Delhi High Court
M.C.D. vs Teacher Welfare Union (Regd.) & ... on 24 August, 2012
Author: A.K.Sikri
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24th August, 2012
+ LPA 780/2002
M.C.D. ..... Appellant
Through: Mr. H.S. Phoolka, Sr. Adv. with
Mr. Ajay Arora and Mr. Kapil Dutta,
Advs.
Versus
TEACHER WELFARE UNION (REGD.) & ORS. ..... Respondents
Through: Mr. U.S. Chaudhary and Mr. Vipin
Chaudhary, Advs.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (Acting Chief Justice):
1. The appellant herein is the Municipal Corporation of Delhi which has
filed this appeal challenging the orders dated 14th March, 2002 passed by the
learned Single Judge in writ petition filed by the respondent under Article
226 of the Constitution of India. This writ petition was filed in the year
1999. Respondent No.1 is the Teacher Welfare Union and the respondent
No.2 was an assistant teacher and one of the members of the respondent
No.1 union. The respondent No.1 union represents the cause of teachers
teaching in various MCD primary schools. The grievance of the
respondents was that even when the MCD had accepted the
recommendations of the 5th Central Pay Commission qua its employees,
LPA 780/2002 Page 1 of 5
which had come into effect from 1.1.1996, it had only released some adhoc
payments. Therefore, the petition was filed for release and payment of
entire arrears of pay after the implementation of the recommendations of the
5th CPC and for interest @ 24% per annum to them.
2. The Central Govt., on the basis of recommendations of the 5th Central
Pay Commission (5th CPC), had revised the salary of its employees w.e.f.
1.1.1996, though this decision was taken some time in the year 1997/1998
by the Central Govt. Admittedly, the recommendations of the 5 th CPC are
not automatically binding upon the MCD. It appears that the MCD took the
decision to implement the recommendations qua all its employees including
the teachers (respondents herein) also, albeit from 1.8.1997.
3. As mentioned above, the recommendations of the 5 th CPC in respect
of Govt. employees were implemented w.e.f. 1.1.1996. This question arose
in the case of MCD as well, namely, whether the MCD employees could get
the revised pay scale w.e.f. 1.1.1996 or not. Pending this decision, MCD
vide circular dated 18.11.1997 decided to release ad hoc payment of
`5,000/- which amount was paid to all Group 'D' employees. Thereafter,
vide circular dated 26.11.1997 another ad hoc payment was approved in
respect of Group 'A', 'B' and 'C' employees as well and these amounts
were released. On 30.3.1998, the MCD decided to make another ad hoc
payment of `10,000/-, this amount was also paid to the respondents.
Subsequently, only in December, 1999 a decision was taken to implement
the 5th CPC recommendations w.e.f. 1.1.996 and accordingly it was decided
to make payment of arrears of salary for the period from 1.1.1996 to
31.7.1997 after adjusting the ad hoc payments which were already released.
LPA 780/2002 Page 2 of 5
Office order dated 28.12.1999 was issued in this behalf.
4. Before issuance of this officer order dated 28.12.1999, the
respondents herein filed the writ petition some time in August 1999
claiming arrears of salary as per the 5th CPC recommendations w.e.f.
1.1.1996 along with interest @ 24% per annum. Since arrears were paid
after issuance of the office order dated 28.12.1999, when the writ petition
came up for hearing before the learned Single Judge in the year 2002, the
only question remained, as to whether the respondents should be paid
interest thereupon or not. Vide impugned order dated 14th March, 2002, the
learned Single Judge had directed payment of interest @ 9% per annum on
delayed payments from 1.6.1998 to 31.1.2000. From this date, the Central
Govt. had paid the arrears to its employees and the decision was also
implemented by the DTC. Challenging this order, the present appeal is
preferred.
5. Mr. H.S. Phoolka, learned senior counsel for the appellant submits
that since recommendations of the 5th CPC were not automatically
applicable and it depended upon the decision to be taken by the MCD, no
liability of interest could be fastened inasmuch as the MCD took the
decision to implement the 5th CPC recommendations only in December,
1999 and thereafter the arrears were paid immediately from 1.1.1996 to
31.7.1999, therefore, there is no delay in making the payments. He has also
relied upon the following judgments in support of his contention that it was
for the MCD to take a decision to give the benefit of 5th CPC to its
employees or not:
LPA 780/2002 Page 3 of 5
(i) Chairman & MD, Kerala SRTC v. K.O. Varghese & Ors.,
(2007) 8 SCC 231;
(ii) Officers and Supervisors of I.D.P.L v. Chairman and M.D.,
I.D.P.L and others, AIR 2003 SC 2870; and
(iii) State of U.P. and others v. Dr. Om Prakash Singh, AIR 2004
SC 4193.
6. We are of the view that the reliance placed on the judgments in
support of the proposition advanced have no application. In the present
case, the MCD took the decision to revise the salary and it was taken with
effect from 1.1.1996, though in the year 1997. Therefore, there is no
question of cut-off date. The only question is that inspite of this decision in
1997, the arrears were not released immediately thereafter. Entire arrears
were not paid even after the options were invited for which last date was
10th March, 1998. Interest is granted with effect from 1.6.1998 to 31.1.2000
by the learned Single Judge when the payment was made.
7. Another submission of Mr. Phoolka was that MCD was facing serious
financial crunch and, therefore, if the payment was made in installments,
liability of interest should not be fastened upon it. It is not necessary to go
into this aspect in view of the concession given by learned counsel for the
respondents. He has, however, highlighted an altogether different aspect.
He submits that since arrears were paid in February 1999, due to the
payment of substantial arrears in February 1999, the tax liability became
much higher and the teachers were made to pay interest on the said amount
in respect of which tax at source was deducted only in February / March
LPA 780/2002 Page 4 of 5
2000. He, thus, submits that at least the interest which has become payable
to the income tax department because of the delayed release of the arrears
should be the liability of the MCD as it was not due to the fault of the
employees. This appears to be justified and a genuine demand of the
respondents as it appears that there is a delay in making payment by the
MCD and the MCD could have been fastened with the liability of payment
of interest, but for the concession shown by the learned counsel for the
respondent. In view thereof, we modify the impugned order of the learned
Single Judge insofar as direct payment of interest @ 9% per annum w.e.f.
1.6.1998 to 31.1.2000, this is substituted by the direction that the interest
which was paid by the respondents to the income tax department and was
deducted from the salary of the employees shall be reimbursed by the
appellant to the respondents. This amount shall be worked out and released
by the appellant in favour of the employees, who are found entitled for the
same, within two months.
8. With the aforesaid directions, the appeal stands disposed of.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
AUGUST 24, 2012
pk
