PR. COMMISSIONER OF INCOME TAX vs. SHYAM SUNDER KHEMKA

"11 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI 16'to 47 + LPA 200/2017 & CM 15845/2017 NARENDRA KUMAR AGGARWAL Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR. Respondents Through: Mr Ashim Vaccher, Advocate for NTPC. + LPA 223/2017 MAHENDRA PRASAD Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR. Respondents Through: Mr Puneet Taneja, Ms Laxmi Kumar, Advocates. + LPA 224/2017 KAMALSHER SINGH AJJAN .....Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS. ..... Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocate for NTPC. LPA 200/2017 & connected matters. Page 1 of 18 Digitally Signed By:AMULYA Signature Not Verified

■1 Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 226/2017 M K SAMUEL KUTTY ••••• Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS. ••• Respondents Through: Ms Megha Katari and Mr K. Srivastava, Advocates for R-1. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. +

LPA 227/2017 RAMPAL Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS. Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-1 Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. +

LPA 229/2017 SPS CHAUHAN Appellant Through: Mr S. Janani and Ms Shruti Bist, LPA 200/2017 & connected matters. Page 2 of 18

Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Ashim Vaccher, Advocate for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 230/2017 RAM NARAYAN CHOLDHARY Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR. Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-1. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. + LPA 231/2017 ASHOK KUMAR GUPTA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS. Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-1. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. LPA 200/2017 & connected matters. Page 3 of 18

Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 232/2017 RAKESH KUMAR GARG Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS. Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocate for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 233/2017 BALDEV RAJ MAD AN Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. + LPA 234/2017 DHARAM PAL GUPTA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, LPA 200/2017 & connected matters. Page 4 of 18

5 Advocates for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 235/2017 SUJIT KUMAR DATTA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Ms Megha Katari and Mr K. Srivastava, Advocates for R-1. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 236/2017 SAROJ KUMAR DE Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates for R-1. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-1. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 237/2017 SHREE NARAIN SINGH Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus LPA 200/2017 & connected matters. Page 5 of 18

NATIONAL THERMAL POWER CORPORATION LTD & ANR Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. + LPA 238/2017 DEV PRAKASH SINGH CHAUHAN Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 239/2017 HARISH CHANDER GOEL Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL. POWER CORPORATION LTD & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. +

LPA 240/2017 KULDIPKLMARDADA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents LPA 200/2017 & connected matters. Page 6 of 18

Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 241/2017 JALESHWAR NATH SINHA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ANR Respondents Through: Mr Ashim Vaccher, Advocate for NTPC. + LPA 242/2017 DEEPAK KUMAR GOEL Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. + LPA 243/2017 SHEO NARAYAN RAM Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR ..... Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. LPA 200/2017 & connected matters. Page 7 of 18

+ LPA 244/2017 SG SHARMA _ Appellant Through". Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-l. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. + LPA 251/2017 K K VARSHNEY Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 252/2017 MAN MOHAN SINGH ARORA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. LPA 200/2017 connected matters. Page 8 of 18

+ LPA 253/2017 ADITYANSHUKLA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS Respondents Through: Mr Ashim Vaccher, Advocate for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 254/2017 VINOD PURI Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ANR Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 255/2017 HARIDUTT SHARMA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents LPA 200/2017 & connected matters. Page 9 of 18

Through: Mr Ashim Vaccher, Advocate for NTPC. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 256/2017 MARKANDEY Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-1. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 257/2017 SATYENDRA NATH PANDEY Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for R-1 Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. +

LPA 258/2017 PREM KRISHNA Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. LPA 200/2017 4& connected matters. Page 10 of 18

q versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Adarsh Tripathi and Mr Gaurav Wadhwa, Advocates for R-l. Mr I.S. Alag, Senior Advocate with Mr R.S. Bisht, Advocates for R-2. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 259/2017 IQBAL SINGH PARSWAL .....Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates for NTPC. + LPA 260/2017 SHIVA PUJAN LAL Appellant Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION LTD & ORS Respondents Through: Mr Bharat Sarpal and Ms Isha Gupta, Advocates. Mr Ruchir Bhatia, Senior Standing Counsel for Income Tax Department. + LPA 261/2017 & CM APPLs. 42207-42208/2018 RAJVEER SHARMA Appellant LPA 200/2017 & connected matters. Page 11 of 18

Through: Mr S. Janani and Ms Shruti Bist, Advocates. versus NATIONAL THERMAL POWER CORPORATION & ORS Respondents Through: Mr Puneet Taneja, Ms Laxmi Kumari and Ms Shaheen, Advocates for R- 1/NTPC. CORAM: JUSTICE S.MURALIDHAR JUSTICE SANJEEV NARULA ORDER % 01.11.2018 Dr. S. Muralidhar, J.: 1. These appeals are directed against the judgment of the learned Single Judge dated 28'*^ February, 2017 holding the writ petitions mot to be maintainable against the Respondent No.l - National Thermal Power Corporation Limited ('NTPC') as well as the Respondent No.2, the NTPC Pension Trust ('the Trust'). The prayer in the petitions was that the reduction in the pension paid to the Petitioners, were all former employees of the NTPC with effect from 2"^^ March, 2003 was not justified and that they all shall be restored to pension payable as on date. 2. As part of the record before the learned Single Judge, was an order passed by the Division Bench of the Allahabad High Court on 17^*^ December, 2009 in W. P (Service Bench) No.740 of 2004, which considered the case of one Shri Mohd. Yunis, who had recently retired. He too was aggrieved by the revised rules/guidelines notified on 11 February, 2003 whereby the amount LPA 200/2017 & connected matters. Page 12 of 18

of pension payable was reduced. In that writ petition, the preliminary objection raised by both the NTPC and NTPC Trust, which was noted in paragraph 2 as under: "A preliminary objection has been raised by the respondent's counsel with regard to maintainability of writ petition. The NTPC Pension Trust has been constituted by the employees of the NTPC to regulate pensionary benefit. The employees of NTPC are the contributors of the Trust." 3. The Division Bench of the Allahabad High Court in the aforementioned judgment in paragraph 8 dealt with the above preliminary objection as under: "Needless to say that petitioner is entitled for payment of pension on account of ex-employee of the NTPC, which is admittedly a State under Article 12 of the Constitution of India. Accordingly, we are of the view that writ petition is. maintainable for the purpose to issue a writ in the nature of mandamus. 4. The Division Bench of the Allahabad High Court then dealt with the merits and held as under: "9. It appears that petitioner shall be entitled for payment of regular pension or other post retiral dues in accordance to provision existing on the date of retirement. Any change made in the Rules or Regulations shall not affect the petitioner's right with regard to post retiral dues which was payable at the time of retirement. 10 11. We, therefore, mould the relief and allow the writ petition. A Writ in the nature of mandamus is issued directing the opposite parties to ensure the payment of pension/post retiral dues in terms of Rules/guidelines existing on the petitioner's LPA 200/2017 & connected matters. Page 13 of 18

"Even before this Court, learned counsel for the appellant - NTPC , Pension Trust continues to press its claim to determine the pension of the private respondent on the basis of rules/guidelines notified on 03.02.2003. This submission has been advanced in spite of the acknowledgment, that the respondent attained the age of superannuation, and was accordingly retired from the services of the NTPC with effect from 31.07.2002. We are satisfied, that the retiral benefits of the private respondent stood crystallized on the date of his retirement, namely, 31.07.2002. Any rules/guidelines notified thereafter including the guidelines dated 03.02.2003 could not have been made applicable to the private respondent. "Rest of the Order shall remain unchanged." 6. In effect therefore, the judgement of the Allahabad Hi^ Court was affirmed by the Supreme Court and it was clarified any rules / guidelines notified after the date of retirement of an employee could not be made applicable to such employees. In the case of Shri Mohd. Yunis, it meant that date of superannuation. Let appropriate decision be taken by the respondents in accordance to rules expeditiously and preferably within a period of four months from the date of receipt of a certified copy of this order." 5. Aggrieved by the above order, the NTPC went in appeal before the Supreme Court. In fact, there were two civil appeals. The Civil Appeal No. 8064 of 2011 was filed by the Secretary, NTPC Pension Trust and Civil Appeal No.8052 of 2011 was by NTPC. Both appeals were finally heard by the Supreme Court on 9 December, 2015 and the order passed there reads as under: LPA 200/2017 & connected matters. Page 14 of 18

J ^ .w the guidelines dated 3*^^ February, 2003 would not apply to him and he would continue to draw pension in terms of the Rules as they stood at the time of his retirement. 7. With the order passed by the Supreme Court not being a single line order of dismissal, but an order on merits after granting leave in the SLPs filed both by the NTPC and NTPC Trust, the aforementioned order of the Supreme Court was binding on both the NTPC and the NTPC Pension Trust. 8. It Was urged by Mr. Alag, learned senior counsel of NTPC and NTPC Trust before us that in paragraph 8 of the judgement of the Division Bench of the Allahabad High Court, only the issue of the maintainability of the writ petitions against NTPC was considered and not against the NTPC Pension Trust. 9. That plea is no longer available to be urged in view of the subsequent reasoned order of the Supreme Court, with which the order of the Division Bench of the Allahabad High Court has merged. Therefore, the position that emerges is that there was a complete affirmation by the Supreme Court of the decision of the Allahabad High Court which implicitly resulted in negativing the objection of both the NTPC and the NTPC Pension Trust . regarding maintainability of the writ petition against them. 10.The above facts, for some reasons, not noticed anywhere in the impugned judgment of the learned Single Judge. They were was relevant to the issue before the learned Single Judge particularly since the above orders LPA 200/2017 & connected matters. Page 15 of 18

j .4 concerned the NTPC and the NTPC Pension Trust. The issue also was identical, viz., the maintainability of the petitions and the denial of pension in terms of the guidelines that existed prior to 3'^'^ June, 2003 to those employees of the NTPC who had retired prior thereto. Therefore, the above orders could not but have been noticed while deciding the writ petitions. 11. Consequently, the Court is of the view that in light of the judgment dated th 16 December, 2015 of the Supreme Court, it is no longer open to either NTPC or the NTPC Pension Trust to contend that on the issue of grant of pension, a writ petition against either of them is not maintainable. 12. As regards 7 of the Appellants before this Court i.e. the Appellants in LPA Nos. LPA Nos. 200, 229, 230, 233, 241, 242 and 253 of 2017, the Court sees no warrant for a treatment different from that of Mohd. Yunis, who also retired prior to 3'^^ February, 2003, as of each of the above seven Appellants. Their appeals deserve to be allowed as do their writ petitions before the learned Single Judge. 13. At this stage, a vehement opposition is raised on behalf of the Respondents that these seven Appellants came to the Court very late and, therefore, the writ petitions were anyway liable to be dismissed on account of delay and laches. Admittedly, the writ petitions were filed in the year 2015. It is only on 16'^ December, 2015, the legal position of the correctness of the decision of the Allahabad High Court in the case of Shri Mohd. Yunis got crystallized with the Supreme Court affirming the said decision by its speaking judgment. If the aforementioned Appellants awaited the outcome LPA 200/2017 & connected matters. Page 16 of 18

o of the appeals in the Supreme Court, they cannot be faulted for waiting till 2015 to file the aforementioned writ petitions before this Court. Consequently, the Court negatives the plea of the Respondents that the writ petitions were barred by delay and laches. 14. What should now happen to the other appeals by those who may have retired after 3"^^ February, 2003 and their petitions were dismissed by the learned Single Judge on the ground of maintainability? As far as the Appellants in LPAs other than LPA Nos. 200, 229, 230, 233, 241, 242 and 253 of 2017, these are by those former employees of the NTPC, who retired after 3rd February ,2003. Their writ petitions, for the aforementioned reasons, could not have been rejected by the learned Single Judge on "the ground of maintainability. Their case on merits ought to have been examined. Therefore, the Court restores their writ petitions to the Single Judge for a decision afresh on merits. 15. This Court clarifies that has not expressed any opinion on the merits of the claims of the aforementioned petitioners who have retired after February 2003. The contentions also of the NTPC and the NTPC Pension Trust in opposition to such claims on merits are also left open to be decided by the learned Single Judge. Therefore, leaving all these questions regarding the merits of those writ petitions open to be urged before the learned Single Judge, the Court sets aside the impugned judgment of the learned Single Judge and places the writ petitions filed by these Appellants (i.e. the Appellants in the LPAs other than LPA Nos. 200, 229, 230, 233, 241, 242, 253/2017) again before the learned Single Judge for a decision on merits. LPA 200/2017 & connected matters. Page 17 of 18

■►ts" fjv: The said writ petitions of these Appellants will be placed before the learned Single Judge on 4^*^ December 2018. 16. As far as the seven Appellants who have succeeded before this CoUft on merits as well, viz., the Appellants in LPA Nos. 200, 229, 230, 233, 241, 242, 253 of 2017, their cases will be treated at par with that of Mohd. Yunis and the arrears of pension shall be paid to each of them, together with interest if any as paid to Shri Mohd. Yunis, within a period of eight weeks from today. 17. The appeals and all pending applications are disposed of in the above terms. NOVEMBER 01, 2018 p S.N]^RALIDHAR, J. SANJEEV NAIWILA, J. LPA 200/2017 & connected matters. Page 18 of 18