Delhi Transport Corporation vs Sh. Milap Chand Grover
2011 Latest Caselaw 1398 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No.7015/2010

%                        Date of Decision: 10.03.2011

Delhi Transport Corporation                                   .... Petitioner

                         Through Mr. J.S. Bhasin, Advocate.

                                   Versus

Sh. Milap Chand Grover                                  .... Respondent

                         Through Mr. Anil Mittal, Advocate.


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

1.       Whether reporters of Local papers                Yes
         may be allowed to see the judgment?
2.       To be referred to the reporter or not?           No
3.       Whether the judgment should be                   No
         reported in the Digest?

ANIL KUMAR, J.

1. The petitioner, Delhi Transport Corporation has challenged the

order dated 2nd June, 2010 passed by the Central Administrative

Tribunal, Principal Bench in TA 1370/2009 titled as "Milap Chand

Grover, Conductor Vs. Delhi Transport Corporation" allowing the

original application of the respondent and directing the petitioner to

pay full back wages to the respondent for the period from 8th March,

1996 to 16th October, 2002 and consequently to pay 75% of the

wages to the respondent and to also consider this period for

seniority, promotion and other benefits of the respondent, which

were disallowed by the petitioner by order dated 4th August, 2006.

2. Brief facts to comprehend the controversy between the parties

are that a complaint was made against the respondent and other

employees by a Ticket Inspector for assaulting him. The

departmental inquiry had been ordered. Thereafter, charge sheet

dated 17th January, 1992 was issued against the respondent on the

ground of misconduct, on account of the incident of 12th December,

1991 in which the respondent had allegedly assaulted the Ticket

Inspector.

3. The disciplinary authority pursuant to the inquiry report where

the charges against the respondent were made out, passed the Order

dated 5th October, 1992 removing the respondent from the service.

The order of removal dated 5th October, 1992 was challenged in a

writ petition being WP(C) No. 3623/1992 which was disposed of by

order dated 6th February, 1995. While quashing the removal order

dated 5th October, 1992, this Court also directed the petitioner to

provide the respondent with a copy of the inquiry report. The

respondent was further permitted to make a representation to the

show cause notice and the petitioner was directed to take

appropriate action after considering the representation of the

respondent in accordance with law. In addition the respondent was

reinstated with back wages.

4. On 8th March, 1996, the petitioner again passed the order of

removal of respondent from service. The order of removal was

passed after giving the copy of inquiry report and considering the

representation of the respondent. The order of removal from service

of the respondent after considering his representation was

challenged by him by filing another writ petition being WP(C) No.

305/1997.

5. The writ petition being WP(C) No. 305/1997 was allowed by

order dated 23rd April, 2002 and the show cause notice issued to the

respondent dated 22nd September, 1992 and the order of removal

dated 8th March, 1996 passed after giving copy of inquiry report to

the respondent were quashed. The petitioner was, however, given

liberty to issue a fresh notice to the respondent incorporating the

reasons for disagreeing with the report of the inquiry officer and

calling upon the respondent to show cause as to why the disciplinary

authority is entitled to differ from the inquiry report and thereafter

the petitioner was directed to proceed in accordance with law against

the respondent. By order dated 10th May, 2002, the request of the

petitioner to carry out certain corrections in the order dated 23rd

April, 2002 was allowed.

6. Thereafter, the petitioner was reinstated by communication

dated 17th October, 2002. Another corrigendum dated 6th August,

2003 was issued intimating the respondent that he would be entitled

for all the consequential benefits for the period 17th October, 2002 to

6th August, 2003. The respondent was, however, communicated

specifically that he would not be entitled to back wages for the period

of 8th March, 1996 to 16th October, 2002.

7. The respondent challenged the corrigendum dated 6th August,

2003 whereby it was held that the respondent shall not be entitled to

back wages for the period of 8th March, 1996 to 16th October, 2002

by filing another writ petition bearing WP(C) No. 7221/2004. The

respondent had also filed a contempt petition being C.C.P No.

318/2002. However, in view of the communication dated 17th

October, 2002 and corrigendum dated 6th August, 2003, the

contempt petition was disposed of by order dated 17th September,

2003. The respondent had also filed a Letters Patent Appeal being

LPA No. 43/2003 titled as "Milap Chand Grover Vs. DTC and Ors."

which was dismissed as withdrawn by order dated 27th January,

2004.

8. Pursuant to the order dated 23rd April, 2002, disposing of the

writ petition in WP(C) No. 305/1997 wherein the order of removal

was set aside and the petitioner was permitted to issue a fresh notice

to the respondent stipulating the reasons for disagreeing with the

report of the inquiry officer, a show cause notice dated 25th

November, 2002 was issued, which was duly replied by the

respondent. After considering the reply filed by the respondent, by

communication dated 1st February, 2005 the punishment of

reversion of respondent to the initial stage from Rs.4030/- to

Rs.3050/- in the time scale of pay for a period of three years w.e.f. 1st

February, 2005 instead of punishment of removal of respondent from

the service was imposed. The punishment imposed on the

respondent was not challenged by him. Another writ petition being

WP(C) No. 7221/2004 which was filed against the corrigendum dated

6th August, 2003 was disposed of by the order dated 29th March,

2006 directing the petitioner to determine the quantum of back

wages for the period of 8th March, 1996 to 16th October, 2002.

9. Pursuant to the order dated 29th March, 2006, a speaking

order dated 4th August, 2006 was passed by the petitioner. By this

order the respondent was awarded 25% back wages for the period of

8th March, 1996 to 16th October, 2002. The Court also discharged

the notice issued in another contempt petition being C.C.P No.

865/2006 by order dated 16th November, 2006 on account of

communication dated 4th August, 2006 communicated to the

respondent awarding 25% of back wages for the period 8th March,

1996 to 16th October, 2002.

10. The respondent, thereafter, challenged the order dated 4th

August, 2006 awarding 25% of back wages for the relevant period by

filing another writ petition being writ petition being WP(C) No.

1569/2007 titled as "Milap Chand Grover, Conductor Vs. Delhi

Transport Corporation" and sought direction to the petitioner to

grant the respondent full back wages and consequential benefits

from 8th March, 1996 till 16th October, 2002 with interest @ 18% per

annum.

11. The said writ petition was transferred to Central Administrative

Tribunal and was renumbered as TA No.1370/2009. The Tribunal

allowed the writ petition of the respondent and set aside the order

dated 4th August, 2006, whereby 25% of the back wages were

awarded to the respondent for the period 8th March, 1996 till August,

2002 and directed the petitioner to pay full back wages for the period

8th March, 1996 to 16th October, 2002 and as 25% of the back wages

had already been paid, directed the petitioner to pay balance 75% of

the back wages within a period of two months from the date of

receipt of copy of the order.

12. The Tribunal relied on UOI Vs. Madusudan Tushar (2004) SCC

(L&S) 29 holding that when a dismissal is held bad for want of

following the principles of natural justice, back wages cannot be

denied. The Tribunal further held that the wrongful act of the

petitioner, which has been declared in judicial review as not

sustainable and the respondent had been kept away from the duty

and he was incapacitated to perform duties on that account and

since the respondent was not employed for the period 8th March,

1996 to 16th October, 2002 on account of act imputable to the

petitioner, therefore, the respondent is entitled for back wages and

consequential benefits. The Tribunal also held that the reason

detailed by the petitioner in order dated 4th August, 2006 about long

period of litigation and financial position of the petitioner, do not

obviate or obliterate claim of the respondent.

13. The Tribunal also held that allowing only 25% of back wages

without giving any apt reasons, is not sustainable in view of the ratio

of Union of India Vs. Kuldeep Singh, AIR 2004 (SC) 827.

14. The petitioner/DTC has challenged the order of the Tribunal

dated 2nd June, 2010, primarily on the ground that pursuant to the

disciplinary proceedings and the litigation between the petitioner and

respondent, ultimately the respondent had been awarded

punishment of reduction of the pay of the respondent to the initial

stage for a period of three years in the time scale of conductor. Since

the order dated 1st February, 2005 had not been challenged by the

respondent, therefore, the respondent could not invoke that he has

been completely exonerated and he was not found blameworthy and

he would be entitled for the benefit of entire salary. The learned

counsel for the petitioner has relied on State of Uttar Pradesh & Ors.

Vs. Rajpal Singh (2010) 5 SCC 783 where the Supreme Court had

set aside the order of the High Court awarding 50% of the back

wages taking into consideration the nature of charges against the

delinquent and had declined to award any back wages. Reliance is

also placed on (2007) 11 SCC 632, UOI Vs. B.M. Jha, where it was

held that on account of notional promotion, the employee would not

be entitled for emoluments from the retrospective date.

15. The learned counsel for the petitioner has also referred to

(2009) 15 SCC 194 Upekshit Samaj Kalyan Samiti, Ballarpur Vs.

Education Officer (Secondary) & Ors., where the direction of the

Courts below to grant full back wages were modified and the

employee was granted only 50% of the back wages since the

employee had not worked for the disputed period. The reliance has

also been placed by the learned counsel for the petitioner on (2004) 1

SCC 43 =Manu/SC/0884/2003 holding that when a reinstatement is

ordered in appeal or review the authorities, the specific order

regarding the pay and allowance to be paid to the govt. servant for

the period of his absence from duty preceding the dismissal, removal

or compulsory retirement, as the case may be, is to be passed by the

authorities. But whether the employee would be entitled to back

wages and other benefits from the date or his dismissal to the date of

his reinstatement, it ultimately ordered, should invariably be left to

be decided by the Authority concerned according to law, after the

culmination of the proceeding and depending on the final outcome.

In the case relied on by the petitioner, the employee was found guilty

after an inquiry but the copy of the report was not furnished to the

employee and the show cause notice was also not served. The order

reinstating the employee but holding that he would not be entitled to

back wages, was upheld by the Supreme Court and it was held that

he would not be entitled for back wages for the period he was out of

service. The learned counsel for the petitioner has also relied on

(2007) 9 SCC 63 Vijay Singh Vs. UOI & Ors., where the employee, a

police personnel was held not entitled to back wages for the period

between the dates of order of dismissal and reinstatement in service

on the principal of "no work no pay".

16. The petitioner, in the circumstances, has contended that the

Disciplinary proceedings against the respondent ultimately

culminated in reduction of pay scale whereby the respondent was

reverted to the initial stage from Rs.4030/- to Rs.3050/- in time

scale of pay for a period of three years w.e.f. 1st February, 2005

which order was not even challenged by the respondent and

therefore, consequent thereto if the petitioner has granted 25% of the

back wages to the respondent for the period 8th March, 1996 to 16th

October, 2002, the respondent cannot contend that the order is

vitiated on the grounds as alleged by the respondent.

17. The learned counsel for the respondent/employee Mr. Mittal

has very vehemently contended that order of removal were passed

against the respondent which were set aside. The order of removal

was first set aside as the copy of the inquiry report was not provided

and thereafter again the punishment was awarded without giving an

appropriate notice by the disciplinary authority communicating the

reasons for dis-agreeing with the report of the inquiry officer. Mr.

Mittal, learned counsel for the respondent, has contended that in the

circumstances, penalty had been imposed by the petitioner on the

respondent in complete denial of principles of natural justice and

therefore, for the said period, if the petitioner had not been able to

work depending that the petitioner did not want to work but because

of the order of removal passed, which could not be sustained by the

petitioner before the High Court, the respondent was prevented from

doing any work and therefore, the petitioners are not justified in

awarding only 25% of the back wages pursuant to order dated 4th

August, 2006 for the period 8th March, 1996 to 16th October, 2002.

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

detail. Though the orders of removal passed against the respondent

were first set aside, first on the ground that the respondent was not

given the copy of the inquiry report, and thereafter, again on the

ground that an appropriate notice disclosing the reasons by the

Disciplinary Authority, was not given. However, consequent to setting

aside of orders of removal passed against the respondent, the

petitioner was allowed to pass an appropriate order considering the

representation filed by the respondent to the fresh notice, which was

to be given by the Disciplinary Authority to the respondent disclosing

the reason for disagreeing with the report of the inquiry officer. After

considering the pleas and contentions of the respondent, disciplinary

authority had finally passed an order dated 1st February, 2005

imposing a punishment of reduction of pay whereby the respondent

was reverted to the initial stage from Rs.4030/- to Rs.3050/- in the

time scale of pay for a period of three years w.e.f. 1st February, 2005.

This order of punishment reverting the pay scale of the respondent to

the initial stage was not challenged. Mr. Mittal, learned counsel for

the respondent, therefore, cannot contend that the disciplinary

proceedings initiated against the respondent had resulted in

complete exoneration of the respondent. If the disciplinary

proceedings have resulted in some sort of punishment against the

respondent/employee and if he was under suspension for certain

period whether he would be entitled for full back wages or not.

19. This Court, in such proceedings including the contempt

proceedings, which were initiated against the petitioner had allowed

the petitioner to pass a speaking order regarding the back wages and

consequently, the order dated 4th August, 2006 was passed holding

that the respondent shall be entitled for 25% of the back wages for

the period 8th March, 1996 to 16th October, 2006, which wages were

paid to the respondent and were accepted by him.

20. The respondent had filed the writ petition being WP(C) No.

1569/2007 titled as Milap Chand Grover, conductor Vs. DTC, which

was later on transferred to the Tribunal and registered as TA

1370/2009 on 18th February, 2007 almost after a year after he had

received 25% of the back wages. If the disciplinary proceedings

initiated against the respondent had resulted into punishment

awarded to him, whether the respondent shall be entitled for any

back wages despite no work done by the respondent during the

period 8th March, 1996 to 16th October, 2002.

21. The learned counsel Mr. Mittal has not cited any precedent

that despite having not worked for said period and disciplinary

proceedings initiated against him resulting into punishment of

reversion of the pay scale of the respondent, he would be entitled to

full back wages. Rather in UOI & Ors. v. K.V. Janaki Raman, (1991)

4 SCC 109, the Court had held that normal rule of "no work no pay"

is not applicable to the cases where the employee although willing to

work, is kept away from work by the authorities for no fault of his

but to a case where the employee remains away from the work for his

own reasons. It was held that when an employee is completely

exonerated meaning thereby that he is not found blameworthy in the

least and is not visited with the penalty even of censure, he has to be

given the benefit of the salary of the post along with the other

benefits from the date on which he would have normally been

promoted but for the disciplinary/ criminal proceedings. However,

where the disciplinary proceedings results into punishment or where

the non-availability of the employee is attributable on account of his

acts and conduct, in such circumstances, the concerned authorities

must be vested with the power to decide whether the employee at all

deserves any salary for the intervening period and if he does, the

extent to which he deserves it. Relevant para 26 of K.V. Janaki

Raman (supra) is as under:-

26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual

promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

22. By order dated 4th August, 2006, the petitioner had considered

the facts and thereafter on the basis of facts and the legal opinion

and considering the long period of litigation, the financial position of

DTC and other relevant issues had awarded 25% of the back wages

for the period 8th March, 1996 to 16th October, 2002. The relevant

order dated 4th August, 2006 is as under:-

"Shri Milap Chand, Conductor was removed from DTC on 5.10.1992 since he manhandled an ATI. Aggrieved with the decision of management the employee approached to the Court. On 06.02.1995 the employee was reinstated as per the direction of High Court with full wages. He was again removed from the service on 08.03.1996 after supplying the copy of the enquiry findings. There was prolonged litigation on the issue. On 23.04.2002 Hon‟ble high Court set aside the removal order and employee was reinstated w.e.f. 17.10.2002 without back wages. The workman was issued fresh show-cause notice on 25.11.2002 and punishment of removal dated 08.03.1996 was reduced to initial stage for three years w.e.f. 01.02.2005. The employee approached to the Court for back wages from the period from 08.03.1996 to 16.10.2002. Finally Court directed

on 29.03.2006 to decide about the quantum of back wages.

Whereas after examining the material facts on record and keeping in view the legal opinion and in pursuance of directions of Hon‟ble High Court dated 29.03.2006 and after considering the long period of litigation, the financial position of DTC and other relevant issues, it is concluded that 25% back wages for the period from 08.03.1996 to 16.10.2002 be paid to Shri Milap Chand Grover. It is ordered accordingly. This issues with the approval of the competent authority."

23. Since the respondent was not completely exonerated and the

disciplinary proceedings because of which he could not work for the

period 8th March, 1996 to 16th October, 2002 had resulted in

punishment imposed on him. In circumstances awarding only 25% of

the back wages had by the respondent cannot be termed to be illegal

or unsustainable or contrary to any rules and regulations and the

order of the petitioner cannot be held to be vitiated on any of the

grounds raised by the respondent.

24. In the circumstances for the forgoing reasons the writ petition

is allowed and the order of the Tribunal passed by the Central

Administrative Tribunal in TA 1370/2009 dated 2nd June, 2010

awarding full back wages for the period 8th March, 1996 to 16th

October, 2000 is set aside and the TA 1370 of 2009 filed by the

respondent is dismissal. The respondent was awarded 25% of the

back wages for the period 8th March, 1996 to 16th October, 2002

which has already been received by him, therefore, the respondent

shall not be entitled for any more back wages for the said period from

the petitioner. With these directions the writ petition is allowed.

Parties are however, left to bear their own costs.

ANIL KUMAR, J.

MARCH 10, 2011                                VEENA BIRBAL, J.
„rs‟