Full Judgment Text
2021:DHC:3486
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 08, 2021
+ W.P.(C) 3430/2021, CM No. 30961/2021
AVINASH SHARMA
..... Petitioner
Through: Mr. Amit Sahni, Ms. Indira Goswami,
Mr. Parth Sharma and Ms. Sonali
Tiwary, Advs.
versus
TATA POWER DELHI DISTRIBUTION LTD
..... Respondent
Through: Mr. Sudhir Nandrajog, Sr. Adv. with
Mr. Sujit Kumar Singh, Adv. R1
Mr. Sumeet Pushkarna and
Mr. Devanshu Lahiry, Advs. for R-2
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J (ORAL)
1. This petition has been filed by the petitioner with the
following prayers:
“In the light of aforementioned facts and
circumstances, it is most respectfully prayed to this
Hon'ble Court that this Hon'ble Court may be
pleased to: -
(i) Set aside Letter No. TPDDL/HR-ES/2020-21/201
dated 05-3-2021 passed by respondent thereby
denying post retiral benefits to the petitioner
holding the same to unlawful and illegal.
(ii) Issue further writ/order or direction to the
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respondent thereby directing the respondent to
provide all post retiral benefits to the petitioner
including medical and pension etc.
Any other appropriate order or direction which this
Hon'ble Court may deem fit in the given facts and
circumstances of the present case.”
2. The respondents in this petition are Tata Power Delhi
Distribution Ltd. and DVB Pension Trust, in terms of the
amended memo of parties filed by the petitioner.
3. The challenge of the petitioner in this petition is primarily
to the Order dated March 05, 2021 whereby the request of the
petitioner for correction and updation of his service records and
allowing consequential retiral benefits including pension and
medical facilities was rejected, primarily on the ground that the
petitioner has taken voluntary retirement in the year 2003/2004
and also that the service of the petitioner fall short of minimum
requisite qualifying period of 20 years and therefore, he is not
entitled to the pensionary and medical benefits.
4. Some of the facts as highlighted by Mr. Amit Sahni,
learned counsel for the petitioner are that, the petitioner joined
the erstwhile Delhi Electricity Supply Undertaking (‘DESU’, for
short) on May 03, 1982 as a Work / CP Pump Operator. While
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working on the said post, he applied against the departmental
vacancy for the post of Instrument Repairer and Tester on
January 28, 1983.
5. Between June 2001 to February 2002, the petitioner was
put under suspension for a period of 257 days; he was later
reinstated with all past benefits. According to Mr. Sahni, on July
01, 2002 the successor Company of the DESU, i.e., Delhi Vidyut
Board was unbundled into six successor companies, which
included North Delhi Power Ltd. The services of the petitioner
came under the employment of North Delhi Power Ltd. Later, on
the formation of Tata Power Delhi Distribution Limited
(‘TPDDL’, for short), a joint venture between the Government of
the National Capital Territory of Delhi and the Tata Power
Company Ltd., which holds a 51% majority stake in the venture.
6. On November 29, 2003, a Voluntary Retirement Scheme
was introduced by the erstwhile North Delhi Power Ltd. with a
clear stipulation that any regular employee of North Delhi Power
Ltd. who has completed ten years of service or reached the age of
40 years on the date of introduction of the Scheme may seek
voluntary retirement under the said Scheme by making a request
to the Competent Authority. The petitioner had applied under the
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said Scheme for voluntary retirement. The request of the
petitioner was accepted and he was accordingly retired on
January 31, 2004.
7. It is noted that retiral benefits were denied to the
petitioner on the ground that he had only put in 18 years, 11
months and 3 days of service. This stand of the respondents is
contested by Mr. Sahni on the ground that the respondents have
excluded the following periods of service: -
(i) the period of work charged service (240 days in the
present case)
(ii) extraordinary leave without pay (508 days in the present
case) and
(iii) the period of suspension ( dies non ) (257 days in the
present case)
8. It is his submission that the period of suspension which
was treated as dies non (257 days) has never been communicated
to the petitioner and no show cause notice was issued to the
petitioner in that regard. Hence, the said period need to be
counted for the purpose of qualifying service. Further, he stated
that if the benefits as sought for by the petitioner in this case are
granted, then the petitioner fulfils the qualifying service and
therefore is entitled to the pensionary benefits and also medical
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benefits as is being given to a retired employee.
9. On the other hand, Mr. Sudhir Nandrajog, learned Senior
Counsel appearing for the respondent No.1 would contest the
filing of the writ petition against the said respondent, inasmuch as
it is the respondent No.2 which is the Authority to disburse the
pension to erstwhile employees of DESU / DVB. He stated that
on the retirement of the petitioner, his pensionary details were
sent to the respondent No.2. However, respondent No.2 vide
Note dated January 22, 2021 returned the same with the remarks
that since the petitioner has not completed the requisite qualifying
service, he is not eligible for pension. This fact was conveyed to
the petitioner vide the impugned communication.
10. That apart, medical facilities were provided to the
petitioner till age of superannuation i.e., January 31, 2021.
However, post the age of superannuation, the same, if eligible has
to be paid by the Pension Trust. That apart, he stated that
between May 03, 1982 to January 27, 1983 during which period
he rendered the services as a work-charged employee, cannot be
taken into consideration. Similar is the position with regard to
suspension period of 257 days as well as the period of 508 days
during which he was on extraordinary leave without pay. He
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stated that there is nothing in the Scheme that only those, who are
otherwise eligible for pension upon attaining the age of
superannuation can, apply. It is for the petitioner before opting
for voluntary retirement to have ascertained his eligibility for
pension. He seeks the dismissal of the writ petition.
11. Mr. Sumeet Pushkarna, learned counsel for the
respondent No.2 / Trust would also make similar submissions
that the petitioner is not entitled to the prayers as made in the
petition. According to him, the payment of superannuation
pension is subject to a person meeting the eligibility under the
CCS (Pension) Rules, 1972. The Voluntary Retirement Scheme
floated is a special exit contract which has taken place between
the petitioner and the employer i.e. respondent No.1. In case the
employee is eligible for the Voluntary Retirement Scheme having
service over ten years, he can avail of that and get two gratuities
(service gratuity and retirement gratuity) in case he is not entitled
to pension. The provision regarding calculating the period of
qualifying service is mentioned in Rules / Clause 3 of the CCS
(Pension) Rules, 1972. The said Rules requires at least 20 years
of qualifying service for being eligible for pension and the
exclusion is clearly set out. The petitioner is not entitled to get the
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period of work-charged service / extraordinary leave without pay
/ the period of suspension ( dies non ) counted for the purpose of
qualifying service as per the CCS (Pension) Rules, 1972 and no
relaxation per se is possible. He stated, even otherwise, the
petitioner having less than 20 years of qualifying service is not
entitled to pension.
12. In support of his submissions, Mr. Pushkarna has relied
upon the judgment of this Court in the case of Govt. of Delhi &
Ors. v. North Delhi Power Ltd. & Ors., LPA 677/2011 and also
of the Supreme Court in the case of North Delhi Power Ltd. v.
Government of National Capital Territory of Delhi & Ors.,
(2010) 6 SCC 278. He seeks the dismissal of the writ petition.
13. In his rejoinder submissions, Mr. Sahni, controverting the
submissions made by Mr. Nandrajog and Mr. Pushkarna,
reiterated his earlier submissions and also relied upon the
judgments of the Supreme Court in Habib Khan v. State of
Uttarakhand & Ors. (2019) 10 SCC 542 and Punjab State
Electricity Board & Anr. v. Narata Singh & Anr., (2010) 4 SCC
317 , to contend that work-charged service is to be counted as
qualifying service.
14. Having heard the learned counsels for the parties and
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perused the record, the issue which arises for consideration is
whether the petitioner is entitled to retiral benefits including
pension, medical benefits etc. on having taken voluntary
retirement in the year 2004.
15. The respondents had denied the benefit of pension to the
petitioner on the ground that he does not have the qualifying
service of 20 years in as much as his total service is 18 years, 11
months and 3 days and that the period of service reflected in para
7 above need to be excluded for the purpose of calculating the
qualifying service. At this stage, I may state that one of the
entitlements for an employee seeking voluntary retirement as per
scheme floated is the grant of pensionary benefits as per Rules.
16. Now it is to be seen whether the reasoning given by the
respondent No.1 in its impugned Order that the petitioner does
not possess the qualifying service of 20 years is justified. The
respondents have excluded the work-charged service, the
suspension period and the extra ordinary leave without pay taken
by the petitioner from the qualifying service. Insofar as work-
charged service is concerned, the petitioner had worked as a
work-charged employee for a period of 240 days between May
03, 1982 to January 27, 1983.
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17. Though neither Mr. Sahni nor Mr. Nandrajog and Mr.
Pushkarna have drawn my attention to any Rule which bars the
counting of work-charged service for the purpose of pension, I
may refer to Rule 13 of the CCS (Pension) Rules, 1972 which is
reproduced as under: -
“ 13. Commencement of qualifying service
Subject to the provisions of these rules, qualifying
service of a Government servant shall commence from the
date he takes charge of the post to which he is first
appointed either substantively or in an officiating or
temporary capacity :
Provided that officiating or temporary service is
followed without interruption by substantive appointment
in the same or another service or post :
Provided further that -
(a) in the case of a Government servant in
a Group `D' service or post who held a lien
or a suspended lien on a permanent
pensionable post prior to the 17th April,
1950, service rendered before attaining the
age of sixteen years shall not count for any
purpose, and
(b) in the case of a Government servant
not covered by clause (a), service rendered
before attaining the age of eighteen years
shall not count, except for compensation
gratuity.
(c) the provisions of clause (b) shall not
be applicable in the cases of counting of
military service for civil pension under Rule
19”
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18. The above rule contemplates if the officiating or
temporary service is followed without interruption by a
substantive appointment in the same or another service or post,
then the same needs to be counted for the purpose of qualifying
service. Similarly, Rule 17 of the CCS (Pension) Rules, 1972 also
refers to counting of service put in by an employee on contract
basis which is followed by a substantive appointment on the same
or another post without interruption for the purpose of pension.
19. The Full Bench of the Punjab and Haryana High Court in
the case of Kesar Chand v. State of Punjab, 1988 SCC OnLine
P&H 338 , struck down the validity of Rule 3.17 (ii) of the Punjab
Civil Services Rules Vol. II which excluded, for the purpose of
calculating qualifying service, the period of work-charged service
of an employee whose services have been subsequently
regularized. A Special Leave Petition was filed in appeal, which
was dismissed by the Supreme Court, negating the challenge to
the decision of the Full Court. A similar issue arose in Punjab
State Electricity Board (supra) wherein the Supreme Court, in
paragraph 25 of its opinion held that the Full Bench of the Punjab
and Haryana High Court was justified in striking down Rule 3.17
(ii) of the Punjab Civil Services Rules Vol. II resulting in
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obliteration of the distinction made in the said Rules between
temporary and officiating service and work-charged service. On
that basis, the Supreme Court took a view that the period of
work-charged service should be reckoned for purpose of
computation of qualifying service for grant of pension.
Paragraphs 25, 26, 27 and 40 of the judgment are reproduced as
under: -
“25. In Kesar Chand v. State of Punjab [(1988) 5 SLR 27
(P&H)] the Full Bench held that Rule 3.17(ii) of the
Punjab Civil Services Rules was violative of Article 14 of
the Constitution of India. The Full Bench decision was
challenged before this Court by filing a special leave
petition which was dismissed. Thus, the ratio laid down
by the Full Bench judgment that any rule which excludes
the counting of work-charged service of an employee
whose services have been regularised subsequently, must
be held to be bad in law was not disturbed by this Court.
The distinction made between an employee who was in
temporary or officiating service and who was in work-
charged service as mentioned in Rule 3.17(ii) of the
Punjab Civil Services Rules disappeared when the said
Rule was struck down by the Full Bench. The effect was
that an employee holding substantively a permanent post
on the date of his retirement was entitled to count in full
as qualifying service the periods of service in work-
charged establishments.
26. In view of this settled position, there is no manner of
doubt that the work-charged service rendered by
Respondent 1 under the Government of Punjab was
qualified for grant of pension under the rules of the
Government of Punjab and therefore, the Board was not
correct in rejecting the claim of the respondent for
inclusion of period of work-charged service rendered by
him with the State Government for grant of pension, on
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the ground that service rendered by him in the work-
charged capacity outside PSEB and in the Departments of
the State Government was a non-pensionable service.
27. The apprehension that acceptance of the case of
Respondent 1 would result into conferring a status on
them as that of employees of the State of Punjab has no
factual basis. It is true that the State Government has
power to frame rules governing services of its employees
under Article 309 of the Constitution whereas the Board
has power to prescribe conditions of service by framing
regulations under Section 79(c) of the Electricity (Supply)
Act, 1948. However, governance of a particular
institution and issuance of instructions to fill up the gap in
the fields where statutory provisions do not operate, is
recognised as a valid mode of administration in modern
times.
xxx xxx xxx xxx
40. So far as this argument is concerned, it is true that the
Division Bench of the High Court has expressed the
above opinion in the impugned judgment. However, the
reference to Rule 3.17(ii) of the Punjab Civil Services
Rules as well as the Full Bench decision of the Punjab
and Haryana High Court in Kesar Chand v. State of
Punjab [(1988) 5 SLR 27 (P&H)] and the speaking order
dated 16-11-2005 passed by the Board rejecting the claim
of Respondent 1 makes it abundantly clear that the High
Court has directed the appellants to count the period of
service rendered by Respondent 1 in work-charged
capacity with the State Government for determining
qualifying service for the purpose of pension. Further,
Respondent 1 has been directed to deposit the amount of
Employee's Contributory Fund which he had received
from the appellants along with interest as per the
directions of the Board before the pension is released to
him.” (emphasis supplied)
20. In the case in hand, there is no dispute that the petitioner
was appointed on substantive basis as Instrument Repairer and
Tester immediately on the date following January 27, 1983 i.e.,
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January 28, 1983, till when the petitioner was working as a work-
charged employee. In that sense, the petitioner’s temporary
service was followed by a substantive appointment. Keeping in
view the ratio of the judgment of the Supreme Court in Punjab
State Electricity Board (supra) , the distinction in Rule 13, which
I have reproduced above, between an officiating or a temporary
service and work-charged service stands obliterated and work-
charged service followed by a substantive appointment must be
read into Rule 13 of the CCS (Pension) Rules, 1972 and need to
be counted for the purpose of qualifying service.
21. Mr. Sahni is justified in relying upon the judgment of the
Supreme Court in Habib Khan (supra) wherein in paragraphs 6,
7 and 8 the Supreme Court, relying upon the Full Bench
judgment of the Punjab & Haryana High Court in Kesar Chand
(supra) and also its own judgment in Punjab State Electricity
Board (supra) has held as under: -
“6. The pari materia provision contained in Rule 3.17(ii)
of the Punjab Civil Services Rules had been struck down
by a Full Bench decision of the Punjab and Haryana High
Court in Kesar Chand v. State of Punjab [Kesar Chand v.
State of Punjab, 1988 SCC OnLine P&H 338 : AIR 1988
P&H 265 : (1988) 5 SLR 27] . The challenge by the State
against the aforesaid decision of the Full Bench of the
Punjab and Haryana High Court was negatived [Dakshin
Haryana Bijli Vitran Nigam v. Bachan Singh, (2009) 14
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SCC 793 : (2010) 1 SCC (L&S) 463] by this Court. The
matter came up for consideration before this Court, once
again, in Punjab SEB v. Narata Singh [Punjab SEB v.
Narata Singh, (2010) 4 SCC 317 : (2010) 1 SCC (L&S)
1025] . While dealing with the said question this Court in
Para 25 of the report held that the Full Bench decision of
the Punjab and Haryana High Court was perfectly
justified in striking down Rule 3.17(ii) of the Punjab Civil
Services Rules resulting in obliteration of the distinction
made in the said Rules between “temporary and
officiating service” and “work-charged service”. On the
said basis, this Court took the view that the period of
work-charged service should be reckoned for purposes of
computation of “qualifying service” for grant of pension.
7. As already observed, the provisions of Regulation 370
of the Civil Services Regulations applicable to the State of
Uttarakhand are pari materia with the provisions of Rule
3.17(ii) of the Punjab Civil Services Rules, discussed
above. If that is so, we do not see as to why the period of
service rendered on work-charged basis by the appellants
should not be counted for purposes of computation of
“qualifying service” for grant of pension. The pari
materia provisions of Rule 3.17(ii) of the Punjab Civil
Services Rules having been interpreted and understood in
the above manner by this Court in Narata Singh [Punjab
SEB v. Narata Singh, (2010) 4 SCC 317 : (2010) 1 SCC
(L&S) 1025] we do not find any room for taking any other
view except to hold that the appellants are entitled to
reckon the period of work-charged service for purposes of
computation of “qualifying service” for grant of pension.
We order accordingly; allow these appeals and set aside
the impugned orders [Madan Mohan Chaudhary v. State
of Uttarakhand, 2011 SCC OnLine Utt 60 : (2011) 128
FLR 910] passed by the High Court.
(emphasis supplied)
8. All necessary and consequential benefit in terms of the
present order will be paid and granted by the State to the
appellants forthwith and without any delay.”
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22. So, the decision of the respondent in not treating the
work-charged service put in by the petitioner between May 03,
1982 to January 27, 1983 as qualified service is not justified. In
other words, the said service need to be treated as qualifying
service and the 240 days of the service put in by the petitioner
need to be added to his qualifying service of 18 years, 11 months
and 3 days.
23. Now coming to the issue whether the period of
suspension ( dies non ) of 257 days need to be excluded for the
purpose of qualifying service, none of the parties have filed any
order issued treating the period of suspension of 257 days as dies
non, and excluding the same for the purpose of qualifying
service. In any case, it is the submission of Mr. Sahni that neither
such an order has been communicated to the petitioner nor any
show cause notice was issued to the petitioner for treating the
period as dies non . That apart, it was his submission that the
petitioner was suspended, contemplating departmental inquiry.
The petitioner was exonerated in the department inquiry. Hence,
the period of suspension during the departmental inquiry was not
justified. On the other hand, Mr. Nandrajog justified the
exclusion of the suspension period. Suffice to state that Rule 23
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of the CCS (Pension) Rules, 1972 which stipulates the
eventuality when the suspension period would be counted for the
purpose of qualifying service of pension, the same is reproduced
as under: -
“ 23. Counting of periods of suspension
Time passed by a Government servant under
suspension pending inquiry into conduct shall count as
qualifying service where, on conclusion of such inquiry,
he has been fully exonerated or the suspension is held to
the wholly unjustified; in other cases, the period of
suspension shall not count unless the authority competent
to pass orders under the rule governing such cases
expressly declares at the time that is shall count to such
extent as the Competent Authority may declare.”
24. From a reading of the provision, it is clear that if a
government servant under suspension pending inquiry is fully
exonerated, then the same shall be counted as qualifying service.
The submission of Mr. Sahni that the petitioner has been fully
exonerated of the charges has not been denied by the respondents.
In that eventuality, the period of suspension need to be treated as
qualifying service. In fact Rule 23, does not contemplate any
other effect if a government servant is absolved of charges, but to
treat the period as qualifying service. The case of the respondent
that said period is to be treated as dies non and need to be
excluded for the purpose of qualifying service is unmerited. The
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fact that the petitioner has been exonerated of all charges,
suspension being unjustified, the period could not have been
treated as dies non . The decision is also without issuing a show
cause notice to the petitioner, making the same illegal.
25. So, it follows that the period of suspension of 257 days
need to be counted for the purpose of qualifying service. Insofar
as, whether extraordinary leave without pay is to be excluded for
the purpose of qualifying service, I agree with the said stand of
the respondents, as it is a case of extraordinary leave without any
medical certificate, the same could not have been included for the
purpose of qualifying service for pension. In any case, the
counting of the periods of work-charged service and suspension,
as qualifying service, shall make the total service of the petitioner
as 20 years, which shall entitle him for pension. The reliance
placed by Mr. Pushkarna on the judgment of the Division Bench
of this Court in Govt. of Delhi & Ors v. North Delhi Power Ltd.
& Ors. (supra) to contend that pension is not payable to the
petitioner as he lacks the requisite qualifying service, would have
no bearing herein, in view of my reasoning above.
26. I am conscious of the fact that the petitioner had applied
for voluntary retirement which was granted in the year 2004.
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Between 2004 and till the date of submitting the representation,
the petitioner sat over his right for pension and has not claimed
the same immediately thereafter. The law with regard to a claim
for pension being a continuous cause, the petitioner cannot be
unsuited as the Supreme Court in the case of Union of India and
Ors. v. Tarsem Singh (2008) 8 SCC 648 , has held as under: -
“ 7. To summarise, normally, a belated service related
claim will be rejected on the ground of delay and laches
(where remedy is sought by filing a writ petition) or
limitation (where remedy is sought by an application to
the Administrative Tribunal). One of the exceptions to the
said rule is cases relating to a continuing wrong. Where a
service related claim is based on a continuing wrong,
relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the
continuing wrong commenced, if such continuing wrong
creates a continuing source of injury. But there is an
exception to the exception. If the grievance is in respect of
any order or administrative decision which related to or
affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then
the claim will not be entertained. For example, if the issue
relates to payment or refixation of pay or pension, relief
may be granted in spite of delay as it does not affect the
rights of third parties. But if the claim involved issues
relating to seniority or promotion, etc., affecting others,
delay would render the claim stale and doctrine of
laches/limitation will be applied. Insofar as the
consequential relief of recovery of arrears for a past
period is concerned, the principles relating to
recurring/successive wrongs will apply. As a
consequence, the High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the writ
petition..”
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27. The only way to balance the equities is that, the benefits
the petitioner shall be entitled to under this order shall be limited
to a period of three years before filing of the present petition. In
other words, the petitioner shall not be entitled to any monetary
benefits between the years 2004 to 2018, but his pension shall be
fixed as on February 01, 2004 notionally and actual monetary
benefits shall be given for three years preceding the filing of the
writ petition and in future. The past benefits shall be paid within
eight weeks from today.
28. A further claim has been made by the petitioner with
regard to medical facilities. The same has been discontinued as
the petitioner has attained the actual age of superannuation.
29. In view of my above conclusion declaring that the
petitioner has the qualifying service of 20 years for the purpose of
pension, it is to be decided whether the petitioner is entitled to
medical benefits as a pensioner. This aspect shall be determined
by the respondents in consultation with each other in accordance
with the Rules. This I say so, as both the respondents have been
shifting the liability of providing medical benefits to each other.
This consideration must take place within a period of two months
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from today and the benefits, if any, payable to the petitioner shall
be released within six weeks thereafter.
30. The reliance placed by Mr. Pushkarna on the judgment of
the Supreme Court in the case of North Delhi Power Ltd.
(supra) , to contend that the pension and medical benefits are to
be paid by the employer, is liable to be rejected, inasmuch as the
issue therein was whether pensionary liability would lie with the
holding company or its subsidiary. Neither the facts nor the issues
therein have any applicability in this instant matter.
31. In view of my aforesaid conclusion, the present petition is
disposed of. No costs.
CM No. 30961/2021
As with the consent of the counsels for the parties I have
heard them and decided the petition, this application has become
infructuous and is dismissed as such.
V. KAMESWAR RAO, J
/aky/ds
NOVEMBER 08, 2021
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