Delhi High Court
R.K. Verma vs Dtc on 21 October, 2009
Author: A. K. Pathak
HIGH COURT OF DELHI: NEW DELHI
+ Writ Petition (Civil) No. 12401/2009
Judgment reserved on: 14th October, 2009
% Judgment delivered on: 21st October, 2009
R.K. VERMA ..... Petitioner
Through: Mr. Anil Mittal, Adv.
Versus
DTC ..... Respondent
Through: Ms. Latika Chaudhary, Adv.
Coram:
HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers
may be allowed to see the judgment? Not necessary
2. To be referred to Reporter or not? Not necessary
3. Whether the judgment should be
reported in the Digest? Not necessary
A.K. PATHAK, J.
1. Petitioner joined the Respondent as a Junior Clerk on
13th February, 1973. In the year 1974, Respondent created
"Data Processing Cell". The posts of input-output Operator,
Punch & Verifier Operator, Machine Operator, System Analyst
and Data Processing Officer etc. in the said Data Processing
Cell were filled amongst the existing employees of Respondent,
having requisite qualification and experience. Petitioner was
appointed as Punch & Verifier Operator, vide letter dated 2nd
September, 1974. In the letter of appointment it was
mentioned that he would be governed by the Factories Act,
1948 and the Labour Laws applicable to the industrial
workers. Later on, he was promoted as Machine Operator with
effect from 1st January, 1983. Subsequently, Respondent
decided to wind up the Data Processing Cell and the staff
working therein was directed to report to Deputy Purchase
Officer in the store department. Vide letter dated 21st
December, 1983, Petitioner was placed under the control of
Controller of Stores and Purchase Officer. On 16th June 1984,
Petitioner was relieved from Stores Department and was
posted in Accounts Department (Head Quarters) of the
Respondent.
2. As per Regulation No. 14(6)(b) of the Delhi Road
Transport Authority (Conditions of Appointment & Service)
Regulations, 1952 (for short hereinafter referred to as
"Regulations"), Clerical and Supervisory staff was entitled to
the earned leave of 1/11 of the period of duty, as such
Petitioner was entitled to the leave at this rate from the time of
his initial appointment as a Junior Clerk. Subsequently,
when the Petitioner was appointed in the "Data Processing
Cell" his leave was to be governed by the leave rules as
applicable to the industrial workers and he was entitled to
leave at the rate of 1/30 of the duty performed. However, the
Petitioner continued to avail the leave benefits in terms of
Regulation No. 14(6) (b) of the Regulations, even after his
appointment in Data Processing Cell. Due to the mistake,
Respondent also continued to grant leave to the Petitioner at
the rate of 1/11 of the working days.
3. Sometime in the year 2007, this mistake was realized by
the Respondent and therefore leave record of the Petitioner
was corrected and he was asked to deposit a sum of
Rs.40,497/- towards excess leave, vide letter dated 19th
September, 2007 of the Respondent. This amount was to be
recovered from the monthly salary of the Petitioner in 20 equal
instalments of Rs.2024.85.
4. Feeling aggrieved by this order dated 19th September
2007, Petitioner filed a writ petition, which was subsequently
transferred to the Central Administrative Tribunal, Principal
Bench, New Delhi (for short hereinafter referred to as
"Tribunal") and was registered as TA No. 66/2009 and has
been disposed of by the Tribunal vide its order dated 1st July,
2009.
5. Tribunal held, that after the applicant became workshop
staff on joining as Machine Operator, his leave was to be
regulated as per the Labour Laws applicable to the said post.
But due to mistake, Respondent continued to allow earned
leave to the petitioner at the rate of 1/11 of duty performed.
Since this mistake continued for a long period of 34 years,
therefore, no recovery was liable to be effected from the salary
of the Petitioner in this regard. Accordingly, order dated 11th
June, 2007 directing recovery of Rs.40,497/- from the salary
of the Petitioner was bad in law and was liable to be quashed.
Tribunal further held that the leave was granted to the
Petitioner without his making any misrepresentation.
Therefore, amount already paid cannot be recovered, yet the
amount to be paid on account of leave encashment at the time
of superannuation, would not be payable being based on
wrong calculations.
6. Petitioner is aggrieved by the later part of the directions
of the Tribunal. Learned counsel for the Petitioner has
contended that since the Petitioner had enjoyed the facility of
earned leave at the rate of 1/11 of the duty performed for a
period of 34 years, therefore, this position cannot be altered.
Petitioner was entitled to retiral benefits in terms of the leave
accumulated in his account prior to rectification of leave
record in the year 2007. Respondent had itself granted leave
at the rate of 1/11 of the working days and all of a sudden on
realizing its mistake, Respondent now cannot be allowed to
correct the leave record to the detriment of the Petitioner with
retrospective effect.
7. We have considered this argument of learned counsel but
do not find any force therein. Initially, Petitioner was
appointed as a Junior Clerk in the year 1973 and was entitled
to the earned leave in terms of Regulation No. 14(6)(b).
However, after he was appointed in the "Data Processing Cell"
he became entitled to the earned leave, as applicable to the
said post in terms of the concerned Labour Laws. Petitioner
was entitled to leave at the rate of 1/30 of the working days. In
spite of this, due to some confusion, Petitioner continued to
avail the leave till the year 2007 in terms of the Regulations,
when this mistake was discovered by the Respondent. We are
of the view that if some benefit had been awarded by an
employee, which was not available to him, due to mistake of
the employer, same can be rectified after such mistake came
to light. Thus, in our view, Respondent has rightly corrected
the leave record of the Petitioner. In this scenario, Petitioner
would be entitled to retiral benefit as per the corrected record.
It cannot be said that Petitioner would be entitled to the
benefit of leave encashment on the basis of uncorrected leave
record even after such a mistake was noticed and corrected.
Mistake can be corrected at any time. Accordingly, we are of
the view that Tribunal has rightly held that though whatever
has been paid to the Petitioner, cannot be recovered from him,
but the amount yet to be paid on account of leave encashment
at the time of superannuation, cannot be paid to him on the
basis of old record, as the same was based on wrong
calculations.
8. We do not find any error in the view taken by the
Tribunal.
9. Dismissed.
A.K. PATHAK, J
MADAN B. LOKUR, J
OCTOBER 21, 2009
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