjk fn dksvkijsfVo bysfDVªd lIykbZ lkslk;Vh fy0 y[kuÅ dks y[kuÅ uxj egkikfydk ds {ks= dks NksM+dj ftyk y[kuÅ esa 10 o"kZ dh vof/k ds fy;s ÅtkZ lEHkj.k dk dk;Z djus dh Lohd`fr iznku dh x;h FkhA vxszrj mDr vof/k dks vf/klwpuk la[;k 848 ih&3@81&23 fnukad 27 ekpZ] 1981 }kjk 28 ekpZ] 1982 rd ,oa vf/klwpuk la[;k 952@ih&3@85&23&211@69 fnukad 26 ekpZ] 1982 }kjk 28 ekpZ] 1987 rd vkSj mlds i'pkr vf/klwpuk 7488 ih&3@85&23&211@69 fnukad 18 tuojh] 1986 }kjk 28 ekpZ] 1987 ls 10 o"kZ ds fy;s c<+k;k x;k gSA vr,o vc mi;qZDr foKfIr fnukad 6 vizSy 1970 esa nh x;h 'krZ la[;k&2 ds lkFk ifBr vf/klwpuk fnukad 18 tuojh] 1986 esa la'kks/ku ds fy;s Hkkjrh; fo|qr vf/kfu;e 1910 vf/kfu;e la[;k&9] 1910 dh /kkjk 28 dh mi/kkjk ¼1½ ds v/khu 'kfDr dk iz;ksx djds Jh jkT;iky }kjk tuin y[kuÅ ds ---- efygkckn] dkdksjh fodkl[k.Mksa ds fo|qr lEHkj.k ds dk;Z {ks= dks fndksvkijsfVo bysfDVªªd lIykbZ lkslk;Vh fy0 y[kuÅ ls fudky dj mRrj izns'k jkT; fo|qr ifj"kn dks ,rr}kjk okil gLrkUrfjr fd;k tkrk gSA Hkkjrh; fo|qr vf/kfu;e&1910 dh /kkjk 28 dh mi/kkjk ¼2½ ds vUrxZr fu/kkZfjr izfdz;k ds vuqlkj izfrdj ns; gksxkA vkKk ls] g0 viBuh;] ¼vks- ih- vk;Z ½ lfpo ÅtkZ foHkkx la[;k&890@ih&3@95&23&55 ,e-,y-,-@94 rn~ fnukad A izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr %& 1- v/;{k] mRrj izns'k jkT; fo|qr ifj"kn] 'kfDr Hkou] y[kuÅ 2- eq[; vfHk;ark ¼ty fo|[email protected];½ mRrj izns'k jkT;
fo|qr ifj"kn] 'kfDr Hkou] y[kuÅ 3- ftykf/kdkjh] y[kuÅ 4- lfpo] fn dksvkijsfVo bysfDVªd lIykbZ lkslk;Vh fy0 4@1089 fodkl uxj] y[kuÅ 5- funs'kd] fo|qr lqj{kk] mRrj izns'k 'kklu] xkserh uxj] y[kuÅA vkKk ls] g0 viBuh;] ¼ujsUnz dqekj½ fo'ks"k lfpo la[;k&890@ih&3@95&23 rn~ fnukad A izfrfyfi la;qDr funs'kd] eqnz.k ,oa ys[ku lkexzh mRrj izns'k y[kuÅ dks bl vuqjks/k ds lkFk izsf"kr fd os d`i;k mi;qZDr foKfIr dks mRrj izns'k xtV ds vkxkeh vad esa izdkf'kr djk nsaA g0 viBuh;] ¼ujsUnz dqekj½ fo'ks"k lfpo lR; izfrfyfi The letter/decision dated 03.04.1997 on reproduction reads as under:
cSBd dh dk;Zokgh fo"k;% m0iz0 jkT; fo|qr ifj"kn }kjk fn dksvkijsfVo bysfDVªd lIykbZ lkslkbVh fy0] y[kuÅ ds ykblsUl dk uohuhdj.k fnukad% 03&4&1997 le;% 3-00 cts vijkg~u LFkku% d{k Hkk0 lgdkfjrk ea=h thA mifLFkfr%& 1& loZJh vrqy prqosZnh] lfpo lgdkfjrk foHkkx] m0iz0 'kklu 2& Þ 'kadj vxzoky] lfpo mtkZ foHkkx] m0iz0 'kklu 3& Þ iznhi 'kqDyk] ftykf/kdkjh y[kuÅA 4& Þ ,l0lh0 vxzoky] lnL; forj.k] m0iz0 jkT; fo|qr ifj"kn y[kuÅ 5& Þ Mh0,u yky] vij fucU/kd ¼iz'kk0½ lgdkjh lfefr;ka m0iz0 6& Þ izHkkr flUgk] vij ftyk eftLVsªV iz'kklu] y[kuÅA 7& Þ izse 'kadj] lfpo lsl y[kuÅA 8& Þ Mh0,u [kUuk] eq[; ifj;kstuk izcU/kd vkj0bZ0lh0 y[kuÅA 9& Þ ,l0,e0 uohy] eq[; vfHk;ark] lsl y[kuÅA 10& Þ ,l0ih0 fuxe] eq[; vfHk;ark jsLiks] y[kuÅA 11& Þ ds0vkj0ih0 ik.Ms] vf/k{kd vfHk;ark] y[kuÅA ek0 lgdkfjrk ea=h th dh v/;{krk esa 'kfDr mtkZ us ;g voxr djk;k gS fd fn dksvkijsfVo bysfDVªd lIykbZ lkslkbVh fy0] y[kuÅ tks ,d lgdkjh lfefr gS] }kjk m0iz0 jkT; fo|qr ifj"kn ls fo|qr dz; djds y[kuÅ xzkeh.k {ks= ds 06 fodkl[kaMks ds miHkksDrkvksa dks fo|qr vkiwfrZ djkrh FkhA bl gsrq lfefr dks mtkZ foHkkx ls fof/kor ykblsUl feyk Fkk tks 28&3&97 dks lekIr gks x;kA vRk% lfefrdks fn;s x;s mDr ykblsUl dk uohuhdj.k fd;s tkus ij foLr`r fopkj foeZ'k fd;k tkuk vko';d gSA lfpo] lsl us ;g voxr djk;k fd xzkeh.k {ks= ds fodkl gsrq 83% xkaoksa dk fo|qrhdj.k fd;k x;k gS] tcfd m0iz0 jkT; fo|qr ifj"kn }kjk vkadMs ds vuqlkj izns'k ds vkSlr 43% xkaoksa esa gh fo|qrhdj.k gqvk gSA ftykf/kdkjh] y[kuÅ }kjk crk;k x;k fd lfefr ds izcU/ku esa vusd foRrh;@iz'kklfud leL;k;sa gS] QyLo#i vusd rduhdh =qfV;ksa dk rRdky fujkdj.k ugha gks ikrk gSA lfpo] mtkZ us voxr djk;k fd lsl ds lEcU/k esa ekg Qjojh] 1997 eaas cSBd vk;ksftr gqbZ Fkh ftlesa fu.kZ; fy;k x;k Fkk fd lsl dk m0iz0 jkT; fo|qr ifj"kn ls le>kSrk 31&3&97 dks lekIr gks jgk gS vkSj mlds i'pkr y[kuÅ ds lEiw.kZ xzkeh.k {ks= esa jkT; fo|qr ifj"kn }kjk fo|qr vkiwfrZ dk dk;Z lh/ks lEHkkyk tk;sxk vkSj lsl }kjk ;g dk;Z lapkfyr ugh fd;k tk;sxkA lfpo] lgdkfjrk us bl ifjis{; esa ;g voxr djk;k fd lgdkjh lfefr vf/kfu;e ,oa fu;ekoyh ds vUrxZr fdlh Hkh lgdkjh lfefr dks fdlh fuxe vFkok vU; laxBu esa lafoyhu fd;s tkus dk dksbZ izkfo/kku ugha gS] oLrqr% lfefr dk ifjlekiu gh fd;s tkus dk izkfo/kku gS vxzslj lsl ds l`tu ds le; m0 iz0 jkT; fo|qr ifj"k~n }kjk tks ifjlfEiRRk;ka lsl dks iqLrdh; ewY; fMizhfl;sVsM ij gLrkUrfjr gqbZ Fkh] mUgsa mDr le>kSrs ds vuqlkj lsl ds ifjlekiu ds nkSjku fo|qr ifj"k~n dks gkfly iqLrdh; ewY; ij gLrkarfjr fd;k tkuk gksxkA vxszrj lfefr esa yxHkx 500 deZpkjh fu;fer ,oea nSfud osru ij dk;Zjr gSA ftUkdh lwph lfefr esa miyC/k gS] ds Hkfo"; ds fo"k; esa Hkh lkFk gh lkFk fu.kZ; fy;k tkuk vko';d gksxkA foLr`r fopkj foe'kZ ds mijkUr fuEufyf[kr fu.kZ; fy;s x;s& 1- jkT; fo|qr ifj"k~n rRdky izHkko ls fn dkjiksjsVsM bySfDVªd lIykbZ lkslkbVh ds dk;Z{ks= esa fo|qr forj.k ,oea lapkyu dk dk;Z izkjaHk dj nsxhA 2- lfefr ds lHkh cSad ,dkmUV vkfn rRdky izHkko ls can dj fn;s tk;s vkSj lacaf/kr cSadks dks Hkh rnkuqlkj lwfpr dj fn;k tk;sA lfefr ds ,dkmUV dks iwjk djkus gsrq vko';drkuqlkj deZpkjh jkT; fo|qr ifj"k~n }kjk miyC/k djk;s tk;saxsA 3- lsl esa fu;qDr leLr fu;fer ,oea nSfud osruHkksxh deZpkjh ;Fkkn; As its is jkT; fo|qr ifj"k~n esa dk;Z djuk izkjaHk dj nsaxsA nSfud osruHkksxh deZpkfj;ksa ls jkT; fo|qr ifj"k~n }kjk nSfud osru ds vk/kkj ij dk;Z fy;k tk;sxkA fu;fer deZpkjh varr% jkT; fo|qr ifj"k~n esa lek;ksftr dj fy;s tk;saxsA nSfud osru Hkksxh deZpkfj;ksa ds fo"k; esa le; le; ij tkjh 'kklukns'kksa ds vuqlkj dk;Zokgh dh tk;sxhA 4- lsl dh ifjlEifRr;ksa ,oea nkf;Ro dks m0 iz0 jkT; fo|qr ifj"k~n ,oea vU; lHkh vkSipkfjdrkvksa ds fy, fuEufyf[kr desVh xfBr dh tkrh gS& 1- eq[; vfHk;ark mRRkj izns'k jkT; fo|qr ifj"k~n ¼jsLiks½ & v/;{k 2- eq[; ys[kkf/kdkjh] m0 iz0 jkT; fo|qr ifj"k~n & lnL;
3- lfpo] dksvkijsfVo bysfDVªd lIykbZ lkslkbVh&la;kstd mDr desVh viuh lgk;rk ds fy, VkVk daLkyVsUlh lfoZl vFkok fdlh vU; dalYkVsUlh ,tsUlh dks fu;qDr dj ldrh gSA lfefr ,d ekg ds vUnj ifjlEifRRk;ksa ,oea nkf;Roksa ds ewY;kadu rFkk LFkkukaUrj.k vkfn dh 'krksZa ds lEcU/k esa viuh foLr`r fjiksZV izeq[k lfpo ÅtkZ dks nsxhA bl lEcU/k esa vfUre gLrkUrj.k izfdz;k fof/kor iw.kZ gksus rd ,tsUlh ,oe~ lfpo] lsl vkfn ij gksus okys leLr O;; dk Hkqxrku m0 iz0 jkT; fo|qr ifj"k~n }kjk fd;k tk;sxkA vrqy prqosZnh lfpo] lgdkfjrkA mRRkj izns'k 'kklu lgdkfjrk ¼3½ vuqHkkx la[;k&1@32&49&3&97 fnukad& @ viSzy]1997 izfrfyfi cSBd esa mifLFkr leLr vf/kdkfj;ksa dks lwpukFkZ ,oea vko';d dk;Zokgh gsrq izsf"krA vkKk ls] g0 viBuh;
,l0ds0lDlsuk la;qDr lfpo] lgdkfjrkA"
46. The learned counsel has also argued that the writ petitioners/ respondents are not entitled to pension, which was not available to them while under employment in CESS, particularly in view of section 6-A read with section 28-A of the Indian Electricity Act, 1910, without any decision of the U.P. State Electricity Board Board, before 14.01.2000 when U.P. Power Corporation Limited was constituted and established. He has pointed out the documents which is appended as Annexure 7 of the paper book. It is further submitted that the writ petitioners/respondents are not legally entitled for pensionary benefits while working in U.P. Electricity Board in furtherance of the decision dated 03.04.1997 merely on the strength of the letter dated 17.02.1997 and 12.03.1997 of the Secretary of the CESS without framing and enforcement of any pension scheme on or before 03.04.1997 and without amending Rules/Bye-laws of CESS governing service conditions.
47. It is submitted that the letter dated 17.02.1995 and 12.03.1997 of the Secretary of the CESS undisputedly are not preceded by any decision of the Committee of Management of CESS and on the other hand these letters as evident from bare perusal do not amount to any decision even on the part of the CESS that CESS employees shall be entitled for all service benefits including pension as available to the employees of UPSEB. A meeting with regard to the CESS was held on 12.04.1999 under the Chairmanship of Secretary Energy and in the point no.8 of the minutes of meeting, it is mentioned that till the decision with regard to the regular and daily wage employees of CESS, these employees will keep on working as per rules and regulations of the CESS. Therefore, the learned Single Judge has failed to consider that in the meeting held in February 1997, it was already decided that after the expiry of the license to CESS for supply of Electricity on 31.03.1997, the UPSEB shall start supplying electricity to these areas as such when, it was already decided in February 1997 that the CESS would not be able to supply electricity in the area of its operation after the expiry of the sanction of the State Government on 28.03.1998 then under what circumstances, the Secretary of the Society in same very month had sent the letter dated 17.02.1997 and after that on 12.03.1997 that pension scheme would be applicable on the employees of CESS.
48. Dr. Mishra, learned counsel for the appellant - U.P. State Power Corporation contended that the learned Single Judge has also failed to consider that never any order was passed by which the benefit of GPF and Pension was granted to the employees of CESS as they were working in terms of the bye-laws of CESS and in their service condition, there was no provision for grant of G.P.F. and Pension.
49. It is also submitted that in view of Section 72 and 76 of U.P. Cooperative Societies Act, 1965 and Rule 290 of U.P. Cooperative Societies Rules 1968 any merger of CESS, a cooperative Society with U.P. State Electricity Board being not legally permissible and the dissolution order dated 27.09.1997 passed by the Registrar directing for dissolution of CESS having been appealed by the CESS management on the premise that serious efforts for reviving CESS were being made. Ultimately dissolution having been ordered on 08.01.2014.
50. Dr. Mishra learned counsel also submitted that the learned Single Judge has misread the resolution adopted by the Board of U.P. Power Corporation Limited in its 100th meeting dated 31.07.2013.
51. Learned counsel for the appellant - State submitted that the learned Single Judge has failed to consider that there was difference between the licensees as envisages under Section 6A of the Indian Electricity Act 1910 and the CESS is the Cooperative Society and a Cooperative Society can only be wind up or liquidated as per the provisions of the Cooperative Societies Act 1965 and its Rules as such the provision of Section 6-A of the Indian Electricity Act, 1910 is not applicable in the present case. He further submitted that CESS was in existence till 08.01.2014 and on this date the CESS was finally liquidated as such the bye-laws which are applicable on the employees of the CESS was in existence till 08.01.2014 and the employees of CESS were entitled to get the service benefit which are provided under the bye-laws of CESS. It is not disputed that the facilities of pension and GPF were not available to the employer of CESS.
52. Further submission of the appellants' counsel is that the erstwhile UPSEB was dissolved and the U.P. Power Corporation Limited was created at its place on 14.01.2000. The benefit of GPF and Pension were not admissible to the employees of U.P. Power Corporation Limited.
53. Per contra, Sri Prashant Chandra, Senior Advocate assisted by Ms. Pushpila Bhist appearing on behalf of respondents/writ petitioners submitted that the High Power Committee resolved to discharge the work of CESS through the authority of U.P. State Electricity Board and the employees of the CESS were taken in service of the Board on the same terms and conditions. The service security was also provided in the same resolution. The services of the respondents and other employees of CESS have been transferred to the U.P. Power Corporation Limited and the employees of the U.P. Power Corporation Limited are being paid pension on their superannuation. Therefore, the respondents / writ petitioners are also entitled for the service benefits. It is submitted that the respondents / writ petitioners are regular employees of the U.P. Power Corporation Limited. Hence their are entitled to get all the benefits including the retirements benefits which is available to the employees of the U.P. Power Corporation Limited.
54. The learned Senior Advocate also submitted that vide resolution dated 03.04.19997 , the employees of CESS have been decided to be absorbed in the U.P. State Electricity Board and accordingly vide order dated 11.04.1997 and 15.04.1997, the entire assets and liabilities of CESS were transferred to U.P. State Electricity Board. The U.P. Power Corporation Limited has been continuing to enjoy the assets of the CESS since the issuance of the Government Orders dated 11.04.1997 and 15.04.1997.
55. It is submitted that the matter relating to CESS and absorption of its employees etc. has engaged the attention of this Hon'ble Court in the case of Pooran Chandra Pandey and others vs. U.P. State Electricity Board and others, when the matter of daily wages employees being treated as at par with the U.P. State Electricity Board employees were agitated before this Hon'ble Court. The Hon'ble High Court in its judgment dated 21.09.1998 directed that the employees of CESS subsequently became the employees of the U.P. State Electricity Board and they ought to be treated at par as employees of the U.P. Power Corporation Ltd. and the order was also affirmed by the Division Bench of this Hon'ble Court in Special Appeal No.364 of 1998 vide order dated 03.01.2000 against which the U.P. Power Corporation Ltd. went in Special Leave Petition before the Hon'ble Supreme Court which was dismissed vide order dated 09.10.2007.
56. Sri Prashant Chandra, learned Senior Advocate also pointed out that similarly a Division Bench of this Hon'ble Court in writ petition No.1879 (S/B) of 2009 (Shriniwas Ram vs. U.P. Power Corporation Limited and others), while considering the matters of employees of CESS i.e. Junior Engineers seeking promotional avenues on the post of Assistant Engineers, at par with the employees regularly appointed in the U.P. Power Corporation Limited, held that the employees of the CESS became the employees of the U.P. State Electricity Board w.e.f. 28.03.1997 as such, they became entitled to the same terms and conditions of services which applied to the own employees of the U.P. State Electricity Board and issued a mandamus for considering the candidature of the petitioner therein for promotion. The U.P. Power Corporation Limited went to the Hon'ble Supreme Court and filed a Special Leave Petition No.17984 of 2011 which was dismissed by Hon'ble the Supreme Court vide order dated 14.11.2011.
57. It is also explained by the learned counsel appearing on behalf of respondents - writ petitioners that the factum of services of the employees of the U.P. Power Corporation Limited appointed on or before 14.01.2000 being not pensionable is of no relevance inasmuch as the Hon'ble Supreme Court in Puran Chandra Case (2007) 11 SCC 92 has held that the respondents Puran Chandra and others in the said appeal were entitled to the same status and benefit of regularization in regard to their service as enjoyed by the daily wage employees of U.P. State Electricity Board as the daily wage employees of the Board.
58. It is further submitted that in the event of the services of non-pensionable establishment being transferred to a pensionable establishment, the services of the employees of the former shall be taken as pensionable from the date of such transfer.
59. Sri Prashant Chandra, learned Senior Counsel appearing on behalf of respondents - writ petitioners has also invited attention of the Court to a letter dated 17.02.1997 issued by the Secretary of the erstwhile written to one K. D. Mishra, the accountant of CESS stating that a decision was taken by CESS to make the services of the employees of CESS as pensionable.
60. It has also drawn attention of the Court to another letter dated 12.03.1997 written by the Secretary of CESS addressed to Secretary of the UPPCL stating that as it was decided by the CESS that the pension scheme be implemented for the employees of CESS and as the other service conditions of the CESS employees were same as those of employees of UPSEB, the pension scheme as applicable in UPSEB be made available to him.
61. It is pointed out that a letter dated 24.10.1999 written by Executive Engineer - attached to Chief Engineer, UP State Electricity Board, Vikas Nagar, Lucknow addressed to Chief Accounts Officer (Provident Fund), UP State Electricity Board, Shakti Bhawan, Ashok Marg, Lucknow stating therein that the employees of the erstwhile CESS be allocated the GPF account number and this letter was followed by another letter dated 16.12.1999 written by accounts officer of UPSEB addressed to Chief Engineer, LESU, UPSEB supplying a list of erstwhile employees of CESS in whose favour the GPF account numbers were allocated. As per the learned Senior Counsel, the GPF Account number was allotted to some of the erstwhile CESS employees working in UPSEB, but the same was thereafter withdrawn.
62. Sri Chandra, learned Senior Advocate also submitted that after looking into the facts and legal position and pronouncement of the judgment of this Court, which has been affirmed by Hon'ble the Supreme Court, the settled legal position is that employees of CESS are at par with the employees of the U.P. State Electricity Board and their services are to be governed in the like manner as employees of the Board w.e.f. 28.03.1997 when the license of the CESS granted by the U.P. State Electricity Board came to an end on 27.03.1997. Therefore, there is no illegality in the order of the learned Single Judge. He further submits that the appellant has not made any substantial ground in the Special Appeal to intervene in the order / judgment passed by the learned Single Judge. The Special Appeal filed by the U.P. Power Corporation Limited is devoid of merits and therefore, the same deserves to be dismissed.
63. Dr. L. P. Mishra, learned counsel for the appellants U.P. Power Corporation Limited refuted the submissions as made on behalf of respondents in Special Appeal and in reply has submitted that firstly the judgment of Hon'ble the Single Judge followed by Judgment in Special Appeal and the decision of Hon'ble Supreme Court in Puran Chandra Pandey's case (supra) related to regularization of daily wage employees and the judgments do not relate at all to the issue of CESS employees being also covered under any pension scheme of UPSEB which could make them entitled to pension. The regularization of daily wage employees or according the status as regular employees of UP State Electricity Board is one thing but the services of such employees being pensionable is quite another thing. It is further submitted that the issue as to whether the services of CESS employees on being treated as pensionable was neither directly an issue raised in the case of Puran Chand Pandey (supra) at any stage nor any such issue has been decided holding that there services could not pensionable.
64. The learned counsel appearing on behalf of the appellants also submitted that the question of the services of CESS employees being pensionable in the U.P. State Electricity Board was also not an issue nor any such issue has been decided under the judgment dated 15.03.2011 passed by a Division Bench of this Court under writ petition No.1879 of 2009. According to the appellants, this judgment related to the promotion of one junior engineer to that of Assistant Engineer.
65. The learned counsel further submitted that once the service conditions as enjoyed by the employees working under the CESS, except the pension benefits were the same as enjoyed by the UPSEB as stated by CESS Secretary in his letter dated 12.03.1997, the direction issued by the Hon'ble Court dated 15.03.2011, passed in the said writ petition No.1879 of 2009 would related to grant of promotion only such judgments, cannot even remotely and should not also, in view of statutory prescriptions under section 6-A (1)(g) of the Act1910 lead to an interference that services of CESS employees while working in UPSEB became automatically pensionable without any decision of the UPSEB when, undisputably their services were not pensionable in CESS.
66. Further submission of learned counsel is that once Hon'ble the Apex Court has held that Puran Chand Pandey case (supra) shall not be treated as judicial precedence by any court of law, then it was not legally open for Hon'ble Single Judge through a judgment rendered subsequent to the judgment of Apex Court in the case of Official Liquidator vs. Daya Nand (2008) 10 SCC 1 to issue a direction to decide the representation of CESS employees on the basis of Puran Chand Pandey's case (supra). It is further submitted that to that extent the direction issued by learned Single Judge would be nothing but a judgment per-in-curium.
67. To support his arguments, Dr. Mishra, learned counsel for the appellant has referred certain judgments of the Hon'ble Supreme Court which are as under :
i. (2012) 12 SCC 540 - Para 9 to 13 (Oriental Insurance Company Limited vs. Siby George and Others);
ii. (2012) 3 SCC 495 - Para 28 to 35 (Madhya Pradesh Rural Road Development Authority and another vs. L. G. Chaudhary Engineers and Contractors);
iii. (2005) 2 SCC 673 - Para 5 to 14 (Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra and another);
iv. (2003) 5 SCC 448 Para 5 to 12 (State of Bihar vs. Kalika Kuer);
v. (1991) 4 SCC 139 Para 40 and 41 (State of U.P. and another vs. Synthetic and Chemical Ltd. and another); and vi. 1991 Law Suit (All) Para 6 and 7 (Ganga Saran vs. Civil Judge).
68. We have heard learned counsel for the both the parties at length and perused the pleadings on record.
69. For the purposes of adjudication of the case, we have to see some statutory provisions :
Indian Electricity Act, 1910: Sections 3, 5, 6, 6A, 7, 7A, 28, 28A as amended by U.P. State Legislature:-
Section 3. Grant of licenses.- (1) The State Government may, on application made in the prescribed form and on payment of the prescribed fee (if any), grant after consulting the State Electricity Board, a license to any person to supply energy in any specified area, and also to lay down or place electric supply-lines for the conveyance and transmission of energy, --
(a) where the energy to be supplied is to be generated outside such area, from a generating station situated outside such area to the boundary of such area, or
(b) where energy is to be conveyed or transmitted from any place in such area to any other place therein, across an intervening area not included therein, across such area.
(2) In respect of every such license and the grant thereof the following provisions shall have effect, namely:--
(a) any person applying for a license under this Part shall publish a notice of his application in the prescribed manner and with the prescribed particulars, and the license shall not be granted --
(i) until all objections received by the State Government with reference thereto have been considered by it:
Provided that no objection shall be so considered unless it is received before the expiration of three months from the date of the first publication of such notice as aforesaid; and
(ii) until, in the case of an application for a license for an area including the whole or any part of any cantonment [aerodrome] fortress, arsenal, dockyard or camp or of any building or place in the occupation of the Government for [defence purposes], the State Government has ascertained that there is no objection to the grant of the license on the part of the [Central Government];
(b) where an objection is received from any local authority concerned, the State Government shall, if in its opinion the objection is insufficient, record in writing, and communicate to such local authority its reasons for such opinion;
(c) no application for a license under this Part shall be made by any local authority except in pursuance of a resolution passed at a meeting of such authority held after one month's previous notice of the same and of the purpose thereof has been given in the manner in which notices of meetings of such local authority are usually given;
(d) a license under this Part--
(i) may prescribe such terms as to the limits within which, and the conditions under which, the supply of energy is to be compulsory or permissive, and generally as to such matters as the State Government may think fit; and
(ii) save in cases in which under Section 10, clause (b), the provisions of Sections 5 and 6, or either of them, have been declared not to apply, every such license shall declare whether any generating station to be used in connection with the undertaking shall or shall not form part of the undertaking for the purpose of purchase under Section 5 or Section 6;
(e) the grant of a licence under this part for any purpose shall not in any way hinder or restrict-
(i) grant of a licence to any other person within the same area of supply for a like purpose; or
(ii) the supply of energy by the State Government or the State Electricity Board within the same area, where the State Government deems such supply necessary in public interest;
(f) the provisions contained in the Schedule shall be deemed to be incorporated with, and to form part of, every license granted under this Part, save in so far as they are expressly added to, varied or excepted by the license, and shall, subject to any such additions, variations or exceptions which the State Government is hereby empowered to make, apply to the undertaking authorized by the license:
Provided that, where a license is granted in accordance with the provisions of clause IX of the Schedule for the supply of energy to other licensees for distribution by them, then, in so far as such license relates to such supply, the provisions of clauses IV, V, VI, VII, VIII and XII of the Schedule shall not be deemed to be incorporated with the license.
(3) Where the supply of energy in any area by the State Electricity Board is deemed necessary under sub-clause (ii) of clause (c) of sub-section (2), the Board may, subject to any terms and conditions that may be laid down by the State Government, supply energy in that area notwithstanding anything to the contrary contained in this Act or the Electricity Supply Act, 1948.
Section 5. Provisions where licence of a licensee is revoked.- (1) Where the State Government revokes, under Section 4, sub-section (1), the license of a licensee, the following provisions shall have effect, namely :--
(a) the State Government shall serve a notice of the revocation upon the licensee and shall in the notice fix a date on which the revocation shall take effect; and on and with effect from that date or on and with effect the date, if earlier, on which the undertaking of the licensee is sold to a purchaser in pursuance of any of the succeeding clauses or is delivered to a designated purchaser in pursuance of sub-section (3), all the powers and liabilities of the licensee under this Act shall absolutely cease and determine;
(b) the State Government shall enquire from the State Electricity Board and where the licensee is not a local authority, also from any local authority constituted for the area within which the whole of the area of supply is included, whether it is willing o purchase the undertaking;
(c) If the State Electricity Board is willing to purchase the undertaking the State Government shall, by notice in writing, require the licensee to sell, and thereupon, the licensee shall sell the undertaking to the State Electricity Board;
(d) If the State Electricity Board is not willing to purchase the undertaking, the State Government shall have the option of purchasing the undertaking and if it elects to purchase, it shall by notice in writing require the licensee to sell, and thereupon, the licensee shall sell the undertaking to it;
(e) If the State Electricity Board is not willing to purchase the undertaking and the State Government does not itself elect to purchase it, the State Government in any case where the local authority referred to in clause (b) is willing to purchase the undertaking shall by notice in writing require the licensee to sell and thereupon the licensee shall sell the undertaking to that local authority;
(f) If no sale of the undertaking is effected under any of the foregoing clauses and if any other person is willing to purchase the undertaking, the State Government may by notice in writing require the licensee to sell; and thereupon the licensee shall sell the undertaking to such other person.
(2) Where an undertaking is sold under sub-section (1), the purchaser shall pay to the licensee an amount determined in accordance with the provisions of Section 7 and Section 7-A as substituted by the Indian Electricity (Uttar Pradesh Amendment and Validation) Act, 1975, excepting sub-sections (3) of the said Section 7-A. (3) Where the State Government issues any notice under sub-section (1) requiring the licensee to sell the undertaking, it may by such notice require the licensee to deliver, ant thereupon the licensee shall deliver on a date specified in the notice the undertaking to the designated purchaser or to such officer as the designated purchaser may appoint in that behalf pending determination and payment of the said amount to the licensee.
Provided that in any such case, the purchaser shall pay to the licensee, interest at the Reserve Bank rate ruling at the time of delivery of the undertaking plus one per centum, on the amount payable to the licensee for the period from the date of delivery of the undertaking to the date of payment of such amount.
(4) Where before the date fixed in the notice issued under clause (a) of sub-section (1) as the date on which the revocation of the license shall take effect, no notice has been issued to the licensee requiring him to sell the undertaking or where for any reason no sale of the undertaking has been effected under that sub-section, the licensee shall have the opinion of disposing of all lands, buildings, works, materials and plant belonging to the undertaking in such manner as he may think fit:
Provided that if the licensee does not exercise such option within a period of six months from the aforesaid date, the State Government may forthwith cause the works of the licensee in, under, over, along or across any street to be removed and every such street to be reinstated, and recover the cost of such removal and reinstatement from the licensee.
Section 6. Purchase of undertakings.- (1) Where a license has been granted to any person, not being a local authority, the State Electricity Board shall,-
(a) in the case of a license granted before the commencement of the Indian Electricity (Amendment) Act, 1959 (32 of 1959) on the expiration of each such period as is specified in the license; and
(b) in the case of license granted on or after the commencement of the said Act, on the expiration of such period not exceeding [thirty] years and of every such subsequent period, not exceeding [twenty] years, as shall be specified in this behalf in the license, have the option of purchasing the undertaking and such option shall be exercised by the State Electricity Board serving upon the licensee a notice in writing of not less than eleven months requiring the licensee to sell the undertaking to it at the expiry of the relevant period referred to in this sub-section.
(2) Where a State Electricity Board has not been constituted, or if constituted, does not elect to purchase the undertaking, the State Government shall have the like option to be exercised in the like manner of purchasing the undertaking.
(3) Where neither the State Electricity Board nor the State Government elects to purchase the undertaking, any local authority constituted for an area within which the whole of the area of supply is included shall have the like option to be exercised in the like manner of purchasing the undertaking.
(4) If the state Electricity Board intends to exercise the option of purchasing the undertaking under this section, it shall send an intimation in writing of such intention to the State Government at least eighteen months before the expiry of the relevant period referred to in sub-section (1) and if no such intimation as aforesaid is received by the State Government the state Electricity Board shall be deemed to have elected not to purchase the undertaking.
(5) If the State Government intends to exercise the option of purchasing the undertaking under this section, it shall send an intimation in writing of such intention to the local authority, if any, referred to in sub-section (3) at least fifteen months before the expiry of the relevant period referred to in sub-section (1) and if no such intimation as aforesaid is received by the local authority, the State Government shall be deemed to have elected not to purchase the undertaking.
(6) Where a notice exercising the option of purchasing the undertaking has been served upon the licensee under this section, the licensee shall deliver the undertaking to the State Electricity Board, the State Government or the local authority, as the case may be, on the expiration of the relevant period referred to in sub-section (1) pending the determination and payment of the purchase price.
(7) Where an undertaking is purchased under this section, the purchaser shall pay to the licensee the purchase price determined in accordance with the provisions of sub-section (4) of Section 7A.
Section 6-A. Revocation of licences and acquisition of undertaking:- (1) In this section ''appointed day' means in relation to licensees other than local authorities, December 1, 1975 and in relation to local authorities being licensees, such date as may be specified by the State Government by notification in that behalf, and different dates may be specified for different such undertakings.
(2) Notwithstanding anything contained in Sections 4, 4-A, 5 and 6, the license of every undertaking, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975, shall stand revoked with effect from the appointed day.
(3) On revocation of the licence under sub-section (2), the following provisions shall have effect, namely:
(a) every undertaking the licence in respect of which stands revoked shall by virtue of this section stand and be deemed to have stood transferred to and vest and be deemed to have vested in the State Electricity Board, hereinafter in this section called 'the Board', free from any debt, mortgage or similar obligation of the licence attaching to the undertaking:
Provided that any such debt, mortgage or similar obligation shall attach to the amount payable for the undertaking as mentioned in clause (h);
(b) the rights, powers, authorities, duties and obligations of the licensee under his licence shall stand transferred to the Board and the licence shall cease to have further operation;
(c) the licensee shall deliver forthwith the undertaking to the Board or to such other officer as the Board may appoint in that behalf, and if any property or asset, book of account, register or other document forming part of the undertaking be in the pos- session, custody or control of any person other than a licensee, such person shall also deliver the same to the Board or to such officer as aforesaid;
(d) the Board shall prepare an inventory of all properties, assets, books of account, registers and documents taken pos- session of under this section, as far as practicable, in the presence of the licensee or his authorized representative;
(e) the licensee or any person other than a licensee, as the case may be, shall be liable to account to the Board for all property and assets and also for any books of account, registers or documents comprised in the undertaking which he has failed to deliver to the Board under clause (c);
(f) the owner of every undertaking shall, within sixty days from the appointed day or within such further time as the Board may allow in that behalf, furnish to the Board or to such officer as the Board may specify, complete particulars of all liabilities and obligations incurred on the security of the undertaking and subsisting on the appointed day, and also of all agreements and other instruments, pertaining to the undertaking (including agreements, decrees, awards, standing orders and other instruments relating to leave, pension, gratuity, provident fund and other terms of service of any person employed in the undertaking) in force immediately before the appointed day and the Board shall afford him all reasonable facilities for the same;
(g) the following provisions shall govern the working in the undertaking immediately before the appointed day:
(i) every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board or the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is terminated or until his remuneration or other terms and conditions of employment are duly altered by the Board:
Provided that the Board may appoint an officer or committee to review the genuineness of all appointments made or increments of wages or salary given to the employees within the period of one year immediately preceding the appointed day, and if after considering the report of any such officer or committee and any representations that may be received in that behalf from the person effected, an appointment made or increment given does not appear to the Board to be genuine it may terminate the service of such employee or cancel the increment, as the case may be:
Provided further that any person aggrieved by the decision of the reviewing officer or the committee, as the case may be, may appeal to the Board whose decision shall be final.
(ii) The Board may appoint an officer or committee for the purpose of fitment of the employees taken over from the licensee under sub-clause (i) in the scales of wages or salary of the Board having regard to the qualifications, experience and existing wages or salary of such employees and the wages or salary structure of comparable employees in the Board.
(iii) Notwithstanding anything contained in the U.P. Industrial Disputes Act, 1947 (U.P. XXVIII of 1947), or in any other law for the time being in force, the transfer of any employee to the Board under sub-clause (i) shall not entitle any such employee to any compensation under that Act or any other law and no claim shall be entertained by any Court, Tribunal or other authority.
(iv) For the avoidance of doubts it is hereby declared that nothing in sub-clause (iii) shall be construed to affect that right of any employee whose services are terminated under sub-clause (i) to claim compensation, if admissible, from the licensee under Sections 6-N and 6-0 of the U.P. Industrial Disputes Act, 1947 (U.P. Act XXVIII of 1947);
(h) the Board shall pay to the licensee an amount determined in accordance with the provisions of Section 7-A:
Provided that the licensee shall in addition to the said amount, be entitled to interest thereon at the Reserve Bank rate ruling at the appointed day plus one per centum for the period from the appointed day to the date of payment of the said amount."
Section 7. Vesting of the undertaking in the purchaser.- (1) Where an undertaking is sold under Section 5 or Section 6, then upon the completion of the sale or on the dale on which the undertaking is delivered to the intending purchaser under sub-section (3) of Section 5 or under sub-section (6) of Section 6, as the case may be, whichever is earlier
(i) the undertaking shall vest in the purchaser or the intending purchaser, as the case may be, free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking:
Provided that any such debt, mortgage or similar obligation shall attach to the amount payable for the undertaking;
(ii) the rights, powers, authorities, duties and obligations of the licensee under his license shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee:
Provided that where the undertaking is sold or delivered to a State Electricity Board or the State Government, the license shall cease to have further operation.
(2) Where an undertaking is purchased by the State Electricity Board, or acquired under Section 6-A and-
(i) any amount of wages, bonus, gratuity, provident fund or other payment due on the date of purchase or of the delivery of the undertaking, as the case may be, to persons employed as workmen (within the meaning of the U.P. Industrial Disputes Act, 1947) in connection with the undertaking remains unpaid by the licensee to such workmen ; or
(ii) the licensee had failed to pay amount due on the said date in respect of either the licensee's contribution or the employees' contribution realized by the licensee or any other dues recoverable from the licensee under the Employees' Provident Fund Act, 1952 or the Employees' State Insurance Act, 1948, in respect of persons employed in connection with the undertaking, the Board may pay the said amounts to the employees or to the Board of Trustees under the first mentioned Act, or the Employees' State Insurance Corporation, under the second mentioned Act, as the case may be, and deduct the same from the purchase-money to be paid to licensee, and if the amounts so paid exceed the purchase-money available, recover the excess from the licensee as arrears of revenue.
(3) All security deposits made by the consumers with the licensee that remain unpaid to the consumers on the said date shall be transferred by the licensee to the Board, and if they are not so transferred the Board shall deduct the amount of the said deposits from the purchase money to be paid to the licensee, and if the said amount exceeds the purchase-money available, recover the excess from the licensee as arrears of revenue.
(4) The liability of the licensee towards the employees or consumers, as the case may be, to the extent of deductions and recoveries made by the Board under sub-sections (2), (3) and (4) shall stand discharged.
(5) The provisions of sub-sections (2), (3) and (4) shall apply in respect of all undertakings purchased before or after the commencement of the Electricity Laws (Uttar Pradesh Amendment) Act, 1974, in respect of which the purchase money remains to be paid to the licensee.
7-A. Determination of amount.- (1) Where an undertaking of a licensee has been purchased by the State Electricity Board in consequence of revocation of his licence under sub-section (2) of Section 4 or is sold under sub-section (1) of Section 5 or is purchased under Section 6, the amount payable there for shall be determined as hereinafter provided.
(2) The gross amount payable to such licensee shall be aggregate value of the amounts specified below:-
(i) the book-value of all completed works in beneficial use pertaining to the undertaking and taken over by the State Electricity Board, the State Government or local authority, as the case may be (excluding works paid for by consumers), less depreciation calculated in accordance with the Sixth Schedule read with the Seventh Schedule to the Electricity (Supply) Act, 1948;
(ii) the book-value of all works in progress taken over, excluding works paid for by the consumers or prospective consumers:
(iii) the book-value of all stores, including spare parts taken over, and in the case of used stores and spare parts if taken over such sum as may be decided upon by the special officer referred to in sub-section (6) (hereinafter referred to as the special officer);
(iv) the book-value of all other fixed assets in use on the date of vesting under Sec. 7, hereinafter referred to as the vesting date, and taken over, less depreciation calculated in accordance with said Schedules:
(v) the book-value of all plants and equipments existing on the vesting date, if taken over but no longer in use owing to wear and tear or to obsolescence, to the extent such value has not been written off in the book of the licensee, less depreciation calculated in accordance with the said Schedules.
(3) A sum equal to ten per cent of the amounts assessed under clauses (i) to (iv) of sub-section (2) shall be paid to the licensee in respect of compulsory purchase under Sec. 6.
(4) When any asset is acquired by the licensee after the expiry of the period to which the latest annual accounts, relate, the book- value of the asset shall be such as may be decided upon by the special officer:
Provided that before deciding the book-value of any such asset, the licensee shall be given an opportunity by the special officer of being heard, after giving him a notice of at least fifteen days therefore.
(5) The purchaser shall be entitled to deduct the following sums from gross amount payable under the foregoing sub-section to a licensee-
(a) the amount, if any, already paid in advance ;
(b) where the purchaser is the State Electricity Board the amount due, if any, including interest thereon, from the licensee to the Board, for energy applied by the Board before the vesting date;
(c) all amounts and arrears of interest, if any, thereon, due from the licensee to the State Government or the State Electricity Board;
(d) the amount, if any, equivalent to the loss sustained by the purchaser by reason of property or rights belonging to the undertaking not having been handed over to the purchaser, the amount of such loss being deemed to be the amount by which the market value of such property or rights exceeds the amount payable therefore under this section, together with any income which might have been realized by the purchaser, if the property or rights had been handed over on the vesting date:
(e) the amount of all loans due from the licensee to an: corporation as defined in the Uttar Pradesh Public Money (Recovery of Dues) Act. 1972, and arrears of interest, if an thereon;
(f) all sums paid by the consumers by way of security deposit and arrears of interest due thereon on the vesting date. in so far as they have not been paid over by the licensee to the purchaser, less the amounts which according to the books of the licensee are due from the respective consumers to the licensee for energy supplied by him before that date;
(g) all advances from consumers and prospective consumers, and sums which have been or ought to be set aside to the credit of the consumers, in so far as such advances or sums have not been paid over by the licensee to the purchaser:
(h) the amount remaining in Tariffs and Dividends Control Reserve, Contingencies Reserve and the Development Reserve, in so far as such amounts have not been paid over by the licensee to the purchaser;
(i) all amounts on account of provident fund. gratuity, or pension, if any, in relation to persons in the employment of the licensee immediately before the appointed date and apportioned in proportion to the period of service rendered by such persons in the employment of the licensee].
(6) The State Government shall appoint, by order in writing, a person having adequate knowledge and experience in matter relating to accounts, to be special officer to assess the net amount payable under this section to the licensee, after making the deductions mentioned in this section.
(7) (a) The special officer may call for the assistance of such officers and staff of the State Government or the State Electricity Board or the licensee as he may deem fit in assessing the net amount payable.
(b) The special officer shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act 5 of 1908), when trying a suit, in respect of the following matters:
(i) enforcing the attendance of any person and examining him on oath;
(ii) compelling the production of documents; and
(iii) issuing commissions for the examination of witnesses.
The special officer shall also have such further powers as may be specified by the State Government by notification in the Gazette.
(8) Where the gross amount payable to the licensee is-
(a) equal to the total amount to be deducted under this section, no payment shall be made to the licensee by the purchaser;
(b) less than the total amount to be deducted under this section the difference between the gross amount so payable and the total amount to be deducted shall on a certificate of the special officer be recoverable as arrears of land revenue (9) Where any amounts not belonging to it have been deducted by the purchaser under clause (c), clause (e), clause (f) or clause (g) of sub-section (5) or recovered under sub-section (8), the liability of the licensee towards the State Government or other bodies or consumers, or prospective consumers, as the case may be, shall, to the extent of the deduction and recoveries so made, stand discharged and the purchaser shall in substitution of the licensee become liable towards them to that extent."
Section 28-A. Revocation of sanction given under Section 28.-(1) Where the State Government is of opinion that for purposes of maintaining supply of or securing equitable distribution of electrical energy to the general public or otherwise in public interest, it is necessary or expedient so to do it, it may, by notification, revoke a sanction given to a local authority or to any other person under sub-section (1) of Section 28, anything contained in any other provision of this Act or any agreement or statutory instrument to the contrary notwithstanding, and thereupon every such sanctions shall, with effect from the date specified in this behalf in such notification, stand revoked.
(2) Where any sanction is revoked in accordance with sub-section (1), the provisions of Section 6-A and 7-A shall mutatis mutandis apply to the revocation of such sanction as they apply to the revocation of a licence.
Electricity (Supply) Act 1948: Sections 2 (2), 5, 12, 14, 15, 18 and 27:-
Section 2. Interpretation.- In this Act, unless there is anything repugnant in the subject or context.-
(2) "Board" means a State Electricity Board constituted under section 5;
Section 5. Composition of State Electricity Boards.- (1) The State Government shall, as soon as may be after the issue of the notification under sub-section (4) of Section 1, constitute by notification in the Official Gazette a State Electricity Board under such name as shall be specified in the notification.
(2) The Board shall consist of not less than three and not more than seven members appointed by State Government.
(3) [ * * *] (4) Of the members-
(a) one shall be a person who has experience of, and has shown capacity in, commercial matters and administration;
(b) one shall be an electrical engineer with wide experience;
(c) one shall be a person who has experience of accounting and financial matters in a public utility undertaking, preferably and electricity supply undertaking.
(5) One of the members possessing any of the qualifications specified in sub-section (4) shall be appointed by State Government to be the Chairman of the Board.
(6) A person shall be disqualified from being appointed or being a member of the Board if he is a member of [Parliament] or of any State Legislature or any local authority.
(7) No act done by the Board shall be called in question on the ground only of the existence of any vacancy in or any defect in the constitution of, the Board.
Section 12. Incorporation of Board.- The Board shall be a body corporate by the name notified under sub-section (1) of Section 5, having perpetual succession and a comman seal, with power to acquire and hold property both movable and immovable, and shall by the said name sue and be sued.
Section 14. Meetings of the Board.- (1) The Board shall hold ordinary meetings at such intervals and may be provided in the regulations; and a meeting may be convened by the Chairman at any other time for the transaction of urgent business.
(2) The number of members necessary to constitute a quorum at a meeting shall be such as may be provided in the regulations.
Section 15. Appointment of staff.- (1) The Board may appoint a Secretary and such other officers and [employees] as may be required to enable the Board to carry out its functions under this Act:
[Provided that the appointment of Secretary shall be subject to the approval of the State Government.] Provided further that the Board may, by regulations, delegate its powers of appointment under this section to Chairman or any member of the Board or to any other officer or authority subordinate to it.
Section 18. General duties of the Board.- Subject to the provisions of this Act, the Board shall be charged with the following general duties, namely:-
(a) to arrange, in co-ordination with the Generating Company or Generating Companies, if any, operating in the State, for the supply of electricity that may be required within the State and for the transmission and distribution of the same, in the most efficient and economical manner with particular reference to those areas which are not for the time being supplied or adequately supplied with electricity;
(b) to supply electricity as soon as practicable to a licensee or other person requiring such supply if the Board is competent under this Act so to do;
(c) to exercise such control in relation to the generation, distribution and utilization of electricity within the State as is provided for by or under this Act;
(d) to collect data on the demand for, and the use of, electricity and to formulate perspective plans in co-ordination with the Generating Company or Generating Companies, if any , operating in the State, for the generation, transmission and supply of electricity within the State;
(e) to prepare and carry out schemes for transmission, distribution and generally for promoting the use of electricity within the State; and
(f) to operate the generating stations under its control in co-ordination with the Generating Company or Generating Companies, if any, operating in the State and with the Government or any other Board or agency having control over a power system.
Section 27. Other functions of the Board.- The Board or a Generating Company shall have such further powers and duties as are provided in this Act.
Electricity Reforms Act, 1999:- Section 23:-
Section 23. Transfer of the Boards properties, powers, functions, duties and personnel:-
(1) On and from the date specified in a transfer scheme, prepared and notified by the State Government, to give effect to the objects of this Act, hereinafter referred to as the appointed date in this Act, all properties, and all interests, rights and liabilities of the Board therein shall vest in the State Government.
(2) The properties, interest, rights and liabilities vested in the State Government under sub-section (1), shall be revested by the State Government, in the Power Corporation and in a generating company in accordance with the transfer scheme so notified along with such other property, interest, rights and liabilities of the State Government, as may be specified in such scheme, on such terms and conditions as may be determined by the State Government.
(3) In addition to the rights and power of the Power Corporation as specified in chapter IV of this Act, such of the rights and powers exercisable by the Board under the Electricity (Supply) Act, 1948, as the State Government may, by notification, specify shall be exercisable by the Power Corporation or the generating company, as the case may be, for the purposes of performing the functions and discharging the duties under the said Act of 1948.
(4) The State Government may, after consultation with the generating company or the power corporation, hereinafter referred to in this section as transferor, may, require transferor to draw up a transfer scheme to vest in a person hereinafter referred to in this section as transferee, any of the functions including distribution function, property, interest, right or liability which may have been vested in the transferor under this section and notify the same as statutory transfer scheme under this Act. The transfer scheme to be notified under this sub-section shall have the same effect as the transfer scheme under sub-section (2).
(5) Where, -
(a) a transfer scheme involves the transfer of any property or right in favour of any person or undertaking not wholly owned by the State Government, the scheme shall give effect to the transfer only for fair value to be paid by the transferee to the transferor;
(b) a transaction of any description is made in pursuance of a transfer scheme, it shall be binding on all persons including third parties, even if such persons have not consented to it.
(6) A transfer scheme may, -
(a) define the property, interest, rights and liabilities to be allocated -
(i) by specifying the property, rights and liabilities;
(ii) by referring to all the properties, interests, rights and liabilities comprising a specified part of the transferors undertaking; or
(iii) partly in one way and partly in the other;
(b) provide that the rights or liabilities specified in the scheme shall be enforceable by or against the transferor or the transferee;
(c) impose on the transferee an obligation to enter into such written agreements with or execute such other instruments in favour of any other transferee as may be rectified in the scheme; and
(d) make such supplemental, incidental and consequential provisions as the transferor may consider appropriate including provisions specifying the order in which any transfer or transaction shall take effect.
(7) The State Government, may provide in any of the transfer schemes framed under this section for the transfer of personnel to the Power Corporation or a company subsidiary to the Power Corporation or a generating Company, on the vesting of properties, rights and liabilities in the Power Corporation or a company subsidiary to the Power Corporation or a generating company, as a part of the undertakings transferred under this section and on such transfer the personnel shall hold office or service under the Power Corporation or a company subsidiary to it or a generating company, as the case may be, on terms and conditions that may be determined in accordance with the transfer scheme subject however to the following namely:
(a) terms and conditions of service of the personnel shall not be less favourable to the terms and conditions which were applicable to them immediately before the transfer;
(b) the personnel shall have continuity of service in all respects; and
(c) all benefits of service accrued before the transfer shall be fully recognised and taken into account for all purposes including the payment of any or all terminal benefits:
Provided that, notwithstanding anything contained in any other law for the time being in force, and except as provided in the transfer scheme and in this Act, the transfer shall not confer any right on the personnel so transferred to any compensation or damages:
Provided further that the posts in the Board of all the personnel whose services arc to be so transferred shall stand abolished with effect from the date of transfer. Explanation. - For the purposes of this section and the transfer scheme, the expression "personnel" means all persons who on the appointed date arc the employees of the Board and who under the transfer scheme arc given the option to join service under the control of the transferee.
(8) All debts and obligations incurred, all contracts entered into and all matters and things done by, with or for the Board, including all securities and guarantees given on behalf of the Board before the appointed date for a transfer scheme becomes effective shall, to the extent specified in the relevant transfer scheme, be deemed to have been incurred, entered into or done by, with or for the State Government or the concerned transferee and all suits or other legal proceedings instituted by or against the Board may be continued or instituted by or against the State Government, or the concerned transferee, as the case may be.
(9) Where a licensee is required to vest any part of his undertaking in another licensee under sub-section (4), the licence of the transferee may be amended under Section 19 or revoked under Section 18. (10) The Board shall cease to be charged with, and shall not perform the functions and duties specified by notification issued under sub-section (3) with regard to transfers made on or after the date of the said notification.
Uttar Pradesh Co-operative Societies Act, 1965:- Section 72 and 76:-
Section 72. Winding up of Cooperative Societies.- (1) If Registrar after an inquiry has been held under Section 65 or an inspection has been made under section 66 or on receipt of an application made by not less than three-fourth of the members of a co-operative society is of the opinion that the society ought to be wound up, he may pass an order directing it to be wound up.
(2) The Registrar may of his own motion and after giving such notice as may be prescribed pass an order directing the winding of a co-operative society-
(a) where the registration of the co-operative society was obtained by fraud or mistake ; or
(b) where the number of ordinary members has been reduced to less than such minimum as provided in Section 6 for the registration of such society; or
(c) where the co-operative society has not commenced working within a reasonable time or has ceased to function ; or
(d) where the co-operative society is no longer fulfilling its objects or complying with the requirements of clause (d) of sub-section (1) of Section 7.
Section 76. Cancellation of registration of a co-operative society.- Where in respect of a co-operative society which has been ordered to be wound up under Section 72, the Registrar is of opinion that is not necessary to appoint a liquidator, or where the affairs of a co-operative society in respect of which a liquidator has been appointed under Section 73, have been wound up, the Registrar shall make an order cancelling the registration of the society and the society shall be deemed to be dissolved and shall cease to exist as a corporate body from the date of such order of cancellation.
Having noted the submissions raised at the bar and the relevant statutory prescriptions as quoted hereinafter, the following issues deserve consideration and adjudication on the basis of the arguments raised and the relevant statutory prescriptions.
UP Contributory Provident Fund Rules, 1962 Rule 38:-
"38. Procedure on transfer to pensionable service :- (1) If a subscriber is permanently transferred to pensionable service under the President, he shall, at his option, be entitled-(a) to continue to subscribe to the Fund, in which case he shall not be entitled to any pension; or
(b) to earn pension in respect of such pensionable service, in which case, with effect from the date of his permanent transfer-(i) he shall cease to subscribe to the Fund;
(ii) the amount of contributions by Government with interest thereon standing to his credit in the Fund shall be repaid to Government;
(iii) the amount of subscriptions together with interest thereon standing to his credit in the Fund shall be transferred to his credit in the General Provident Fund, to which thereafter he shall subscribe in accordance with the rules of that Fund, and
(iv) he shall be entitled to count towards pension such part of the period as Government may determine.
(2) A subscriber shall communicate his option under sub-rule (1) by a letter to the Account Officer within three months of the date of the order transferring him permanently to pensionable service; and, if no communication is received in the office of the Account Officer within that period, the subscriber shall be deemed to have exercised his option in the manner referred to in Cl. (a) of that sub-rule."
70. In our view there are following crucial points for determination, which have arisen in the light of the rival submissions of the parties for deciding the instant appeal, which are :
(a) whether a prima facie case is made out to interfere in the order impugned passed by the learned Single Judge in the exercise of his discretion ;
(b) whether in the Special appeal filed against the exercise of discretion by the Learned Single Judge and passed the impugned order and it is also to be tested that the said order impugned passed by the learned Single Judge arbitrarily or capriciously or perversely or whether the Court had ignored the settled principles of law ;
(c) whether could the employees of CESS having been allowed to work in the establishment of U.P. State Electricity Board in furtherance of the policy decision dated 03.04.1997 of the State Government ipso facto be treated as employees of the then U.P. State Electricity Board on the same terms and conditions as available to the employees of the Board ;
(d) whether the Hon'ble Supreme Court has settled the legal position is that employees of CESS are at par with the employees of the U.P. State Electricity Board and their services are to be governed in the like manner as employees of the Board w.e.f. 28.03.1997.
71. Before dealing the matter in hand, it is necessary to refer important factual aspects of the matter.
72. The respondents/writ petitioners were the employee of the Cooperative Electric Supply Society, which was registered under the provisions of U.P. Cooperative Societies Act, 1965 and engaged in the work of distribution of electricity in the rural areas of six blocks comprised in district Lucknow and for that purpose, it was granted a licence by the State Government during the year 1970 in accordance with the provisions of Indian Electricity Act, 1910 and the Rules framed thereunder. It appears that licence period came to an end in 1997 and thus State Government issued an order dated 15.04.1997 directing that with effect from 28.03.1997, the entire work of distribution of electricity shall be carried out and undertaken by the U.P. State Electricity Board. Further, vide the provisions of Section 6-A (g) (i) of the Indian Electricity Act, 1910, the services of the employees working in the society were given protection. Section 6(g)(i) of the Act, 1910 specifically dealt that every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board. Therefore, the employees of the erstwhile CESS/licensee become the employees of U.P. State Electricity Board and since then they became entitled to same terms and conditions f services which applied to the own employees of U.P. State Electric Board.
73. In pursuance of the directions issued by the Union of India on 17.02.1997, the Secretary of the CESS passed an order regarding the implementation of the Provident Fund Scheme and the Pension Scheme. On 12.03.1997, a High Power Committee was constituted and a meeting was held on 03.04.1997 and the committee took a decision that the services of the employees of the CESS would be transferred to U.P. Power Corporation Limited with immediate effect and the work of CESS will be discharged by the U.P. Power Corporation Limited. As per clause 3 of the resolution will make it clear that the employees working under the CESS were taken in service of the U.P. State Electricity Board even daily wagers working under CESS were also granted protection and it was decided to pay wages to the daily wage employees of the CESS at the same rate which the daily wage employees of the U.P. State Electricity Board were giving. The resolution dated 03.04.1997 was passed in pursuance to the notification dated 13.03.1995 by which for the first time working of CESS was decided to be transferred to U.P. State Electricity Board.
74. As the writ petitioners/respondents employees who were regular employee of the CESS became the employees of the U.P. State Electricity Board under the resolution dated 03.04.197 and they started working on their post under the U.P. State Electricity Board, the writ petitioners/respondents employees were being paid their salary in the same pay-scale, which was being given to the employees of the U.P. State Electricity Board and therefore, there is no difference in the pay-scale or in the emoluments.
75. In several judicial pronouncements of this Hon'ble Court, which has been affirmed by Hon'ble the Apex Court, it has been held that the employees of CESS be treated at par of the employees of the U.P. Power Corporation Limited. On 04.01.2013 the U.P. Power Corporation Limited passed an order superseding the earlier order dated 27.11.2009 stating that as merger of the CESS with the U.P. Power Corporation Limited had not been finally done and the matter was under active consideration therefore, till the matter of merger of CESS was pending before the State Government, the employees of the CESS would be governed by the bye-laws of 1970 i.e. CESS Bye-laws. The writ petition was filed before this Court challenging the said order. This Court while hearing the writ petition of the writ petitioners passed an order on 29.05.2013, which is as follows :
"The matter relating to absorption of employees of the Cooperative Society firstly with the U.P. Electricity Board and subsequently with U.P. Power Corporation has been pending since the year 1997 but no final decision has yet been taken.
In these circumstances the Court expects the decision to be taken at the earliest for the reason that many of the employees working in the Cooperative Society after serving U.P. State Electricity Board or U.P. Power Corporation have retired."
76. The High Court again directed to the Corporation to take decision keeping in view the observations made by the High Court on the earlier date i.e. 29.05.2013. After the intervention by this Court, the official liquidator / Registrar Cooperative approved the liquidation of the CESS vide order dated 08.01.2014 in which the Registrar Cooperative specifically held that CESS had become meaningless and there were no members of the CESS and even CESS was closed since 1997 and there was no balance sheet available. Liquidation of CESS was sought w.e.f. 27.08.1997 and therefore, decision was taken for transferring all the employees of the CESS to the U.P. State Electricity Board. Thus, it is crystal clear that the CESS was taken over and merged in the U.P. State Electricity Board (now U.P. Power Corporation Limited) for all practical purposes.
77. The matter relating to the CESS and absorption of its employees etc. has came to adjudication in the case of Pooran Chandra Pandey and others vs. U. P. State Electricity Board and others. When the matter of daily wages employees being treated as at Par with the U.P. State Electricity Board employees before this Court, this Court in its judgment dated 21.09.1998 directed that employees of CESS subsequently became the employees of the U.P. State Electricity Board and they ought to be treated at par as employees of the U.P. Power Corporation Ltd. The order of the Hon'ble Single Judge was affirmed by the Division Bench of this Court in Special Appeal No.364 of 1998 vide order dated 03.01.2000, against which the U.P. Power Corporation Ltd. went in Special Leave Petition before the Hon'ble Apex Court and the same was dismissed vide order dated 09.10.2007. Therefore, the issue of the absorption of the employees of the CESS in the U.P. Power Corporation has been finally settled.
78. Similar issue was again came up before this Court in writ petition No.1879 (SS) of 2009 (Shriniwas Ram vs. U.P. Power Corporation Limited and others) wherein it has been held that employees of the CESS became the employees of the U.P. State Electricity Board w.e.f. 28.03.1997, as such, they became entitled to the same terms and conditions of services which applied to the own employees of the U.P. State Electricity Board.
79. In view of the above peculiar facts and circumstances of the case, the employees of the CESS has a legitimate expectation and therefore, they are entitled for all service benefits which are made applicable for all the regular employees of the U.P. State Electricity Board (now U.P. Power Corporation Ltd.)
80. Scope of the intra court appeal :
It is settled law that any appeal before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except, where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory principle of law. An appeal against exercise of discretion is said to be an appeal on principle. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below, if the one reached by the court was reasonably possible on the material. The appellate court in normal be justified in interfering with the exercise of discretion under appeal solely on the ground that the other way of the possible conclusion after considering the material which were supplied at the stage of the special appeal and the same was not available at the time of the writ petition.
81. In the case of Management of Narendra & Company Private Limited vs. Workmen of Narendra & Company; (2016) 3 SCC 340, Hon'ble the Supreme Court has held as under :
"Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January, 1995, there is no justification in entering a different finding without any further material before the Division Bench. The appellate bench ought to have noticed that the statement of MW-3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
82. The Hon'ble Sureme Court in Civil Appeal No.7400-7401 of 2018 (Roma Sonkar vs. Madhaya Pradesh State Public Service Commission decided on 31.07.2018 has held that :
"We have 0very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
83. In the case of Baddula Lakshmaiah and others vs. Sri Anjaneya Swami Temple & Others; reported at (1996) 3 SCC 52, Hon'ble the Apex Court has held that :
A Letters Patent Appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. Such is not an appeal against an order of a subordinate Court.
84. In view of the above discussion and pronouncement of the judgment of Hon'ble the Apex Court, it is crystal clear that under intra court appeal, a Division Bench of the High Court may only see the correctness of the order passed by the learned Single Judge as the intra court appeal is exercised in the same jurisdiction as exercised by single judge. Therefore, additional documents as well as the additional grounds can be taken at the stage of the intra court appeal for the proper adjudication of the matter.
85. An analysis of the provisions, facts and law settled, as reproduced above show that the learned Single Judge having seen the records had come to the conclusion that the respondents / writ petitioners were absorbed under Scheme by the UPSEB and therefore, they were taken by the UPPCL. The finding of the learned Single Judge is not perverse and therefore, no interference is required in the impugned judgment/order dated 06.02.2018 passed by the learned Single Judge.
86. Doctrine of Legitimate Expectation :
The doctrine of "Legitimate Expectation" is one amongst several tools incorporated by the Court to review administrative action. This doctrine pertains to the relationship between an individual and a public authority. According to this doctrine, the public authority can be made accountable in lieu of a ''legitimate expectation'. A person may have a reasonable or legitimate expectation of being treated in a certain way by the administrative authorities owing to some consistent practice in the past or an express promise made by the concerned authority.
87. In the case of Council of Civil Service Unions and Others v. Minister for the Civil Service ([1985] AC 374), it has been held that if a person deprived of some benefit or advantage which he had been permitted by the authorizing body in the past and which he could have legitimately expected to enjoy until a valid ground for withdrawal of the same was communicated to him or he had been assured by the decision making body that such a benefit or advantage would not be withdrawn until him being given an opportunity of contending reasons as to why they were withdrawn.
88. In the case of Navjyoti Coop. Group Housing Society v. Union of India [(1992) 4 SCC 477], Hon'ble the Apex Court has held that the Housing Societies were entitled to ''legitimate expectation' owing to the continuous and consistent practice in the past in matters of allotment. Court further elucidates on the principle stating that presence of ''legitimate expectations' can have different outcomes and one such outcome is that the authority should not fail ''legitimate expectation' unless there is some justifiable public policy reason for the same.
89. In the case of Union of India v. Hindustan Development Corporation [(1993) 3 SCC 499], Hon'ble the Apex Court has dealt with the doctrine in great detail, starting with the explanation of the scope of the doctrine in Halsbury's Laws of England, Fourth Edition, Volume I (I) 151 which says that a person can have a legitimate expectation of being treated in a certain fashion even though he does not have a legal right to receive the same.
90. In the case of A.G. of Hong Kong v. Ng Yuen Shiu [(1983) 2 A.C. 629] Lord Fraser had observed that if a public authority has vowed to follow a procedure, it is imperative that it acts in a fair manner and fulfills its promise, in the interest of good administration.
91. In the judgment of House of Lords in the case of Council of Civil Service Unions and Others (supra), it has been held that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment such reasons.
92. It may be indicated here that the trust of legitimate expectation imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation. Within the conspectus of fair dealing in case of 'legitimate expectation'. The reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. We have not been shown any compelling reasons taken into consideration by the Central Government to make a departure from the existing policy of allotment with reference to seniority in Registration by introducing a new guideline."
93. In the case in hand, vide order dated 03.04.1997 the employees of the CESS were treated to be the regular employees of the UPSEB. In the year 2000, UPPCL came into existence and all the assets, liabilities and employees of the UPSEB were taken over by the UPPCL. Said take over was made under the provisions of the Electricity Reforms Act 1999. In view of Section 13 read with section 23 of the Act, 1999, vide notified scheme dated 14.01.2000, the services of respondents were transferred from UPSEB to UPPCL as they were treated as regular employees of UPSEB. The services of employees of erstwhile UPSEB was pensionable even after 14.01.2000, when the employees of UPSEB were transferred to UPPCL, therefore, any service condition i.e. pension could not be refused to them.
After taking into consideration all relevant factors relating to the instant case, we are of the view that the office memorandum/order dated 27.04.2016 of the appellants, not making the payment of pensionary benefit to the respondents/employee, is contrary to the principle of legitimate expectation. .
94. Learned counsel appearing on behalf of the appellants U.P. Power Corporation Limited submitted that in the case of Official Liquidator vs. Dayanand and others reported at (2008) 10 SCC 1, declared the comments and observations made by two-Judges Bench in U.P. State Electricity Board vs. Pooran Chandra Pandey; 2007 (11) SCC 92 be read as obiter and the same should neither be treated as binding by the High Courts, Tribunals and other judicial forams nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench. Therefore, in Pooran Chandra Pandey's case (supra) the issue related to the absorption of the employees of the CESS in the U.P. State Electricity Board or U.P. Power Corporation Limited cannot be treated at par with the employees of the Board.
95. Obitar Dicta The latin term 'obitar dicta' means "things said by the way," and is generally used in law to refer to an opinion or non-necessary remark made by a judge. In any judgment, it contains two elements: (i) ratio decidendi, and (ii) obiter dicta. Ratio decidendi is the Latin term meaning "the reason for the decision," and refers to statements of the critical facts and law of the case. These are vital to the court's decision itself. Obiter dicta are additional observations, remarks, and opinions on other issues made by the judge. These often explain the court's rationale in coming to its decision and, while they may offer guidance in similar matters in the future.
All that is said by the court by the way or the statement of law, which go beyond the requirements of the particular case and which laid down a rule i.e. irrelevant or unnecessary for the purpose in hand, are called obiter dicta. These dicta have the force of persuasive precedents only. The judges are not bound to follow them. They can take advantage of them but they are not bound to follow them. Obiter dicta help in the growth of law. These sometimes help the cause of the reform of law. The judges are expected to know the law and their observations are bound to carry weight with the government. The defects in the legal system can be pointed out in the obiter dicta. The judges are not bound to make their observations on a particular point unless that is strictly relevant to the point in issue but if they feel that they must speak out their own minds on a particular point.
96. The term obiter dicta literally means 'statement by the way'. In Halsbury Laws of England, it has been defined as statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand leave no binding authority on another court. They may have some merely persuasive efficacy but in India, a departure has been made of the principle operating in England with regard to obiter dicta. The High courts have held almost uniformly that they are bound by the obiter dictum of the Supreme Court of India. In Mohandas Iswardas v. Sattanathan AIR 56 Bombay LR 1160, the Court observed that their Lordship observed that Supreme court is the highest court of the land and it is as much necessary in the interest of judicial uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta of council. But if the obiter dicta is on a question that did not arise for determination by the Supreme Court and is a mere expression of opinion given by the way then it is not binding.
97. In Basant Kumar Pal v. The Chief Electrical Engineer and others; AIR 1956 Cal.93, it was held that 'even an obiter of the Supreme Court is binding upon the High Court only if the Supreme Court has enunciated or declared some principle of law'. In the case of Nurudin Ahmed v. State of Assam; AIR 1956 Asam 48; it was laid down that 'the observations of their Lordships of the Supreme Court if they were made obiter, would be entitled to the highest esteem from the High Court'.
98. In the case of Ashok Leyland vs. The State Of Madras; AIR 1957 Madras 263 it was held that "the obiter dicta of a judge of the Supreme Court even in a dissenting judgement are entitled to high respect, especially if there is no direct decision to conclude the question at issue."
99. In the case of Mohandas Isswardas vs. Sattanathan (supra) the court has held as under :
"......an obiter dictum is an expression of opinion on a point which is not necessary for the decision of a case. This very definition draws a clear distinction between a point which is necessary for the determination of a case and point which is not necessary for the determination of the case. But in both cases points must arise for the determination of the Tribunal. Two questions may arise before a court for its determination. The court may determine both although only one of them may be necessary for the ultimate decision of the case. The question which was necessary for the determination of the case would be the ''ratio decidendi'; the opinion of the Tribunal on the question which was not necessary to decide the case would be only an ''obiter dictum'."
100. In the case in hand the judgment dated 09.10.2007 passed by Hon'ble Supreme Court in the case U.P. State Electricity Board vs. Pooran Chand Pandey's case (supra) has not been overruled and only the observations made there have been held to be an 'obiter', otherwise in view of the aforesaid principle, the decision rendered in Puran Chand Pandey's case is binding on the parties.
101. Principle of reasonableness and non arbitrariness :
In the case of Menka Gandhi vs. Union of India; 1978 (1) SCC 248, it has been held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated
102. In the case of A. K. Gopalan vs. State of Madras reported at 1950 SCR 88, Hon'ble the Apex Court has held that principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be a order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
103. The denial of the benefit of the pension to the respondents/writ petitioners vide order dated 27.04.2016 is highly arbitrary and the appellants have not acted fairly in the matter.
104. When we look at the factual matrix of the present case, it is not disputed between the parties that the respondents/writ petitioners were initially appointed with the CESS where an order was passed on 17.02.1997 by the Secretary for implementation of the Provident Fund Scheme and the Pension Scheme. The said scheme was same and applicable to U.P. State Electricity Board. Before the said decision could be implemented in April, 1997 another decision was taken by the State Government requiring the CESS employees to start work in the U.P. State Electricity Board. Thereafter, for all practical purposes, the employees of the CESS were treated as the employees of the U.P. State Electricity Board and even their salaries were paid by the U.P. State Electricity Board. All assets and liabilities of CESS were also taken over in the year 1997 by the UPSEB. Therefore, it is not disputed that the respondents/writ petitioners were the employees of the UPSEB. Meanwhile, in the year 2000, U.P. Power Corporation Limited (UPPCL for short) came into existence and all the assets, liabilities and employees of the UPSEB were taken over by the UPPCL under the provisions of the Electricity Reforms Act, 1999.
105. As per the notified scheme dated 14.01.2000, the services of the respondents/writ petitioners were transferred from UPSEB to UPPCL. This was a statutory transfer under terms and conditions provided and notified by the gazette. It cannot be varied or changed either by the respondents/writ petitioners or by the officers or even by the UPPCL at its will. Clause 9 of Scheme provides the schedule to be provisional for a period of one year only, during which period State Government could modify the same and after one year it became final. A bare reading of the aforesaid schemes clearly shows that UPPCL could only either appoint the persons directly or could take over the employees of UPSEB under the aforesaid notified scheme. There was no third way of getting the persons employed in UPPCL. Therefore it is surprising, as to how, UPPCL started claiming that these are employees of CESS and are not the employees of UPSEB. There is nothing on record by which learned counsel for the UPPCL could show that they could or have taken over the personnel of CESS under the Act/scheme as they were not authorized to take over any personnel except as per the provisions of the scheme. As per provision of the scheme, only those persons were to be taken over, who were employees of the UPSEB. In case, they were employees of CESS, the UPPCL ought to have objected on the very day when they had joined their services in UPPCL, on the ground that they are not covered under the scheme. Therefore, the state government and UPPCL treated them to be employees of UPSEB and on being treated such they were transferred to UPPCL and UPPCL also accepted them as employees as such. Under Clause 9 of the scheme both the State Government or the UPPCL had a window of one year, to look into such aspects, and modify/get the scheme modified. The same was never availed and on expiry of one year from notification the scheme became final. The status of all employees absorbed under scheme from UPSEB could thereafter neither be disputed nor changed by UPPCL or State Government.
106. After considering the entire facts and circumstances as also the settled law, we are of the view that there are no substantial ground or the reasons to interfere in the impugned order dated 06.02.2018 passed by the learned Single Judge. The respondents/writ petitions have a reasonable or legitimate expectation of being treated in a certain way by the administrative authorities to get the benefit as per the service conditions of the employees of the UPPCL. The issue regarding the absorption of the employees of the CESS in the UPSEB has already been settled by this Court and affirmed by Hon'ble the Supreme Court.
107. The argument on behalf of the appellants that the judgment of Hon'ble the Supreme Court in the case of Pooran Chandra Pandey (supra) is obitar as per the judgment of Hon'ble the Supreme Court of India in the case of Official Liquidator vs. Daya Nand (supra), is not sustainable in the eyes of law as discussed in the foregoing paragraphs. Therefore, the issues which are settled by the Hon'ble Supreme Court of India in Pooran Chand Pandey's case (supra) are binding upon this Court.
108. In view of the above facts and settled principles of law, we do not find any substantial reasons to re-visit the impugned judgment and order dated 06.02.2018 passed by the learned Single Judge. We are also not find any illegality or perversity in the said order.
109. All the appeals are dismissed accordingly.
Order Date :-28th May, 2019 VNP/-
Shabihul Hasnain (J) Chandra Dhari Singh (J)