POWER CORPORATION LTD. (Civil Appeal No. 111 O of 2007) MARCH 3 & Ors. v. NATIONAL THERMAL POWER CORPORATION LTD. ~-~ 1 Commission (Terms and Conditions & Ors.

Sri Bhavanarayanaswamivari Temple v. Vadapalli F Venkata Bhavanarayana Charyu/u (1970) 1 SCC 673; Bharat Barrel and Drum Manufacturing Co. Pvt. Ltd. v. Bharat Barrel Employees Union (1987) 2 SCC 591; Vijayabai and Others v. Shriram Tukaram and Others (1999) 1 SCC 693; Forward Construction Co. and Others v. Prabhat Manda/ (Regd.), Andheri and Otliers (1986) 1 SCC 100 and K. V. George v. Secretary to Government, Water and Power Department, Trivandrum and Another (1989) 4 SCC 595, referred to. G

3.2. Respondent-NTPC was already aware of the H 1064 SUPREME COURT REPORTS [2009] 3 S.C.R. A impending revision of scales of pay and had implemented the same in part, albeit, on a provisional basis. It is not known as to why it filed applications for tariff determination for its generating stations at Korba and Dadri on 28.05.2001 and 8.06.2001, respectively. Not only B that the amended applications did not contain the details of the prescribed data, a sheet with data of year 2000- 2001, which was not a part of Form 16, was inserted at a later stage. Amended applications were filed only on 30.01,.2002 and 7 .02.2002. The year 2000-01 was not the c relevant year for the said purpose. [Para 46) [1092-F-H; 1093-A]

3.3. There cannot be any doubt whatsoever that for the purpose of making tariff the acb,1al costs required for payment to the employees being a part of the operation D and maintenance cost including a sum of Rs. 55 crores, which were to be paid by way of extra amount, could fall for determination by the Central Commission. But, such an application ordinarily could have been filed within the period during which the tariff order was in force. [Para 47) [1093-A-BJ E

3.4. The appellate tribunal erred in holding that increase in the salary with retrospective effect could have been a subject matter for determination of tariff in another F period. The claim of the respondent-Corporation was not justified as the Central Commission should not have been asked to revisit the tariff after five years and when everybody had arranged its affairs. [Para 48) [1093-C, DJ

3.5. Regulation 2.7 (d)(iv) of the 2001 Regulations G clearly provides that applications must be entertained only in the event any situation arose within the purview thereof and not at any point of time. If NTPC were aware that they were to incur an additional expenditure of Rs. 55/- crores, they could have preferred an appeal before H the Central Commission. It is stated that appeals were I ' U.P. POWER CORPORATION LTD. v. NATIONAL THERMAL POWER CORPORATION LTD. AND ORS. 1065 preferred on other issues but not on this one. [Para 49] A [1093-E-F] 8

4.1. Framing of tariff is made in several stages. The generating companies get enough opportunity not only at the stage of making of tariff but at a later stage also to put forth its case including the amount it has to spend on operation and maintenance expenses as also escalation at the rate of 10% in each of the base year. It cannot be permitted to re-agitate the said question after passing of many stages. Furthermore, the direction of the tribunal that the additional costs may be absorbed in the C new tariff was not correct. Some persons who are consumers during the tariff year in question may not continue to be the consumers of the appellant. Some new consumers might have come in. There is no reason as to why they should bear the brunt. Such quick-fix attitude D is not contemplated as framing of forthcoming tariff was subject to fresh regulations and not the old regulations. [Para 50] [1090-F-H; 1094-A-B]

4.2. It is true that the jurisdiction of the appellate E tribunal is wide. It is also an expert tribunal and, thus, it can interfere with the finding of the Central Commission both on fact as also on law. But, the instant case was not one where the appellate tribunal should have interfered with the order of the Central Commission. [Para 52 and 53] [1094-D-E]