Delhi High Court
Chander Pal vs The Cmd, M/S Delhi Transport ... on 24 November, 2011
Author: A.K.Sikri
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th November, 2011
+ W.P.(C) 7419/2011
CHANDER PAL ..... Petitioner
Through: Mr. Ram Sewak, Adv.
versus
THE CMD,
M/S DELHI TRANSPORT CORPORATION ..... Respondent
Through: Mr. Manish Garg, Mr. S.K. Bansal
& Mr. Mohit Sharma, Adv. for
DTC.
CORAM :-
HONE'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported
in the Digest?
ACTING CHIEF JUSTICE
1. The petitioner has challenged the order dated 30 th May, 2011 passed
by the Central Administrative Tribunal, Principal Bench, New Delhi in OA
No.1988/2010 preferred by the petitioner; by means of the aforesaid order
the OA of the petitioner has been dismissed. The petitioner also filed RA
No.205/2011 which met the same fate as the said review application has
also been dismissed vide order dated 14 th July, 2011. This order is also
subject matter of challenge in the present proceedings.
2. In order to understand the controversy, we would like to recapitulate
the relevant facts.
3. The petitioner herein was appointed as Driver by the respondent
Delhi Transport Corporation (DTC) on 27th February, 1978. The services
of the petitioner were terminated on 12th June, 1989; it was treated as
"deemed resignation" on the ground that the petitioner had not been
attending duties and was unauthorizedly absent. The aforesaid deemed
resignation/termination was challenged by the petitioner by raising
industrial dispute which was referred to the Labour Court, Delhi for
adjudication. This resulted in passing of an award dated 16th August, 1999
whereby the Labour Court held the termination to be bad in law. As per the
Labour Court the unauthorized absence could be treated as misconduct and
therefore it was necessary to hold an inquiry. Accordingly the award
reinstating the petitioner in service with 50% back wages was passed.
W.P.(C) No.3943/2000 against this award was filed by the respondent
DTC which was dismissed. LPA No.31/2002 preferred thereagasint was
dismissed by the Division Bench of this Court and thereafter review
application was also dismissed by the Division Bench. The respondent
DTC went to Supreme Court and preferred SLP(C) No.7110-7111/2004.
4. It so happened that in various other cases similar action was taken
by the respondent DTC of terminating the services of those workers as
deemed resignation and which cases had met the same fate up to the High
Court level. The respondent DTC had challenge the order in those cases as
well by preferring SLPs. These SLPs were granted by the Supreme Court
and therefore were converted into civil appeals. Before the Supreme Court
all these appeals were taken up together for consideration having regard to
communality of questions of law raised therein. These appeals were
disposed of by the Supreme Court vide order dated 25th April, 2006 as the
parties had settled the matter, consent order was passed by the Supreme
Court in those appeals which included the appeal preferred by the
respondent DTC against the petitioner herein as well. As per the consent
terms all these employees were to be reinstated by the respondent DTC
"without their laying any claim for back wages". It was further agreed that
intervening period will be taken into account for the purpose of continuity
so that certain retiral/pensionary benefits can be availed by them.
5. Pursuant to the aforesaid settlement arrived at between the parties
recorded by the Supreme Court in its order dated 25 th April, 2006 these
persons including the petitioner joined the services. On joining the duties
the basic pay of the petitioner herein was fixed at `4750/- vide order dated
1st October, 2007. While fixing the pay of the petitioner the petitioner was
given benefit of increments and two financial upgradations under the
Assured Career Progression (ACP) Scheme for the intervening period i.e.
the period when he was declared "deemed to have resigned" till the date of
his joining the duty. Within two days thereafter, the respondent DTC on
the premise that the pay was wrongfully fixed in as much as the petitioner
was not entitled to increments, fixed the basic pay of the petitioner at
`3200 as on 14th July, 2006.
6. The petitioner challenged this re-fixation whereby the basic pay of
the petitioner was reduced by filing W.P.(C) No. 7294/2008 in this Court.
Interim order dated 5th November, 2008 was passed staying the recovery.
This writ petition was transferred to the Central Administrative Tribunal
(CAT) after Notification under Section 14(2) of the Administrative
Tribunal Act was issued covering the respondent DTC also under the
purview of the Administrative Tribunal Act. By the CAT it was assigned
TA No.793/2009. In the TA order dated 27th September, 2009 was passed
directing the respondents DTC to pass a reasoned order giving reasons for
fixation of pay of the petitioner. The respondent DTC passed a speaking
order dated 15th April, 2010. In this speaking order, it was mentioned that
the consent order passed by the Supreme Court categorically stated that the
reinstatement shall be without back wages and the intervening period will
be taken into consideation only for the purpose of continuity so that certain
retiral/pensionary benefits could be availed by the petitioner and therefore
no increments were to be given to the petitioner for this period nor this
period was to be counted for ACP benefits.
7. The petitioner again preferred OA No.1988/2010 before the CAT. In
this OA following reliefs were claimed by the petitioner which are as
under:-
"a) quash and set aside an order dated 15.4.2010 (Annexure A-1)
of the respondent with a consequential direction to respondent to
extend already fixed basic pay scale of ` 4,750/-, consisting of
Financial upgradation benefits of ACP, of the V th Pay Commission
containing ANNEXURE A-10 to an applicant w.e.f. 1.7.2008
onwards till the date of implementation of the VIth Pay Commission
revised pay scale and to direct to the respondent to pay extended
arrears of pay and allowances with service benefits to an applicant;
b) quash and set aside an application's VIth Pay Commission
revised pay scale fixation dated 1.10.2008, containing ANNEXURE
A-11, fixed by the respondent on the basis of reduced basic pay
scale of `3200/- applicable on 1.1.1996 and direct to the respondent
to re-fix in the VIth Pay Commission revised pay scale of `5200-
20200+` 2000 of an applicant on the already fixed basic pay scale of
`4626/- dated 21.7.2006 and thereafter, to direct to the respondent to
pay after re-fixation of pay scale increased arrears of pay and
allowances with service benefits along with already deducted for a
sum of `10,000/- to an applicant;
c) Quash and set aside the respondent's an impugned letter dated
24.5.2010, pertaining to recovery of `10,26,565/- containing
ANNEXURE A-2 is against the settled law."
8. We may point out at this stage that after the award of the Labour
Court granting reinstatement with 50% back wages the said award was got
executed by the petitioner, in so far as back wages are concerned by filing
an application under Section 33 C (1) of the Industrial Dispute Act. In
those proceedings attachment orders were issued and the back wages were
recovered and paid to the petitioner. The respondent DTC had thus issued
orders for recovery of the said back wages paid to the petitioner as well on
the ground that as per the Supreme Court order the petitioner was not
entitled to any back wages and therefore this amount had become
recoverable.
9. In these circumstances basically two issues were raised by the
petitioner before the Tribunal; one pertains to fixation of pay on
reinstatement wherein the issue was as to whether the increments for
intervening period are to be given to the petitioner or not for the purpose of
pay fixation; other issue related to recovery of back wages by the
respondent DTC which were paid to the petitioner after the award was
rendered in favour of the petitioner by the Labour Court.
10. The Tribunal dismissed the OA of the petitioner vide order dated
30th May, 2011 relying upon the case of Azad Singh who was similarly
situated as the petitioner and whose OA had also been dismissed by the
Tribunal & Which order had been affirmed by the High Court as well.
11. It is not in dispute that Azad Singh and others were also parties in
the appeals before the Supreme Court which were disposed of by the
Supreme Court vide order dated 25th April, 2006. In their case also the pay
was fixed without giving benefit of increments for the intervening period.
The order of Tribunal was affirmed by the Division Bench of this Court in
its decision dated 16th February, 2008 in W.P.(C) No. 978/2010 tilted
Azad Singh & Ors. v. Delhi Transport Corporation. While dismissing the
said writ petition this Court affirmed the order of the Tribunal in the
following manner:-
"The Tribunal considering the facts and circumstances
and noticed that continuity was awarded only as a gesture of
goodwill during the interregnum period when the petitioners
were not in service in order not to have break in service
however, the back wages were totally negated and
consequently the petitioners were held to be not entitled for
the relief claimed. Under the circumstances, the Tribunal
relying on the observations of the Supreme Court, held
that there is no question of grant of increments as even
wages were not payable to them during the period they
were not in service and only the continuity of the service
has been awarded for the purpose of pensionary benefits.
The Tribunal has also noted that the issue of increment does
not arise, as it is only by way of fiction that the period during
which the petitioners were out of service, was to be treated as
continuous for the purpose of retiral benefits only.
The learned counsel for the petitioner has not disputed
that in the Supreme Court the emphasis was on re-
instatement and continuity of service was granted during
the interregnum as goodwill gesture. This is also not
disputed that the back wages were not awarded to the
petitioners. Since the back wages were not awarded, the
petitioner did not become entitle for increments during the
period when they were out of service and the period they
were out of service was only to be computed for the
purpose of their entitlement to receive the pension. Had the
period during which the petitioners were out of service been
not computed for considering their entitlement for the
pension, some of them might not have become entitled even
for pension. In the circumstances, the reasoning of the
Tribunal that the petitioners are not entitled for increments
cannot be faulted nor there is any such irregularity and
illegality in the order of the Tribunal which will entail any
interference by this Court in exercise of its jurisdiction under
Article 226 of the Constitution of India."
12. It is pertinent to mention that the aforesaid decision of this Court
was assailed before the Supreme Court by means of SLP No.13060/2010
and this SLP has also been dismissed by the Apex Court vide order dated
10th May, 2010. In these circumstances, we see no reason not to follow the
judgment of Coordinate Bench of this Court in Azad Singh (supra). Thus
in so far as pay fixation of the petitioner is concerned no fault is found
therein. However we find that due to wrong fixation earlier, which error
was corrected later, the petitioner was paid excess salary of `45,699/-;
since this excess payment was made to the petitioner by the respondent
DTC by its own mistake with no fault of the petitioner, we direct this
amount will not be recovered from the petitioner.
13. In so far as second issue is concerned namely communication dated
24th May, 2010 which pertains to the recovery of amount which was given
to the petitioner on the basis of Labour Court award, we find that the
Tribunal has not dealt with this issue in the impugned order. In normal
course, we would have remitted the case back to the Tribunal to decide the
same. However, as noted above, before the Supreme Court settlement was
arrived at whereby the petitioner had agreed to forgo entire back wages. In
these circumstances, it would not be within the purview of the Tribunal to
decide as to whether the respondent DTC can recover the aforesaid amount
or not. Axiomatically, the same also does not fall for adjudication in this
petition. It would be for the petitioner to agitate this issue before the
appropriate forum subject to the aforesaid. In so far as pay fixation is
concerned we do not find any merit in this petition; the same is dismissed.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW,J
NOVEMBER 24 , 2011
pp..
