Holding

The Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, by virtue of Rule 6(8) and related provisions, expressly transfer all personnel‑related liabilities, including pension and terminal benefits, to the DISCOMs, making them liable for such obligations.

Summary

The Delhi Vidyut Board (DVB) was unbundled on 1 July 2002 into several private distribution companies (DISCOMs) including North Delhi Power Ltd (NDPL) and BSES Rajdhani Power Ltd, with a holding company DPCL. Employees of the former DVB feared loss of service benefits, leading to tripartite agreements between the Government of NCT of Delhi, DVB and a joint action committee of unions. The dispute centered on whether the DISCOMs were liable for pension and other terminal benefits of employees who had retired, been dismissed or compulsorily retired before the transfer date. The Supreme Court examined the Delhi Electricity Reforms Act, 2000 and the Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, particularly Rule 6(8) and Rule 8(3), and held that the liability for such personnel matters was innate to the transferee DISCOMs. The Court rejected the argument that the holding company DPCL bore the liability and affirmed that the transfer scheme expressly shifted these obligations to the DISCOMs. Consequently, the appeals were dismissed, leaving the DISCOMs responsible for the employees' liabilities.

Issues considered

Whether the DISCOMs, as transferee companies, are liable for pension and other terminal benefits of employees who ceased to be employees of the predecessor before 1‑7‑2002.
Whether the provisions of Rule 6(8) and Rule 8(3) of the Delhi Electricity Reforms (Transfer Scheme) Rules, 2001, impose an innate liability on the DISCOMs.
Whether the Government's clarificatory letter dated 21‑01‑2004 and the powers under Section 57 and Rule 12 of the Act can validly impose such liability after the two‑year period.

Legislation cited

Delhi Electricity Reforms Act, 2000s. 14, s. 15, s. 16, s. 57, s. 60
Delhi Electricity Reforms (Transfer Scheme) Rules, 2001s. Rule 12, s. Rule 3, s. Rule 4, s. Rule 5, s. Rule 6, s. Rule 8

Subjects

service lawtransfer of liabilitiesDISCOMspension liabilitytripartite agreementRule 6(8)Rule 8(3)Delhi Electricity Reforms Actunbundlingstatutory transfer scheme

Judgment

[2010) 5 S.C.R. 1039

NORTH DELHI POWER LIMITED A
v.
GOVT. OF NATIONAL CAPITAL TERRITORY OF DELHI &
ORS.
(Civil Appeal No. 4269 of 2006)
8
MAY 03, 2010 -
[V.S. SIRPURKAR AND SURINDER SINGH
NIJJAR, JJ.]

Service Law: c
Re-organization of Delhi Vidyut Board (DVB) - Statutory
transfer scheme - Tripartite agreements between Govt. of
National Capital Territory of Delhi, DVB and DVB Joint Action
Committee (consisting of various Unions etc.) - DVB
unbundle(} into private companies including appellants- D
DISCOMs w.e.f 1-7-2002 -All employees transferred - Plea
of appellants that they had no liability relating to employees, ..
who ceased to be employees of the erstwhile Delhi Electric
Supply Undertaking (predecessor of DVB) prior to 1-7-2002
on account of their retirement, removal, dismissal or E
compulsory retirement in accordance with· the provisions of
the Act - Held: The plea is not tenable - The Rules indicated
that the liability was innate and accepted by the appellants-
DISCOM S - Appellants, being the transferee companies,
had taken over the liabilities of the erstwhile staff a/so - Delhi F
Electricity Reforms Act, 2000 - ss. 14, 15, 16, 57 and 60 -
Delhi Electricity Reforms (Transfer Scheme) Rules, 2001 -
rr.3, 6, 8 and 12. ·
From 1-7-2002, Delhi Vidyut Board (DVB) was
unbundled into private companies including the G
appellants DISCOMs. Another company called DPCL
(holding company) was also constituted with the aim and
object of holding shares in the DISCOMs.

1039 H
1040 SUPREME COURT REPORTS (2010] 5 S.C.R.

A Since the employees of DVB had displayed their
apprehension and reservations to the effect that on
emergence of the private companies their services may
not be protected, therefore, these employees were taken
into confidence by assuring them that their services will
B be protected by entering into Tripartite Agreements
which were executed between Government of National
Capital Territory of Delhi (GNCTD), DVB and DVB Joint
Action Committee (which consisted of various Unions as
well as Junior Engineer Officer Association).
C The question which arose for consideration in the
present appeals was whether the appellants DISCOMs
are responsible for meeting the liabilities relating to
employees, who ceased to be the employees of the
erstwhile Delhi Electric Supply Undertaking (predecessor
D of DVB) prior to 1-7-2002 on account of their retirement,
removal, dismissal or compulsory retirement in
accordance with the provisions of the Delhi Electricity
Reforms Act, 2000.
Dismissing the appeals, the Court
E
HELD: 1.1. It is difficult to accept the contention that
any prejudice was caused to the appellants DISCOMS.
On the other hand, the question of liability seems to have
been thrashed very minutely by the High Court in the light
F of the provisions of the Delhi Electricity Reforms Act,
2000, the Delhi Electricity Reforms (Transfer Scheme)
Rules, 2001, Tripartite Agreements and the other
agreements including the bid documents. It cannot be
said that clothing appellant-NDPL with a liability regarding
G the personnel who were retired, compulsorily retired or
otherwise dead, dismissed etc. could be termed 'as
"additional liability". In fact the reading of the said Rules
and, more particularly, Rule 6(8) would indicate that
liability was innate and accepted by the DISCOMS. [Paras
H 21 and 23] [1065-E-F; 1066-C]
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1041
ORS.

2. Rule 6(8) not only specifies the employment A
related matters but also clarifies what those matter~
would be which include pension and any superannuation
fund or special fund created or existing for the benefit of
the personnel and the existing pensioners. The words
'existing pensioners' are extremely important. A plain B
reading of this Rule would leave no manner of doubt in
respect of the liability having been transferred to
transferee company and the NDPL is certainly the one.
The language is broad enough to include all dismissed,
dead, retired and compuisorily retired employees. As if c
that was not sufficient, sub-Rule (9) requires the
Government to make appropriate arrangements in terms
of the Tripartite Agreements in regard to the fund of
terminal benefits to the extent it is unfunded on the date
of transfer from the Board. A glance at the sub-rules 9(a) D
and 9(b) is sufficient to come to the conclusion that the
liabilities have undoubtedly been transfarred to the
DISCOMS which include both NDPL as well as the BSES.
No employees were ever transferred to the DPCL. All
transferees came only to the DISCOMS like the NDPL
under the transfer scheme. The High Court has correctly E
interpreted these Rules and has correctly come to the
conclusion that the liabilities would rest with the
DISCOMS including NDPL and BSES. [Paras 26, 27 and
28) [1068-A-D; 1069-A-D]
F
3.1. The purpose of Rule 8(3) is to cap any liability
arising out of litigation, suits, claims etc. either pending
on the date of transfer and/ or arising due to events prior
to the date of transfer to be born.e by the relevant DISCOM
1, DISCOM 2 or DISCOM 3, respectively. The nature of the G
liability and its being imposed on the DISCOMS alone is
as clear as sunshine. To that extent, there can be no
doubt that it includes all the liabilities including the
liabilities on account of the personnel. The capping of the
liability was at the instance of the DISCOMS only. They H
104~ SUPREME COURT REPORTS [2010] 5 S.C.R.

A were more aware of the language brought in. They w~re
also aware of the liabilities which arose, particularly, in
view of Rule 6 (8) and they had open eyedly accepted
Rule 8(3). They cannot now find fault with the
constitutfionality of the provisioixs. [Paras 29 and 31]
B [1069-F-H; 1070-A-G; 1071-A]
3.2. The suggestion that the non obstante clause in
Rule 8(3) if widely construed, would render the clause
unconstitutional, is not acceptable. The language of the
clause is clear, unambiguous and must be given its
C natural meaning. If such a meaning is given, any other
interpretation is not possible except the one rendered by
the High Court. The constitutionality of Rule 8(3) cannot
be doubted under any circumstances. [Paras 30 and 31]
[1070-B-C; G]
D
M. Rathinaswami & Ors. v. State of Tamil Nadu & Ors.
2009 (5) SCC 625; /CIC/ Bank Ltd. v. SIDCO Leathers Ltd.
& Others 2006 (10) SCC 452; Ramdev Food Products (P)
Ltd. v. Arvindbhai Rambhai Patel 2006 (8) SCC 726; Madan
Mohan Pathak & Anr. v. Union Of India & Ors. 1978 (2) SCC
E 50; Venture Global Engineering v. Satyam Computer
Services Ltd. & Anr. 2008 (4) SCC 190 and Shin-Etsu
. Chemical Co. Ltd. v. Aksh Optifibre.Ltd. & Anr. 2005 (7) SCC
234, distinguished.
F 4. The argument raised that the liability in respect of
existing pensioners would devolve on the Holding
company, i.e. DPCL and not on the appellant is clearly
incorrect. The transfer of personnel and all the principles
are governed by Rule 6 alone. As provided in Rule 6(2),
G there are lists wherein the personnel have been classified
into five groups based on the principle of "as is where
is", where a specific reference is to be found to GENCO,
TRANSCO and three DISCOMS. Very significantly, there
is no reference to DPCL. Thus, no employee was
transferred to DPCL. This is in· case of the existing.
H employees. Sub Rule (8), however, takes into sweep not
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1043
ORS.
•l

only the existing employees, who find the reference in the A
lists prepared under Rule 6(2), but also makes a reference
to the employment related matters including provident
fund, gratuity fund, pension and _any superannuation
fund or special fund created or existing for the benefit of
personnel and the existing pensioners. There was no B
question of existing pensioners being covered under the
lists prepared under Rule 6(2). By using the words
"existing pensioners" and by providing that the relevant
transferee would stand substituted for the Board for all
purposes and all the rights, powers and obligations of the c
Board in relation to any and all such matters, the
legislative intention is very clearly displayed to the effect
that the existing pensioners on the day of transfer were
also covered and stood transferred to the DISCOMS and
not to DPCL and it is only the transferee DISCOM, who
0
would substitute for the Board. Once these Rules are
read in proper perspective, there is hardly any doubt
about the liability of DISCOMS in respect of existing
pensioners on the day of transfer. There can be no
dispute that those who retired and those who were
serving with the Board would stand transferred in E
respect of their liabilities etc. to the successor company.
The High Court has correctly appreciated this position.
[Paras 32 and 33] [1072-G-H; 1072-A, E-H; 1073-A-C]
5.1. Under Rule 12(1 ), a finality is given to the F
decision of the Government in respect of any doubt,
dispute, difference or issue as regards the transfers under
these Rules. The Rule provides that under any such
eventuality, the decision of the Government shall be final
subject to the provisions of the Act. Sub Rule (2) of Rule G
12 provides that the Government may, by order, publish
in the Official Gazette, make such provisions, not
inconsistent with the provisions of the Act, which
provisions may appear to be necessary for removing the
difficulties arising in implementing the transfers under
H
1044 SUPREME COURT REPORTS [2010] 5 S.C.R.

A these Rules. Section 57 of the Act is also clear and
provides power to the Government to remove any
difficulties. [Para 34] [1073-C-F]
5.2. As an answer to the. letter received from Delhi
TRANSCO Ltd., a 100 per cent Government company,
8 seeking clarifications from the Government with respect
to the competent authority/new entity to deal with
vigilance/disciplinary/court cases in relation to the
employees of erstwhile DVB who could not become part
of any of the companies on 01.07.2002 in terms of the
C Rules, the Government had issued a letter to Delhi
TRANSCO Ltd., The letter pertained to removal of doubts,
disputes and differences under the provisions of the
Rules and issue of .clarificatory order of the Government
under Rule 12. It was then conveyed that the vigilance,
D disciplinary and Court cases in respect of employees .of
the then DVB who could not become part of any of the
companies, namely, DPCL, Delhi TRANSCO, lndraprastha
Power Generation Co. Ltd., BSES Yamuna Power Ltd.,
BSES Rajdhani Power Ltd. and NDPL on 01.07.2002 i.e.
E on the date of restructuring due to retirement/dismissal I
removal/ compulsory retirement shall be processed and
decided by such company which would have been the
controlling authority of the employee but for their
retirement/dismissal/removal/ compulsory retirement etc ..
F It is absolutely cle_ar that by this letter the whole liability
was put on the head of the DISCOMS. [Para 34] [1074-B-
G]
5.3. The argument made that the Government had
already exhausted its power under Rule 12(1) while
G taking the earlier decision dated 17.09.2002 and, hence,
it had lost the power to pass any fresh orders, is clearly
incorrect. There can be no finality in the matter of removal
doubts or the removal difficulties and also taking the
decisions under Rule 12(1). The argument that once the
H Government has exercised the powers unde.r the Rule
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1045
ORS.

12(1 ), the power gets exhausted and the decision A
becomes final and binding on all the parties, including the
Government, is clearly incorrect. The argument that there
is no further power under the Rule in the Government to
issue any letter dated 21.01.2004, is also an incorrect
argument. Nothing stopped the Government from taking B
any decision and it has taken a clearest possible decision
by letter dated 21.01.2004 which is binding on all the
parties. This is apart from the fact that the Government
has not dealt with the subject in its earlier decision dated
17.09.2002 as regards the controversy which has fallen c
for consideration in this matter. [Para 42] [1079-C-F]
Case Law Reference
2009 (5) sec 625 distinguished Para 30
2006 (1 o) sec 452 distinguished Para 31 D
2006 (8) sec 726 distinguished Para 31
1978 (2) sec 50 distinguished Para 31
2008 (4) sec 190 distinguished Para 31
E
2005 (7) SCC 234 distinguished Para 31
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4269 of 2010.
From the Judgment & Order dated 30.03.2006 of the High
Court of Delhi at New Delhi in LPA No. 98 of 2005. F
WITH
C.A. No. 4270 of 2006.
P.P. Malhotra, ASG, P.P. Rao, Sudhir Nandrajog, P.S.
Patwalia, Jayant Nath, Anupam Verma, Abhay Kumar, G
Abhishek Munot, Ashish Kumar, Vibha Datta Makhija, Mansoor
Ali Shoket, A. Ahlawat, Rani Chhabra, S.K. Dubey, Rakesh K.
Sharma, Jamal Akhtar, Ashok Gurnani (for Rachna Gupta),
Devashish Bharuktia for the appearing parties.
The Judgment of the Court was delivered by H
1046 SUPREME COURT REPORTS [2010] 5 S.C.R.

A V.S. SIRPURKAR, J. 1. This judgment shall dispose of
the two appeals being CA No. 4269 of 2006 and CA No. 4270
of 2006. Civil Appeal No.4269/2006 has been filed on behalf
of North Delhi Power Limited and Civil Appeal No.4270 of 2006
has been filed by BSES Rajdhani Limited. Since a common
B question falls for consideration in both the appeals,_ the same
are disposed of by this common judgment. The question can
be framed as under:
"Whether the appellants are responsible· for meeting the
liabilities relating to employees who ceased to be the
c employees of erstwhile Delhi Electric Supply Undertaking
(Predecessor of Delhi Vidhyut Board - DVB) prior to
1. 7 .2002 on account of their retirement, removal, dismissal
or compulsory retirement in accordance with the provisions
of Delhi Electric Reforms Act, 2000?"
D
By the impugned judgment dated 30.3.2006 passed by the
Delhi High Court, the High Court has held that the appellants
alone would be responsible to meet such liabilities.
2. In order to understand the nature of controversy and the
E ramifications thereof, some facts common to both these
appeals would be necessary.
Common Facts:
3. The L:egislative Assembly of the National Capital
F Territory of Delhi passed the Act on 23.11.2000 being Delhi
Electric Reforms Act, 2000 (hereinafter called the "Act, 2000").
This Act came into force on 8.3.2001. The Preamble of this Act
reads as under:
"An Act to provide for the constitution of an Electricity
G
Commission, restructuring of the electricity industry
(rationalization of generation, transmission, distribution and
supply of electricity}, increasing avenues for participation
of private sector in the electricity industry and generally for
taking measures conducive to the development and
H
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1047
QRS. [V.S. SIRPURKAR, J.]
management of the electricity industry in an efficient, A
commercial, economic and competitive manner in the
National Capital Territory of Delhi and for matter connected
therewith or incidental thereto.

BE it enacted by the Legislative Assembly of the National
8
Capital Territory of Delhi in the Fifty-first year of the
Republic of India as follows:"

Section 2 pertains to definitions of relevant terms used in
the Act and sub-section (1) contains the definitions clauses.
Sub-sections (2) and (3) of Section 2 run as under: C

"(2) Words and expressions used but not defined in this
Ac~ and defined in the Electricity (Supply) Act, 1948
(Central Act 54 of 1948) have the meanings
respectively assigned to them in that Act. D

(3) Words and expressions used but not defined either
in this Act or in the Electricity (Supply) Act, 1948
(Central Act 54 of 1948) and defined in the Indian
Electricity Act, 1910 (Central Act 9 of 1910) have
the meanings respectively assigned to them in that E
Act."

Thus the definitions of relevant terms under Electricity
(Supply) Act, 1948 and Electricity Act, 1910 were incorporated
in the Act, 2000. Section 3 of the Act, 2000 provides for F
establishment of Delhi Electricity Regulatory Commission. The
functions of this Commission are provided in Section 11. Some
of the functions, amongst others, as provided in Section 11 (1)
are as under:

"(c) to regulate power, purchase and procurement G
process of the licensees and transmission utilities
including the price at which the power shall be
procured from the generating companies,
generating stations or from other sources for
transmission, sale, distribution and supply in the H
1048 SUPREME COURT REPORTS [2010] ~ S.C.R.

A National Capital Territory of Delhi;

(d) to promote competition, efficiency and economy in
the activities of the electricity industry to achieve the
objects and purposes of this Act;
B (e) to aid and advise the government in matters
concerning electricity generation, transmission,
distribution and supply in the National Capital
Territory of Delhi;

c (h) to promote competitiveness and make avenues for
participation of private sector in the electricity
industry in the National Capital Territory of Delhi and
also to ensure a fair deal to the customers;

(k) to regulate the assets, properties and interest in
D properties concerned or related to the electricity
industry in the National Capital Territory of Delhi
including the conditions governing entry into, and
exit from the electricity industry in such manner as
to safeguard the public interest;
E
(I) to issue licences for transmission, bulk supply,
distribution or supply of electricity and determine
the conditions to be included in the licences;"

F 4. Under Section 14 of the Act, 2000, the subject of
incorporation of companies for the purposes of generation,
transmission or distribution of electricity was dealt w,ith~ Sub-
sections (1), (2) and (6) of Section 14, which are relevant for
our purposes provide as under:

G "14(1) The government may, as soon as may be after
the commencement of this Act, cause one or more
companies to be incorporated and set up under the
provisions of the Companies Act, 1956 (Central
Act 1 of 1956) for the purpose of generation,
H transmission or distribution of electricity. including
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1049
ORS. [V.S. SIRPURKAR, J.]

companies engaged in more than one of the said A
activities in the National Capital Territory of Delhi
and may transfer the existing generating stations or
the transmission system or distribution system, or
any part of the transmission system or distribution
system, to such company or companies. B

14(2) The government may designate any company set
up under sub-section (1) to be the principal
company to undertake all planning and coordination
in regard to generation or transmission or both; and
such company shall undertake works connected
c
with generation or transmission and determine the
requirements of the territory in consultation with the
other companies engaged in generation or
transmission for the National Capital Territory of
Delhi, the Commission, the Regional Electricity D
Board and the Central Electricity Authority and any
other authority under any law in force for the time
being! or any other government concerned.

14(6) The government may convert the conipanies set up E
under this Act to joint venture companies through a
process of disinvestment, in accordance with the
transfer scheme prepared under the provisions of
this Act."
F
Section 15 of the Act, 2000 provides for Reorganisation
of Delhi Vidyut Board and transfer of properties, functions and
duties thereof. Sub-sections (3), (6), (7) and (9) of Section 15,
which are relevant for purposes provide:

"15(3) Such of the rights and powers to be exercised G
by the Board under the Electricity (Supply) Act,
1948 (Central Act 54 of 1948), as the government
may, by notification in the official gazette, specify,
shall be exercisable by a company or companies
established as the case may be, under Section 14, H
1050 SUPREME COURT REPORTS [2010],5· S.C.R.

A for the purpose of discharge of the functions and
duties with which it is entrusted.

15(6) A transfer scheme may -

(a) provide for the formation of subsidiaries, joint
B venture, companies or other schemes of divisions,
amalgamation, merger, reconstruction or
arrangements;

(b) define the property, interest in property, rights and
c liabilities to be allocated -

(i) by specifying or describing the property, rights and
liabilities in question,

(ii) by referring to all the property, interest in property,
D rights and liabilities comprised in a specified part
of the transferor's undertaking, or

(iii) partly in one way and partly in the other:

Provided that the property, interest in property,
E rights and liabilities shall be subject to such further
transfer as the government may specify;

(c) provide that any rights, or liabilities specified or
described in the scheme shall be enforceable by
F or against the transferor or the transferee;

(d) impose on any licensee an obligation to enter into
such written agreements with, or execute such other
instruments in favour of any other subsequent
licensee as may be specified in the scheme;
G
(e) make such supplemental, incidental and
consequential provisions as the transferor licensee
considers appropriate including provision
specifying the order in which any transfer or
H transaction is to be regarded as taking effect;
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1051
ORS. [V.S. SIRPURKAR, J.]

(f) provide that the transfer shall be provisional subject A
to the provisions of Section 18.

15(7) All debts and obligations incurred, all contracts
entered into and all matters and things done by, with
or for the Board, or a company or companies B
established as the case may be, under Section 14
or generating company or distribution company or
companies before a transfer scheme becomes
effective shall, to the extent specified in the relevant
transfer scheme, be deemed to have been incurred, C
entered into or done by, with or for the government
or the transferee and all suits or other legal
proceedings instituted by or against the Board or
transferor, as the case may be, may be continued
or instituted by or against the government or
concerned transferee, as· the case may be. D

15(9) The Board shall cease to exist with the transfer of
functions and duties specified and with the transfer
of assets as on the effective date."
E
Section 16 is extremely important which deals with the
subject of Personnel. It provides:

"(1) · The government may by a transfer scheme provide
for the transfer of the personnel from the Board to
a company or companies established as the case F
may be, under Section 14 and distribution
companies (hereinafter referred to as "transferee
company or companies") on the vesting of
properties, rights and liabilities in a company or
companies established, as the case may be, under G
Section 14 or the distribution companies.

(2) Upon such transfers the personnel shall hold office
in the transferee company on terms and conditions
th~t may be specified in the transfer scheme
H
1052 SUPREME COURT REPORTS [2010] 5 S.C.R.

A subject, however, to the following, namely:

(a) that the terms and conditions of the service
applicable to them in the transferee company shall
not in any way, be less favourable than or inferior
to those applicable to them immediately before the
B
transfer;

(b) that the personnel shall have continuity of seNice
in all respects; and

c (c) that the benefits of service accrued before the
transfer shall be fully recognized and taken in
account for all purposes including the payment of
any and all terminal benefits."

Section 57 of the Act, 2000 which deals with the Power
D to remove difficulties reads as under:

"(1) If any difficulty arises in giving effect to the
provisions of this Act or rules, regulations, schemes
or orders made thereunder, the government may,
E by order published in the Official Gazette, make
such provisions, not inconsistent with the provisions
of this Act as may appear to it to be necessary or
expedient for removing the difficulty:

Provided that no order shall be made under this
F
section after the expiry of two years from the date
of the commencement of this Act.

(2) Every order made under this section shall be laid,
as soon as may be after it is made before the
G Legislative Assembly of the National Capital
Territory of Delhi."

5. In accordance with the above provisions a Transfer
Scheme called "Delhi Electricity Reforms (Transfer Scheme)
H Rules, 2001" (hereinafter referred to as "the Scheme, 2001 ")
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1053
ORS. [V.S. SIRPURKAR, J.]

came into existence. Rule 2 of the Scheme, 2001 deals with A
the definitions of various terms. Relevant Clauses (b), (c), (h)
and (k) of Rule 2 read as under:

"(b) "assets" includes all rights, interests and claims of
whatever nature as well as block or blocks of assets B
of the Delhi Vidyut Board;

(c) "Board" means the Delhi Vidyut Board constituted
under Section 5 of the Electricity (Supply) Act, 1958
(54 of 1948);
c
(h) "DISCOMS" means and includes DISCOM 1,
DISCOM 2 and DISCOM 3 collectively.

(k) "liabilities" include all liabilities, debts, duties,
obligations and other outgoings including D
contingent liabilities, statutory liabilities and
government levies of whatever nature, which may
arise in regard to dealings before the date of the
transfer in respect of the specified undertakings;"

Rule 3 of the Scheme, 2000 provides for transfer of assets, E
etc., of the Board to the Government as defined in Rule 2(c)
above. It provides that all the assets, liabilities and proceedings
of the Board shall stand transferred to and vest in the
government absoiutely. Sub-Rule (2) of Rule 3 is significant and
provides as under: F
"3(2) Nothing in Sub-rule (1) shall apply to rights,
responsibilities and obligations in respect of the
personnel and personnel related mattes, which have
been dealt in the manner provided under Rule 6."
G
Rule 4 is connected only to Rule 3(1) and has nothing to
do with Rule 3(2) which deals with the personnel which subject
is exclusively dealt with in Rule 6. Sub-rule (8) of Rule 6 is very
significant and runs as under:
H
1054 SUPREME COURT REPORTS [2010] 5 S.C.R.

A "6(8) Subject to sub-rule (9) below, in respect of all
statutory and other schemes and employment
related matters, including the provident fund,
gratuity fund, pension and any superannuation fund
or special fund created or existing for the benefit
B of the personnel and the existing pensioners, the
relevant transferee shall stand substituted for the
Board for all purposes and all the rights, powers
and obligations of the Board in relation to any and
all such matters shall become those of such
c transferee and the services of the personnel shall
be treated as having been continuous for the
purpose of the application of this sub-rule."

Sub-rule (9) of Rule 6 provides:

D "6(9) The government shall make appropriate
arrangements as provided in the tripartite
agreements in regard to the funding of the terminal
benefits to the extent it is unfunded on the date of
the transfer from the Board. Till such arrangements
E are made, the payment falling due to the existing
pensioners shall be made by the TRANSCO,
subject to appropriate adjustments with other
transferees.

For the purpose of this sub-rule, the term -
F
(a) "existing pensioners" mean all the persons eligible
for the pension as on the date of the transfer from
the Board and shall include family members of the
personnel as per the applicable scheme; and
G
(b) "terminal benefits" mean the gratuity, pension,
dearness and other terminal benefits to the
personnel and existing pensioners."

6. It is an admitted case that while the government was
H contemplating unbundling of Delhi Vidyut Board (hereinafter
NORTH DELHI POWER LIMITED v. GOVT. OF NCT & 1055
ORS. [V.S. SIRPURKAR, J.]

referred to as "DVB") for handing over the distribution of A
electricity to private companies as also·for restructuring the
electricity industry and rationalization of generation,
transmission and supply of electricity by increasing the avenues
for participation of private sector in the electricity industry in the
National Capital Territory of Delhi, the erstwhile employees of B
the DVB displayed their apprehension ano reservations to the
effect that on emergence of the private companies their
services-may not be protected. Therefore, these employees
were taken into confidence by assuring them that their services
will be protected by entering into Tripartite Agreements which c
were executed on 28.10.2000 and 9.11.2000 between
. Government of National Capital Territory of Delhi ("GNCTD"),
, DVB and Delhi Vidyut Board Joint Action Committee. The said
'-committee consisted of various Unions as well as Junior
·Engineer Officer Association. Under these Tripartite
D
Agreements, the existing pensioners as well as the employees
were protected. All the existing welfare schemes and benefits
to the retired employees were allowed to continue.

7. After the Act and the scheme came on the anvil, as a
first step of privatization, the Request for Qualification (RFQ) E
Documents for privatization of electricity distribution in Delhi
was' floated on 15.2.2001 giving in detail the status of the DVB,
the\ftianner of the privatization where it was specifically
proV:{deti· that DVB is being offered to private companies as a
going concern on business valuation method, transferring all the F
past, present and future liabilities including that of existing
employees as well as the retirees. The details of the employees
as on 1.1.2000 were also provided. Para 11.6 of the RFQ
Document mentions about the fact that apart from existing
employees which were 24,634 in number as on 1.1.2000, there G
were about 9200 retired employees. The aforementioned
transfer scheme was notified on 21.11.2001. Under the scheme
the distribution companies, generation, transmission and
holding companies were identified. At the time when the bids
were put in by the companies who were in consideration and H
1056 SUPREME COURT REPORTS [2010] 5 S.C.R.

A the negotiations were on, the DISCOMS put in revised bids.
The present appellants which were South-West Delhi Electricity
Distribution Company Ltd. (now known as BSES Rajdhani
Power Ltd.), as also North-West Delhi Distribution Company
Ltd. (now known as NDPL) were amongst those who submitted
B the revised bids documents. Their demand was that the
contingent liability arising out of any event including any legal
proceedings prior to the transfer should be limited to Rs.1 crore
per annum considered individually or collectively during the first
five years. Based on that sub-rule (3) in Rule 8 came to be
c added in the Scheme, 2001 on 26.6.2002 which is as under:

"Notwithstanding anything contained in these Rules
including the schedules, the liabilities arising out of
litigation, suits, claims, etc., pending on the date of the
transfer and/or arising due to events prior to the date of
D the transfer shall be borne by the relevant distribution
company, viz., DISCOM 1, DISCOM 2 and DISCOM 3
respectively, subject to a maximum of Rs.1 crore per
annum. Any amount above this shall be to the account of
the holding company in the event for any reason the
E Commission does not allow the amount to be included in
the revenue requirement of the DISCOM."

Resultantly from 1.7.2002, the DVB unbundled into six
companies, they being DISCOM 1 (BSES Yamuna Power Ltd.),
F DISCOM 2 (BSES Rajdhani Power Ltd.)-appellant and
DISCOM 3 (North Delhi Power Ltd.)-appellant, Delhi Power
Supply Company Ltd. (TRANSCO) and generation company
(GENCO). Another company called "DPCL" (holding company)
was also constituted with aims and objects to hold shares in
G the aforementioned DISCOM companies. The said DPCL holds
49% shares in DISCOM 1, 2 and 3 and holds 100% shares in
GENCO and TRANSCO. For all practical purposes DVB
ceased to exist from 1.7.2002.

8. There are various schedules attached to the Scheme,
H 2001. The distribution undertaking its assets, liabilities and
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1057
ORS. [V.S. SIRPURKAR, J.]

proceedings concerning the distribution areas are specified in A
Part Ill of Schedule H. Relevant Schedules are Part I for
DISCOM 1, BSES and Part Iii for OISCOM 3, NDPL.

9. Rule 12 of the Scheme, 2001 provides that the decision
of the Government shall be final and sub-Rule (1) stipulates that B
if any doubt, dispute, difference or issue shall arise in regard
to the transfers under these Rules, subject to the provisions of
the Act, the decision of the government thereon, shall be final
and binding on all parties.

10. On the backdrop of these legal provisions it will now C
be proper to see the individual facts in the two appeals.

11. The Letters Patent Appeal filed by the appellant before
the High Court was dismissed. It so happened, that respondent
No.3 herein Shri K. R. Jain, who was an erstwhile employee of D
the Delhi Electric Supply Undertaking (DESU), superannuated
from service on 31.07.1996. Eventually, Delhi Vidyut Board
(DVB) became successor of Delhi Electricity Supply
Undertaking (DESU). NDPL was incorporated on 04.07,2001
and inherited the distribution undertaking on 01.07.2002 along E
with the assets, liabilities, personnel and proceedings in
pursuance of statutory transfer scheme notified by the
Government pursuant to Sections 14-16 and 60 of the Delhi
Electricity Reforms Act, 2000. It was mt.:ch before that, that
respondent No. 3 was superannuated. His pension was paid
F
from the Terminal Benefit Fund, 2002 of DVB. The DVB had
floated Time Bound Terminal Scale Scheme by its Office Order
dated 23.07.1997 and Resolution No. 216 dated 16.07.1997.
Claiming that though he had superannuated on 31.07.96, still
he was covered by the scheme, respondent No.3 filed a Writ
Petition No. 2337 of 2004 seeking appropriate direction G
against Delhi Government, Delhi Power Co. Ltd. and Delhi
Power Supply Company and claimed benefits arising out of the
Scheme. Significantly enough, NDPL was not made a party nor
was there any claim against it. This Writ Petition was allowed
by the Learned Single Judge, holding that respondent No.3 was H
1058 SUPREME COURT REPORTS [2010] 5 S.C.R.

A entitled to avail the benefits under Time Bound Promotional
Scale Scheme (TBPS) and that DVB had unjustly denied him
his dues. Holding the present appellant as a successor,
Mandamus was issued against the appellant who was not a
party and was not given an opportunity of hearing. This was
B based on the statement of an advocate appearing for
respondent Nos. 1 and 2 herein to the effect th.§!t it was the
appellant-petitioner who was the successor and was as such
responsible to implement the judgment dated 23.03.2904.

12. On 23.11.2004 an application was filed for recall/
C modification of the judgment before the Learned Single Judge
of the Delhi High Court. This application was, however, allowed
holding that:

(a) respondent No.3 had retired from DVB on 31.07.96
D from Ashok Vihar

(b) All liabilities of DVB, other than those specifically
transferred in terms of Schedules 'B' to 'F' of the
Transfer Scheme shall be the liability of the holding
E company.

(c) In terms of the Rule 6 (2) and (8) of the transfer
scheme, only such proceedings were transferred to
successor companies as were pending on
01.07.2002. Since no proceedings were pending
F qua the entitlements of respondent No.3, hence it
was the holding company and- not the present
appellant who would be liable to pay the arrears
and other entitlements of respondent No. 3 under
the TBPS Scheme.
G
13. Respondent No.1 and.2 filed a Letters Patent Appeal
against the modified order of the Learned Single Judge dated
23.11.2004 vide LPA No. 98/2005. This appeal came to be
allowed by the Division Bench of the High Court. The High
H Court held that the appellant-petitioner alone was responsible
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1059
ORS. [V.S. SIRPURKAR, J.]

for the payments claimed by respondent No.3. A

14. The second matter has emanated out of the judgment
and order dated 25.05.2006 wherein the Learned Single Judge
of the High Court has dismissed the Writ Petition filed by the
appellant-petitioner being Writ Petition No. 5110 of 2005
B
[BSES Rajdhani Power Ltd. v. Govt. of NCT of Delhi & Another].
By that Writ Petition, validity and legality of the letter dated
21.01.2004 issued by the Government of NCT of Delhi was
challenged. By this letter, a clarification was issued by the
Government to the effect that vigilance/ disciplinary/ Court C
cases in respect of employees of erstwhile DVB, who could not
become part of any of the companies on the date of
restructuring due to retiremenUdismissal/removal/compulsory
retirement shall be processed and decided by the successor
company like the appellant-petitioner who would have been the
controlling authority of the employees but for their retiremenU D
removal/dismissal/compulsory retirement as per the Schedule
in the Transfer Scheme. In pursuance of this letter, all the cases
were forwarded with records involving employees who, due to
their retiremenUsuspension/ termination or death were allegedly
not transferred to DISCOMS on 01.07.2002. This was resisted E
by DISCOMS including the appellant nMein on the ground that
such employees who were not tran§fetr~d to.them were in fact
liability of the holding company. Representations were sent
against this clarificatory letter dated 21.01.2004. Such
representations were sent even by NDPL. However, in K.R. F
Jain's case, the Division Bench deciding the LPA, took the view
that such employees were the liability of the transferee
DISCOMS like NDPL or, as the case may be, the BSES.
Relying on that judgment, the Writ Petition of the petitioner was
dismissed by judgment dated 25.05.2006 by the Learned G
Single Judge of the High Court. Since it would have been futile
for the appellant to go to the Division Bench, it has straightaway
moved this Court by way of the present appeal.

15. In the impugned judgment, the whole history of the
H
1060 SUPREME COURT REPORTS [2010] 5 S.C.R.

A legislation was traced by the Division Bench and after noting
Rules 2 (k}, {n) and (I), and Rule 3 along with Rule 12, it was
observed that the assets and liabilities as given in Schedule A
to G to different companies did not relate to the liabilities
regarding the personnel vide Rule 3 (2). Rule 6 was noted to
B be dealing with· the responsibilities of the personnel and a
categorical finding was recorded that the Schedules under Rule
4 were not helpful to determine the liabilities in respect of the
personnel, even if they were retired personnel and pensioners.
Noting Section 16 of the DERA, 2000 and Rule 6 of the DERR,
C 2001 and, more particularly, noting Rule 6 (8), the High Court
chose not to agree with the contentions raised before it that the
responsibility of the NDPL was only with respect to those
personnel who had been transferred to the NDPL as per the
list mentioned in Appendix E. It located the following categories
[} of the personnel required to be dealt with:

"16. There would be-the following categories of
personnel required to.b~ dealt with:

(a) existing employees of DVB 011 the date of
E transfer scheme who were on roll and
working;

(b) employees under suspension and facing
disciplinary/ departmental proceedings at the
time of the transfer scheme.

(c) employees terminated, dismissed as a
consequence of departmental proceedings
and who had initiated litigation/cases,
proceedings against DVB and such
G proceeding/ litigation was pending at the
time of disbanding of DVB.

{d) retired employees who after retirement filed
cases in courts claiming some benefits or
dues, and such cases were pending at the
H
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1061
ORS. [V.S. SIRPURKAR, J.]

time of the transfer scheme. A
(e) retired/dismissed employees of DVB who
filed court cases after the transfer scheme
. and such case got decided in their favour."

There is no dispute in respect of personnel at (a). However, B
Mr. Raj Birbal, learned Senior Counsel for NDPL contends that
the responsibility of NDPL is only in respect of those personnel
who have been transferred to NDPL as per the list mentioned
in appendix E. We do not agree with this contention.
c
16. The High Court also noted that except for Rule 6 (8),
(9) and (11 ), other provisions dealt with existing working
personnel of DVB at the time of transfer and that Rule 6 (11)
took care of the categories (b) and (c) shown earlier. It also
noted Rule 8 regarding the pending suits and proceedings and D
refuted the contention raised on behalf of NDPL that Rule 8
covers litigations only in respect of cases between DVB and
consumers, contractors and third parties and not those cases
Which were between DVB and its retired employees. For that
purpose, the High Court noted the phraseology "a//
E
proceedings" appearing in Rule 8 (1 ). It also refuted the
argument that if the liability created in Rule 8 (3) had been of
the employees, it would not have.·ltmited the liability only to
DISCOMS to rupees one crore and it would have mentioned
TRANSCO and GENCO also, and held that the limit of rupees
one crore in that provision was fixed at the representation of
F
DISCOMS like the NDPL, only in their respect. The High Court
then noted Rule 5(2), clothing the transferee with the
responsibility of all contracts, rights, deeds, schemes, bonds,
agreements and other instruments of whatever nature relating
to respective undertaking and assets and liabilities transferred G
to it, to which Board was a party, subsisting or having effect
on the date of transfer, in1he same manner as the Board was
liable immediately before the date of transfer and the same
shall be in force and effect against or in favour of respective
transferee and may be enforced effectively as if the respective H
1062 SUPREME COURT REPORTS [2010) 5 S.C.R.

A transferee had been a party thereto instead of the Board.
Interpreting it in the light of various judgments of this Court, the
High Court concluded th~t not only the assets and liabilities
were transferred to the transferee company but the entire past
and future litigation were also transferred to the transferee
B company and such litigation could have been in respect of the
employees, consumers and other parties. It reiterated that the
scheme of the Rules provided that all corresponding employees
were transferred by way of forming list in respect to employees
who were working in the respective area while all employees
c who were under suspension or termination and in respect of
whom any kind of proceedings defined in section 2 (n) were
pending at that stage, were also specifically made the
responsibility of the transferee company under Rule 6 (11 ). The
High Court again referred to Rule 5(2) to note the responsibility
D of the transferee company and also made reference to Section
15 of the Act.

17. Lastly, the High Court has relied on the letter dated 21-
22.01.2004 which was issued by the Government for removal
of doubt, dispute and difference under its power under Rule 12
E (1) which clearly fixed the responsibility on the DISCOMS. In
that letter, on a reference having been made by the Delhi
TRANSCO seeking clarification from the Government with
respect to the competent authority to deal with vigilance,
disciplinary and Court cases in relation to the employees of the
F erstwhile DVB who could not become part of any of the
companies on 01.07.2002 in terms of the transfer scheme due
to retiremenUdismissal/removal/compulsory retirement by the
then DVB, the Government clarified that such cases would be
processed and decided by such company who would have
G been the controlling authority of the employee but for their
retiremenUremoval/ dismissal/compulsory retirement etc. as per
Schedule 'B', 'C', 'D', 'E' and 'F", thereby clearly fixing the
responsibility on the DISCOMS like the present appellant
herein.
H
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1063
ORS. [V.S. SIRPURKAR, J.]

18. This judgment was severely criticized by the learned A
Senior Counsel Shri P.P. Rao as well as Shri P.S. Patwalia.
They firstly attacked the procedural aspect of the matter. They
pointed out that in the initial Writ Petition i.e. WP (C) 2331/2004
by Shri K.R. Jain, the present appellant was not a party and as
such it had no opportunity to put its say. They pointed out that B
in his judgment dated 23.03.2004, the Learned Single Judge,
even in the absence of the appellant, came to the erroneous
finding that the appellant was the successor-in-interest of the
DVB. They then referred to the two applications made on behalf
of the appellant i.e. one for impleadment and the second for c
recalling the order dated 23.03.2004 and pointed out that by
its order dated 23.03.2004 the Learned Judge was pleased
to recall his earlier order and held that the order dated
23.03.2004 would stand issued against the Delhi Power
Company Ltd. i.e. the holding company and the appellant would D
stand relieved of the Mandamus issued. They referred to the
Letters Patent Appeal filed by the Government of NCT and the
Delhi Power Company Ltd. (DPCL) which was entertained by
the High Court. It is obvious that in this LPA the appellant was
impleaded as a party. The contention raised is that instead of
deciding the whole controversy itself, the Division Bench should E
have remanded back the matter to the Single Judge giving the
opportunity to the present appellant to raise all the questions,
and in proceeding straightaway to decide the controversy
involved, the Division Bench has caused injustice to- the
appellant. The Learned senior counsel pointed out that this was F
done in the absence of the pleadings inasmuch as, in the first
instance, no written statement was filed by the three impleaded
respondents while there was no question of filing the written
submission on behalf of the present appellant who was not a
party to the said Writ Petition. Again, it is pointed out that in G
the recall application, the respondents, namely, the Government
of NCT of Delhi and the DPCL had not filed any reply
whatsoever so also in LPA no opportunity was given to any of
the parties to file pleadings with respect to the claims made
against the appellant herein. H
1064 SUPREME COURT REPORTS [2010] 5 S.C.R.

A 19. The Learned Counsel also relied on Rules I and I-A of
the Delhi High Court rules for issue of various writs which
require every application for the issue of a direction to set forth
all facts on which the relief is sought and to file an affidavit in
support thereof. Our attention was also invited to Rule 6 which
B requires filing of an answer to rule nisi and Rule 7 which
provides for ordering the rule nisi to be served on any party to
be affected by any order which the Court may make in the
matter. It was pointed out that no such applications were filed
by the Government of NCT and DPCL claiming relief against
C the appellant and the Division Bench had no jurisdiction to
entertain the claim of both for the first time in thi:,ir Letters Patent
Appeal No.98/2005. They, therefore, demanded remand on that ·
basis.

20. There can be no dispute that the procedure in this case
D was slightly unusual. There was no justification in the order of
the Learned Single Judge accepting a statement to the effect
that the appellant herein was the successor-in-interest of the
DVB and then to fix the liability on the same without even
hearifrg the appellant. That was certainly incorrect in law as well
E as in practice. However, once the recall application was made
before the learned Single Ju'c1ge, the Learned Single Judge
recalled its order and proceeded to hold the DPCL responsible
in place of the appellant, thereby exonerating the present
appellant completely. Once a Letters Patent App~al was filed
F against the order of the Learned Single Judge to that effect, it
would have been in the fitness of things for the Division Bench
to remand the matter back, perhaps issuing the direction t~t
a de novo hearing should be done after impleading the NDPL
in their initial pieadings. But that was not done. In stead, the
G Division Bench gave an opportunity to the appellant herein to
file their written submissions. We find these written submissions
on record. Very significantly, however, fn the written
submissions, the appellant herein has not insisted on remand
on the technical issue of the aesence of pleadings and the loss
H of opportunity to it. In stead, detailed submissions were filed
NORTH DELHI POWER LIMITED v. GOVT. OF NCT & 1065
ORS. [V.S. SIRPURKAR. J.]

predominantly raising the question that the appellant-NDPL was A
not in any way liable to pay for the past liability of the retired
employees who were not the employees on the date of transfer.
In the said written submission, the appellant has taken a
complete survey of the relevant provisions of DERA and the
Transfer Scheme Rules, 2001 and every effort was made to B
show from the said proceedings that the NDPL could not be
made liable for the dues, if any, of the retired employee who
was not on the rolls on the date of transfer.

21. We have seen these submissions very carefully only C
to find that this question was not raised. The order of the
Division Bench is also silent about any such procedural
question having been raised by the appellant. Perhaps, had
such question been raised, the Division Bench would have been
justified in remanding the matter to the Learned Single Judge
for deciding all the issues afresh after joining the NDPL as a D
party to the original petition. The question not having been
raised before the High Court, cannot be considered at this
stage of~itigation when much water has flown under the bridge.
Considering the submissions before the Division Bench which
are in extenso, it is difficult to accept the contention that any E
prejudice was caused to the appellant. On the other hand, the
question of liability seems to have been thrashed very minutely
in the light of the provisions of the DERA, the Transfer Scheme,
Rules, Tripartite Agreements and the other agreements
including the bid documents. If all this is insufficient, we do not F
find this question to have been raised in the present appeal
also. The contention raised is, therefore, rejected.

22. Shri Rao and Shri Patwalia then urged that the whole
scheme of disinvestment brought in by the DERA, 2000 was G
based on the consent of the interested private parties. The Act
had postulated joint venture companies with private investment
and participation to take over the task of entire distribution of
electricity. For that purpose, bids were invited and the terms
of the transfer were settled by mutual consent taking note of the
H
1066 SUPREME COURT REPORTS [2010] 5 S.C.R.

A Tripartite Agreements and the bid agreement and it was then
that the scheme was notified in the shape of Rules under the
Act. Under such circumstances, there can be no further
amendment to the scheme involving additional liability which
has to be essentially only with the consent of the partners of
B the joint venture.

23. We have absolutely no quarrel with this proposition.
However, this could be true if there was no "additional liability"
brought in. For the reasons which follow, we do not think that
C in clothing the NDPL with a liability regarding the personnel
who were retired, compulsorily retired or otherwise dead,
dismissed etc. could be termed as "additional lilab!lity." In fact
the reading of the Rules and, more particularly, Rule 6(8) would
indicate that liability was innate and accepted by the DISCOMS.

D 24. Reliance was made on Sections 15 (1) and, more
particularly, sub-Section (6) and (7) by Shri Rao. That Section
deals with the subject of reorganisation of DVB and transfer of
properties, functions and duties. Sub-rule (6) refers to the
transfer scheme while sub-section (7) specifically provides that
E the obligations incurred by the Board or companies established
under Section 14 or generating company or distribution
company before 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
F government or the transferee. Section 16 deals with the
provisions relating to the transfer of personnel. Shri Rao tried
to contend that, therefore, for resolution of the controversy,
transfer scheme alone would have to be considered in the light
of the provisions of the Act. He is, no doubt, correct. However,
G in order to show that the transfer scheme does not contemplate
such liabilities as are in question, Shri Rao relied on Rule 3(1).
In our opinion, Rule 3(1) has got nothing to do with such
liabilities. That Rule is independent of Rule 3(2) which reads
as under:

H "Nothing in sub-rule (1) shall apply to rights, responsibilities
'
NORTH DELHI POWER LIMITE!Yv. GOVT. OF NCT &1067
ORS. [V.S. SIRPJJRKAR, J.]
:/, -
and.obligations in cespect' Of the personnel and personnel A
_related matters, which have been d~ali in the manner
provided under Rule ~:·- .

25. By necessary reference, therefOre, Rule 4 would also
be. pushed to the background as that Rule specifically relates - B .
to the assets and liabilities and proceedings transferred to the
Government under sub-Rule (1) of Rule 3. Therefore, Rule 4 (a)
to (g) would have no application whatsoever when it comes to
consideration of the liability in question of personnel and
personnel related matters. For that matter; even Rule 5 would
be ot'no consequence for such matters as it specifically c
provides that all the rights, responsibilities and obligations in
respect of personnel and personnel related-to_111atters have
been dealt with in Rule 6 alone. The reliance ofthe learned
counsel on Rules 4 and 5 is, therefore, uncalled for. The only
relevant Rule which would have to be considered for this D
purpose is Rule 6 which is·a complete code by itself in relation
to personnel and personnel related matters. The words used
in-Rule 3(2), namely, personnel related matters are sufficiently
broad to take into their sweep the· matters regarding theretired,
dismissed or dead personnel also. Rule 6(8) which we have E
already quoted but would repeat ·again for the ready reference
. . j '
is as under: - . - · , i
I.
"(8) Subject to sub-rule (9) below, in respect of all
statutory and other schemes and em.ployment - F
related _matters, including the provident' fund,
gratuity fund, pension and any superannuation fund
or special fund created or existing for the benefit
of the personnel and the existing pensioners, the
relevant transferee shall stand substituted for the G
Board for all purposes and all the rights, powers
and obligations of the board in relaiion to any and ·
all ·such
. .
matters· shall become thos~ of such
~ ~-

transferee and the services of the personnel shall
be treated as having been continuous for the •..H _
purpo~2 of the application of this sub-rule."
. /
/
/
/,
•.. -

.. ' ( .\ . . '
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1069
1068. SUPREME COURT.REPORTS. . [2010] 5 S.C.R.
ORS. [V.S. SIRPURKAR, J.]
. 27. A glance at these sub-rules is sufficient to come to the A
A 2a:Th~ language is extremely cl~~r. It not only specifies conclusion th.at the liabilities have undoubtedly been fransferred •
the employment related m'atters but also clarifies what those
to the DISCOMS which include both NDPL as well as the
matters would be which include pension and any
BSES. A feeble argument was raised that sub-rule (8) does
superannuation fund or special fund created or existing for the
not contemplate pension or any liability on account of the revised
benefit of the personnel and the existing pensioners. The words
pay-scale or interpretation of respective scheme of promotion B
B 'existing pensioners' are extremely important. A plain reading.
so tar as existing pensioners or the erstwhile DVB are
of t~fs Rule would leave no ma·nner of doubt in respect of the
concerned to the DISCOMS. Considering the broad language
liability having been transferred to transferee company and tbe
of the Rule, we do not think that such contention is possible ..
NDPL is certainly the one. The' language is broad enough to ·- - '• •>/ - ' ---,_ ••

include ali dismissed, dead, retired and compulsorily retired 28. Again relying on Rule 2 (r) it was feebly tried to be C
C employees. As if that was. ri.ot sufficient, sub-Rule (9) !equires suggested that the DISCOMS were not the only transferees but
the Government to make appropriate arrangements in terms it was also the holding company, namely, the Delhi Power.
of the Tripartite Agreements in regard to the fund of terminal Company Ltd (DPCL). The argument is obviously incorrect as
benefits to the extent it is unfunded on the date of transfer from no employees were. ever transferred to t~e DPCL. All
the Board. Rule 9(a) and (b) are also very significant and are transferees came only to the DISCOMS like the NDPL under·
D as under:. the transfer scheme. The High Court has correctly interpreted D
these Rules and has correctly come to the conclu,sions that the
'The Goverrimenf shall make· appropriate
liabilities would rest with the DISCOMS including NDPL and
'arrangements as provided in the' tri~partite
BSES. . . . . I I
agreements in regard ti> the funding of the terminal
benefits to the extent it is unfunded on the date of 29. The learned counsel next contended that the ljiigh Court E
Ei transfer from the B~ard. Till such arrang'ements are had erred in interpretation of Rule 8(3) of the transfer scheme.
made, the payment falling due to the existing It was urged that if the Rule is construed widely, it will be
pensioners shall be made by the TRANSCO, arbitrary and affect the foundation of the privatisation which is
. ! subject to appropriate adjustments with other mutual agreement. We do not think so. On the 0th.er hand, the
.transferees. · • purpose of sub-Rule (3) is to cap any liability arising out of F
F litigation, suits, claims etc. either pending on the date of transfer
"F.or the purpo.se of this sub-rule, the term-
and/ or arising due to events prior to the date of tran~fer to be
. (a) "existing pensioners" mean all the persons eligible borne by the relevant DISCOM 1, DISCOM 2 or DISCOM 3,
for the pension as on the date of the transfer from respectively. However, it will be subject to a mr;..xjmum of
the Board and shall include family members of the rupees one crore per annum and any amount above this shall G
G .personnel as per the applicable sc.heme; and be to the account of the holding company and, even for any •
reason the Commission does not allow .the amount to be
(b) ·"terminal benefits" mean. the gratuity, pension, · included in the revenue requirements of the DISCOMS. The
• dearness and other terminal benefits to the . language is extremely clear. All that it obtains is capping of the
, personnel and existing pensioners." liability. However, the nature of the liability and its being
H
I
I
imposed on the DISCOMS alone is as clear as sunshine. To H
. /
/
/
/,
•.. -

.. ' ( .\ . . '
NORTH DELHI POWER LIMITED v. GOVT. OF NCT &1069
1068. SUPREME COURT.REPORTS. . [2010] 5 S.C.R.
ORS. [V.S. SIRPURKAR, J.]
. 27. A glance at these sub-rules is sufficient to come to the A
A 2a:Th~ language is extremely cl~~r. It not only specifies conclusion th.at the liabilities have undoubtedly been fransferred •
the employment related m'atters but also clarifies what those
to the DISCOMS which include both NDPL as well as the
matters would be which include pension and any
BSES. A feeble argument was raised that sub-rule (8) does
superannuation fund or special fund created or existing for the
not contemplate pension or any liability on account of the revised
benefit of the personnel and the existing pensioners. The words
pay-scale or interpretation of respective scheme of promotion B
B 'existing pensioners' are extremely important. A plain reading.
so tar as existing pensioners or the erstwhile DVB are
of t~fs Rule would leave no ma·nner of doubt in respect of the
concerned to the DISCOMS. Considering the broad language
liability having been transferred to transferee company and tbe
of the Rule, we do not think that such contention is possible ..
NDPL is certainly the one. The' language is broad enough to ·- - '• •>/ - ' ---,_ ••

include ali dismissed, dead, retired and compulsorily retired 28. Again relying on Rule 2 (r) it was feebly tried to be C
C employees. As if that was. ri.ot sufficient, sub-Rule (9) !equires suggested that the DISCOMS were not the only transferees but
the Government to make appropriate arrangements in terms it was also the holding company, namely, the Delhi Power.
of the Tripartite Agreements in regard to the fund of terminal Company Ltd (DPCL). The argument is obviously incorrect as
benefits to the extent it is unfunded on the date of transfer from no employees were. ever transferred to t~e DPCL. All
the Board. Rule 9(a) and (b) are also very significant and are transferees came only to the DISCOMS like the NDPL under·
D as under:. the transfer scheme. The High Court has correctly interpreted D
these Rules and has correctly come to the conclu,sions that the
'The Goverrimenf shall make· appropriate
liabilities would rest with the DISCOMS including NDPL and
'arrangements as provided in the' tri~partite
BSES. . . . . I I
agreements in regard ti> the funding of the terminal
benefits to the extent it is unfunded on the date of 29. The learned counsel next contended that the ljiigh Court E
Ei transfer from the B~ard. Till such arrang'ements are had erred in interpretation of Rule 8(3) of the transfer scheme.
made, the payment falling due to the existing It was urged that if the Rule is construed widely, it will be
pensioners shall be made by the TRANSCO, arbitrary and affect the foundation of the privatisation which is
. ! subject to appropriate adjustments with other mutual agreement. We do not think so. On the 0th.er hand, the
.transferees. · • purpose of sub-Rule (3) is to cap any liability arising out of F
F litigation, suits, claims etc. either pending on the date of transfer
"F.or the purpo.se of this sub-rule, the term-
and/ or arising due to events prior to the date of tran~fer to be
. (a) "existing pensioners" mean all the persons eligible borne by the relevant DISCOM 1, DISCOM 2 or DISCOM 3,
for the pension as on the date of the transfer from respectively. However, it will be subject to a mr;..xjmum of
the Board and shall include family members of the rupees one crore per annum and any amount above this shall G
G .personnel as per the applicable sc.heme; and be to the account of the holding company and, even for any •
reason the Commission does not allow .the amount to be
(b) ·"terminal benefits" mean. the gratuity, pension, · included in the revenue requirements of the DISCOMS. The
• dearness and other terminal benefits to the . language is extremely clear. All that it obtains is capping of the
, personnel and existing pensioners." liability. However, the nature of the liability and its being
H
I
I
imposed on the DISCOMS alone is as clear as sunshine. To H
/
/
/
' /
NORTH DELHI POWER/LIMITED v. GOVT. OF NCT &1071
[2010] 5 S.C.R. . ORS. [V,S. SIRPURKAR, J.]
1070' SUPREME COURT REPORTS
. : '~·, I - .
which arose, particularly, in view of.Rule 6 (8) and they had · A
A that extent, there can be no doubt that it includes all the liabilities open eyedly accepted Rule 8(3). They cannot now find fault with
the constitutionality of the provisions. . ·
including the liabilities on accountof the personnel. Unlike, Rule .
3, Rule 8 (3) does not make any difference between the .
. 32. It was tried to be suggested by Shri Rao, learned
liabilities arising out of the transfer under Rule 4 or the liabilities
Senior Counsel t_hat under Section 15(1) of the Act, any
contemplated in.Rule 6:The contention is clearly incorrect. 8
~ -· . .; ; -- - ~
property, interest _in property, rights and liabilities which'
B 30. It was suggested that the non obstante clause in Rule .. immediately before the effective date belonged to the ·aoard,
8(3) . if widely construed, would ·render the clause . stood vested in the Government with effect from the date on
unconstitutional: We do not think that the: clause can be which the Transfer Scheme came into existence by way of its .
rendered unconstitutional in any manner. The language is clear, publication. It was also suggested t~at u'nder sub~Section (2)
unambiguous and must be given its natural meaning. If such a of Section _15 of tlie Act, it was for the Government to transfer C
c meaning is given, we do not think that any other interpretation ' such property and interest iri the, property, rights.and liabilities
is possible except the one rendered by the High Court. Shri to any company established under Section 1\4 of the Act. It was
Rao and Shir Patwalia relied on paragraphs 28 and 29 of the th~ri tried to be urged that such transfer of undertaking has
rep~rted judgment in Mli~athina'swami & Ors.. v. State of Tamil been taken care..
of in Rule
,_- .
5 of the Transfer
"' '
Scheme Rules '
-

- Nadu & Ors. [2009 (5(SCC 625]. In the said paragraphs, it is 2001. It was then pointed out that as per .,the Schedules.'· the D
- ;

D reiterated that in order to save a statutory provision from the transfer was effected and in case of the present appellant, the
vice of unco.ristitutionality sometimes a restricted or extended transfer was effected as per Schedule 'F'. The learned Senior ·
interpretation of the statute has to be. given. Since we don't Counsel very earnestly suggested that this was all that was
.. agree that the clause can be rendered unconstitutional in any transferred and, therefore, a liability which was not· covered
manner, in our opinion, the judgment is not apposite. under Schedule :F' could not be said. to have been transferred · E
E . .. . ' .. / . -, .,. '- . ·to the appellant.· It was then pointed out by reference to Rule
31: Similarlyreliance'was made by Shri Rao on IC/Cf Bank 2(t) that 'undertaking' includes "wherever the context so admits·
Ltd. v. SIDCO Leathers Ltd. & Others [2006 (10) SCC 452], the personnel". It was, therefore, urged that ihe personnel
Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel transferred to the appellant company were only the ones who
[2006,(8) SCC "126],'Madan Mohan Path9k &·Anr. v. Union were included in the lists. It was al~o suggested that under Rule F ·
F Of India & Ors. [1978 (2) SCC 50], Venture Global 2(r), the 'transferee' includes not only DISCOMS, like the
Engineering v. Satyam Computer Services Ltd. & Anr.12008 present appellant, but also the Holding company like Delhi .
(4}'SCC.190] and .Shin-Etsu Chemical Co. Ltd. . v. Aksh Power Company Limited. It was, therefore, urged that
Optifibre Ltd, &ip.nr. (2005 (7)·scc 234]. We have absolutely considering the provisions of Rule 5 read with Rule 2(r), 2(t),
no quarrel with the principles in all these reported decisions. Schedules 'F' and 'G', was be all and end all of the matter. It G
G Howevef. 'since. the constitutionality of Rule 8(3) cannot. be was urged that in the absence of any liabi:ity-.~rltocated to
doubted under any circumstances, all these decisions do not DISCOM 3 in Schedule 'F' and in terms of para 2 of Schedule
apply to the presentcontroversy. We must, however, point out 'G', allocating of residuary liabilities to the Holding company,
that the capping of the liability of one crore of rupees was at the liability in respect of existing pensioners would devolve on
the instance of the DISCO MS only.· They. we.re more aware of the Holding company, i.e. DPCL and not on the present H
the language brought in. They were also aware of the liabilities
H · ··· , ..
/
/
/
' /
NORTH DELHI POWER/LIMITED v. GOVT. OF NCT &1071
[2010] 5 S.C.R. . ORS. [V,S. SIRPURKAR, J.]
1070' SUPREME COURT REPORTS
. : '~·, I - .
which arose, particularly, in view of.Rule 6 (8) and they had · A
A that extent, there can be no doubt that it includes all the liabilities open eyedly accepted Rule 8(3). They cannot now find fault with
the constitutionality of the provisions. . ·
including the liabilities on accountof the personnel. Unlike, Rule .
3, Rule 8 (3) does not make any difference between the .
. 32. It was tried to be suggested by Shri Rao, learned
liabilities arising out of the transfer under Rule 4 or the liabilities
Senior Counsel t_hat under Section 15(1) of the Act, any
contemplated in.Rule 6:The contention is clearly incorrect. 8
~ -· . .; ; -- - ~
property, interest _in property, rights and liabilities which'
B 30. It was suggested that the non obstante clause in Rule .. immediately before the effective date belonged to the ·aoard,
8(3) . if widely construed, would ·render the clause . stood vested in the Government with effect from the date on
unconstitutional: We do not think that the: clause can be which the Transfer Scheme came into existence by way of its .
rendered unconstitutional in any manner. The language is clear, publication. It was also suggested t~at u'nder sub~Section (2)
unambiguous and must be given its natural meaning. If such a of Section _15 of tlie Act, it was for the Government to transfer C
c meaning is given, we do not think that any other interpretation ' such property and interest iri the, property, rights.and liabilities
is possible except the one rendered by the High Court. Shri to any company established under Section 1\4 of the Act. It was
Rao and Shir Patwalia relied on paragraphs 28 and 29 of the th~ri tried to be urged that such transfer of undertaking has
rep~rted judgment in Mli~athina'swami & Ors.. v. State of Tamil been taken care..
of in Rule
,_- .
5 of the Transfer
"' '
Scheme Rules '
-

- Nadu & Ors. [2009 (5(SCC 625]. In the said paragraphs, it is 2001. It was then pointed out that as per .,the Schedules.'· the D
- ;

D reiterated that in order to save a statutory provision from the transfer was effected and in case of the present appellant, the
vice of unco.ristitutionality sometimes a restricted or extended transfer was effected as per Schedule 'F'. The learned Senior ·
interpretation of the statute has to be. given. Since we don't Counsel very earnestly suggested that this was all that was
.. agree that the clause can be rendered unconstitutional in any transferred and, therefore, a liability which was not· covered
manner, in our opinion, the judgment is not apposite. under Schedule :F' could not be said. to have been transferred · E
E . .. . ' .. / . -, .,. '- . ·to the appellant.· It was then pointed out by reference to Rule
31: Similarlyreliance'was made by Shri Rao on IC/Cf Bank 2(t) that 'undertaking' includes "wherever the context so admits·
Ltd. v. SIDCO Leathers Ltd. & Others [2006 (10) SCC 452], the personnel". It was, therefore, urged that ihe personnel
Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel transferred to the appellant company were only the ones who
[2006,(8) SCC "126],'Madan Mohan Path9k &·Anr. v. Union were included in the lists. It was al~o suggested that under Rule F ·
F Of India & Ors. [1978 (2) SCC 50], Venture Global 2(r), the 'transferee' includes not only DISCOMS, like the
Engineering v. Satyam Computer Services Ltd. & Anr.12008 present appellant, but also the Holding company like Delhi .
(4}'SCC.190] and .Shin-Etsu Chemical Co. Ltd. . v. Aksh Power Company Limited. It was, therefore, urged that
Optifibre Ltd, &ip.nr. (2005 (7)·scc 234]. We have absolutely considering the provisions of Rule 5 read with Rule 2(r), 2(t),
no quarrel with the principles in all these reported decisions. Schedules 'F' and 'G', was be all and end all of the matter. It G
G Howevef. 'since. the constitutionality of Rule 8(3) cannot. be was urged that in the absence of any liabi:ity-.~rltocated to
doubted under any circumstances, all these decisions do not DISCOM 3 in Schedule 'F' and in terms of para 2 of Schedule
apply to the presentcontroversy. We must, however, point out 'G', allocating of residuary liabilities to the Holding company,
that the capping of the liability of one crore of rupees was at the liability in respect of existing pensioners would devolve on
the instance of the DISCO MS only.· They. we.re more aware of the Holding company, i.e. DPCL and not on the present H
the language brought in. They were also aware of the liabilities
H · ··· , ..
/
/I
NORTH DELHI POWER LIMITED v. GOVT, OF NCT &1073
1072· SUPREME· COURT REPORTS [2010] 5 S.C.R.. · ORS. [V.S. SIRPURKAR, J]. . .
r :

the legislative intention is very clearly displayed to the effect that A
A ~ppellant. The arg~ment is clearly incorrect.We have already the existing pensioners on the day of transfer were also covered
pointed out that Schedule 'F' cannot be read as the exhaustive and stood fransferred to the DISCOMS and not to DPCL and
list of transfers as regards the assets and liabilities. This is it is only the transferee DISCOM, who would substitute for the
because of the peculiar language of Rule 3(1) and Rule 3(2). Board. Once these Rules are read in proper perspective, there
Rule 3(2) ·very specifically provides that. in the matter of is hardly any doubt about the liability of DISCOMS in respect B
B p·ersonnel and personnel related matters;· Rule 3(1) would be of existing pensioners on the day of transfer. There can be no
of n6 consequence.' What is provided in Rule· 4:· on which the dispute that those.who retired and those who were serving with
heav}t reliance was being placed, is relatable to Rule 3(1) alone. the Board would stand transferred in respect of their liabilities
Same logic applies to Rule 5: which provides for transfer of etc. to the successor company, i.e. DISCOM-3: The High Court
undertaking.: It flows only from Rule 4. A reading.of Rule 5 and,
c more particularly, Clause~ (a) to (g) of Rule 5(1) correspond to
has correctly appreciated th,is position. _ c
Clauses (a) to (g) in Rule 4(1). Rule 4(1) .is again specific and 34. This takes us to the next contention of Shri Rao and
takes into sweep only sub Rule (1) of Rule 3. It is very clear Shri Patwalia that lhe decision given by the Government on such
that Rule 3(2) makes all the difference and in the clearest liability was without any authority or non est in the light of the
possible language, Rules 4 and 5 relate to the assets, liabilities provisions of the Act and the Rules. In that behalf, Shri Rao,
. D and proceedings covered only under Rule 3(1 ). Rule 5 also has Learned Senior Counsel invited our attention to Rule 12(1), D
'· to be read in that context.. · · · whereunder a finality is given to the decision of the Government
"- '·' ' in respect of any doubt, dispute, difference or issue as regards
• '----- 33. The transfer of personnel and all the principles, the transfers under these Rules. The Rule provides that under
_ therefore, are governed QY. Rule 6 alone. As provided in Rule any such eventuality, the decision of the Government. shall be
-· 6(2), there are lists wherein the personnel have been classified final subject to the provisions of the Act. Sub Rule 1(2) of Rule E
E into five groups based on tKe principle of "as is where is", 12 provides that the Government may, by order., publish in the
where a. specific reference is to be found to GENCO, Official Gazette, make such provisions, not inconsistent with the
· TRANSCO and three DISCOMS. Very significantly, there is no provisio'ns of the Act, which·. provisions may appear to be
-...__ reference to DPCL.-Thus, no employee was transferred to necessary for removing the difficulties arising in implementing .
DPCL. This is in case of the existing employees. Sub Rule (8), the transfers under these Rules. Section 57 of the Act is also · F
F however, takes into sweep not only the existing employe~s. who clear and provides power to the Government to remove any
find the reference in the lists prepared under Rule 6(2), but also difficulties. However, there is a rider to the effect that no such
makes a reference to the employment related matters including order to remove difficulties could be made by the Government
provident fund, gratuity fund, pension and any superannuation after expiry of two years from the date of commencement of
fund or special .fund created or existing for the benefit of the Act. It is also provided by sub-Section (2) of S~tion 57 that G _
G personnel and the existing pensioners. There was no question every such order after it is made shall be 1aia before the
of existing pensioners_ being covered under the lists prepared Legislative Assembly. Heavily relying on Section 57, Shri Rao
under Rule 6(2). By using the words "existing pensioners" and and Shri Patwalia learned Senior Counsel contended that the
by providing that the relevanttransferee would stand substituted Governme-~t's po~er to make any such order had already come
· for the Board for all purposes and all the rights, powers and to an end with the expiry of two years after the date of
obligations of the Board in relation to any and all such matters, notification. This argument and the reliance of the Learned H
H
/
/I
NORTH DELHI POWER LIMITED v. GOVT, OF NCT &1073
1072· SUPREME· COURT REPORTS [2010] 5 S.C.R.. · ORS. [V.S. SIRPURKAR, J]. . .
r :

the legislative intention is very clearly displayed to the effect that A
A ~ppellant. The arg~ment is clearly incorrect.We have already the existing pensioners on the day of transfer were also covered
pointed out that Schedule 'F' cannot be read as the exhaustive and stood fransferred to the DISCOMS and not to DPCL and
list of transfers as regards the assets and liabilities. This is it is only the transferee DISCOM, who would substitute for the
because of the peculiar language of Rule 3(1) and Rule 3(2). Board. Once these Rules are read in proper perspective, there
Rule 3(2) ·very specifically provides that. in the matter of is hardly any doubt about the liability of DISCOMS in respect B
B p·ersonnel and personnel related matters;· Rule 3(1) would be of existing pensioners on the day of transfer. There can be no
of n6 consequence.' What is provided in Rule· 4:· on which the dispute that those.who retired and those who were serving with
heav}t reliance was being placed, is relatable to Rule 3(1) alone. the Board would stand transferred in respect of their liabilities
Same logic applies to Rule 5: which provides for transfer of etc. to the successor company, i.e. DISCOM-3: The High Court
undertaking.: It flows only from Rule 4. A reading.of Rule 5 and,
c more particularly, Clause~ (a) to (g) of Rule 5(1) correspond to
has correctly appreciated th,is position. _ c
Clauses (a) to (g) in Rule 4(1). Rule 4(1) .is again specific and 34. This takes us to the next contention of Shri Rao and
takes into sweep only sub Rule (1) of Rule 3. It is very clear Shri Patwalia that lhe decision given by the Government on such
that Rule 3(2) makes all the difference and in the clearest liability was without any authority or non est in the light of the
possible language, Rules 4 and 5 relate to the assets, liabilities provisions of the Act and the Rules. In that behalf, Shri Rao,
. D and proceedings covered only under Rule 3(1 ). Rule 5 also has Learned Senior Counsel invited our attention to Rule 12(1), D
'· to be read in that context.. · · · whereunder a finality is given to the decision of the Government
"- '·' ' in respect of any doubt, dispute, difference or issue as regards
• '----- 33. The transfer of personnel and all the principles, the transfers under these Rules. The Rule provides that under
_ therefore, are governed QY. Rule 6 alone. As provided in Rule any such eventuality, the decision of the Government. shall be
-· 6(2), there are lists wherein the personnel have been classified final subject to the provisions of the Act. Sub Rule 1(2) of Rule E
E into five groups based on tKe principle of "as is where is", 12 provides that the Government may, by order., publish in the
where a. specific reference is to be found to GENCO, Official Gazette, make such provisions, not inconsistent with the
· TRANSCO and three DISCOMS. Very significantly, there is no provisio'ns of the Act, which·. provisions may appear to be
-...__ reference to DPCL.-Thus, no employee was transferred to necessary for removing the difficulties arising in implementing .
DPCL. This is in case of the existing employees. Sub Rule (8), the transfers under these Rules. Section 57 of the Act is also · F
F however, takes into sweep not only the existing employe~s. who clear and provides power to the Government to remove any
find the reference in the lists prepared under Rule 6(2), but also difficulties. However, there is a rider to the effect that no such
makes a reference to the employment related matters including order to remove difficulties could be made by the Government
provident fund, gratuity fund, pension and any superannuation after expiry of two years from the date of commencement of
fund or special .fund created or existing for the benefit of the Act. It is also provided by sub-Section (2) of S~tion 57 that G _
G personnel and the existing pensioners. There was no question every such order after it is made shall be 1aia before the
of existing pensioners_ being covered under the lists prepared Legislative Assembly. Heavily relying on Section 57, Shri Rao
under Rule 6(2). By using the words "existing pensioners" and and Shri Patwalia learned Senior Counsel contended that the
by providing that the relevanttransferee would stand substituted Governme-~t's po~er to make any such order had already come
· for the Board for all purposes and all the rights, powers and to an end with the expiry of two years after the date of
obligations of the Board in relation to any and all such matters, notification. This argument and the reliance of the Learned H
H
/
/
1074. SUPREME COURT REP_ORTS [2010] 5 S.C.R. • NORTH DELHI POWER/LIMITED v.·GOVT. OF NCT &1075
ORS. [V,S. SIRPURKAR, J.]
A . Senior Counsel on Section 57 can"be understood, as in this 35. This position was, however, opposed by the Learned A
matter, the Government has issued the letter dated 21.01 ~2004 Senior Counsel for the appellants pointing out the two earlier
i.e. after more than !We years of the relevant date. This letter is letters i.e. a letter dated 17.09.2002 authored by one Shri
authored by one Shri Y.V.V.J. Rajashekhar, Deputy Secretary: Jagdish Sagar, Principal Secretary (Power) to DISCOM.1 and •
(Power) and is addressed to Delhi .TRANSCO Ltd. which is a DISCOM 2 as~also the subsequent Office Order dated
B. 100 per cent Government company. The ·subject thereof is 30.09.:C.002 issued by one. G. Srinivas, Administrative Officer B
removal of doubts, disputes and. differences under the (G) of Delhi Power Supply Ltd. In the aforementioned letter
provisions of Delhi' Electricity Reforms (Transfer Scheme) dated 17.09.2002, Shri Jagdish Sagar, Principal Secretary
Rules, 2001 and issue of. .clarificatory· order of the Government· (Power). ~ad, informed on·e Shri Chalasani, Chief Executive
-/ . . ' . '
under Rule 12. It is an answer to the letter received from Delhi Officer, BSES. Rajdhani Power Ltd. that a 'i:opYof the advice
c TRANSCO Ltd. seeking Clarifieaiions from the Government with of the Law Department of the Delhi Government which had
respect tO the competent authority/new entity to deal with been accepted by the Government was enclosed with that letter. C
vigilance/ disciplinary/court cases in relation to the employees Amongst the other liabilities, Part II of this Government decision
of erstwhile DVB who could not become part of any of the concerns the liabilities relating to distribution, business for the
companies on 0°1.07.2002 in terms of the Delhi Electricity tasks undertaken in the period immediately before the date of
D Reforms (Tran.5fer Scheme). Rules, 2001. In that, a reference transfer but payment against which would have been made after
was made in the second paragraph to Section 6 of the Act read the date of transfer. ·· D
with Section 15 and 16 of the DERAread with Rule 12 of the
Delhi Electricity Reforms (Transfer Scheme) Rules, 2001. It was. ,•36. A question has been posed in the following form:
then conveyed that being empowered by the directions issued ... • "Whether the DISCOMS are under obligation to discharge
vide No-'1.1· (94)/2003/Power/103 dated 09.01.2004, it is · liabilities ·in respect of any works completed or liabilities
E clarified that the vigilance, disciplinary and Court cases in 1 E
;I .. incurred in respect of staff pertaining to the period before
· respect of the employees of the then DVB who could not 30.06.2002 on the basis that such payments are normally
become part of. any of the·companies, namely, DPCL, Delhi . made in the month ofJu_ly?" /
TRANSCO, lndraprastha Power Generation Co. Ltd., BSES I'
. Yamuna Power Ltd., BSES Rajdhani Power Ltd. and NDPL on . Answer to this question is to be found to have been given
------- F 01.07,2002 i.e. on .the date of restructuring due to retirement/ in the negative. Learned Senior Counsel insists that the words F
dismissal! removal/compulsory retirement shall be. processed in the question regarding the liabilities incurred in respect of
and decided by such company. which would have been ~the staff pertaining to the period before 30.06.2002 would clearly
controlling authority of the employee. but for their retirement/ show that the Government had taken a decision that such
dismissal/removal/compulsory retirement etc. as per Schedule liabilities could not be put on the head of the DISCOMS and,
G 'B', 'C', 'D', 'E' and '.F' of the Delhi Electricity Reforms (Transfer therefore, it was clearly the liability of the holding companyin G
Scheme) Rules, 2()01. It is absolutely clear that by this letter terms of the answer give'n to this question. -t.Ba'f~d counsel
the whole liability was put on the head of the DISCOMS. The further pointed out that in pursuance of that, a further Office
appellant is only one of the DISCOMS who would have been Order came to be issued under the signatures of one Shri G.
the controlling authority of the employees had those employees Srinivas, Administrative Officer on 30.09.2002 in the following
H continued. H
/
/
1074. SUPREME COURT REP_ORTS [2010] 5 S.C.R. • NORTH DELHI POWER/LIMITED v.·GOVT. OF NCT &1075
ORS. [V,S. SIRPURKAR, J.]
A . Senior Counsel on Section 57 can"be understood, as in this 35. This position was, however, opposed by the Learned A
matter, the Government has issued the letter dated 21.01 ~2004 Senior Counsel for the appellants pointing out the two earlier
i.e. after more than !We years of the relevant date. This letter is letters i.e. a letter dated 17.09.2002 authored by one Shri
authored by one Shri Y.V.V.J. Rajashekhar, Deputy Secretary: Jagdish Sagar, Principal Secretary (Power) to DISCOM.1 and •
(Power) and is addressed to Delhi .TRANSCO Ltd. which is a DISCOM 2 as~also the subsequent Office Order dated
B. 100 per cent Government company. The ·subject thereof is 30.09.:C.002 issued by one. G. Srinivas, Administrative Officer B
removal of doubts, disputes and. differences under the (G) of Delhi Power Supply Ltd. In the aforementioned letter
provisions of Delhi' Electricity Reforms (Transfer Scheme) dated 17.09.2002, Shri Jagdish Sagar, Principal Secretary
Rules, 2001 and issue of. .clarificatory· order of the Government· (Power). ~ad, informed on·e Shri Chalasani, Chief Executive
-/ . . ' . '
under Rule 12. It is an answer to the letter received from Delhi Officer, BSES. Rajdhani Power Ltd. that a 'i:opYof the advice
c TRANSCO Ltd. seeking Clarifieaiions from the Government with of the Law Department of the Delhi Government which had
respect tO the competent authority/new entity to deal with been accepted by the Government was enclosed with that letter. C
vigilance/ disciplinary/court cases in relation to the employees Amongst the other liabilities, Part II of this Government decision
of erstwhile DVB who could not become part of any of the concerns the liabilities relating to distribution, business for the
companies on 0°1.07.2002 in terms of the Delhi Electricity tasks undertaken in the period immediately before the date of
D Reforms (Tran.5fer Scheme). Rules, 2001. In that, a reference transfer but payment against which would have been made after
was made in the second paragraph to Section 6 of the Act read the date of transfer. ·· D
with Section 15 and 16 of the DERAread with Rule 12 of the
Delhi Electricity Reforms (Transfer Scheme) Rules, 2001. It was. ,•36. A question has been posed in the following form:
then conveyed that being empowered by the directions issued ... • "Whether the DISCOMS are under obligation to discharge
vide No-'1.1· (94)/2003/Power/103 dated 09.01.2004, it is · liabilities ·in respect of any works completed or liabilities
E clarified that the vigilance, disciplinary and Court cases in 1 E
;I .. incurred in respect of staff pertaining to the period before
· respect of the employees of the then DVB who could not 30.06.2002 on the basis that such payments are normally
become part of. any of the·companies, namely, DPCL, Delhi . made in the month ofJu_ly?" /
TRANSCO, lndraprastha Power Generation Co. Ltd., BSES I'
. Yamuna Power Ltd., BSES Rajdhani Power Ltd. and NDPL on . Answer to this question is to be found to have been given
------- F 01.07,2002 i.e. on .the date of restructuring due to retirement/ in the negative. Learned Senior Counsel insists that the words F
dismissal! removal/compulsory retirement shall be. processed in the question regarding the liabilities incurred in respect of
and decided by such company. which would have been ~the staff pertaining to the period before 30.06.2002 would clearly
controlling authority of the employee. but for their retirement/ show that the Government had taken a decision that such
dismissal/removal/compulsory retirement etc. as per Schedule liabilities could not be put on the head of the DISCOMS and,
G 'B', 'C', 'D', 'E' and '.F' of the Delhi Electricity Reforms (Transfer therefore, it was clearly the liability of the holding companyin G
Scheme) Rules, 2()01. It is absolutely clear that by this letter terms of the answer give'n to this question. -t.Ba'f~d counsel
the whole liability was put on the head of the DISCOMS. The further pointed out that in pursuance of that, a further Office
appellant is only one of the DISCOMS who would have been Order came to be issued under the signatures of one Shri G.
the controlling authority of the employees had those employees Srinivas, Administrative Officer on 30.09.2002 in the following
H continued. H
/
1076_ SUPREME COURT REPORTS -·[2010] 5 S.C.R. NORTH DELHI POWER LIMITED'v. GOVT. OF NCT &1077
'''' _ORS.
'
[V.S. /SIRPURKAR,
I /· - - -
J.]
A manner: • Schedule 'G' by which air the receivables from sale of A.
-- -- "Consequent upon u~bundling :of DVB, .a doubt h~s been power to the cons_umer of the erstw_hile Board other1than
raised by__ Finance.Department,regarding payment of to the extent specifically included in schedules D, E and F
shall be to the account of the Holding Company. The
. arrears -of pay and allowance to retired employees to which
Schedule 'G' further goes on to say that the QISCOMS will
company has to pay the s_Clme. · -
B - be authorized to release the receivable of the holding B
- · It is now clarified that all such' liabilities of erstwhile DVB company and it is apparently for that reason they retain its
have been transferred to the Holding Company as per 20 % share in such receivables as are collected, which are
- ·~:Transfer Scheme Rule. Therefore, such payment of arrears ·over and above the amounts included in Schedule D, E
pay and allowances to the retirees on account of revision and F in respect of which no such share in the nature of
c Iof pay/court orders, etc. for the period up to 30.06.2002 collection charges is payable. It would not be reasonable c
i.e. prior to unbundling of DVB will be borne and paid by to interpret the rules as assigning the liabilities for any
the i:olding Company. .:~. period to the company which was notalso entitled to the
receivables pertaining to the same period; in the absence
All such claims will be prepared by APO(B) concerned and of any specific provisio_n to the contr~ry. Therefore, my
after duly auditing the same, will be forwarded to Holding answer to the first question is in the negative." - D .
D
Company for effecting the payment."
In our opinion, therefore, the reliance on this would be
37. Now relying on this office order very heavily, Learned uncalled for. --
Senior Counsel pointed out that the liabilities would be only that ' - -
of the holding company and not of the DISCOMS, like the 38. The office order dated 30.09.2002 is undoubtedly clear
• -E-._appellant herein. In ouf'opinion, the argument is clearly in support of the appellants. However, this o~ce order does not E
incorrect. Firstly; a que..Y made and answered in the letter dated show on what basis this was issued and under what authority.
___17.09:2002 does not, in our opinion, pertain to the liability which This seems to have been issued by an Administrative Officer
, is in que~tion._. The query is simple and- it raises a question, of the DPCL. However, the last letter dated 21.01.2004 which -
· whether, 1f any, work is comp(eted or liabilities are incurred in has been issued by the Deputy Secretary (Power) very dearly
F respect of the/ siaff pertaining io period before' 30.06.2002, in spells out the liability and the said decision has' the authority of - F
~- ·which case the payinen~s have to be made in ~he month of July, Section 60 read with Section 15 and 16 read with Rule 12 of
would the' DISCOMS b·e under obligation to discharge such the Transfer Scheme Rules. It has superseded the earlier
liability. The liability covered under second query, does not,,ln direction dated 09.01.2004. However, it has not been made
our opinion, take into its sweep the liabilities like the present available to us. Be ·that as it may, the clarification is more than
G liability. The answer which was provided when. construed clear which puts the responsibilities of the erstwhile staff on the G
closely would bring about the following:_ DISCOMS. -
\ /. . .
"This interpretation is further supported by the provision in 39. It was tried to be argued that under.~ction 57 of the
Act such decision could not be taken after tWo years of the
transfer. This argument is clearly incorrect. Section 57 operates
H in entirely different sphere. It speaks about the power of the H
/
1076_ SUPREME COURT REPORTS -·[2010] 5 S.C.R. NORTH DELHI POWER LIMITED'v. GOVT. OF NCT &1077
'''' _ORS.
'
[V.S. /SIRPURKAR,
I /· - - -
J.]
A manner: • Schedule 'G' by which air the receivables from sale of A.
-- -- "Consequent upon u~bundling :of DVB, .a doubt h~s been power to the cons_umer of the erstw_hile Board other1than
raised by__ Finance.Department,regarding payment of to the extent specifically included in schedules D, E and F
shall be to the account of the Holding Company. The
. arrears -of pay and allowance to retired employees to which
Schedule 'G' further goes on to say that the QISCOMS will
company has to pay the s_Clme. · -
B - be authorized to release the receivable of the holding B
- · It is now clarified that all such' liabilities of erstwhile DVB company and it is apparently for that reason they retain its
have been transferred to the Holding Company as per 20 % share in such receivables as are collected, which are
- ·~:Transfer Scheme Rule. Therefore, such payment of arrears ·over and above the amounts included in Schedule D, E
pay and allowances to the retirees on account of revision and F in respect of which no such share in the nature of
c Iof pay/court orders, etc. for the period up to 30.06.2002 collection charges is payable. It would not be reasonable c
i.e. prior to unbundling of DVB will be borne and paid by to interpret the rules as assigning the liabilities for any
the i:olding Company. .:~. period to the company which was notalso entitled to the
receivables pertaining to the same period; in the absence
All such claims will be prepared by APO(B) concerned and of any specific provisio_n to the contr~ry. Therefore, my
after duly auditing the same, will be forwarded to Holding answer to the first question is in the negative." - D .
D
Company for effecting the payment."
In our opinion, therefore, the reliance on this would be
37. Now relying on this office order very heavily, Learned uncalled for. --
Senior Counsel pointed out that the liabilities would be only that ' - -
of the holding company and not of the DISCOMS, like the 38. The office order dated 30.09.2002 is undoubtedly clear
• -E-._appellant herein. In ouf'opinion, the argument is clearly in support of the appellants. However, this o~ce order does not E
incorrect. Firstly; a que..Y made and answered in the letter dated show on what basis this was issued and under what authority.
___17.09:2002 does not, in our opinion, pertain to the liability which This seems to have been issued by an Administrative Officer
, is in que~tion._. The query is simple and- it raises a question, of the DPCL. However, the last letter dated 21.01.2004 which -
· whether, 1f any, work is comp(eted or liabilities are incurred in has been issued by the Deputy Secretary (Power) very dearly
F respect of the/ siaff pertaining io period before' 30.06.2002, in spells out the liability and the said decision has' the authority of - F
~- ·which case the payinen~s have to be made in ~he month of July, Section 60 read with Section 15 and 16 read with Rule 12 of
would the' DISCOMS b·e under obligation to discharge such the Transfer Scheme Rules. It has superseded the earlier
liability. The liability covered under second query, does not,,ln direction dated 09.01.2004. However, it has not been made
our opinion, take into its sweep the liabilities like the present available to us. Be ·that as it may, the clarification is more than
G liability. The answer which was provided when. construed clear which puts the responsibilities of the erstwhile staff on the G
closely would bring about the following:_ DISCOMS. -
\ /. . .
"This interpretation is further supported by the provision in 39. It was tried to be argued that under.~ction 57 of the
Act such decision could not be taken after tWo years of the
transfer. This argument is clearly incorrect. Section 57 operates
H in entirely different sphere. It speaks about the power of the H
.
I
' '
1078 SUPREME COURT REPORTS [2010] 5 S.C.R. / .
NORTH DELHI POWER)LIMITED v. GOVT. OF NCT &1079
ORS.·[V,S. SIRPURKAR, J.]
A Government to remove dciubts. It is the power to make /I f -

provisions for the smooth operation of the Act and the Rules arislrig·in implementing the transfers· under these A
which'have to be brought into effect by passing orders which rules." 1 '.;
are required tO be published in the Official Gazette and such I ,; .
orders would th.en be given effect by making provisions which 41. It must be said that the powers under sub-Rule (1) ·and
B · are not inconsistent with the Act: It is for such kind of orders . (2) are of different kinds. The finality of the Government decision
that the Rules apply. Whatis referred to In the aforementioned is writ large from the provisions of sub-Rule (1) of Rule 12, while
B
decision: is in pursuance of the power of the Government to · under the provisions of sub-Rule (2), the Government has the
make rules under Section 60 pertaining to Section 15 and 16 power to make provisions by order published in the Official
of the Act. 1.t was tried to be argued that even if Section 60 was Gazette. Therefore, in our opinion, the position taken by the
c referred to in the aforementioned order, such rules had to be Government in the letter dated 21.01.2004 is clear and
notified. . doubtless.
I c
.40. It is then argued)hat Section 60 does not empower 42. One feeble argument was made thatthe Government
rule making .bY a letter. It .was also suggested that. the letter had already exhausted its power unde-r Rule.12 (1) while taking
dated 21.01.2004, the purpose of which was ,mentioned as the decision dated 17.09.2002 and, hence, it had lost the power
D 'removal of doubts' which could not only be done by Section to pass any fresh orders. The ·argument is _clearly incorrect.
15 of the Act arid, therefore, that was not question of the letter There can be no finality in the matter of removal do'ubts or the D
bein'g effective, particularly, because it has been passed after removal difficulties and also taking the decisions. under Rule
twq. year~ ,of the relevant date and would clearly be hit by 12(1). The argument that once the Government has exercised
provision of Section 57 which does not empower any rules to the powers under Rule 12(1), the power gets exhausted and
E be made after two. years of the ·date of transfer. Learned Senior
I . ''• · • . ' / , ·· ,
the decision becomes final and binding on all the parties,
Counsel, therefore, very heavily relied on this Section, which including the Government, is clearly incorrect. The argument that E
argument, in our opinion is incorrect. There is a clear reference there is no further power under Rule in the' Gov7r~ment to issue
made to,. ,..Rule 12 which runs
- '
as under: \.
any letter dated 21.01.2004, is also an incorrect argument. In
our opinion, nothing stopped the Government from taking any
· . 12. Decision of'- Government-Final:
F .

(1 r' . ._ (

If any doubt, dispute, difference or issue arise
'in regard to )he transfers under these rules, subject
~hall
decision and it has taken a clearest possible;decision by letter
dated 21.01.2004 which is binding on all the parties. This is · F
apart from the fact that the Government has not dealt with the
subject in its earlier decision dated 17.09.2002 as regards the
10 the provisions of the Act, the decision of the controversy which has fallen for consideration in this matter. It ·
.. , , government thereon, shall be, final and binding on
G au parties. was in, respect of other liabilities which were covered by
Schedules 'D', 'E', 'F' and 'G'. We have already clarified that G

: )
(2)
:'
The government may by order published in the
Official Gazette,. make such provisions, not
· . incons;stent with .the provisions ()f the Act, as may
-....
those liabilities were different from the liabilities which arose
on account of the employees who could not_become the
employees of the DISCO MS on the date onransfer due to their
H ,.. appear to be necessa,.Y for removing the difficulties retirement, dismissal, death etc. In our opinion, therefore, the
view taken by the Delhi High Court is the correct view. We have
H
.
I
' '
1078 SUPREME COURT REPORTS [2010] 5 S.C.R. / .
NORTH DELHI POWER)LIMITED v. GOVT. OF NCT &1079
ORS.·[V,S. SIRPURKAR, J.]
A Government to remove dciubts. It is the power to make /I f -

provisions for the smooth operation of the Act and the Rules arislrig·in implementing the transfers· under these A
which'have to be brought into effect by passing orders which rules." 1 '.;
are required tO be published in the Official Gazette and such I ,; .
orders would th.en be given effect by making provisions which 41. It must be said that the powers under sub-Rule (1) ·and
B · are not inconsistent with the Act: It is for such kind of orders . (2) are of different kinds. The finality of the Government decision
that the Rules apply. Whatis referred to In the aforementioned is writ large from the provisions of sub-Rule (1) of Rule 12, while
B
decision: is in pursuance of the power of the Government to · under the provisions of sub-Rule (2), the Government has the
make rules under Section 60 pertaining to Section 15 and 16 power to make provisions by order published in the Official
of the Act. 1.t was tried to be argued that even if Section 60 was Gazette. Therefore, in our opinion, the position taken by the
c referred to in the aforementioned order, such rules had to be Government in the letter dated 21.01.2004 is clear and
notified. . doubtless.
I c
.40. It is then argued)hat Section 60 does not empower 42. One feeble argument was made thatthe Government
rule making .bY a letter. It .was also suggested that. the letter had already exhausted its power unde-r Rule.12 (1) while taking
dated 21.01.2004, the purpose of which was ,mentioned as the decision dated 17.09.2002 and, hence, it had lost the power
D 'removal of doubts' which could not only be done by Section to pass any fresh orders. The ·argument is _clearly incorrect.
15 of the Act arid, therefore, that was not question of the letter There can be no finality in the matter of removal do'ubts or the D
bein'g effective, particularly, because it has been passed after removal difficulties and also taking the decisions. under Rule
twq. year~ ,of the relevant date and would clearly be hit by 12(1). The argument that once the Government has exercised
provision of Section 57 which does not empower any rules to the powers under Rule 12(1), the power gets exhausted and
E be made after two. years of the ·date of transfer. Learned Senior
I . ''• · • . ' / , ·· ,
the decision becomes final and binding on all the parties,
Counsel, therefore, very heavily relied on this Section, which including the Government, is clearly incorrect. The argument that E
argument, in our opinion is incorrect. There is a clear reference there is no further power under Rule in the' Gov7r~ment to issue
made to,. ,..Rule 12 which runs
- '
as under: \.
any letter dated 21.01.2004, is also an incorrect argument. In
our opinion, nothing stopped the Government from taking any
· . 12. Decision of'- Government-Final:
F .

(1 r' . ._ (

If any doubt, dispute, difference or issue arise
'in regard to )he transfers under these rules, subject
~hall
decision and it has taken a clearest possible;decision by letter
dated 21.01.2004 which is binding on all the parties. This is · F
apart from the fact that the Government has not dealt with the
subject in its earlier decision dated 17.09.2002 as regards the
10 the provisions of the Act, the decision of the controversy which has fallen for consideration in this matter. It ·
.. , , government thereon, shall be, final and binding on
G au parties. was in, respect of other liabilities which were covered by
Schedules 'D', 'E', 'F' and 'G'. We have already clarified that G

: )
(2)
:'
The government may by order published in the
Official Gazette,. make such provisions, not
· . incons;stent with .the provisions ()f the Act, as may
-....
those liabilities were different from the liabilities which arose
on account of the employees who could not_become the
employees of the DISCO MS on the date onransfer due to their
H ,.. appear to be necessa,.Y for removing the difficulties retirement, dismissal, death etc. In our opinion, therefore, the
view taken by the Delhi High Court is the correct view. We have
H
--//
1080 SUPREME·COURT REPORTS [2010] 5 S.C.R. • [2010J '5 S.C.R. 1081

A already clarified about the so-called Offic~ Order dated M/S M.R.F. LTD: ETC. A
30.09.2_0~_2which is overridden by the final decision taken by
v.
the Governme.nt in its letter dated 21.01.2004. . · MANOHAR PARRIKAR AND ORS.
I --
43: On the overail consideration, we are of the clear (Civi!Appeal No. 4220 of 2002 etc.)
B opinion, that these appeals do not have any merits and must MAY 3, 2010 B
be dismissed. There shall be· no order as to costs. · :
.. ;
[R.V. RAVEENDRAN AND H.L. DATTU, JJ.] ·
B.B.B. Appeals dismissed.
( Rules of Business of the Government of Goa:

rr. 3, 6, 7 and 9 - Decision taken by Minister of Power c
allowing rebate in electricity tariff- Matter notreferred to Chief
I Minister or the· Council of Ministers - Nor wa_s_ the concurrence
of Finance Department taken - HELD: Such a decision
cannot be said. to be the deCision 'of the Government -
1 Notifications giving effect to such· decisions without complying D
I
with the Rules of Business framed under Article 166(3) of the
Constitution,· are non-est and void ab initio .:.. High Court has
·.. ,. rightly held the Rules of Business as mandatory - In the
\ instant case, there is sufficient doubt with regard to the conduct
of the Minister of Power in issuing the_ notifications - E
therefore, suspicion of irregularity renders- the doctrine of
.-·. ( indoor management inapplicable - Constitution of India, 1950
- Articles 154 and 166 - Doctrine of indoor Management -
/ Public Interest Litigation.
··--- - -
Code of Civil Procedure, 1908: · F
·•
s.11, 0.2, r.2 - Res judicata - Withdrawal of electri_city
tariff rebate granted as per Notifications challenged in writ·
petitions - Upheld by High Court - But writ petitioners held
entitled to the rebate for the periods indicated in the judgment G
- SLPs dismissed- Subsequent writ petition irrpublic interest
filed challenging validity and legality of the Notifications -
HELD: In the earlier litigation, issue of validity or legality of
the Notifications was never raised, nor the writ petitioner in the
H
1081