Narendra Kumar Aggarwal v. National Thermal Power Corporation Ltd

1. These appeals are directed against the judgment of the learned Single Judge dated 28'*^ February, 2017 holding the writ petitions mot to be maintainable against the Respondent No.l - National Thermal Power Corporation Limited('NTPC')as well as the Respondent No.2,the NTPC Pension Trust('the Trust').The prayer in the petitions wasthatthe reduction in the pension paid to the Petitioners, were all former employees of the NTPC with effect from 2"^^ March,2003 was notjustified and that they all shall be restored to pension payable as on date.

2. As part ofthe record before the learned Single Judge,was an order passed by the Division Bench ofthe Allahabad High Court on 17^*^ December,2009 in W.P(Service Bench)No.740 of2004,which considered the case ofone Shri Mohd. Yunis, who had recently retired. He too was aggrieved by the revised rules/guidelines notified on 11 February,2003 whereby the amount LPA 200/2017& connected matters. Page12of18 2018:DHC:9223-DB of pension payable was reduced. In that writ petition, the preliminary objection raised by both the NTPC and NTPC Trust, which was noted in paragraph 2as under: "A preliminary objection has been raised by the respondent's counsel with regard to maintainability of writ petition. The NTPC Pension Trust has been constituted by the employees of the NTPC to regulate pensionary benefit. The employees of NTPC are the contributors ofthe Trust."

3. The Division Bench ofthe Allahabad High Court in the aforementioned judgment in paragraph 8 dealt with the above preliminary objection as under: "Needless to say that petitioner is entitled for payment of pension on account of ex-employee of the NTPC, which is admittedly a State under Article 12 ofthe Constitution ofIndia. Accordingly, we are of the view that writ petition is. maintainable for the purpose to issue a writ in the nature of mandamus.

4. The Division Bench ofthe Allahabad High Court then dealt with the merits and held as under: "9. It appears that petitioner shall be entitled for payment of regular pension or other post retiral dues in accordance to provision existing on the date ofretirement. Any change made in the Rules or Regulations shall not affectthe petitioner's right with regard to postretiral dues which was payable atthe time of retirement.

11. We,therefore, mould the reliefand allow the writ petition. A Writ in the nature of mandamus is issued directing the opposite parties to ensure the payment of pension/post retiral dues in terms of Rules/guidelines existing on the petitioner's LPA 200/2017&connectedmatters. Page13of18 2018:DHC:9223-DB "Even before this Court, learned counsel for the appellant - NTPC,Pension Trust continues to press its claim to determine the pension of the private respondent on the basis of rules/guidelines notified on 03.02.2003. This submission has been advanced in spite of the acknowledgment, that the respondent attained the age of superannuation, and was accordingly retired from the services ofthe NTPC with effect from 31.07.2002. We are satisfied, that the retiral benefits of the private respondent stood crystallized on the date of his retirement, namely, 31.07.2002. Any rules/guidelines notified thereafter including the guidelines dated 03.02.2003 could not have been made applicable to the private respondent."Rest of the Order shall remain unchanged."

6. In effect therefore, the judgement of the Allahabad Hi^ Court was affirmed by the Supreme Court and it was clarified any rules / guidelines notified after the date of retirement of an employee could not be made applicable to such employees.In the case ofShri Mohd.Yunis,it meantthat date ofsuperannuation. Let appropriate decision be taken by the respondents in accordance to rules expeditiously and preferably within a period of four months from the date of receipt of a certified copy of this order."

5. Aggrieved by the above order, the NTPC went in appeal before the Supreme Court.In fact,there were two civil appeals. The Civil Appeal NO. 8064 of 2011 was filed by the Secretary, NTPC Pension Trust and Civil Appeal No.8052 of2011 was by NTPC.Both appeals were finally heard by the Supreme Court on 9 December,2015 and the order passed there reads as under: LPA 200/2017&connected matters. Page14of18 J ^.w the guidelines dated 3*^^ February, 2003 would not apply to him and he would continue to draw pension in terms ofthe Rules as they stood at the time ofhis retirement.

7. With the order passed by the Supreme Court not being a single line order of dismissal, but an order on merits after granting leave in the SLPs filed both by the NTPC and NTPC Trust, the aforementioned order of the Supreme Court was binding on both the NTPC and the NTPC Pension Trust.

8. It Was urged by Mr. Alag, learned senior counsel of NTPC and NTPC Trust before us that in paragraph 8 ofthejudgement ofthe Division Bench ofthe Allahabad High Court,only the issue ofthe maintainability ofthe writ petitions against NTPC was considered and not against the NTPC Pension Trust.

9. That plea is no longer available to be urged in view of the subsequent reasoned order ofthe Supreme Court, with which the order ofthe Division Bench ofthe Allahabad High Court has merged.Therefore,the position that emerges is that there was a complete affirmation by the Supreme Court of the decision of the Allahabad High Court which implicitly resulted in negativing the objection of both the NTPC and the NTPC Pension Trust. regarding maintainability ofthe writ petition againstthem.

10. The above facts,for some reasons,not noticed anywhere in the impugned judgment ofthe learned Single Judge. They were was relevant to the issue before the learned Single Judge particularly since the above orders LPA 200/2017& connected matters. Page15of18 2018:DHC:9223-DB j.[4] concerned the NTPC and the NTPC Pension Trust. The issue also was identical, viz., the maintainability ofthe petitions and the denial ofpension in terms of the guidelines that existed prior to 3'^'^ June, 2003 to those employees ofthe NTPC who had retired prior thereto. Therefore,the above orders could not buthave been noticed while deciding the writpetitions.

11. Consequently,the Courtis ofthe view thatin light ofthejudgment dated th 16 December, 2015 of the Supreme Court, it is no longer open to either NTPC or the NTPC Pension Trust to contend that on the issue of grant of pension,a writ petition against either ofthem is not maintainable.

12. As regards 7 ofthe Appellants before this Court i.e. the Appellants in LPA Nos. LPA Nos. 200, 229, 230, 233, 241, 242 and 253 of 2017, the Court sees no warrant for a treatment different from that of Mohd. Yunis, who also retired prior to 3'^^ February,2003,as ofeach ofthe above seven Appellants. Their appeals deserve to be allowed as do their writ petitions before the learned Single Judge.

13. At this stage, a vehement opposition is raised on behalf of the Respondents that these seven Appellants came to the Court very late and, therefore, the writ petitions were anyway liable to be dismissed on account of delay and laches. Admittedly, the writ petitions were filed in the year 2015.Itis only on 16'^ December,2015,the legal position ofthe correctness ofthe decision ofthe Allahabad High Courtin the case ofShri Mohd.Yunis got crystallized with the Supreme Court affirming the said decision by its speaking judgment. Ifthe aforementioned Appellants awaited the outcome LPA 200/2017&connected matters. Page16of18 2018:DHC:9223-DB o ofthe appeals in the Supreme Court,they cannot be faulted for waiting till 2015 to file the aforementioned writ petitions before this Court. Consequently,the Court negatives the plea ofthe Respondents that the writ petitions were barred by delay and laches.

14. What should now happen to the other appeals by those who may have retired after 3"^^ February, 2003 and their petitions were dismissed by the learned Single Judge on the ground of maintainability? As far as the Appellants in LPAs other than LPA Nos.200,229,230,233,241,242 and 253 of2017,these are by those former employees ofthe NTPC,who retired after 3rd February,2003. Their writ petitions, for the aforementioned reasons, could not have been rejected by the learned Single Judge on"the ground of maintainability. Their case on merits ought to have been examined. Therefore, the Court restores their writ petitions to the Single Judge for a decision afresh on merits.