Delhi Transport Corporation vs Sita Devi
2011 Latest Caselaw 2852 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment reserved on : 24.05.2011
                         Judgment delivered on : 27.05.2011


+            R.S.A.No. 117/2009

DELHI TRANSPORT CORPORATION             ...........Appellant
                  Through: Mr.Avnish Ahlawat, Ms. Latika
                       Chaudhary and Mr. Nitesh Kumar
                       Singh, Advocates.

                   Versus

SITA DEVI                                        ..........Respondent
                         Through:    None.

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.

1. This appeal has impugned the judgment and decree dated

15.05.2009 which has endorsed the findings of the trial Judge

dated 27.03.2008 whereby the suit filed by the plaintiff Sita Devi

seeking a declaration (to the effect that the amounts as noted in

the plaint have been illegally withheld by the defendant) had been

decreed.

2 The plaintiff is the widow of Ram Kishan. Ram Kishan was

employed as a driver with the defendant; his services had been

terminated on 26.03.1988. This order was the subject matter of

challenge; on 18.04.1998 his termination order was set aside by

the Industrial Tribunal. On 26.08.1996, Ram Kishan had died. The

defendant/DTC had filed a writ petition challenging the award of

the Industrial Tribunal; it was dismissed on 30.01.2006; the

department had been directed to pay compensation and arrears

with interest to the plaintiff. The appeal filed before the Division

Bench had also been dismissed. The defendant had paid a sum of

`2,13,780/- to the plaintiff; a sum of `1,51,241/- had been illegally

retained by the defendant. Pursuant to an application under the

Right to Information Act filed by the plaintiff, the following

information was received; it had been noted that the following

deductions had been made on the following counts:-

(1) `1,31,241/- as employer's share with interest.

(2) PF `20,000/- detained.

3 Legal notice dated 07.05.2007 had been served upon the

defendant impugning his action; no reply was received; present

suit was accordingly filed.

4 In the written statement, in para 7 the breakup of the

deducted amount was given as given hereinbelow:-

(i) Employer shares released on 24.07.1990 `17,295.66 p.

Interest with effect from 24.07.1990 to `76,722.25 p

31.07.2006

`94,017.91 p P

(ii) Employer share was not deducted from back `27,135.00

wages paid on 11.02.2003 interest with effect

from 11.02.2003 to 31.07.2006

`10,088.34 P

(iii) PF detained `20,000/-

(iv) Total deduction of (i), (ii) & (iii) `1,51,241/-

5 From the pleadings of the parties, the following three issues

were framed:-

1. Whether the plaintiff is entitled to decree of declaration as prayed? OPP

2. Whether the plaintiff is entitled to consequential relief as prayed? OPP

3. Relief.

6 Oral and documentary evidence was led. The trial Court had

decreed the suit of the plaintiff; it was held that the amount of

`17,295/- which was the employer's share of the Contributory

Provident Fund (CPF) could be deducted; further a sum of

`27,135/- was also permitted to be retained by the department

which was the employer's share not deducted from the back

wages of Ram Kishan which was paid to him for the period from

26.03.1988 to 26.08.1996. However, the interest figure of

`76,722.25 calculated w.e.f. 24.07.1990 to 31.07.2006 on the

principal amount of `17,295.66 paise as also the sum of

`10,088.34 paise calculated the interest w.e.f. 11.02.2003 to

31.07.2006 on the principal amount of `27,135/- were held to be

illegal deductions; PF of `20,000/- also could not be detained. The

trial Judge whose finding was endorsed by the first appellate court

had accordingly passed a decree of declaration in favour of the

plaintiff that the order of the defendant as far as the additional

amount of `1,06,941/- (`1,51241/- minus `44,300/-) (`17,295.66

paise + `20,135/- = `44,300/-) could not be deducted.

7 This is a second appeal. It has been admitted and on

16.12.2010, the following substantial question of law was

formulated:-

"Whether the Delhi Transport Corporation (DTC) is entitled to charge interest on the amount of the employer share of the provident fund @ 9% per annum? If so, its effect?"

8 On behalf of the appellant, it is pointed out that the

judgment of the High Court (Ex.PW-1/1) dated 30.01.2006 in para

9 had returned a finding that the plaintiff is a pension optee; he

being a pension optee, the department was rightfully entitled to

seek a refund of the employer's share of contributory fund which

had been paid to the defendant; this amount was liable to be

refunded back with interest @ 9% per annum. To support her

submission learned counsel for the appellant has placed reliance

upon a judgment of this Court decided in LPA NO.33/1998 DTC

Vs. Shri Baijnath Bhargava. It is pointed out that the entitlement

of the Department/DTC to such refund of the employer's share of

the provident fund with interest had been recognized in this

judgment which has since been upheld by the Supreme Court.

9 None has appeared for the respondent although served.

10 There are two concurrent findings of fact by the two courts

below. Until and unless a perversity is pointed out, the impugned

judgment cannot be interfered with. The submission as made

before this Court today was never a part of the pleadings in the

trial Court. It was not the defence of the defendant (as is evident

from the written statement) that the husband of the plaintiff was a

pension optee and the employer's share of the provident fund

relieased to him as also the employer's share which was no

deducted from the back wages could not have been paid for this

reason. Written statement was filed in the trial court admittedly

after the judgment Ex.PW1/1. Today before this Court it has been

argued that the pension scheme for the DTC employees had come

into effect on 27.11.1992 which had a retrospective effect i.e.

from the year 1981 and was applicable to on retired as also

existing employees; the order of termination of the plaintiff having

been set aside, he was deemed to be in service. These

submissions urged today were never a defense in the written

statement.

11 Oral and documentary evidence had been led before the

trial Court. The plaintiff had examined herself and defendant had

examined one witness i.e. a senior clerk from the Department.

After appreciation of the evidence, the trial Judge had noted that

it was because of a mistake of the dealing clerk that he had failed

to deduct the employer's share of `27,135/- and `17,295.66 paise

on the two occasions when the amounts were released in favour of

the plaintiff; it was the inaction and lack of efficiency in the

discharge of the duties of the concerned official; it was for no fault

of the plaintiff but because of negligent act of the Department; the

entire records were with the Department and the plaintiff could

not have known that any excess payment had been received by

her; she was illiterate and would not know such intricate and

complicated calculations; refund of the amount with interest @ 9%

per annum was even otherwise was exorbitant. Trial Judge had

noted that this deduction which was detained as provident fund

was again an illegal deduction and this was for the fault of the

Department for which there was no justifiable reason. While

decreeing the suit of the plaintiff for part payment of `1,06,941/-,

interest was not awarded; this was to counter and balance the

submissions of the Department who had stated that they were

entitled to interest on the principal figure of `17,295.66 paise and

`27,135/-. Interest had been disallowed to both the parties.

12 This finding that the Department has been negligent was

endorsed in first appeal. The impugned judgment had noted that

the employer had not made proper calculations and without

checking the records (which has been admitted by the

Department itself), the amounts as aforenoted had been made

over to the plaintiff; the mistake was on the part of the

Department. Statement of DW-1 had been adverted to. These

findings of fact can in no manner said to be perverse.

13 The judgment of the High Court delivered in LPA No.

22/1998 DTC Vs. Shri Baijnath Bhargav dated 16.03.2000 (as

noted supra) recognized the right of the Department to take back

the employer's share of provident fund with interest; percentage

of interest has not been mentioned in this judgment. The

employer's share of provident fund i.e. `17,295.66 paise and the

second amount i.e. `27,135/- which were the employer's shares of

back wages which had under mistake been paid to the plaintiff

have been ordered to be retained by the Department; this amount

has been recognized by both the two courts below as the amount

of the Department; there is no dispute to this; however the

interest charged @ 9% is exorbitant; both the courts below had

rightly noted that `1,06,941/- could not have been retained;

`20,000/- was also illegally and arbitrarily retained. All this was

attributable to the negligence and fault of the Department. This

finding in no manner can be said to be either an illegality or

perverse.

14 Substantial question of law is accordingly answered in

favour of the respondent and against the appellant. There is no

merit in this appeal. Dismissed.

INDERMEET KAUR, J.

MAY 27, 2011 A