Union Of India vs Dharam Vir Nanda & Anr
2010 Latest Caselaw 1102 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              W.P.(C) 783/1990

%                                                     Date of decision: 25th February, 2010

       UNION OF INDIA                                                      ..... Petitioner
                               Through:         Mr. Sachin Datta & Mr. Manikya Khanna,
                                                Advocates.

                                          Versus


       DHARAM VIR NANDA & ANR                                           ..... Respondents
                               Through:         Mr. V.K. Tandon, Advocate        along with
                                                Respondent No.1 in person.

       CORAM :-
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may
       be allowed to see the judgment?                        No

2.     To be referred to the reporter or not?                 No

3.     Whether the judgment should be reported                No
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. This writ petition was preferred by the Union of India acting through the Director,

Doordarshan Kendra, Sansad Marg, New Delhi for the relief of quashing of the award

dated 16th October, 1989 of the Central Government Industrial Tribunal (CGIT) on the

reference made to it on 21st August, 1981.

2. The Counsel for the petitioner at the outset states that upon the promulgation of

the Prasar Bharti (Broadcasting Corporation of India) Act, 1990 the Prasar Bharti is

required to be substituted in place of the petitioner and seeks time for the same. However

no steps having been taken in that regard since 1997 when the Act came into force and

the writ petition being 20 years old, it is not deemed fit to adjourn the matter for the said

purpose. The counsel for the contesting respondent No.1 also states that he has no

objection to the petition being treated as by Prasar Bharti and further informs that the

respondent No.1 in fact has been receiving his dues under the award aforesaid from

Prasar Bharti.

3. The counsel for the petitioner next contended that the petition is entitled to

succeed merely on the ground that the award of the CGIT is without jurisdiction. It is

contended that though the reference to the CGIT was made in 1981 but in 1985 the

Administrative Tribunals Act, came into force and under Section 29 whereof the

proceedings aforesaid pending before the CGIT were required to be transferred to the

Central Administrative Tribunal. It is contended that thus on 16th October, 1989 when the

award was made, the CGIT had no jurisdiction over the matter and could not have made

the award.

4. I have enquired from the counsel for the petitioner whether any objection/plea in

this regard was raised before the CGIT and/or whether there is any discussion in that

respect in the award. It is informed that no such plea was taken before the CGIT by any

party and hence the CGIT continued with the reference and pronounced the award

aforesaid.

5. I have also enquired whether any ground in this regard has been taken in the writ

petition. The answer is again in the negative though it is informed that in the rejoinder to

the counter affidavit of the contesting respondent the said plea has been taken.

6. The counsel for the contesting respondent, before the counsel for the petitioner

could make submissions on other aspects, refers to the order dated 19th February, 2009 in

the present proceedings. It was the contention of the contesting respondent on that date

that the present writ petition has become infructuous inasmuch as all the benefits under

the award impugned in this petition have already been given by the petitioner to the

respondent. In fact the counsel for the respondent informs that Prasar Bharti since its

inception has also been acting in terms of the award as the successor of the erstwhile

Doordarshan. The counsel for the petitioner had on 19th February, 2009 stated that the

benefits under the award were given to the respondent subject to the final orders in the

present petition but was on that date unable to point out the relevant orders to indicate

that the matter had not become infructuous and had requested time for the same. Faced

with the said order, the counsel for the petitioner today also seeks time to address on the

aspect noted in 19th February, 2009. However, the matter being old, cannot be so

adjourned and the order sheet has been perused.

7. The writ petition when filed was accompanied with an application for interim

relief. However no ex parte relief was given to the petitioner and notice of the application

for interim stay of the execution of the award, was issued. It appears that another

application being CM 2302/1991 was filed by the petitioner again seeking stay of

recoveries pursuant to the award. The said application came up before this Court on 9th

May, 1991 when also it was observed that the petitioner was not entitled to any ex parte

relief and was directed to deposit the amount before the Asstt. Collector and to raise the

contentions before the Asstt. Collector only.

8. Another application being CM 1829/1992 was filed by the petitioner. It was stated

in the said application that upon interim orders being not granted by this Court, the

petitioner had no option but to make the payment of Rs.3,08,308/- to the contesting

respondent in terms of the award but the contesting respondent was still claiming more

amounts to be due to him under the award and with respect to which recovery notice had

been issued. It was the case of the petitioner that the petitioner had already in fact made

payments in excess of the award to the respondent. The said application came up first

before this court on 26th March, 1992 when this Court stayed the recovery notices

claimed by the petitioner to have been issued in excess of the amount due under the

award. The order sheet of 9th February, 1993 discloses that thereafter the parties were

directed to file affidavits to show the amounts due under the award. The parties were at

issue in that respect. On 24th September, 1993 the parties were directed to reconcile their

respective statements of account. Ultimately on 12th October, 1993 the counsels

informed this court that they had been unable to reconcile the amounts due under the

award, with the petitioner claiming that it had paid excess amount to the respondent,

whereas the respondent was claiming substantial amount to be still due to him. This

Court directed the parties to appear before the Regional Labour Commissioner for

determination "as to whether the petitioner had complied with the terms of the award or

not". Thereafter on several dates viz. 14th December, 1994, 20th September, 1995, 8th

April, 1996, 7th May, 1996, 23rd July, 1996, 20th August, 1997, 28th July, 1998 & 26th

November, 1998 the proceedings were adjourned awaiting/for "implementation of the

award". The counsel for the contesting respondent states that the Regional Labour

Commissioner has filed interim and final reports before this Court of implementation of

the award and further states that the award stands implemented and the respondent has

also retired on attaining superannuation on 31st October, 1995 and has been receiving the

pensionary benefits in terms of the award. It is however pointed out that a Review DPC

was conducted in 1997 and as per which the respondent was found eligible for the post of

Director (Sports) and his name had been cleared for the same but his pensionary benefits

are not being given as per the said post but are being paid per the post of Dy. Chief

Producer which is a rank below the rank of Director (Sports).

9. The counsel for the contesting respondent also draws attention to the order dated

16th October, 1995 of the Director General, Doordarshan appointing the respondent as

Producer (Staff Artist) w.e.f. 1st October, 1964 in compliance of the award aforesaid. The

said order is unequivocal and is not "without prejudice to the rights and contentions of

the petitioner" in this petition or "subject to the outcome of this petition". The counsel for

the petitioner however draws attention to the subsequent orders dated 8th July, 1996 and

28th April, 1997 promoting the respondent to the post of Dy. Chief Producer and

releasing payments with respect thereto respectively and both of which are expressly

made subject to the final outcome of the judgment of this Court in these proceedings. He

contends that since there was no interim stay of the award impugned in this petition, the

petitioner had no option but to comply with the same and such compliance ought not to

deprive the petitioner of the opportunity of challenging the award now. However the

counsel for the respondent points out that in the PPO issued to the respondent also there

is no such notation of the same being subject to the outcome of this petition or being

without prejudice to the rights and contentions of the petitioner.

10. In the aforesaid circumstances this Court is of the opinion that this is not a fit case

for exercise of jurisdiction and to disturb the state of affairs which has prevailed now for

the last 20 years during the pendency of this petition. Though the counsel for the

contesting respondent had sought to urge that the respondent is entitled to agitate his

further claim on the basis of the Review DPC aforesaid and in enforcement of the award

but Mr. V.K. Tandon counsel for the contesting respondent, on instructions from the

respondent appearing in person and who is now a practicing advocate and understands

the legal nuances states that with a view to put a quietus to the matter, the respondent will

also not claim any further reliefs on the basis of the Review DPC aforesaid or on any

other ground whatsoever in enforcement of the award.

11. Even though I am prima facie not convinced with the plea of the petitioner of the

CGIT ceasing to have jurisdiction on coming into force of the Administrative Tribunals

Act but the consequence of the said plea being accepted would still not put an end to the

dispute; it will rather start the dispute de novo. The said result is undesirable after the

contesting respondent has retired and received the benefits on implementation of the

award. Though the counsel for the petitioner is correct in contending that denial of the

interim stay, resulting in payments cannot deprive the petitioner of the opportunity of

challenging the award and if successful, the petitioner will be entitled to refund of the

monies paid, but the order sheet in the present case shows that the award was

implemented under orders of this court rather than a mere refusal by this court of stay of

enforcement thereof. It would now be inequitable to undo what has been done in the

course of these proceedings.

12. The Supreme Court in Chandra Singh Vs State of Rajasthan AIR 2003 SC 2889

has held that issuance of a writ of certiorari is a discretionary remedy; the High Court

while exercising its extra ordinary jurisdiction under Article 226 of the Constitution of

India, to do substantial justice, may not strike down an illegal order although it would be

lawful to do so. Similarly, in Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC

635 the Supreme Court even at the time of dealing with the appeal after grant of special

leave, held that the court was not bound to go into the merits and even if entering into

merits and finding an error, was not bound to interfere, if the justice of the case on facts

does not require interference or if the relief could be moulded in a different fashion. This

court has echoed the same views in Filmistan Exhibitors Ltd Vs NCT 131 (2006) DLT

648 by holding that even if there is a violation of law, this court is not bound to interfere

in discretionary jurisdiction and in Babu Ram Sagar Vs Presiding Officer

MANU/DE/9325/2006 by refusing to interfere in exercise of discretionary powers,

inspite of holding the reasons given by the Labour Court to be not convincing.

13. The statement of the counsel for the respondent is also found to be fair. The

respondent is also for the sake of finality giving up his balance claims. This Court does

not deem it appropriate to entertain this petition. The same is dismissed. The amounts

deposited in this Court in implementation of the award together with interest, if any,

accrued thereon be released in favour of the respondent. Needless to add that if the

petitioner desires to agitate the matter further, the respondent also will not be bound by

his statement. No order as to costs.

RAJIV SAHAI ENDLAW JUDGE

FEBRUARY 25, 2010 pp