D.P. Guglani vs Associated Traders And Engineers ...
1986 Latest Caselaw 266 Del

JUDGMENT

Sunanda Bhandare, J.

(1) The petitioner was employed as a Clerk with the respondent Management of M/s Associated Traders & Engineers Limited at a monthly salary of Rs. 110.00 from the year 1963. He was served with the transfer order on 13th October 1981 transferring him to Hyderabad. The petitioner challenged the transfer order by of & suit in the court of Sub- Judge, 1st Class, Delhi. Along with the suit he made an application under Order 39 Rules 1 & 2 read with Section 151 Civil Procedure Code praying for the state of the transfer order. Since the Sub Judge, 1st Class, Delhi refused to stay the transfer order the petitioner filed an appeal before the Additional District Judge, Delhi which was also rejected. Challenging this order of the Additional District Judge, Delhi the petitioner filed a revision petition (C.R. 1009/83) in this Court. Along with the revision petition, an application for stay of the transfer order was also filed and this Court on 19th January 1984 passed the following order : "THE operation of the impugned order of transfer is stayed without prejudice to the rights of the parties under law."

(2) Daring the pendency of the revision petition, on 1st December, 1984 the petitioner filed a contempt petition being C.C.P. 17 of 1985 alleging that inspite of the order of this Court dated 19th January 1984 the respondents had not obeyed the stay order. The petitioner had repeatedly approached the respondents to allow him to join his normal duties at Ballabgarh and also to pay his wages, however the respondents had refused to assign him any duties at Ballabgarh. When this contempt petition came up for hearing on 11th March 1985 a statement was made by the learned counsel for the respondents that the order of this Court was obeyed and the petitioner had not been transferred, however as the petitioner had almost reached the age of superannuation and was to retire on 28th January 1985 tie was not being assigned any work and the respondents were willing to pay the entire arrears of salary due to the petitioner for the period up to 2ath January 1985. Learned counsel for the petitioner objected to the fact that the petitioner had reached the age of superannuation. However since that question was notthe subject matter of the dispute in the revision petition, this Court, without going into the question whether the petitioner had reached the age of superannuation or not, directed the respondents to pay to the petitioner the entire arrears of salary etc. up to 28th January 1985,

(3) It was contended by the learned counsel for the petitioner that as per the order of this Court dated 11th March 1985 and as per the statement of the counsel for the respondents made in Court on that day the petitioner was to be paid the entire arrears of salary up to 28th January 1985. This order meant that the petitioner would be paid arrears of salary from the date the transfer order was communicated to him till the date of his alleged superannuation i.e. up to 28th January 1985, however the respondents had only paid salary from the date the petitioner had obtained a stay order from this Court i.e. from 19th January 1981 to 28th January 1985. It was submitted that since the transfer order was stayed by this Court on 19th January 1984 the petitioner would be deemed to be working all through-out as if the transfer order had not been made at all.

(4) On the other hand, it was contended by the learned counsel for the respondents that the respondents had rightly paid to the petitioner salary from 19th January 1984 because that was the date on which this Court stayed the transfer order. It was contended that the suit filed by the petitioner before the Sub Judge, 1st Class, Delhi challenging the transfer order itself is still pending and if the salary of the petitioner was paid right from the date when the transfer order was made that suit would itself become infructuous and, therefore, when a statement was made on 11th March 1985 it was understood that the petitioner would be paid arrears of salary only from the date when the stay order was granted. It was, therefore, submitted that there was no contempt committed and the respondents were not guilty of any disobedience as alleged by the petitioner. It was, farther submitted that since the petitioner had reached the age of superannuation the respondents were willing to give all the retirement benefits and handed over a demand draft no. AB/58 097323 dated 19th March 1986 for Rs. 6,768.51 drawn on Andhra Bank, Asaf Ali Road, New Delhi today to the petitioner who is also present in person towards his entitlement of gratuity,

(5) I find substantial force in the contention of the learned counsel for the respondents. This Court on 19th January 1984 stayed the transfer order without prejudice to the rights of the parties under law. Since the suit filed by the petitioner before the Sub Judge, 1st Class, Delhi challenging the transfer order is still pending the order of stay of transfer would be effective only from the date it was made. ln order to ascertain the effect of the order of this Court dated 11th March 1985 I also called for the previous contempt petition filed by the petitioner being Civil Procedure Code . 17 of 1985 and it appears that the past period was not in question in previous contempt petition. The revision petition itself was filed against the order of the Additional District Judge, Delhi refusing to stay the transfer order. Therefore it could not have been that the respondents' counsel would agree to make payment towards arrears of salary even prior to the granting stay. Now, there is no dispute regarding payment of wages of the petitioner for the period 19th January 1984 to 23rd January 1985. In view of this, to my mind, there is no contempt committed by the respondents as alleged by the petitioner. Needless to say that the suit filed by the petitioner challenging the transfer order will be decided according to law and the petitioner will be free to claim wages for the earlier period i.e. from the date of transfer till the date this Court granted stay in case he succeeds in the suit. A grievance was also made regarding the age of superannuation of the petitioner but that was not the subject matter in the main revision petition and in fact the main revision petition was also dismissed by this Court as infructuous on 23rd May 1985. If the petitioner disputes his retirement on superannuation, he will, of course, be free to seek any other appropriate relief in that regard.

(6) In the result the contempt petition is dismised. The original suit file (S. No 175/82) be sent back to the trial court immediately. There will be no order as to costs.