Anima Mondal vs Union Of India & Ors
2012 Latest Caselaw 5751 Del

9
*         IN THE HIGH COURT OF DELHI AT NEW DELHI

     +     W.P.(C) 489/2012, CM Nos.4226/2012 and 1023/2012

%                            Date of decision: 25th September, 2012

         ANIMA MONDAL                      ..... Petitioner
                    Through :          Mr. S. Janani and
                                       Mr. Deepak Goel, Advs.

                    versus

         UNION OF INDIA & ORS.                    ..... Respondents
                       Through :       Mr. Rajinder Nischal, Adv.

         CORAM:
         HON'BLE MS. JUSTICE GITA MITTAL
         HON'BLE MR. JUSTICE J.R. MIDHA

GITA MITTAL, J. (Oral)

W.P.(C) 489/2012

1. The instant case manifests grave injustice which has been caused to the petitioner by the respondents necessitating her to file two writ petitions. Despite opportunities by this court in this regard, the respondents are unwilling to correct their wrongdoings.

2. The petitioner who was enlisted as a Constable in CRPF in March, 1990, stood promoted to the post of Hawaldar till she was invalidated out on 14th July, 2007 for the reason that she was suffering from chronic bronchial asthma with constructive ventilatory defect. The petitioner has pointed out that because of her medical fitness in the year 1994, she was deputed to the Elite Special Protection Group as well.

3. In 1998, the petitioner developed bronchial asthma. It appears that without any proper medical examination, the petitioner was degraded to medical category Shape-V on 28th April, 2005 by the respondents. Thereafter, on 28 th October, 2005, a Rehabilitation Board of the CRPF recommended the petitioner‟s invalidation. It appears that the petitioner was referred to the Safdarjung Hospital on 2nd March, 2007 for opinion/consultation regarding her fitness for retention in service. The Safdarjung Hospital effected an assessment on 4th May, 2007 and gave a medical consultation without evaluating disability, if any, and also failed to report with regard to her fitness for her to be retained in service.

4. The invalidating medical proceedings were conducted by the respondents on 7th May, 2007 whereafter, without any further examination or assessment on the petitioner‟s medical condition, a recommendation was made that the petitioner was permanently incapacitated for further service of any kind in the department to which she belongs. The order of invalidation dated 14 th July, 2007 was a result of these proceedings.

5. The petitioner had assailed the action of the respondents by way of W.P.(C)No.409/2009. In this writ petition, the petitioner was referred for medical examination to the Research and Referral Hospital, Delhi Cantt. The proceedings of the R&R Hospital were placed before us and the writ petition was finally allowed by the order passed on 23rd December, 2010 whereby the respondents were directed to pass appropriate orders after considering the report

dated 15th October, 2010 of the specialist of the R&R Hospital and to pass directions in terms of our orders dated 21 st September, 2010. It was further directed that the respondents shall examine the findings of the Board and in case the petitioner was found fit by the Medical Board, the respondents were directed to reconsider the case of the petitioner in the light thereof.

6. The respondents have thereafter passed an order dated 10th February, 2011 whereby the order dated 14 th July, 2007 invalidating the petitioner from service was withdrawn. The respondents directed that the petitioner would be permitted to rejoin her duties in 88(M) Batallion, CRPF immediately. It was specifically mentioned that "the period of her absence from duty with effect from 15th July, 2007 to the date of her joining would be regularized on her joining to duty".

7. It is an undisputed position that the petitioner resumed duties on 28th February, 2011. The present writ petition has been necessitated inasmuch as the respondents have passed a further order dated 4th April, 2011 whereby they directed that the petitioner would stand reinstated in the post with effect from 1st March, 2011 (F/N). The petitioner is aggrieved by the direction of the respondents to the effect that the intervening period from 15 th July, 2007 to 28th February, 2011 would be treated as extraordinary leave and she will not be granted any pay and allowances for the said period in terms of the policy of „no work no pay‟. It has further been directed that the past service rendered by her would be counted for the purpose of pension.

8. The petitioner has challenged these directions of the respondents primarily on the ground that the petitioner was wrongly invalidated from service on 14th July, 2007 and that she was compelled to invoke the writ jurisdiction of this court in order to be restored in service. The submission is that the petitioner was willing to perform her duties in all material times and she has been wrongly kept out of service by the respondent‟s unjust acts and malafide actions.

9. When this writ petition came up for hearing on 30th May, 2012, the above facts were noted. This court has noticed that the orders dated 21st September, 2010 and 5th December, 2010 in the previous writ petition had achieved finality. The respondents had also accepted the same inasmuch as by the order dated 10 th February, 2011, the respondents have withdrawn the order dated 14th July, 2007 whereby the petitioner was invalidated out of service. The direct result of such withdrawal would be that the petitioner would be deemed to have been in service throughout.

10. It cannot be doubted that the invalidation of the petitioner was unjustified and without any legal basis. The same was based on no material at all inasmuch as there was no medical board which had given a finding that the petitioner was medically unfit to perform her duties. Furthermore, the petitioner has stated that she was throughout willing and able to perform her duties but the respondents had prevented her from doing so.

11. Mr. S. Janani, learned counsel for the petitioner has also placed reliance on the Fundamental Rule 54A(3). This rule reads as follows:-

"54. xxx (3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be."

12. It is not disputed that the above Rule applies to the CRPF personnel. The Rules have postulated that if a person is wrongfully dismissed, removed or compulsorily retired pursuant to disciplinary proceedings, the period of suspension preceding such dismissal, removal or compulsory retirement and the date of reinstatement shall be treated as duty for all purposes. The Rule mandates that the personnel shall be paid the full pay and allowances for the said period to which she would have been entitled if such termination not intervened.

13. A person who had been wrongfully invalidated from service would stand on a better footing than a person whose service has been terminated pursuant to disciplinary proceedings. On the principle contained in Fundamental Rule 54(3), the petitioner

would also be entitled to full pay and allowances for the period to which he would have been entitled had he not been so invalidated.

14. Learned counsel has placed reliance on the pronouncement of this court reported at (2010) 3 SLR 579, Union of India & Ors. v. Ex.S.I. Jeevan Lal & Ors. wherein placing reliance on Fundamental Rule 54(3) of Dismissal, Removal and Suspension, this court directed that in the intervening period between the date of removal from service and date of reinstatement, the respondent was entitled to full back wages and that denial of backwages on the principle of „no work no pay‟ was not proper.

In this background, the principle of „no work no pay‟ would certainly not be attracted or applicable so far as the petitioner is concerned. It, therefore, has to be held that the petitioner was required to be paid full pay and allowances for the period from 14 th July, 2007 till 28th February, 2011 when she has resumed the service. Such pay and allowances would be at a rate to which she would have been entitled had she not been so invalidated.

15. It is pointed out by learned counsel for the petitioner that even after she joined the petitioner is not being paid full salary. The petitioner states that between March, 2011 to September, 2011, she was paid only Rs.5,000/- towards TA/DA; for the period between October, 2011 to November, 2011, the petitioner was paid approximately Rs.17,000/- per month while for the period between December, 2011 to February, 2011, she has been paid only approximately Rs.18,000/- per month. It is contended that this is not the full entitlement.

16. In the present proceedings, the following order was recorded:-

"Learned counsel for the respondents states today that an amount of Rs. 1 Lac has not been paid, however, an amount of Rs. 60,000/- had been paid and an amount of about Rs. 42,000/- has been deducted on account of unauthorized absence of the petitioner after the petitioner was reinstated pursuant to order of the Court.

This Court had allowed the writ petition filed by the petitioner earlier, pursuant to which, the order dated 10.12.2011 was passed by Ms. Nitu D. Bhattyacharya, Commandant, 88 (M) Bn, specifically ordering that the period of absence from duty of the petitioner w.e.f. 15.07.2007 to the date of her joining will be regularized on her joining for duty. This order was passed pursuant to the prayer in the earlier writ petition that the order of invalidation dated 14.07.2007 and order dated 24.09.2008 be set aside and the petitioner be reinstated with all consequential benefits.

The order passed by this Court was not challenged by the respondents which became final.

Surprisingly, the same Commandant, thereafter, has passed another order dated 4.4.2011 ordering that the petitioner shall not be granted any pay and allowances for the period during which the petitioner could not work on account of invalidation order. This order appears to have been passed in willful violation of the order passed by this Court on the earlier writ petition of the petitioner.

In the circumstances, we are inclined to issue contempt notice to the Commandant, Ms. Nitu D. Bhattyacharya, 88 (M) Bn. However, at the request of counsel for the respondents, we adjourn the matter till the next date of hearing to give another chance to the

respondents to reconsider their decision so that the orders passed by this Court be complied with by the respondents.

A copy of this order be given dasti to counsel for the respondents.

List on 30th July, 2012."

17. The respondents were thus on 30th May, 2012 given an opportunity to correct their wrongdoings. They have completely failed to do so. In this background, the petitioner is entitled to costs of the writ petition.

18. In view of the above discussion, it is directed as follows:-

(i) The respondents shall calculate the salary and allowances of the petitioner in terms of the above and communicate the calculation to the petitioner for the period from 14th July, 2007 till date and inform the petitioner of the same within a period of six weeks from today.

(ii) The respondents shall effect payment of the arrears, if any, found due and payable to the petitioner, within a period of eight weeks from today.

(iii) The respondents shall ensure that the complete pay and allowances of the petitioner are paid to her in accordance with the applicable rules month by month.

(iv) The petitioner shall be paid costs of the present proceedings by the respondents which are quantified at Rs.25,000/- within four weeks from today.

(v) This writ petition is allowed in the above terms.

CM Nos.4226/2012 and 1023/2012 The applications are disposed of in terms of the orders passed in the main writ petition.

Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J SEPTEMBER 25, 2012 aj