Shanti Devi vs.delhi Transco Limited and Ors. - Court Judgment

* IN THE HIGH COURT OF DELHI AT NEW DELHI + % SHANTI DEVI W.P.(C) No.2619/2004 28th March, 2017 Through: Mr. Charan Jeet, Advocate. ........ Petitioner

versus DELHI TRANSCO LIMITED AND ORS. ........ RESPONDENTS

Through: Mr. Sumeet Pushkarna, Standing Counsel with Mr. Siddhartha Nagpal, Advocate for R-2. Mr. Sandeep Prabhakar and Mr. Anupam Varma, Advocates for R-3. CORAM: HON’BLE MR. JUSTICE VALMIKI J.

MEHTA To be referred to the Reporter or not?. VALMIKI J.

MEHTA, J1 By this writ petition under Article 226 of the Constitution of India, the petitioner, widow of the late employee Sh. Ram Sagar Sharma, who died on 11.2.1992, seeks the relief of being granted pension by converting the CPF entitlement of her late husband Sh. Ram Sagar Sharma to pensionary benefit in terms of the office order dated 22.8.1992 of the erstwhile Delhi Vidyut Board (DVB), and of which entity the respondent No.3/BSES Yamuna Power Limited (BYPL) is the successor entity. W.P.(C) No.2619/2004 Page 1 of 7 2. The case of the petitioner is that her husband was working with DVB as a Bill Messenger and he died in harness on 11.2.1992.... Petitioner

pleads that a pension scheme was subsequently taken out by DVB on 22.8.1992 as a result of which petitioner’s husband or the petitioner became eligible to pension by refunding the CPF benefits received along with interest. There was subsequently another office order also issued by the DVB dated 20.5.1998 (wrongly written as 22.8.1998 in the writ petition) extending the period of exercising of the option for converting from CPF scheme to pension scheme.

3.... Petitioner

pleads that there was the requirement of the scheme of the petitioner to be informed and since the petitioner was not informed by the DVB of her entitlement to change her option from CPF benefit to pensionary benefit, therefore, petitioner who came to know of the scheme for the first time in the year 2002 sent her legal notice dated 29.11.2003 to the respondent No.1 and since there was no response hence the present writ petition was filed.

4. Originally, there were two respondents in the writ petition. Respondent No.1 was Delhi Transco Limited DVB Employees Terminal Benefits Fund and respondent No.2 was Delhi Transco Limited. Taking the pleadings of respondent nos. 1 and 2, this Court had allowed the writ petition as per its judgment dated 16.12.2013 W.P.(C) No.2619/2004 Page 2 of 7 when the respondent No.3 was not a party. Respondent No.3 hence filed an appeal against the judgment dated 16.12.2013 in LPA No.710/2014 and this appeal was therefore allowed, inasmuch as, effectively there was a judgment against the respondent No.3 without the respondent No.3 being made party to the writ petition. The Division Bench hence vide order dated 9.2.2015 remanded the matter for fresh decision on account of impleadment of the respondent No.3 and after completion of pleadings qua the respondent No.3.

5. Admittedly, respondent No.3 is the legal entity which after unbundling of DVB, is the successor entity of DVB so far as the services of late Sh. Ram Sagar Sharma with DVB are concerned.

6. Respondent No.3 in its counter affidavit has taken up two main objections. The first objection is that the record of DVB stood weeded out in terms of DVB office order dated 2.3.1998 and hence dispatch and receipt registers maintained as on that date were to be retained only for three years and thereafter were destroyed. Accordingly, firstly it is contended that today in view of the absence of records it is not possible to determine as to whether petitioner was or was not informed for exercising of her option. Secondly, the writ petition is argued to be dismissed on account of delay and laches as petitioner has not given any specific reason as to why petitioner only in W.P.(C) No.2619/2004 Page 3 of 7 the year 2002 came to know of the pension scheme of the years 1992 and 1998, and especially when the son of the petitioner, namely, Sh. Om Prakash Sharma already had got compassionate appointment in the year 1994 on account of death of petitioner’s husband while working with DVB. Since Sh. Om Prakash Sharma was an employee of DVB from 28.12.1994, he would be deemed to know the pension scheme of the year 1998, and it is seen that there is no averment of the petitioner in the rejoinder affidavit that the petitioner’s son Sh. Om Prakash Sharma has not been residing with the petitioner for petitioner to have knowledge of the 1998 pension scheme.

7. In my opinion, since earlier the writ petition was allowed in the absence of respondent No.3, and now the pleadings of respondent No.3 have come on record it is seen that the relevant records in this case stood weeded out in the year 2001. Once, records are weeded out, thereafter it is not possible for respondent No.3, which is a successor entity of DVB, to effectively rebut the stand of the petitioner that petitioner was not informed. One of the rationales for existence of the Limitation Act, 1963 is that evidence is lost after a period of time, and once the evidence is lost it is difficult to decide cases and hence suits filed beyond the period of limitation have to be dismissed. Strictly though the Limitation Act does not apply to writ W.P.(C) No.2619/2004 Page 4 of 7 petitions the underlying principles of the Limitation Act apply for dismissing time barred writ petitions on the ground of delay and laches and as held by the Supreme Court in the case of State of Orissa and Another Vs. Mamata Mohanty (2011) 3 SCC436 and the relevant paras 52 to 54 of which judgment read as under:-

"“52. In the very first appeal, the respondent filed writ petition on 11.11.2005 claiming relief under the Notification dated 6.10.1989 w.e.f. 1.1.1986 without furnishing any explanation for such inordinate delay and on laches on her part. Section 3 of the Limitation Act 1963, makes it obligatory on the part of the court to dismiss the Suit or appeal if made after the prescribed period even though the limitation is not set up as a defence and there is no plea to raise the issue of limitation even at appellate stage because in some of the cases it may go to the root of the matter.

53. Needless to say that Limitation Act 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay. In the instant case, the Respondent claimed the relief from 1.1.1986 by filing a petition on 11.11.2005 but the High Court for some unexplained reason granted the relief w.e.f. 1.6.1984, though even the Notification dated 6.10.1989 makes it applicable w.e.f. 1.1.1986.

54. This Court has consistently rejected the contention that a petition should be considered ignoring the delay and laches in case the petitioner approaches the Court after coming to know of the relief granted by the Court in a similar case as the same cannot furnish a proper explanation for delay and laches. A litigant cannot wake up from deep slumber and claim impetus from the judgment in cases where some diligent person had approached the Court within a reasonable time.” 8. In my opinion, therefore, on account of huge delay of time from the entitlement of the petitioner firstly in the year 1992 and thereafter in 1998, yet petitioner having only approached this Court in W.P.(C) No.2619/2004 Page 5 of 7 the year 2004 by filing this writ petition when the record of the erstwhile DVB was already weeded out, in my opinion, this writ petition is liable to be and is accordingly dismissed on the ground of delay and laches.

9. I would also like to note that petitioner should be deemed to be imputed with the knowledge with respect to entitlement of the petitioner to switch over from CPF benefit to pensionary scheme, inasmuch as, petitioner’s son was employed with the DVB in the year 1994 and therefore they would surely have knowledge of the new pension scheme which was issued in the year 1998.... Petitioner

, who is the mother of Sh. Om Prakash Sharma since can therefore be imputed the knowledge with respect to 1998 Scheme, and once that knowledge is imputed and petitioner failed to apply within the permissible time from changing the option from CPF scheme to Pension Scheme, accordingly, petitioner cannot be granted pension under the pension schemes of 1992 and 1998 of the DVB and now being implemented by the respondent No.3.

10. I may note that respondent nos. 1 and 2 are neither necessary nor proper parties in the writ petition and therefore pleadings of these respondent nos. 1 and 2 are immaterial for deciding this writ petition. W.P.(C) No.2619/2004 Page 6 of 7 11. I may also note that the present case may be a hard case as against the petitioner but that has to be the effect of principles of limitation and delay and laches. Also, it is not as if the petitioner is very seriously prejudiced as petitioner from the year 1992 till date, i.e roughly a period of around 25 years, has been enjoying the corpus of the provident fund along with interest accrued thereon, and such benefit being already available to the petitioner, and therefore denial of pension to the petitioner in the facts of the present case would not be a grave injustice upon the petitioner.

12. Accordingly, the writ petition being barred by limitation is therefore dismissed by applying the doctrine of delay and laches and in view of the judgment of the Supreme Court in the case of Mamata Mohanty (supra).

13. The writ petition is accordingly dismissed, leaving the parties to bear their own costs. MARCH28 2017 AK VALMIKI J.

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