Inder Dass vs D.T.C. And Anr.
2007 Latest Caselaw 58 Del

JUDGMENT

Mukul Mudgal, J.

1. This appeal challenges the order of the learned Single Judge dated 17th July, 2001 passed in CWP No. 2091/2000. The said writ petition arose from an order passed by a learned Single Judge of this Court dated 31st July, 1998 in CWP No. 3700/1997, the operative portion of which reads as follows:

There is considerable force in the arguments of the learned Counsel for the petitioner, Mr. B.S. Charya. The petitioner is entitled to the relied prayed for. Accordingly, the writ petition is allowed.

The first respondent is directed to issue suitable orders giving employment to the petitioner, having regard to the physical condition of the petitioner, in the office of the same scale of pay which he was getting as driver on the date of sustaining the injury, and the first respondent shall pay the petitioner the sum of Rs. 15,383/-.

The first respondent shall pass appropriate orders on or before the 30th of September, 1998 and also pay the sum of Rs. 15,383/- on or before that date.

The writ petition stands allowed in the above terms.

2. The above CWP No. 3700/1997 arose on the following facts:

(a) On 8th October, 1987, the appellant was employed as a Driver with the respondent corporation.

(b) On 16th May, 1996, the appellant sustained fracture in his right leg in an accident while on duty on Bus No. DL IP/9042.

(c) On 11th October, 1996, the appellant reported to the Depot Manager to provide him with an alternate job, but he was not allowed to join the duty.

(d) On 6th December, 1996, the appellant's services were terminated by an order of premature retirement.

(e) On 31st July, 1998, the appellant filed a writ petition in this Court on the ground that he could not be retired prematurely in view of the Section 47 of the Act.

(f) On 25th October, 1998, the appellant was allowed to join the duty by virtue of an order dated 23rd October, 1998 but was not paid salary for the period between 5th June, 1996 to 24th October, 1998. The respondent stated that his salary was being denied on the principle of 'No work no wages'. The pay of the appellant also fixed in the pre-revised pay scale of 975-1400. The pay scale was revised to 3200-4900 and the pay scale of the appellant was fixed at Rs. 3445/- with effect from 1st January, 1996. No increment was given to the appellant after 25th October, 1998.

(g) Between 31st October, 1998, the appellant made representations to the respondent but did not receive any reply which led to the filing of the writ petition by the appellant.

3. Pursuant to the above judgment of the learned Single Judge dated 31st July, 1998, the following order was passed by the DTC/respondent herein:

Shri Inder Dass, Ex. Driver B. No. 16775 Pay T. No. 54390 was retired pre-maturely on medical ground w.e.f. 6.12.96 under clause 10 of the DRTA (conditions of Appointment & Service) Regulations, 1952 vide memo NO. BBMD-1/TFC(DR)/96/3425 dated 6.12.96. He filed a writ petition in the High Court of Delhi against his premature retirement orders.

The Hon'ble High Court is its judgment dated 31.7.98 passed orders to give suitable employment to him in the same pay-scale, which he was getting as a driver. Accordingly, in order to comply with the orders of the Hon'ble High Court of Delhi, it has been decided by the Chairman-cum-M.D. to reinduct Sh. Inder Dass, Ex-driver, B. No. 16775, P.T. No. 54390 as a Vehicle Examiner with immediate effect on the following terms and conditions:

1. He will get the same basic pay in the pay-scale of driver which he was getting prior to his pre-mature retirement. He will not be entitled for any wages for the period he did not work on the principle 'no work no wages'. He will, however, get the benefit of continuity of service.

2. Gratuity and Provident Fund etc. paid to him under the provisions of the said Acts at the time of his premature retirement shall be deposited by him with DTC before resuming duty, otherwise the said amount will be adjusted along with interest at the time of retirement without giving any benefit for the intervening period.

3. He will not get the extra allowance of Rs. 25/- p.m., which is paid to the other vehicle examiner as a allowance for performing the duties of V.E.

4. He will perform the duties relating to Inspection and examination of vehicles being taken out of the depot and vehicles inshedding in the depot.

The other terms and conditions of his appointment shall continue to be those as embodied in the DRTA (Conditions of Appointment & Service) Regulations, 1952 as amended up to date and as may be amended hereinafter by Delhi Transport Corporation. He shall also be governed and bound by all other rules and regulations framed by Delhi Transport Corporation.

He is directed to report to the Depot Manager, BBMD-I immediately. In case Sh. Inder Drass, Ex-Driver, B. No. 16775, P.T. No. 54390 does not report for duty on receipt of the letter, it will be assumed that he is no more interested in the job and his services would automatically come to an end from the date of receipt of this letter.

His previous token No. 54390 will remain the same.

This issues with the approval of the competent authority.

4. The appellant's grievance arose as while passing the order pursuant to the Single Judge's judgment dated 31st July, 1998, the respondent did not give any payment for the period from 6th December, 1996 to 31st October, 1998. This was the period during which the appellant remained out of employment and got re-employed pursuant to the judgment of the learned Single Judge dated 31st July, 1998. The learned Counsel for the appellant has submitted that the learned Single Judge while passing the impugned judgment dated 17th July, 2001, has erred in construing the earlier judgment as not having granted the relief to the appellant of the payment of emoluments in the interregnum. For this purpose, the learned Counsel for the appellant relied upon the prayers contained in the writ petition being CWP No. 3700/1997 which read as follows:

(a) Quash the order of premature retirement dt. 6.12.96 while holding the same to be illegal, invalid, improper, discriminatory and in violation of Articles 14, 16 and 21 of the Constitution of India.

(b) Call upon the respondent to pay full salary to the petitioner for the period 16.5.96 till date and also give alternative post to the petitioner with full protection of his pay of Rs. 3700/- per month the last pay drawn;

(c) Call upon the respondent to immediately pay the amount of compensation on account of injury sustained by him, leading to 80% disability, together with penalty and interest on the entire arrears and also the amount of medical bill of Rs. 15383/-.

5. The learned Counsel for the appellant has contended that the learned Single Judge by order dated 31st July, 1998 allowed the writ petition being CWP NO. 3700/1997 and allowing the writ petition led to a situation where the prayer (a) was granted quashing the premature retirement dated 6th December, 1996. Once the order of premature retirement was quashed by the learned Single Judge, the natural consequence of such an order would be that the petitioner would be deemed to be in service and be entitled to emoluments for the period 6th December, 1996 to 31st October, 1998. The learned Counsel further submitted that nowhere did the learned Single Judge deny the relief to the appellant for payment for the period 6th December, 1996 to 31st October, 1998 while passing the judgment dated 31st July, 1998 and the learned single Judge in the impugned judgment dated 17th July, 2001 appears to have erroneously construed the judgment dated 31st July, 1998 to mean that the amount for the aforesaid period from 6th December, 1996 to 31st October, 1998 was denied to the appellant.

6. We are of the view that taking into account the prayers contained in the writ petition and the fact that the writ petition had been allowed, the relief of quashing the premature retirement had been granted to the appellant which should have resulted to his being treated as having continued in service. Accordingly, the finding recorded in the impugned judgment to the effect that the relief of the payment in the interregnum has not been granted by the learned Single Judge by the judgment dated 31st July, 1998 in our view cannot be sustained as it is not borne out from the said judgment of the learned Single Judge. Furthermore, the appellant besides the above plea had also relied on Section 47 of the Persons with Disabilities(Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Act") which reads as follows:

47. Non-discrimination in Government employment:

(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his services:

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 ona supernumerary post 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 the Section.

7. The learned Counsel for the appellant submits that the injury was sustained in the year 1996 after the Act came into force and the injury was sustained during the course of the service and accordingly the appellant would have been entitled in any event to the benefit of Section 47(1) of the Act also. There is considerable force in the above submission of the learned Counsel for the appellant. This plea though raised in the writ petition does not appear to be noticed by the learned Single Judge. Accordingly, we are of the view that even on the ground of Section 47 as well as on the full effect of the judgment dated 31st July, 1998, the appellant was entitled to the payment of emoluments for the period from 6th December, 1996 to 31st October, 1998. Accordingly, the appeal is allowed. The impugned judgment dated 17th July, 2001 is set aside with no orders as to costs and the emoluments for the period 6th December, 1996 to 31st October, 1998 shall be paid to the appellant not later than 28th February, 2007.

8. The appeal stands disposed of accordingly.