Uoi & Another vs Shri Latoor Singh
2009 Latest Caselaw 4080 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        Writ Petition (Civil) No.8119/2008

%                          Date of Decision: 09.10.2009

UOI & Another                                               .... Petitioners
                          Through Ms.Geetanjali Mohan, Advocate.

                                    Versus

Shri Latoor Singh                                        .... Respondent
                          Through Mr.H.P. Chakravarty, 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 petitioners have challenged the order dated 23rd July, 2008 in

OA No.443 of 2008 titled Latoor Singh v. Union of India and another

directing the petitioners herein to consider the grant of full wages

during the suspension period and interest on the amount of provident

fund to the respondent in accordance with the rules and legal

instructions by a speaking order. While issuing the said direction the

Tribunal has held that once the Court had exonerated the employee, the

same is deemed to be a clean exoneration and the intervening period

from the date of dismissal to the date of reinstatement is to be treated

as spent on duty. The Tribunal held that the legal implication of the

above is the grant of wages to the employee and the grant of interest on

the provident fund of the employee.

2. Initially, the respondent was dismissed from service vide order

dated 1.8.1995 after being departmentally chargesheeted on 22.7.1994.

He challenged his dismissal by filing O.A No.51/1996. The order of

dismissal was set aside vide order dated 18.11.2002. While disposing of

the said O.A the Tribunal passed the following operative order:-

".....Impugned order of dismissal and the appellate order are quashed and set aside. Respondents are directed to reinstate the applicant forthwith and treat him as deemed suspended from the date of his dismissal. They are also at liberty, if so desired, to take up the proceedings from the stage of examination of the concerned Doctor, give an opportunity to cross-examine him and thereafter to finalise the proceedings within a period of six months from the date of receipt of a copy of this order. The intervening period shall be decided by the respondents after the conclusion of the proceedings in accordance with the extant rules and instructions....."

In terms of order dated 18.11.2002, the petitioners reopened the

enquiry and after concluding the same, passed a fresh penalty order

dated 19.5.2003 compulsorily retiring him from service. This order was

challenged by the respondent by filing O.A No.2234/2003 before the

Tribunal, which was disposed of on 28.7.2004. The Tribunal on this

occasion set aside the penalty of compulsory retirement. The

respondent was granted consequential benefits including consideration

of payment of subsistence allowance by deeming the respondent under

suspension from the date of passing of the initial dismissal order dated

1st August, 1995. While the petitioners challenged the order dated

22.7.2004 before this Court by filing W.P(C) No.15945/2004

unsuccessfully, the respondent accepted the said order dated 28.7.2004

and, therefore, the same attained finality.

3. The petitioners have contended that they have already paid a total

amount of Rs.10,50,446/- as the subsistence allowance for the period

the respondent remained out of job. The petitioners further contended

that since this Tribunal had directed consideration of payment of

subsistence allowance by deeming the respondent under suspension

from the date of the initial order of dismissal dated 1.8.1995 till the

date of the order of the Tribunal i.e 28th July, 2004, the same could not

be challenged or got re-adjudicated by the respondent by filing another

petition before the Central Administrative Tribunal to claim full salary

for the said period. It is asserted that in case the respondent was

aggrieved by the order dated 28th July, 2004 against denial of full wages

or any other relief, the respondent ought to have either sought review of

said order or he should have filed a writ petition or should have taken

such other legal remedies as were available to him. The respondent

having accepted the said order dated 28.7.2004, the same has attained

finality.

4. In the circumstances, it is contended that the Tribunal in a fresh

application could not have re-adjudicated on the earlier order dated 28th

July, 2004 pertaining to grant of full back wages to the respondent.

5. The petitioners have also impugned the award of interest on the

amount of provident fund to the respondent on the ground that the

respondent had been duly informed by letter dated 20th December,

2006 that after the compulsory retirement of the respondent, his

provident fund had been released to him and he was at liberty to

withdraw the same. It is contended that since the respondent chose not

to withdraw the same and it remained lying in a dead account, the

petitioner is not liable to pay any interest upon the same.

6. The petition is contested by the respondent contending inter alia

that Rule 1344 in Volume II of IREC provides that where the dismissal,

removal or compulsory retirement of a railway servant is set aside by

court of law and the government servant is reinstated without holding

any further inquiry, the period of absence from duty is to be regularized

and the government servant is entitled for the pay and allowance in

accordance with the provisions of sub Rule (2) or (3) subject to other

directions. In the circumstances, it is contended that since by order

dated 28th July, 2004, the order dated 19th May, 2003 imposing the

punishment of compulsory retirement was set aside, the respondent

became entitled for full back wages in terms of Rule 1344 (FR 54-A) and

the period of absence from duty had to be regularized and he became

entitled for all the pay and allowances.

7. The respondent contended that he had filed a contempt petition

before the Tribunal which was disposed of by order dated 11th July,

2005 directing the petitioners to make all consequential payment to the

respondent within four weeks in terms of order dated 28th July, 2004 in

O.A no. 2234 of 2003 failing which the respondent was granted liberty

to revive the contempt petition.

8. The respondent further contended that the order dated 28th July,

2004 is in two folds contemplating payment of consequential benefits

and consideration of payment of subsistence allowance by deeming the

respondent under suspension from initial dismissal order dated 1st

August, 1995.

9. We have heard the learned counsel for the parties. This cannot

be disputed that the respondent was charge sheeted for turning on duty

in a state of intoxication and a penalty of dismissal was imposed which

was set aside by order dated 11th November, 2002 and liberty was given

to the petitioners to initiate the disciplinary proceedings from the stage

of cross-examination of the witnesses. Consequent to the inquiry taken

from the stage of examination of concerned witness, inquiry was again

concluded and inquiry report was submitted holding the respondent

guilty of the charges and thereafter disciplinary authority had imposed

the punishment of compulsory retirement on the respondent. The

appeal filed by the respondent against the penalty of compulsory

retirement by order dated 19th May, 2003 was also dismissed by the

appellate authority by order dated 30th July,2003.

10. Aggrieved by the order imposing the penalty of compulsory

retirement, the respondent filed an OA bearing No.2234 of 2003 before

the Principal Bench of Central Administrative Tribunal which was

allowed by order dated 28th July, 2004 setting aside the order of

compulsory retirement of the respondent and holding that the

respondent shall be entitled for consequential benefits including

consideration of payment of subsistence allowance by deeming him

under suspension from initial dismissal order dated 1st August, 1995

till 28.7.2004.

11. If the respondent considered himself entitled for any other relief

then what was granted by order dated 28th July, 2004 in O.A No. 2234

of 2003, or if the respondent required any other clarification, then the

respondent ought to have impugned the order dated 28th July, 2004 in

appropriate proceedings. The respondent did not file any review

application or any writ petition challenging the said order which became

final. Rather the petitioners had filed a writ petition challenging the

order dated 28th July, 2004 which was dismissed by the High Court in

W.P.(C.) No.15945 of 2004. From a perusal of the operative portion of

the order dated 28.7.2004 it is clear, and there is no ambiguity, that the

Tribunal did not grant the relief of reinstatement of the respondent with

full back wages. The Tribunal categorically directed "consideration of

payment of subsistence allowance by deeming him under suspension

from initial dismissal order dated 1.8.1995 till the date of their orders

from when he would be reinstated forthwith." The respondent could not

have been under any mistaken impression about the purport of the

order dated 28.7.2004. Yet he accepted the same and did not challenge

the same on any ground, much less by relying upon Rule 1344 Vol. 11

of IREC.

12. The respondent had also filed a contempt petition before the

Tribunal which was disposed of with a direction to make payment in

terms of order dated 28th July, 2004 and it appears that an amount of

Rs.10,50,446/- has been paid to the respondent as subsistence

allowance. While disposing of the contempt petition, the respondent

was also granted liberty to revive the contempt petition in case the

amount in terms of order dated 28th July, 2004 was not paid by the

petitioners.

13. It appears that only after receiving the aforesaid amount the

respondent claimed more amounts on account of wages, which had not

been paid by the petitioners and therefore, instead of reviving the

contempt petition in terms of order dated 11th July, 2005 or executing

the order dated 24th July, 2004, filed a fresh petition being O.A 443 of

2008 which could not be filed by the respondent. Since the rights of the

respondent to claim amounts pursuant to setting aside of the order

dated 19th May, 2003 compulsorily retiring the respondent had been

adjudicated by order 28th July, 2004, no fresh petition could be filed by

the respondent consequent to setting aside the order of compulsory

retirement nor the Central Administrative Tribunal in a fresh petition

could re-adjudicate as to what the respondent would be entitled to

consequent to quashing of penalty of compulsory retirement nor could

the Tribunal modify the order dated 28th July, 2004 in any manner, nor

could give directions as has been given by order dated 23rd July, 2008

impugned before us. The original application preferred by the

respondent was barred by res judicata. The impugned order dated 23rd

July, 2008, in the facts and circumstances in so far as it holds that the

respondent is entitled to full back wages because he has been

exonerated and reinstated in service, suffers from material illegality and

cannot be sustained. The Tribunal, while passing the impugned order

has failed to even notice the operative part of the order dated 28.7.2004,

and the impugned order has been passed in ignorance of it.

14. The respondent had also sought interest on his provident fund

amount which has also been allowed by the Tribunal by order dated

23rd July, 2008 which is being impugned before this Court. The plea of

the petitioners is that the respondent had been duly informed by letter

dated 20th December, 2006 that after the compulsory retirement of the

respondent, his provident fund was released to him and the respondent

was at liberty to withdraw the same. The plea of the petitioners is ex

facie not sustainable as pursuant to the penalty of compulsorily retiring

the respondent by order dated 19th May, 2003, no intimation was sent

till 20th December, 2006. If the respondent did not have the intimation

about the release of his provident fund, how the respondent could

withdraw or get the provident fund released has not been answered or

explained by the petitioners. In any case, since the order of compulsory

retirement dated 19th May, 2003 was challenged by the respondent by

filing an appeal on 30th July, 2003 and thereafter OA bearing No.2234

of 2003 in August 2003, the respondent could not have proceeded to get

his provident fund released. In the circumstances, alleged intimation

alleged to have been given in 20th December, 2006 that the respondent

could get the provident fund released, will not disentitle the respondent

for the interest on the amount of his provident fund. As a matter of fact,

the amount remained with the petitioner and was not pocketed by the

respondent. Consequently, the direction of the Tribunal that the

respondent is entitled to interest on his provident fund cannot be

faulted.

15. For the foregoing reasons, the writ petition is partly allowed and

the decisions of the Tribunal dated 23rd July, 2008 re-adjudicating as to

what consequential benefits the respondent shall be entitled to despite

adjudication of the same by order dated 24th July,2004 in O.A. 2234 of

2003 is set aside. However, the order of the Tribunal directing the

petitioners to award interest on the amount of provident fund of the

respondent is sustained. The writ petition is therefore, disposed of with

these directions, however, the parties are left to bear their own costs.

ANIL KUMAR, J.

October 09, 2009                                        VIPIN SANGHI, J.
'rsd/Dev'