Delhi High Court
Shri Rajbir Chauhan vs The Management Of Delhi Transport ... on 3 May, 2013
Author: V. Kameswar Rao
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: May 03, 2013
+ W.P.(C) 7609/2012
SHRI RAJBIR CHAUHAN ..... Petitioner
Represented by: Mr.H.K.Chaturvedi and
Ms.Anjali Chaturvedi and Mohd.Aqil Saifi,
Advocates
versus
THE MANAGEMENT OF DELHI TRANSPORT
CORPORATION ..... Respondent
Represented by:Mr.J.S.Bhasin, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO
V.KAMESWAR RAO, J. (Oral)
1. The short question which arises for our consideration in this writ
petition is whether the petitioner is entitled to count the period between
February 05, 1991 to June 04, 2004 for the purpose of promotion, ACP,
pension, gratuity etc.
2. The facts relevant for the adjudication of the aforesaid issue are that
the petitioner had joined the service under the respondent-corporation in
the year 1982. His services were terminated on February 05, 1991. He
challenged his termination before the Industrial Tribunal which culminated
in an award dated September 13, 2002 wherein the Tribunal ordered his
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reinstatement with full back wages. The challenge of the respondent-
corporation to the said award in WP(C) No.6254/2003 and WP(C)
No.3883/2000 resulted in an order dated March 03, 2004 whereby this
Court directed the respondent-corporation to take back the petitioner on
duty. Accordingly, the petitioner was reinstated in service of the
respondent-corporation on June 04, 2004.
3. In the aforesaid writ petitions, this Court, vide its order dated
February 13, 2004 set aside the award of the Industrial Tribunal dated
September 13, 2002 and remanded the disputes back to the Industrial
Tribunal for fresh adjudication. The fresh adjudication by the Industrial
Tribunal resulted in an award dated July 12, 2006 whereby the Industrial
Tribunal directed the reinstatement of the petitioner with 50% back wages
from December 03, 204 to July 12, 2006. This award was also challenged
by the respondent-corporation in WP(C) No.2566/2007. The writ petition
was dismissed by the learned Single Judge on April 04, 2007, which was
taken in appeal before the Division Bench by the respondent-corporation in
LPA No.346/2007. The said award was challenged by the petitioner before
this Court in WP(C) No.1964/2007 as well as by the respondent-
corporation in WP(C) No.2556/2007. In so far as the writ petition filed by
the respondent-corporation i.e. WP(C) No.2556/2007 is concerned, was
dismissed by the learned Single Judge of this Court on April 04, 2007
against which the respondent-corporation filed LPA No.346/2007 which
was also dismissed by the Division Bench of this Court on July 25, 2008.
In other words, the order of the Industrial Tribunal reinstating the petitioner
with 50% back wages was upheld. In so far as WP(C) No.1964/2007 filed
by the petitioner is concerned, the same was decided on March 25, 2010
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whereby the learned Single Judge modified the award dated July 12, 2006
to the extent that the petitioner was made entitled to 50% back wages for
the period February 05, 1991 till June 04, 2004 i.e. the date of his
reinstatement and after June 04, 2004 he was to get full wages as
admissible under the Rules. The respondent-corporation not satisfied with
the order of the learned Single Judge dated March 25, 2010 in WP(C)
No.1964/2007 challenged the same in LPA No.456/2010 before the
Division Bench. The aforesaid LPA was disposed of by this Court on a
statement made by the counsel for the petitioner that he has no objection if
the back wages is reduced from 50% to 20% for the period February 05,
1991 to June 04, 2004. The petitioner had filed the OA No.1961/2011
being aggrieved by the non-payment of arrears in terms of the order of this
Court the prayer of the petitioner also included that he is entitled to the
benefit of continuity of service between the period February 05, 1991 till
his reinstatement June 04, 2004 for all purposes including increment,
promotion, ACP, pension, gratuity etc. It was the stand of the respondent-
corporation before the Tribunal that they have paid an amount of
`1,18,678/- on account of payment of 20% back wages for the period
February 05, 1991 to June 04, 2004 and also paid further amount of
`82,666/- and `10,270/-. Before the Tribunal the respondent-corporation
has given in a tabulated form the pay fixation done in the case of the
respondent. A perusal of the same would show that the respondent-
corporation has not demonstrated on what basis the petitioner's pay was
fixed at `3,050/- on January 01, 1996. They have also not shown the
reason why the petitioner's pay was not fixed as on June 04, 2004 the date
on which the petitioner was reinstated. Further, as to how the pay was
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fixed at `7,780/- on January 01, 2006 is also not clear. In so far as the
issue regarding continuity of service for the purpose of promotion, ACP,
pension, gratuity is concerned, it is the stand of the respondent-corporation
that since this Court has not issued any direction regarding grant of benefit
of the continuity of service, promotion, increment, etc. The same have
been denied to the petitioner. We have seen the order passed by this Court
in LPA No.465/2010 on December 02, 2010. The said LPA was disposed
of on the basis of a statement made by the counsel for the petitioner that he
has no objection if the wages are reduced from 50% to 20% for the period
February 05, 1991 to June 04, 2004. The order dated December 02, 2010
must be construed to mean that it was only back wages which were
adjudicated. No other issue was raised in the LPA. It is not in dispute that
the Industrial Tribunal had granted reinstatement with 50% back wages. A
direction of reinstatement without any condition/limitation must necessarily
mean the benefits for the purpose would accrue to the employee. If the
Court had intended to confine itself to a particular benefit, the Court would
have said so or expressly excluded other benefits which has not been done
in the present case. A peculiar position had arisen that for the purpose of
back wages, the period between February 05, 1991 to June 04, 2004 is
regarded as on duty and not for any other purpose. It is an anomaly. It has
to be reconciled. Once the period is treated on duty and wages have been
paid, to the extent of 20%, it should be treated as on duty for other purposes
as well, otherwise it would have the effect of forfeiting of service or break
in service especially the period between February 05, 1991 to June 04,
2004, which we feel would be harsh as we are concerned with 13 years of
service put in by the petitioner during that period. Hence, we are of the
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view that the order of the Tribunal need to be set aside and the petitioner
shall be entitled to the continuity of service for the purpose of increments,
promotion, ACP, pension, gratuity etc. and for no other purpose. The
benefit shall be given notionally and the arrears for the purpose of grant of
20% back wages and full wages after June 04, 2004 shall be calculated
accordingly. The arrears shall be paid within a period of three months from
the date of receipt of this order.
4. The writ petition is disposed of in the above terms.
5. No costs.
(V.KAMESWAR RAO)
JUDGE
(PRADEEP NANDRAJOG)
JUDGE
MAY 03, 2013
mm
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