Milap Chand Grover vs D.T.C.
2006 Latest Caselaw 598 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1474

1. The writ petitioner in these proceedings questions an order (corrigendum) dated 6.8.2003 by which the respondent (hereafter called 'the DTC?) determined that he was dis-entitled back wages for the period 8.3.1996 to 6.8.2003.

2. The admitted facts of this case are that the petitioner was originally removed by a punitive order dated 5.10.1992. The order was preceded by a departmental inquiry. The Enquiry Officer had exonerated the petitioner of the charges but the departmental authority issued the order of removal without even awaiting the petitioner's response to its show cause notice. The order was, therefore, set aside by this Court on 6.2.1995. The petitioner was consequently reinstated. This Court had granted liberty to the respondent to pass a fresh order in the departmental proceedings.

3. The DTC passed its second order on 8.3.1996, again removing the petitioner. This time the DTC did not follow the proper procedure, in that the dis- agreement/show cause notice on the basis of which the competent authority differed with the Inquiry Officer was not disclosed to the petitioner. He was also denied the opportunity of answering to tentative contrary findings. This removal order dated 8.3.1996 was challenged in writ petition No. 305/1997. The Court set aside the order of removal dated 8.3.1996 on 23.4.2002. The Court relied upon the judgment of the Supreme Court in Punjab National Bank and Ors. v. Union of India and Yoginath D. Badge v. State of Maharashtra and Anr. . The Court also held as follows:

However, it is left open to the Disciplinary Authority to issue a fresh notice to the petitioner stating the reasons for disagreeing with the report of the inquiry officer and calling upon the petitioner to show cause why Page 1475 the disciplinary authority should not differ from the same and thereafter proceed in accordance with law laid down by the Supreme Court in originates D. Badge case (supra).

4. The DTC complied with the directions after contempt proceedings were initiated and reinstated the petitioner to the services on 6.8.2003. In the meanwhile, the petitioner had moved an application, namely, CM 5122/2002 claiming corrections to the main order quashing the order of removal. The correctness claimed inter alia were that he was entitled to payment of his back wages. The Court declined the correction. It is also a matter of record that the petitioner carried the matter to the Division Bench by filing a Letters Patent Appeal.

5. The Court by its order dated 16.12.2002 had passed the following orders in the contempt proceedings:

Pursuant to the order dated 23.4.2002, the petitioner was reinstated in service and was placed under suspension on the same date and the show cause notice was given by the respondent to the petitioner giving reasons as to why the disciplinary authority had differed from the report of the inquiry officer. No order has, however, been passed by the respondent to indicate as to how the period from the date of termination of service till the date of reinstatement has been treated by the respondent. Learned counsel for the respondent requests for an adjournment to look into the matter. At request, adjourned to 11th March, 2003.

6. On 6.8.2003, the competent authority of DTC issued the impugned order which is in two parts. The first part deleted the reference to the suspension of the petitioner with effect from 8.3.1996. The second part stated that the petitioner would be denied back wages for the period 8.3.1996 till 17.10.2002. The order reads as follows:

The following lines as incorporated in the reinstatement memo bearing No. PLD- III/Ex. Conductor/Re-in statement/2003/2923 dated: 17.10.2002 in respect of Sari Milap Chand, Ex. Conductor, B.No. 12753 may be treated as deleted:

However Shri Milap Chand, will remain suspended as he was prior to orders of removal dated 8.3.96.

As such, Shri Milap Chand, will be entitled for all consequential benefits from 17.10.2002 to 6.8.2003 (i.e. date of the issuance of the corrigendum). Besides above, Shri Milap Chand, will not be entitled to the back wages for the intervening period i.e. from the date of removal (8.3.96) to the date of his reinstatement/joined duty on the principle of 'No work No wages'. This has the approval of the competent authority.

7. It is common ground between the parties that ultimately the petitioner was issued a penalty. However, in stead of the previous penalty of removal the disciplinary authority issued an order whereby he was reduced to the lowest stage in the pay-scale.

Page 1476

8. Learned counsel submits that with the issuance of the order setting aside the removal order dated 8.3.1996; the petitioner was entitled to full back wages in accordance with law. It was claimed that the basis for the judgment was the non-compliance with principles of natural justice and more importantly the law declared by the Supreme Court in Kunj Bihari Misra's case and Yoginath D Bagde's case, therefore the order dated 8.3.1996 was declared to a nullity. Consequently, the petitioner had right to claim that he was in service and, therefore, entitled to back wages for being wrongfully kept out of service, for the entire period.

9. Learned counsel for the respondent DTC justified the impugned order by stating that there is no invariable rule that if the order of removal set aside by the Court for non-compliance with the principles of natural justice, the employee would in every case be entitled to full back wages. In the present case, the petitioner was eventually visited with a penalty though he was not removed. Hence, he was not entitled to any back wages. Learned counsel relied upon the judgment of the Supreme Court reported as Rajasthan State Road Transport Corporation v. Bhagyo Mal and Ors. (1994) 26 ATC 939.

10. Learned counsel for the respondent also submitted that these proceedings are not maintainable because the petitioner had made an attempt to seek a direction for back wages on two earlier occasions; firstly by filing an application in the disposed writ petition and later by approaching the Division Bench. In both the instances, the petitioner was unsuccessful and could not manage to secure any relief. Hence, the petitioner cannot claim the same reliefs in these proceedings.

11. The order dated 23.4.2002 of this Court clearly relied upon the law declared by the Supreme Court in Kunj Bihari Misra's case etc. The ratio in those judgments were to the effect that in case a disciplinary authority chooses to differ with findings of the Enquiry Officer, it is under an obligation to issue show cause notice outlining the grounds of difference and also give appropriate opportunity to the delinquent employee or charged official. That is a procedure built into every departmental proceedings and an integral facet of fair procedure under Article 14 of the Constitution. In fact, Kunj Bihari Misra's case is a sequel to the declaration of law of the Constitution Bench in Managing Director ECIL v. B. Karunakar . In these circumstances, the inevitable conclusion was, and had to be, that the order of 8.3.1996 removing the petitioner was a nullity from inception. Therefore, the respondent was bound to consider and pass suitable orders as to how the petitioner's service for the intervening period from that date till the issuance of the order of this Court had to be treated. It is true that in all cases, where orders are set aside on such ground, employees cannot claim payment of full back wages. Nevertheless, the denial of any back wages has to be for strong and compelling reasons. I am not persuaded by the argument of the respondent that the circumstance that ultimately another, although lesser penalty was imposed, was a sufficient ground to deny full back wages. Page 1477 The reasoning contained in the impugned order dated 8.6.2003 is, therefore, arbitrary and unreasonable.

12. Coming to the next submission of the respondent DTC that the petitioner had approached the Court after the judgment dated 23.4.2002 by filing an application seeking clarification/correction so as to secure back wages and that he further approached the Division Bench, although the submission appears abstractive, I am of the view that those facts by themselves do not preclude maintainability of these proceedings or in any manner debar the petitioner's claim that the impugned order is illegal or arbitrary. At that stage, when the petitioner approached the Court, the respondent had not issued any separate or formal order declining the back wages. What is more, the petitioner did not file any substantive proceedings; he merely sought a clarification which the Court declined and perhaps rightly so. In the absence of a positive order or an order declining the back wages by the DTC the petitioner's attempt to secure that relief was premature. In the appeal the petitioner could not have claimed any substantive relief. Admittedly, the respondent had independent obligation to pass a separate order upon the reinstatement of an employee whose dismissal or removal was set aside by the Court under its regulations. That power had not been so exercised. The power was exercised only on 6.8.2003.

13. In my view, the submissions as to the applicability of the principle of constructive res judicata is not apt in these circumstances. Another added feature is that the petitioner had brought the impugned order to the notice of the Court in the pending contempt proceedings which expressly reserved the right to challenge to the same. For this reason, I am not inclined to accept the submission of the respondent's second aspect as to the maintainability of the petition.

14. In view of the above findings, the impugned order is quashed. A direction is issued to the DTC to determine the quantum of back wages taking into account the above findings and all other materials on record by a speaking order within six weeks from today. The order shall be communicated directly to the petitioner. No costs.