Bal Kishan Kataria vs Delhi Transport Corporation
2003 Latest Caselaw 265 Del

JUDGMENT

S.K. Muhajan, J.

Rule.

1. With the consent of the parties, the matter has been heard and disposed of by this order.

2. Petitioner was working as Traffic Inspector with the respondent corporation. On 12th August, 1985, he was promoted to the post of Traffic Supervisor w.e.f. August 20, 1985. On 28th February, 1986 a charge-sheet was issued to the petitioner and he was suspended from service. By order dated 18th August, 1986 the petitioner was reverted to the post of Traffic Inspector. The disciplinary action initiated against the petitioner vide a charge-sheet dated 28th February, 1986 was dropped by the respondent by its letter dated 6th April, 1988. Vide another letter dated 24th December, 1996 petitioner was promoted from the post of Traffic Inspector to that of Traffic Supervisor. Petitioner made a representation to give him seniority with effect from 20th August, 1985, when he was Initially promoted as Traffic Supervisor. The respondent considered the representation of the petitioner and vide an order dated 4th June, 1997, he was informed that the Chairman & Managing Director has decided to give him seniority In the post of Traffic Supervisor with effect from 20th August, 1985. It was observed In the order that since the petitioner was initially promoted to the post of Traffic Supervisor with effect from 20th August, 1985 his officiating promotion period was considered to have remained uninterrupted and his seniority, therefore, in the cadre of Traffic Supervisor would be with effect from 20th August, 1985. It was, however, observed in the order dated 4th June, 1997 that petitioner would not be entitled to arrears of wages admissible during the period. Petitioner made a representation for payment of wages for this period, however, his representation was rejected by order dated 23rd June, 1998. Further representation made by him was rejected by order dated 23rd September, 1999. In the meantime, by order dated 20th January, 1998 petitioner was promoted to the post of Dy. Manager (Traffic) on officiating basis. This promotion was made effective from 20th January, 1995 because his juniors had already been promoted to that post with effect from the said date. Being aggrieved by the decision of the respondents not to pay him wages for the period from the original date of promotion as Traffic Supervisor and also as Dy. Manager with effect from 20th January, 1995, petitioner filed the present petition.

3. In the counter-affidavit the case set up by the respondents is that the petitioner was reverted from the post of Traffic Supervisor to Traffic Inspector on 18th August, 1986 because of disciplinary proceedings initiated against him but subsequently the disciplinary action taken against him was dropped on 6th April, 1988. It is submitted that the petitioner was paid his full wages for the period he remained under suspension. It is submitted by the respondents that since the petitioner was again promoted from Traffic Inspector to Traffic Supervisor on 24th August, 1996 and he was only given notional seniority in the cadre of Traffic Supervisor with effect from 20th August, 1985, he was not entitled to the pay for the period preceding of his actual promotion to the post of Traffic Supervisor on 24th December, 1996 as he had not worked during the period August 18, 1986 to December 24, 1996. Similarly, in the case of promotion to the post of Dy. Manager it is contended that as the petitioner was promoted only on 20th January, 1998 he is not entitled to arrears of pay for the said post with effect from 20th January, 1995 when his juniors were promoted as he had not worked as Dy. Manager from 20th January, 1995 to the date of actual promotion. Reliance for this has been placed by learned counsel for the respondent upon the office memorandum dated 12th January, 1998. It is submitted that since as per the office memorandum the petitioner may have been entitled to be promoted notionally with reference to the date of promotion of this junior but he is not entitled to be paid the arrears for the period preceding the actual date of promotion. The office memorandum dated 12th January, 1998 reliance on which has been placed by the respondent reads as under:

"On the conclusion of the disciplinary case/criminal prosecution, or an investigation which results in dropping of allegation or complaint against the Govt. Servant, the sealed cover or covers shall be opened. In case the Govt. servant is completely exonerated, the due date of his promotion will be determined with reference to the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Govt. servant may be promoted if necessary by reverting the junior most officiating person. He may be promoted notion-ally with reference to the date of promotion of his junior but he will not be allowed arrears of pay for the period preceding the date of actual promotion."

4. A perusal of the office memorandum dated 12th January, 1988 shows that it is only in the case of promotion to a higher post that a decision can be taken by the department about the date from which he would be notionally promoted on the conclusion of the disciplinary case against him but the incumbents would not be allowed or entitled to arrears of pay for the period preceding the actual promotion. In my opinion, this office memorandum will not apply to the case of the petitioner in so far as it relates to his promotion to the post of Traffic Supervisor. Petitioner was promoted to the post of Traffic Supervisor vide an order dated 12th August, 1985 with effect from 20th August, 1985. He was reverted to the post of Traffic Inspector on 18th August, 1986 only because of the pendency of the disciplinary proceedings against him. Had these proceedings not been initiated the petitioner would not have been reverted. The proceedings having been ultimately dropped by the respondent, in my opinion, the petitioner was entitled to be reinstated to the same post from which he was reverted on initiation of the departmental proceedings. Since at the time of initiation of departmental proceedings petitioner was working as Traffic Supervisor and he was reverted only because of the departmental proceedings initiated against him, in my opinion, on the dropping of departmental proceedings the petitioner was entitled to be posted to the post from which he was reverted on 18th August, 1986. The Office memorandum dated 12.1.1988 is not applicable in this case. In this view of the matter the

petitioner would be entitled to all his wages from the date of his reversion till he was again posted as Traffic Supervisor vide order dated 24th December, 1996.

5. In so far as arrears of wages for the post of Dy. Manager are concerned, in my opinion, petitioner would not be entitled to the same in as much as the office memorandum clearly applies to the case of promotion. Though the petitioner has been granted seniority notionally with effect from the date when his juniors were promoted on 20th January, 1995 but he was actually promoted only on 20th January, 1998 to the post of Dy. Manager. Since he had not worked on the post of Dy. Manager till 20th January, 1998 when he was promoted in terms of the aforesaid office memorandum, petitioner is not entitled to any wages from the date from which he was given notional promotion because of the promotion of his. juniors till the date of his actual promotion i.e. 20th January, 1998.

6. For the foregoing reasons, this petition is partly allowed and a direction is given to the respondent to pay the entire arrears of pay of the post of Traffic Supervisor, to the petitioner from the date of his reversion, namely, 18th August, 1986 till 24th December, 1996, when he was again promoted to the same post. With these observations, this petition stands disposed of leaving the parties to bear their own costs.