Rajbir Singh vs A.J.S. Sawhney And Anr.
2003 Latest Caselaw 888 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitioner-Workman has complained that the Orders passed in CW No. 5700/2000, dated January 24, 2002 have not been fully complied with till date. The operative part of the Order reads thus :-

"........

The Writ Petition is thus allowed and the order of termination dated 10.7.98 is hereby quashed. Respondents are directed to take the petitioner back into service and pay the salary from the date when respondent stopped paying full salary after termination of his service. The petitioner would be treated as in continuous employment without any break in service. In case the petitioner is not fit to perform duty which he as performing since the initial appointment till his disability, the respondent shall deal with the case of the petitioner in terms of proviso to Section 47 of the said Act.

Petitioner shall also be entitled to costs of Rs. 3000/-.

Sd/-       

Sanjay Kishan Kaul

Judge"      

2. This Order was carried in Appeal firstly before the Division Bench and thereafter to the Hon'ble Supreme Court, but without any success. At no point of time was the operation of the Order stayed by either of the Appellate Courts. Clearly, therefore, the Delhi Transport Corporation (DTC) had committed contempt of the said OrdeRs. No explanation is forthcoming; In fact it is difficult to conceive of any defense, on this score. After the expiry of over one year, Hon'ble Mr. Justice C.K. Mahajan, in terms of Orders dated 20.3.2003 allowed yet another opportunity to make the payment of the Petitioner's salary. A sum of Rs. 3, 47, 719/- has since been paid to the Petitioner, on whose behalf it is submitted that it is not the entire payment due as it does not include - (a) leave encashment, (b) bonus, (c) washing allowance and uniform expenses, (d) placement in the higher pay scale/grant of financial benefit under the Assured Career Progression Scheme adopted by the DTC on 23.8.2002, (e) arrears of salary with effect from December 1996 and (f) costs of Rs. 3, 000/-. All this was brought to the notice and attention of the Depot Manager, DTC, G.T.K. Depot, Delhi in terms of Petitioner's letter dated 27.5.2003, to which no response has been made.

3. In my view, the demand for payment of salary with effect from 23.8.2002 is untenable. While disposing of the petition the DTC was directed, inter alia, to "pay the salary from the date when respondent stopped paying full salary after termination of his service". The Petitioner's services were admittedly terminated on 10.7.1998 as has been observed in the immediately preceding sentence of the very same paragraph relied upon by the Petitioner. While ordering the reinstatement of a workman, the Court is possessed of discretion to stipulate the terms and conditions attendant thereto, although the normal rule is of full back-wages. The claim for payment of salary with effect from December 1996 is therefore untenable and in any event is open to two understandings, thus making it inappropriate to invoke the contempt jurisdiction of this Court.

4. Learned counsel for the Petitioner has relied on the decision of the Hon'ble Supreme Court titled Gammon India Limited v. Niranjan Dass, in support of his contention that there can be no doubt in respect of the Petitioner's entitlement for leave encashment and bonus. The Apex Court had pronounced thus :-

"In the course of hearing of this appeal, it was stated that the respondent has reached the age of superannuation therefore physical reinstatement in service is not possible. Appellant will have to establish that fact but in the event the appellant shows that under a valid rule, respondent has reached the age of superannuation and therefore physical reinstatement is not possible, it is hereby declared that the respondent shall continue to be in service uninterruptedly from the date of the attempted termination of service till the date of superannuation. Respondent would be entitled to all back wages including the benefit of revised wages or salary if during the period there is revision of pay-scales with yearly increment, revised dearness allowance or variable dearness allowance and all terminal benefits if he has reached the age of superannuation such as Provident Fund, Gratuity etc. Back wages should be calculated as if the respondent continued in service uninterrupted. He is also entitled to leave encashment and bonus if other workmen in the same category were paid the same. It appears that the respondent has been unlawfully kept out of service, therefore it is but just that the appellant-company shall pay all the arrears as calculated according to the directions herein given with 12 per cent interest from the date the amount became due and payable till realisation. Appellant shall also pay costs to the respondent quantified at Rs. 5000/-. The appellant is directed to pay the amount as herein directed to be paid within 3 months from today."

5. In the light of these authoritative and unambiguous observations, no purpose would be served in analysing the decision of a Division Bench of Andhra Pradesh High Court in Workmen of Bangagora Tea Estate v. The Management 1971 Lab.I.C. 518, relied upon by the D.T.C. My Learned Brother S.K.Kaul must have consciously used the word 'salary' in contradistinction to "wages" so as not to temper of confuse payments to be made, by any possible reference to Section 2(rr) of the Industrial Disputes Act.

6. In these circumstances, I am of the view that there is no justification to withhold the payments under claims (a) to (c) adumbrated above.

7. Mr. Sabharwal, learned counsel appearing for the DTC has also resisted claim (d) viz. placement in the higher pay scale/grant of financial benefit under the Assured Career Progression Scheme adopted by the DTC on 23.8.2002. It is his contention that there is no direction to this effect and that promotion is not an automatic phenomena. It needs to be reiterated that the effect of reinstatement is that the services of the workmen shall be treated as having not been terminated at all and it shall be deemed that he has continued in service. The DTC has not taken any decision justifying or giving reasons why the ACP Scheme has not been extended to the Petitioner. Instead a specious argument has been put forward that the ACP Scheme is not applicable. A reference to Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 will be advantageous. The Section reads thus:

"Non-discrimination in Government employment- (1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

8. It appears to me that the Respondent has not given full effect to the Orders of this Court but has also seen fit to ignore the mandate of Parliament as articulated in the above extracted Section. Its obduracy is also evident from the fact that the costs have not been paid, and that this position persists even though the Order of the Learned Single Judge has been assailed before the Division Bench and thereafter, before the Hon'ble Supreme Court.

9. I am, therefore, satisfied that the Respondents are punishable under the Contempt of Courts Act.

10. Mr. R.S.Minhas, Depot Manager, G, T.K.Depot who is present in Court tenders an apology for having not complied with the Orders expeditiously. A cheque bearing No. 50710 of Syndicate Bank, Indraprastha Estate, Delhi-110002 for a sum of Rs. 16, 325/- has also been tendered towards payment of arrears of bonus, leave encashment and washing allowance. It is also stated that so far as the Assured Career Progression Scheme is concerned, the Petitioner case is under consideration and a decision shall be taken not later than December 31, 2003. Mr. Sabharwal has explained that the cost of Rs. 3, 000/- earlier imposed while disposing of the Writ Petition was tendered on the last hearing and shall be forwarded to counsel for the Petitioner within three days.

11. In view of the apology, and as also the statement that the DTC is looking into every Contempt Petition in order to ensure that there is no failure of compliance in the future, I am satisfied that this Petition be disposed of by the imposition of cost of Rs. 2, 000/- which should be paid within four weeks from today. Ordered accordingly.