The main legal point established is that the non-payment of gratuity is a continuing offence, and employees entitled to benefits of gratuity and pension under the CCS Pension Rules are exempt from the Payment of Gratuity Act.

SURESH KAIT, J.

1. Vide the present petition the petitioner seeks to set-aside the order dated 02.12.2011 passed by the Appellate Authority and order dated 19.01.2009 passed by the Controlling Authority under the Payment of Gratuity Act, 1972.

2. I have gone through the averments made in the writ petition. The relief sought in the instant petition is against respondent No.1. The present petition is entitled to be dismissed on this sole ground, however, in the interest of justice I consider the respondent No.1 as respondent No.2 while adjudicating the present petition.

3. Brief facts of the case are that the respondent No.2 was appointed by the DESU on 01.07.1980 and was working in the Najafgarh Zone as MRI. He resigned from the services of DVB on 28.02.1997. Therefore, the respondent No.2 before his resignation has completed a total of 16 years and 8 months of service with DVB. The case of the petitioner herein is that the respondent No.2 is not entitled to gratuity as per Rule 26 of CCS Pension Rules as he has not completed 20 years of service, which is minimum eligibility for gratuity.

4. Learned counsel appearing on behalf of the petitioner submits that on 1st July, 2002 the DVB was unbundled and various new entities were incorporated as per the provisions of Delhi Electricity Reforms Act, 2000. One of these entities is the BSES Rajdhani Power Ltd. the petitioner herein.

5. Learned counsel further submits, the respondent No.2 filed a case, against Delhi Transco Ltd. giving them a notice for recovery of his gratuity, in the year 2005 i.e. after a period of more than 8 years.

6. Learned counsel submits that the respondent No.2 has never made any demand of his dues prior to the unbundling of erstwhile DBV. The petitioner filed written statement before the Controlling Authority and submitted that after the unbundling of erstwhile DVB, the relevant transferee shall stand substituted for all purposes, all rights, powers and obligations. It is also submitted that in the present case the BSES-RPL is the relevant transferee company. Consequently, the petitioner was impleaded as one of the parties in the present petition and the Delhi Transco Ltd. was deleted from the array of parties.

7. Learned counsel submits that the learned Controlling Authority and the Appellate Authority erred in holding that the petitioner is liable to pay gratuity, since it is the Delhi Vidyut Board Employees Terminal Benefit Fund 2002 which is responsible to pay the terminal benefits to the employees of the erstwhile DVB. He further submitted that both the authorities mentioned above erred in concluding and interpreting the notification dated 18.01.2005 (amendment notification dated 09.11.2005) stating that the employees of erstwhile DVB/DESU who are/were entitled to benefits and pension under Central Civil Service (Pension) Rules, 1972 are not entitled to gratuity under payment of Gratuity Act, 1972."

8. To strengthen his argument, learned counsel relied upon a case of DTC vs. Sh. Richpal Singh & Another, 2007 VAD (Delhi) 420, passed in W.P. (C) No. 7396 of 2005 and 7517 of 2005 vide order dated 05.03.2007 wherein it was held as under:-

"11. A perusal of the impugned order, undoubtedly, reflects that the Controlling Authority has not passed any order or made any observation with respect to the application for condonation of delay filed by the respondent No.1, which apparently remained pending. Nor was the objection, as raised by the petitioner/management with regard to the delay and latches in filing the aforesaid application, been dealt with by the Controlling Authority. It may be noted here that ignorance of law is no excuse and cannot be considered a just or sufficient cause for entertaining such an application and that too ten years after the respondent received the gratuity amount. This factor was completely overlooked while passing the impugned order."

9. On the other hand learned counsel appearing on behalf of the respondent No.2 submits