Union Of India vs Tarsem Lal Verma
2013 Latest Caselaw 2164 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: May 09, 2013

+                   W.P.(C) 2818/2012

       UNION OF INDIA                              ..... Petitioner
                     Represented by: Mr.Ankur Chibber, Advocate.

                         versus

       TARSEM LAL VERMA                                ..... Respondent
                    Represented by: In person.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MR. JUSTICE V. KAMESWAR RAO

PRADEEP NANDRAJOG, J.

1. Tarsem Lal Verma, the respondent, was employed as a Photographic Officer in the Armed Forces Headquarter under the Ministry of Defence on July 16, 1986. He was on probation for a period of two years. Under what circumstances his probation was extended and why he could not be confirmed till the year 1993 is not known to us; and we do not make an endeavour to ascertain the cause, for the reason we are not concerned with said issue, nor is it relevant. Exercising power under Rule 5 of the CCS (Temporary Service) Rules, 1965 he was discharged from service on May 05, 1993, which order he successfully challenged before Central Administrative Tribunal when the Original Application filed by him was allowed on October 03, 1997. A belated challenge to the decision of the Tribunal was made by the writ petitioner when WP(C) No.3450/1998 was filed. But before that, in compliance with the decision of the Tribunal Tarsem Lal Verma was taken back in service. Ultimately, WP(C)

No.3450/1998 was decided on August 18, 2009, and the decision of the Tribunal was set aside. Tarsem Lal Verma being discharged from service was upheld.

2. One would have expected the writ petitioner to have immediately relieved Tarsem Lal Verma by issuing an order calling upon him to return the security pass, the canteen smart card and the CGHS card, for the reason it is settled law that when a Government servant parts company he must return all government property which would include even the identity card, security pass etc. It was only on February 01, 2010 that the writ petitioner did so.

3. As per Tarsem Lal Verma, he had continued to work till the order discharging him from service dated February 01, 2010, was served upon him on February 04, 2010, and accordingly he made a prayer before the Central Administrative Tribunal vide OA No.4322/2010 that he be paid wages up to February 03, 2010.

4. The writ petitioner took a stand that Tarsem Lal Verma had not worked and had not even reported to the office after WP(C) No.3450/1998 was allowed on August 18, 2009.

5. Thus, the issue was the entitlement of Tarsem Lal Verma to be paid wages from August 18, 2009, till February 03, 2010.

6. Without looking into the record which the department wanted to show to the Tribunal, and the most important of which was the attendance register; as per the department the same would show that Tarsem Lal Verma never marked his attendance, the Tribunal has held in favour of Tarsem Lal Verma drawing a presumptive finding. The presumptive finding is that the discharge order dated February 01, 2010, would itself mean that Tarsem Lal Verma was working till then.

7. Now, there is no basis to draw such an inference.

8. If the department had primary evidence in the form of the attendance register to show that Tarsem Lal Verma never marked his attendance post August 18, 2009, notwithstanding Tarsem Lal Verma being formally discharged as per order dated February 01, 2010, on the principle of 'No Work No Pay' he could be denied wages. Further, the Tribunal ought to have engaged its attention as to why was salary not being released to Tarsem Lal Verma each month since when the writ petition filed by the department was allowed on August 18, 2009 till the discharge order dated February 01, 2010 was issued.

9. Ordinarily, we would have remanded the matter to the Tribunal for fresh adjudication but refrain from doing so for the reason it is not in dispute that the decision dated August 18, 2009, allowing WP(C) No.3450/1998 has been challenged by Tarsem Lal Verma before the Supreme Court and matter awaits a decision before the Supreme Court.

10. If the decision taken by the Delhi High Court is set aside by the Supreme Court, consequential effect would be that Tarsem Lal Verma would be entitled to wages for this period. Only if the Supreme Court upholds the decision of the Delhi High Court, would the issue subsists.

11. Disposing of the writ petition we observe that if decision of the Delhi High Court is upheld by the Supreme Court, Tarsem Lal Verma would be entitled to seek a revival of OA No.4322/2010 for an adjudication by the Tribunal by looking into the records of the writ petitioner and till then we relieve the writ petitioner from the rigour of the impugned order dated December 16, 2011.

12. We are conscious of the peculiar nature of the order passed by us but do so to prevent unnecessary litigation. The unnecessary litigation would be

requiring the Tribunal to decide the matter by looking into evidence not knowing the fate of Tarsem Lal Verma's challenge to the decision of this Court before the Supreme Court which impacts Tarsem Lal Verma from entitlement to work as a Photographic Officer with the petitioner. May be, deciding Tarsem Lal Verma's challenge to the decision of the Division Bench of this Court, the Supreme Court may pass consequential directions which may either relieve or dissolve the lis pertaining to the limited period August 18, 2009 till February 03, 2010.

13. No costs.

CM No.6088/2012 (stay)

Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(V. KAMESWAR RAO) JUDGE MAY 09, 2013 rk