Azad Singh & Ors. vs Delhi Transport Corporation
2010 Latest Caselaw 894 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P. (C.) No.978/2010


%                        Date of Decision: 16.02.2010


Azad Singh & Ors.                                            .... Petitioners
                        Through Mr. Anil Mittal, Advocate


                                   Versus


Delhi Transport Corporation                                 .... Respondent
           Through                 Mr. Avnish Ahlawat


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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.

*

The petitioners had challenged the order dated 9th November,

2009 passed by the Central Administrative Tribunal, Principal Bench,

New Delhi in TA No. 1254/09 and 1255/09 titled Azad Singh & Ors. Vs.

DTC (TA No. 1255/09) and Om Praksah Conductor Vs. DTC (TA No.

1254/09) declining their prayers to fix their basic pay at the same stage

at which the basic pay of their contemporary colleagues were fixed as

the petitioners had continued in service without any break and a

direction to the respondent to pay arrears of salary from the date of

their re-instatement till payment with interest after fixing their basic

pay and other benefits.

On account of continued absence, the services of the petitioners

were discontinued. Aggrieved by the discontinuance of their services,

they had raised industrial dispute and awards were passed in their

favor. Under the award, which was in their favor, they were re-instated

with part of back wages.

The awards were challenged before the High Court, however, they

were upheld with some modification. The special leave petitions were

also filed in the Supreme Court where it was ordered that the

petitioners be re-instated without their laying any claim for back wages.

In the Supreme Court while re-instating the petitioners, it had

been clarified that during the period they were out of employment,

though that period had to be taken into account for the purpose of

continuity of pensioner benefits but as far as the arrears for the period

were concerned when they were absent, no specific order was passed.

The petitioners were given a time limit of three weeks for joining the

duties.

Pursuant to the orders passed by the Supreme Court two of the

petitioners became entitled for re-instatement. The other two

petitioners whose appeals were not pending before the Supreme Court

also became entitled for similar relief and their appeals in other Courts

were disposed of.

The petitioners, thereafter, however filed the original application

seeking that since they have been re-instated, their emoluments should

be re-fixed as if they were never out of employment and in the

circumstances, it was prayed to fix their basic pay at the same stage at

which the basic of their contemporaries were fixed as the petitioners

had continued in service without any break.

The Tribunal considering the facts and circumstances and

noticed that continuity was awarded only as a gesture of goodwill

during the interregnum period when the petitioners were not in service

in order not to have break in service however, the back wages were

totally negated and consequently the petitioners were held to be not

entitled for the relief claimed. Under the circumstances, the Tribunal

relying on the observations of the Supreme Court, held that there is no

question of grant of increments as even wages were not payable to them

during the period they were not in service and only the continuity of the

service has been awarded for the purpose of pensionary benefits. The

Tribunal has also noted that the issue of increment does not arise, as it

is only by way of fiction that the period during which the petitioners

were out of service, was to be treated as continuous for the purpose of

retiral benefits only.

The learned counsel for the petitioner has not disputed that in

the Supreme Court the emphasis was on re-instatement and continuity

of service was granted during the interregnum as goodwill gesture.

This is also not disputed that the back wages were not awarded to the

petitioners. Since the back wages were not awarded, the petitioner did

not become entitle for increments during the period when they were out

of service and the period they were out of service was only to be

computed for the purpose of their entitlement to receive the pension.

Had the period during which the petitioners were out of service been not

computed for considering their entitlement for the pension, some of

them might not have become entitled even for pension. In the

circumstances, the reasoning of the Tribunal that the petitioners are

not entitled for increments cannot be faulted nor there is any such

irregularity and illegality in the order of the Tribunal which will entail

any interference by this Court in exercise of its jurisdiction under

Article 226 of the Constitution of India.

The writ petition is without any merit and it is therefore

dismissed.

ANIL KUMAR, J.

February 16, 2010                         MOOL CHAND GARG, J.
'rs'