Uoi Through The Secretary & ... vs Shri Satish Nandan
2011 Latest Caselaw 52 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         WP(C) No. 7098/2007

%                      Date of Decision: 06.01.2011

UOI                                                        .... Petitioners
through the Secretary & Another

                      Through Mr. H.K.Gangwani, Advocate.

                                Versus


Shri Satish Nandan                                       .... Respondent

                      Through Mr. R.K.Shukla, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

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.

*

1. The petitioner has challenged the order dated 17th August, 2007

passed in CP No. 220/2007 in OA 2611/2005 titled as Sh. Satish

Nandan Vs. Secretary and Anr., Ministry of Finance, Department of

Expenditure, holding that a prima facie case is made out for initiating

action for contempt of the Court against the petitioner and listing the

matter for further orders on 18th September, 2007.

2. Aggrieved by the said order, the petitioner filed the present

petition and the order dated 17th August, 2007 was stayed by this Court

in CM No. 13490/2007 by order dated 26th September, 2007 which

order was made absolute by order dated 5th December, 2008 and Rule

D.B. was also issued on that date.

3. Brief facts to comprehend the controversies between the parties

are that the respondent had made a request for voluntary retirement

which was accepted and he was permitted to resign waiving the notice

period. Later on, the respondent sought withdrawal of voluntary

retirement and the matter was referred to DOPT. The said department

granted relaxation and respondent was permitted to rejoin the service

on 8th May, 2003. While issuing the order for reinstatement, it was

clarified that the period from 4th January, 2003 to 8th May, 2003 be

treated as dies-non.

4. The respondent filed an original application bearing no. OA

2266/2003, before the Central Administrative Tribunal (Principal

Bench), New Delhi and assailed the order dated 9th May, 2003 seeking

that the period from 4th January, 2003 to 8th May, 2003 be treated as

„on duty‟. The said original application was disposed of by the Tribunal

by order dated 18th March, 2005 with directions to the petitioner to

consider the leave application of the respondent for the interregnum

period of 4th January, 2003 to 8th May, 2003 and to pass appropriate

speaking orders as per law. The leave application of the respondent

filed pursuant to the order of the Tribunal, wherein he had sought half

pay leave for the period 4th January, 2003 to 8th May, 2003, was

however, rejected by order dated 4th October, 2005.

5. Aggrieved by the order dated 4th October, 2005 rejecting the

application for half pay leave, the respondent filed another original

application bearing OA No. 2611/2005 assailing the order dated 9th

May, 2003 treating the period from 4th January, 2003 to 8th May, 2003

as dies-non and order dated 4th October, 2005 rejecting the application

of the respondent to grant half pay leave for the period from 4th

January, 2003 to 8th May, 2003.

6. The original application of the respondent being OA No.

2611/2005 was disposed of by order dated 1st September, 2006 holding

that the period (4th January, 2003 to 8th May, 2003) which has been

ordered to be treated as dies-non would be reckoned towards qualifying

service for the purpose of pension and other retiral benefits, however,

the petitioner be not paid any emoluments for the said period.

7. A review application was filed by the petitioner being review

application No.178/2006 which was, however, dismissed by order dated

16th November, 2006.

8. As for order dated 1st September, 2006 passed in OA no.

2611/2005 it was held that the period would be reckoned towards

qualifying service of the applicant for the purpose of pension and other

retiral benefits, the respondent claimed retiral benefits. However, the

retiral benefits were not granted to the respondent according to the

order dated 1st September, 2006. The respondent, therefore, filed a

contempt petition being CP No.21/2007, which was disposed of by

order dated 22nd February, 2007. While disposing of the contempt

petition of the respondent, the Tribunal took note of the Office Order

No. 85/2006 dated 20th February, 2007 which is as under:-

"In pursuance of CGA‟s letter No.F.339/2006-LC dated 19.2.2007 the Competent Authority has decided to reckon the period from 4.1.2003 to 8.5.2003 for qualifying service (provisionally) for the purpose of pension and retirement benefits under Government of Indian decision (1) embodied with Rule 28 of CCS Pension Rules 1972 in respect of Shri. Satish Nandan, Ex. P.S., subject to the outcome of the writ/appeal being filed against the Tribunal‟s order dated 1.9.2006 & 16.11.2006 in OA No.2611 of 2006 & RA No.178/06, respectively, in the Hon‟ble Delhi High Court."

9. Before the Tribunal, in the contempt petition, the petitioner

contended that the order had been complied with subject to the right of

the petitioner to challenge the order dated 1st September, 2006. The

respondent in CP No. 21/2007 had contended that the Office Order No.

85/2006 was not fully complied, as the respondent had also become

entitled to the benefit of increment during the said period which had

not been taken into consideration while computing the retiral benefits of

the respondents. Without going into these final details, as it was

represented by the petitioners that whatever is legally admissible to the

respondent consequent to the directions of the Tribunal, will be made

applicable to him, the contempt petition was disposed of. While

disposing of the contempt application being CP No. 21/2007 by order

dated 22nd February, 2007, it was further observed that if any grievance

will survive to the respondent, he would be free to pursue the matter

further.

10. The petitioners thereafter, challenged the order dated 1st

September, 2006 in OA No. 2611/2005 whereby the Tribunal had held

that the period 4th January, 2003 to 8th May, 2003 would be reckoned

towards qualifying service for the purpose of pension and other retiral

benefits by filing the writ petition being WP(C) No.4888/2007. The said

writ petition was disposed of by order dated 9th July, 2007. On behalf of

the petitioner, it was contended that the directions of the Tribunal is in

violation of Rule 14 and Rule 26(1) of the CCS (Pension) Rules, 1969

and that it would create a bad precedent.

11. This Court while hearing the writ petition at the time of

admission, disposed of the writ petition filed by the petitioner against

the order dated 1st September, 2006 in OA No. 2611/2005 by order

dated 9th July, 2007 holding that the writ petition is not a fit case for

interference by the Court in exercise of its writ jurisdiction and

confirmed the order of the Tribunal dated 1st September, 2006 holding

that the period 4th January, 2003 to 8th May, 2003 would be reckoned

towards qualifying service for the purpose of pension and other retiral

benefits of the respondent. This Court further observed that the order of

the Tribunal and the High Court shall not be taken as a precedent. The

relevant order passed by this Court in WP(C) No.4888/2007 is as

under:-

"Mr. Gangwani, on behalf of UOI, submits that the above is in violation of Rule 14 and Rule 26 (1) of the CCS (Pension) Rules, 1969 and the same would create a bad precedent. The petitioner has already given effect to the aforesaid order as Contempt proceedings had been initiated.

We have enquired from the learned counsel for the petitioner who candidly stated that the respondent has to his credit the maximum period of service required for qualifying for the pension and this period being reckoned for the purpose of pension and other retiral benefits, does not make any financial or other impact on this case.

In view of the foregoing, this would not be a fit case for interference in the writ jurisdiction. However, we record that the above order shall not be taken as precedent. The present writ petition is disposed of."

12. Though the office order No.85/2006 dated 20th February, 2007

was passed by the petitioner granting retiral benefits and pension to the

respondent, however, the increment to which the petitioner had become

entitled during this period had not been taken into consideration while

disposing of the earlier contempt petition being CP No.21/2007 by order

dated 22nd February, 2007, and liberty was granted to the respondent

to pursue the matter further, if the order dated 1st September, 2006 is

not complied with as the Tribunal had not gone into details of

compliance of the said order by Office Order No. 85 of 2006. Since the

order was not complied with, the respondent filed CP No. 220/2007 in

OA No.2611/2005 contending that though the writ petition against the

order dated 1st September, 2006 in OA No.2611/2005, holding that the

period 4th January, 2003 to 8th May, 2003 be reckoned towards the

qualifying service for the purpose of pension and other retiral benefits,

the petitioners have not revised the pension in compliance with the said

order against which WP(C ) No. 4888/2007 was filed by the petitioner

which was also dismissed by order dated 9th July, 2007.

13. The respondent, therefore, gave notice to the petitioner calling

upon the petitioner to give all the benefits for the period 4th January,

2003 to 8th May, 2003 which had to be reckoned towards qualifying

service for the purpose of pension and other retiral benefits. Despite the

order dated 1st September, 2006 in OA 2611/2005 attaining finality,

according to the respondent, the petitioner did not comply with the

order necessitating the respondent to file the CP No. 220/2007 wherein

after considering the facts, the Tribunal has held that a prima facie case

is made out for initiating action for contempt of Court against the

petitioner.

14. The learned counsel for the petitioner Mr. Gangwani has

contended that the Office Order No. 85/2006 dated 20th February, 2007

has already been passed. Be that as it may, the said order does not

take into consideration the benefit of the increment accrued to the

respondent during the period 4th January, 2003 to 8th May, 2003. If the

order dated 1st September, 2006 categorically stipulated that the period

for dies-non would be reckoned towards qualifying service of the

applicant for the purpose of pension and other retiral benefits, any

increment during the said period shall also have to be reckoned for

computing the retiral benefits which has not been done by the

respondents. If the plea of the petitioners is that the alleged increment

during the said period is not to be taken into consideration for

computing of pension or retiral benefits, the petitioners ought to have

challenged the order of the High Court affirming the order of the

Tribunal, however, holding that the orders will not be precedents. After

the orders have attained finality, the petitioner cannot contend that

while computing the pension and retiral benefits, the increment which

the respondent had become entitled to, would not be considered. In the

circumstances, if the Tribunal has held by the order impugned in this

petition that prima facie, a case of contempt is made out against the

petitioner, the order cannot be termed illegal or perverse, such that it

would require any interference by this Court.

15. If the petitioners were aggrieved by the order dated 1st September,

2006 in OA 2611/2005 ordering that the period 4th January, 2006 to

8th May, 2006 would be reckoned towards qualifying service of the

respondent for the purpose of pension and other retiral benefits and the

dismissal of the writ petition against the said order by the High Court in

WP (C ) No. 4888/2007 by order dated 9th July, 2007, the petitioner

ought to have challenged the said orders by filing appropriate legal

proceedings in the Supreme Court or taking such other legal recourse

as were available to them. Once they have not done that, they cannot

take shelter under any plea, as the order of the Tribunal and the High

Court has become final. As those orders have become final, the order

ought to have been complied with and the increment during the period

4th January, 2003 to 8th May, 2003 ought to have been taken into

consideration for pension and other retiral benefits which has not been

done by the petitioners despite the notice and the specific

representations of the respondent. The learned counsel for the

petitioner is also unable to show as to why the increment which had

become due to the petitioner which will impact his pension and retiral

benefits is not to be taken into consideration.

16. In the circumstances, the order of the Tribunal impugned before

this Court dated 17th August, 2007, holding that prima facie case is

made out for initiating action for the contempt of the Court, cannot be

held to be illegal or contrary to record or so perverse so as to entail any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India. If that be so, there is no ground to

interfere with the order of the Tribunal holding that prima facie case is

made out for initiating action for contempt of court and listing the

matter on 18th September, 2007.

17. In the circumstances, we find no grounds to interfere with the

order of the Tribunal and the writ petition is therefore, dismissed.

Considering the facts and circumstances, the petitioner shall also be

liable to pay cost of Rs. 10,000/- to the respondent which be paid

within four weeks. At this stage the counsel for the petitioner seeks to

withdraw the writ petition. Since the petition has already been

dismissed the prayer for withdrawal of writ petition is declined.

18. Since the order of the Tribunal dated 17th August, 2007 posting

the matters for further proceedings on 18th September, 2007 was stayed

by this Court by order dated 26th September, 2007 and 5th December,

2008 and the writ petition has been dismissed, the said orders staying

the order of the Tribunal dated 17th August, 2007 are vacated. The

parties are now directed to appear before the Tribunal on 3rd March,

2011. In the meantime, the petitioner shall be entitled to comply with

the order of the Tribunal dated 1st September, 2006 and take increment

of the respondent which had become due during the period 4th January,

2003 to 8th May, 2003 for computing of pension and other retiral

benefits of the respondent. In case, the Tribunal‟s order dated 1st

September, 2006 in OA 2611/2005 is complied with by the petitioner

before 3rd March, 2011, the Tribunal shall be entitled to pass

appropriate orders in CP No. 220/2007 in favor of the petitioner. In

case the Tribunal‟s order dated 1st September, 2006 is not complied

with, the Tribunal shall proceed against the petitioner in accordance

with law in CP No. 220/2007 pending before it. With these directions

the writ petition is disposed of.

ANIL KUMAR, J.

January 06, 2011                                  VEENA BIRBAL, J.
'rs'