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Defendant no. 1 BSES's case as per Written Statement : 10 Defendant no. 1, BSES has not disputed the facts averred by the Plaintiff. It has, however, denied its liability to pay by setting up a defence. It is averred that defendant no. 1 is not liable to pay any amount. It is averred that the case of the plaintiff had been forwarded to SVRS RTBF 2004 (a trust meant for employees who had opted for Voluntary Retirement under Special Voluntary Retirement Scheme, hereinafter referred to as "SVRS") after processing the same and it was returned with the remark that SVRS RTBF 2004 is meant for SVRS employees only and not for employees seeking voluntary retirement under any other rule or scheme. 11 It has taken a stand that, when the DVB was unbundled in the year 2002, a Pension Trust namely DVB Employee Terminal Benefit Fund Trust 2002 (the Defendant No. 2 herein and hereinafter referred to as "DVB ETBF 2002") was created to cater to the issue of disbursement of retirement benefits to employees of DVB who came into the rolls of the Transferee Companies like the Defendant No. 1. It is averred that any liability in the present case is of the Pension Trust.

19 In a nut shell the dispute in the present case is qua liability towards payment of pension to the Plaintiff who is an ex-employee of the BSES (Defendant No.1) who opted for VRS under Rule 48A of CCS (Pension) Rules. The defendant no. 2 DVB ETBF, 2002 is a Pension Trust claiming to be a superannuation fund only. The defendants in the case are passing on responsibility, as to payment of pension to the plaintiff, to each other.

Proceedings in the suit:

20 Before the stage of framing of issues, a direction was given to the Defendant No.1 on 1.10.2011. The said order is relevant and is being reproduced hereinbelow:

22 I would now like to elaborate the arguments advanced before me. Ld. Counsel for defendant no. 1 has submitted that Rule 48A is an essential service condition and the scheme of transfer, which gave protection and continuity to the rights of the employees who were absorbed by DISCOMS at the time of transfer pursuant to the unbundling duly protects the said right. Ld. Counsel submits that as per para no. 72, the Hon'ble High Court has held that the inherent right of the employee could not be restricted by the Trust Deed. The purpose of the tripartite agreement was to grant continuity and accordingly held that in the event of a short fall in the corpus of the Pension Trust, the Govt. of NCT of Delhi had to bear the liability whenever recourse was made by transferred employee Under Rule 48A of CCS (Pension) Rules.

30 The stand of the Defendant No. 3 per written Statement is also on similar lines.

31 Ld. Counsel for the Defendant No. 2 has further relied upon Minutes dated 23.01.2009 pertaining to meeting dated 15.01.2009 which have been filed by the defendant no. 1, although it is a document not permitted to be taken on record. In the said minutes, it is recorded that the defendant no. 1 and NDPL (DISCOMS) had raised the issue of introducing amendment to the Trust Deed of the Pension Trust to include Rule 48A of CCS Pension Rules Optees within the ambit of the Trust Deed. Therefore the defendant has itself been acting on the basis that the Trust Deed as it exists does not cover cases of Optees under Rule 48A of CCS Pension Rules. 32 Ld. Counsel for defendant no. 2 has last submitted that the defendant no. 1 has already admitted that in two cases of retirement under 48A, it has paid the monthly pension benefits and one time terminal dues and they are estopped from pleading to contrary.