Shri Phool Singh vs Delhi Transport Corporation
2011 Latest Caselaw 166 Del

R-149A
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 12.01.2011


+      RSA No.19/2004 & CM Nos.1076/2004 and 4862/2005


SHRI PHOOL SINGH                         ...........Appellant
                         Through: Appellant in person.

                   Versus

DELHI TRANSPORT CORPORATION      ..........Respondent
                  Through: Mr.J.S.Bhasin and Ms.Rashmi
                           Praiya, Advocates.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?               Yes

     3. Whether the judgment should be reported in the Digest?
                                                             Yes
INDERMEET KAUR, J. (Oral)

CM No.1077/2004 (exemption)

Allowed subject to just exceptions.

RSA No.19/2004 & CM Nos.1076/2004 (for stay) and 4862/2005 (for stay)

1. This second appeal has been directed against the impugned

judgment dated 31.5.2003 which had reversed the finding of the

trial judge dated 27.4.1994. Vide the judgment and decree dated

27.4.1994 the suit of the plaintiff Phool Singh seeking declaration

and permanent injunction was decreed in his favour. He was held

to be reinstated in the service w.e.f. 08.5.1997. The impugned

judgment had set aside the said order; the suit of the plaintiff stood

dismissed. This is a second appeal.

2. It is not in dispute that the voluntary retirement scheme

(VRS) had been introduced by the respondent corporation on

3.3.1993. On 31.3.1993 appellant Phool Singh had exercised his

option to participate in this Scheme. On 08.4.1003 he give an

application to the Depot Manager (DM) of the respondent

corporation withdrawing the said option. On 13.4.1993 the

application of the applicant Phool Singh was forwarded to the

Secretary DTC Board. On 30.4.1993 a reminder was sent by the

appellant Phool Singh to the respondent corporation reiterating his

option to withdraw from the VRS which he had opted for on

31.3.1993. On 05.5.1993 calculation of the ex gratia payable to the

appellant was made. On 31.3.1993 the ex gratia payment in the

sum of ` 1,44,000/- was forwarded by the cheque to the appellant

which amount stood encahsed by him on 07.6.1993.

3. Plaintiff was reinstated and he was continuing in service

w.e.f. 08.5.1997 till January 2004 when again he was terminated.

This was in implementation of the judgment dated 31.5.2003 on

which date the suit stood dismissed. He superannuated in

February, 2008. It is not in dispute that in the intervening period

i.e. between 01.6.1993 up to 07.5.1997 the salary emoluments and

other benefits accruing to the appellant calculated in the sum of

`2,30,428/-. It is also not in dispute that a sum of ` 1,51,330/ was

paid to the appellant vide cheque dated 15.2.1996. The ex gratia

payment of `1,44,602/- which had been paid to the appellant had

been returned by him under the orders of the Court only on

25.8.2009. As per the calculation a sum of ` 79,115/- is still

payable to the plaintiff ,i.e., for this intervening period between

1.6.1993 to 7.5.1997.

4. The appeal was admitted and on 06.10.2009 the following

substantial question of law was formulated:-

"Whether the appellant could be deemed to have voluntarily retired from the service vide letter dated 31st May, 1993 when he had opted for withdrawal of the VRS on 8.4.1993 before the acceptance of his application dated 31st May, 1993? If not, its effect."

5. The impugned judgment had not considered this factual

scenario in the correct perspective. The appellant had admittedly

on 08.4.1993 given an application seeking withdrawal of his VRS

for which he had exercised his option on 31.3.1993. It was only

later i.e. on 13.4.1994 that his application dated 31.3.1993 had

been forwarded. Even prior to the forwarding of his application

the appellant has exercised his option to withdraw from the VRS;

he was fully entitled to do so. This factual scenario not having

been appreciated in the correct perspective, the impugned

judgment suffers from a perversity and is accordingly is liable to be

set aside.

6. The salary for the period from December 2003 - January 2004

(when he was terminated in terms of the judgment dated

31.05.2003.) up to February, 2008 (when the appellant

superannuated) cannot be paid to him as admittedly he had been

terminated in terms of the orders of the Court dated 31.5.2003. He

had done no work in this period.

7. The Supreme Court in 2009 (2) Scale 170; State of West

Bengal & Ors. vs. Banibrata Ghosh & Ors. had on the principle

"No work no pay" set aside the order of the Division Bench of the

High Court where the respondent who had been appointed as an

Assistant Teacher against a leave vacancy, after a certain date, he

was not allowed to remain in service pursuant to an order passed

by the Single Judge; the order of the Division Bench holding that

the respondent should be paid 50% of the back wages for the

period when he was not in service had been set aside on the

principle of "No work no pay". In view of the ratio of the

aforenoted judgment the appellant is not entitled to for pay for this

intervening period.

8. The ex gratia payment of `1,44,602/- which had been

received by the appellant on 07.6.1993 in spite of the orders of the

Court had also been refunded by him only on 25.8.2009 as is

evident from the order dated 07.9.2009.

9. The appeal is allowed. The payment of ` 79,115/- due and

payable to the appellant for this intervening period as aforenoted

be paid to the appellant within a period of four weeks.

10. The appellant if entitled to pension shall be paid as per the

applicable Rules.

11. The substantial question of law is answered accordingly.

Appeal is disposed of in the above terms.

INDERMEET KAUR, J.

JANUARY 12, 2011 nandan