Union Of India vs Sh.Mangal Singh
2009 Latest Caselaw 4719 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.6500/2008

%                        Date of Decision: 19.11.2009

Union of India                                             .... Petitioner

                         Through Mr.H.K.Gangwani, Advocate

                                  Versus

Sh.Mangal Singh                                           .... Respondent

                         Through Mr.Sant Lal, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI


1.     Whether reporters of Local papers may be              Yes
       allowed to see the judgment?
2.     To be referred to the reporter or not?                 No
3.     Whether the judgment should be reported in             No
       the Digest?


ANIL KUMAR, J.

*

1. The petitioner has impugned the order dated 29th April, 2008 of

Central Administrative Tribunal in O.A No.1124/2007, Mangal Singh v.

Union of India and Ors directing the petitioner to grant benefits of pay

and allowance to the respondent for the period 17th June, 2000 to 3rd

September, 2006 and setting aside the order dated 28th September,

2006 to the extent of not granting TRCA (time related continuity

allowance) for the period 17th June, 2000 to 3rd September, 2006 on the

ground that the respondent had not worked, relying on principle of `no

work no pay'.

2. The petitioner has contended that since the notional

reinstatement was given to the petitioner with retrospective effect, he is

not entitled to back wages on the principle of no work no pay and grant

of back wages is not automatic. The learned counsel for the petitioner,

Mr.Gangwani also very emphatically contended that the appointment of

the respondent was a short term arrangement, as a substitute EDDA of

a regular incumbent. It is asserted that the respondent was selected

provisionally as SC candidate and the action of the ACPO to form a

panel of appointment against the post falling vacant subsequently was

not in conformity with the recruitment rules of EDDA and method of

recruitment was not regular, and since the respondent was given

provisional appointment, his appointment was not as a regular

appointment and was only a substitute and he had no right to join on

regular basis and consequently the respondent shall also be not entitled

for back wages.

3. The plea of the petitioner is contested by the respondent

contending, inter-alia, that the respondent had been selected against

the vacancy reserved for SC candidate, however, he was wrongly shown

as selected provisionally. The respondent also refuted the averment

made by the petitioner that respondent was appointed as a substitute

and reliance is placed on a judgment dated 1st March, 2002 in O.A

No.292/2001 filed by the respondent which was allowed by order dated

1st March, 2002 and the petitioners were directed to regularize the

respondent as EDDA within a period of three months. While directing

the petitioners to regularize the respondent the tribunal had held that

the respondent was appointed after fulfillment of the pre appointment

formalities and there was nothing on record to suggest that his

appointment was as a substitute. Reliance has also been placed by the

respondent on a writ petition filed against the order dated 1st March,

2002 in O.A No.292/2001, Sh.Mangal Singh v. Union of India and Ors

which was disposed of by order dated 9th May, 2006 in W.P(C)

No.3338/2002 holding that the petitioners have not been able to show

any document that the appointment of the respondent was as a

substitute and, therefore, no fault was found with the order of the

Tribunal dated 1st March, 2002 directing the petitioners to appoint the

respondent on a regular basis as EDDA.

4. The respondent had also filed a contempt petition No.449/2002

complaining that the monetary benefits for which he had become

entitled had been denied for the period 17th June, 2000 to 3rd

September, 2006. The contempt petition filed by the respondent was

disposed of holding that the appropriate remedy of the respondent was

to file an appropriate legal proceedings to claim the back wages

pursuant to which petition claiming back wages was filed by the

respondent before the Central Administrative Tribunal. The respondent

has contended that he is a lowest paid Gramin Dak Sewak which is a

part time post of maximum 5 hours a day and the petitioners have

forced him in this litigation for redressal of his grievances and he has

been suffering serious hardships.

5. We have heard the learned counsel for the parties in detail. This

cannot be disputed that the findings of the Tribunal that the

respondent had been sponsored through an employment exchange and

was called upon by the petitioner for being appointed as EDDA and was

subjected to pre appointment formalities as laid down in the relevant

recruitment rules, has become final. Once the respondent had been

appointed on regular basis from 28th July, 1998, the TRCA could not be

denied to him on any of the grounds alleged before us, as the

respondent was prevented from performing the duties on account of the

act on the part of the petitioners and imputable to them. The Tribunal

has held that since the respondent was prevented from performing his

duties by the petitioner, the principle of no work no pay shall not apply.

The Tribunal also relied on State of Kerala and Ors v. E.K.Bhaskaran

Pillai, 2008(1) SLJ 164 and Commissioner, Karnataka Housing Board v.

C.Muddaiah, 2007 (1) Scale 625. The Supreme Court in Commissioner,

Karnataka Housing Board (Supra) had held that in appropriate cases

the Court of law must take into account all the facts in their entirety to

pass an appropriate order and in case a person was willing to work but

was prevented by any order passed by the authorities or he was

prevented from performing his duties, such authorities in some

circumstances may be directed to pay all benefits considering as if that

employee had worked. In the circumstances it was held that there is no

absolute proposition that no direction of payment of consequential

benefits can be granted by a Court of law on the basis of principle of `No

work no pay'.

6. In the circumstances this cannot be disputed that if the

respondent did not perform his duties from 17th June, 2000 to 3rd

September, 2006, it was on account of the acts of the petitioners and

imputable to them as the petitioners did not treat him as regular

employees and prevented him from doing and performing his duties

attached to the post held by him.

7. In the circumstances, the order of the Tribunal dated 29th April,

2009 holding that the denial of TRCA (Time related continuity

allowance) to the respondent was not in consonance with law, and

directing the petitioners to pay all the emoluments to the respondent for

the relevant period and the decision of the Tribunal to his effect, cannot

be faulted in the facts and circumstances. The writ petition is,

therefore, without any merit and it is dismissed. Considering the facts

and circumstances of the case, the petitioner shall also be liable to pay

a cost of Rs.10,000/- to the respondent.

ANIL KUMAR, J.

NOVEMBER 19, 2009                                      VIPIN SANGHI, J.
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