Union Of India And Anr. vs Sh.Chuttan
2010 Latest Caselaw 1217 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P. (C.) No.1166/2007

%                        Date of Decision: 04.03.2010


Union of India and Anr.                               .... Petitioners
                     Through Ms.Rekha Palli, Advocate


                                 Versus


Sh.Chuttan                                               .... Respondent
                         Through Nemo.


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. (ORAL)

*

The petitioners, Union of India and Anr have challenged the order

dated 1st August, 2006 passed by the Central Administrative Tribunal,

Principal Bench in O.A No.798/2006 titled as Sh.Chuttan v. Union of

India and Ors whereby the original application of the respondent

seeking retiral benefits have been allowed on the basis of a decision of

the Central Administrative Tribunal, Principal bench rendered in O.A

No.427/2004 titled as Mohammad Razak v. Union of India and Ors

decided on 22nd February, 2004.

It is not disputed that the respondent was engaged as a casual

worker in the year 1965 and he continued to work as a casual worker

till he attained the age of superannuation. On attaining the age of

superannuation the services of the respondent Sh.Chuttan were

dispensed with.

On behalf of respondent it was contended that he was granted the

temporary status and his services were dispensed with only after he

attained the age of superannuation after completing 30 years of service.

He contended that he had not been granted any retiral benefits though

he is entitled for the same. In the circumstances, he sought ex post

facto regularization and retiral benefits.

The Tribunal relied on its decision in Mohammad Razak (Supra)

holding that if a person has been in employment on casual basis till he

attains the age of retirement on superannuation, comparing with other

Government servants, it would be unjust, unreasonable and against all

cannons of justice and equity to deprive such a person the benefits of

pension etc. The Tribunal also held that Rule 88 of CCS (Pension)

Rules, 1972 provides that in consultation with the Department of

Personnel & Training (DoP&T), relaxation in any of the provisions of

CCS (Pension) Rules, 1972 can be accorded. The Tribunal had noted

that in Mohammad Razak (Supra) ex post facto sanction has been

accorded by DoP&T and since the respondent was similarly

circumstanced, therefore, it was held that ex post facto sanction should

not be deprived to the respondent for regularization of his service and

consequent to grant of pension, as he is equally placed and identically

situated with Mohammad Razak in whose case the Tribunal had

allowed the regularization and retiral benefits which judgment has

already been implemented and not challenged by the petitioner.

Consequently by the impugned order dated 1st August, 2006 the

petitioners were directed to extend to the respondent the same benefits

as were passed in O.A No.427/2004 and to process ex post facto

approval and grant the same for his regularization only in order to grant

him pensionary benefits.

Pursuant to the present writ petition filed by the petitioners, on

14th February, 2007 on their application of for stay of order dated 1st

August, 2006, order impugned in this writ petition, this Court had

declined any interim order as three months time granted to the

petitioner by order dated 1st August, 2006 by the Central Administrative

Tribunal had already expired in November, 2006. In the circumstances,

by order dated 14th February, 2007 it was held that retiral benefits be

paid to the respondent pursuant to the order of the Tribunal which

shall be subject to the result of the writ petition.

On 7th March, 2007 for the retiral benefits paid or to be paid to

the respondent pursuant to the order of the Central Administrative

Tribunal, it was contended that the petitioners would not press for bank

guarantee or surety but sought an undertaking to secure from the

respondent to reimburse the petitioner in case the petitioners succeeds

in the writ petition. However, this Court did not directed the respondent

to give any such undertaking, however, the retiral benefits are paid to

the respondent.

Later on also while disposing of the application of the petitioner

being CM No.2069/2007 seeking stay of the impugned order dated 1st

August, 2006, this Court passed the order dated 22nd April, 2009

holding that the respondent has already given the benefit of the

judgment subject to the respondent, therefore, declined to stay the

order of the Tribunal which is impugned by the petitioner in the present

petition and disposed of the application. This Court, however, had also

held that since the question of law, namely whether a casual employee,

who is only given temporary status and had not been regularized in

service till the date of his retirement, is entitled to pension and/or is

entitled to the benefit of 50% of the casual service, would be open to the

petitioner to be raised in appropriate matters before the Tribunal and

consequent thereto the respondent had been paid the retiral benefits

and is continued to be paid retiral benefits. This order was not

challenged by the petitioners.

The learned counsel for the petitioners has admitted that the

decision of Mohammad Razak (Supra) on the basis of which the Central

Administrative Tribunal had passed the order in the case of the

respondent has become final. This is also not disputed that the order of

this Tribunal has already been implemented, and the petitioners has

not challenged the order dated 22nd April, 2009 holding that the

petitioners shall be entitled to raise the alleged point in some other

petition for appropriate decision.

In the subsequent petitions filed before the Tribunal by the casual

workers seeking retiral benefits, the retiral benefits have been denied to

such casual employees on the basis of the decision in Mohammad

Razak (Supra). The learned counsel has specifically relied on a decision

dated 4th October, 2007 in O.A No.1786/2007 titled as Sh.Bashir v.

Union of India where the employee had been working as a full time

worker and he had completed more than 240 days in each year till

2003. The said employee had been granted temporary status in the year

1996 as per DoP&T scheme of 1993 but on his superannuation he was

neither given any retiral benefits nor any pension or DCRG. The

Principal Bench, Central Administrative Tribunal, however, relying on a

full bench decision of the tribunal in the case of Smt.Bhagwati Devi had

declined the relief to the applicant in that original application in the

peculiar facts and circumstances of that case.

The learned counsel for the petitioner, however, has admitted that

the decision of the full bench of the Tribunal in the case of

Smt.Bhagwati Devi has been assailed before this Court in W.P (C)

No.8868/2008 and the said writ petition is pending and the decision of

the Tribunal has not become final.

The learned counsel for the respondent has contended that the

retiral benefits have already been given to the respondent and the order

dated 22nd April. 2009 directing the petitioners to pay the retiral

benefits and to raise the point in some other appropriate proceedings,

which order has not been challenged by the petitioners, has become

final. It is further submitted that the petitioners are not entitled to deny

retiral benefits to the respondent in the peculiar facts and

circumstances of the case. It is also contended that the ratio of Uma

Devi (supra) is not that an employee who continued as temporary

worker till attaining the age of superannuation will not be entitled for

retiral benefits and since the petitioners had not challenged the order

dated 22nd April, 2009 of this Court, the retiral benefits should not be

denied to the respondent.

This Court has heard the learned counsel for the parties in detail.

In the peculiar facts and circumstances of the present case since the

relief was granted to the respondent relying on the decision of the

Tribunal in the case of Mohammad Razak (supra) which has been

implemented and the petitioner has also been given liberty to raise the

question of law whether a casual employee having a temporary status

on attaining the age of superannuation shall be entitled for retiral

benefits to be raised in some other petition which order had not been

challenged by the petitioners, and since the decision of the full bench is

also not final as it is under consideration, it will be just and appropriate

not to interfere in exercise of this Court's jurisdiction under Article 226

of the Constitution of India in the facts and circumstances of the

present case.

This cannot be disputed that for issuing a writ for any other

purpose under article 226 of the Constitution of India, it has always

been in the discretion of the High Court to interfere or not, depending

upon the facts and circumstances of each case. It is not necessary for

the High Court in exercise of its writ jurisdiction to interfere in every

case where there is violation of fundamental statutory rights. Reference

in this connection may be made to the decisions of the Supreme Court

in Durga Pershad Vs The Chief Controller of Imports and Exports, AIR

1970 SC 769, holding that even where there is an allegation of breach of

fundamental right, the grant of relief is discretionary and such

discretion has to be exercised judiciary reasonably. Constitution Bench

of the Supreme Court in The Moon Mills Ltd. vs M.R.Meher, AIR 1967

SC 1450 had held that writ is legally a matter of sound discretion and

would not be issued if there be such negligence or omission on the part

of the applicant to assert his right as taken on conjunction with the

lapse of time and other circumstances, which may cause prejudice to

the adverse party. Writs so for as they are concerned with the

enforcement of the other rights are not issued as a " matter of course."

In Shangrila Food Products Ltd. Vs Life Insurance Corporation of

India (1996) 5 SCC 54, the Supreme Court had held that " the High

Court in exercise of its jurisdiction under Article 226 of the Constitution

of India can take cognizance of the entire facts and circumstances of the

case and pass appropriate orders to give the parties complete and

substantial justice. The jurisdiction of the High Court, being extra

ordinary, is normally exercisable keeping in mind the principle of

equity. One of the ends of the equity is to promote honesty and fair

play. If there be any unfair advantage gained by a party, before invoking

the jurisdiction of the High Court, the court can take into account the

unfair advantage gained and can require the party to shed the unfair

game before granting relief.

The writ petition is therefore, dismissed in the peculiar facts and

circumstances of this case. It shall, however, be open to the petitioners

to raise the question whether an employee who is granted temporary

status and who retires after attaining the age of superannuation would

not be entitled for pensionary benefits in appropriate case. It is further

clarified that the decision in the present writ petition shall not be a

precedent. Considering the facts and circumstances, the parties are

also left to bear their own costs.

ANIL KUMAR, J.

March 04, 2010                                 MOOL CHAND GARG, J.
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