Delhi High Court
Union Of India & Ors. vs Birendra Singh & Anr. on 27 February, 2015
Author: Kailash Gambhir
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of hearing and Order: 27.02.2015
+ W.P.(C) 1920/2015 & CM Nos.3448-49/2015
UNION OF INDIA & ORS.
..... Petitioners
Through Mr. R.V. Sinha & Mr. R.N. Singh,
Advs.
versus
BIRENDRA SINGH & ANR.
..... Respondents
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE I.S.MEHTA
ORDER
KAILASH GAMBHIR, J (ORAL)
W.P.(C) 1920/2015 & CM Nos.3448-49/2015
1. By this petition filed under Article 226 of the Constitution of India,
the petitioners seek to challenge the impugned order dated 28.05.2014 in
O.A. No.4147/2012 passed by the learned Central Administrative Tribunal,
Principal Bench, whereby the learned Tribunal has allowed the O.A.
preferred by the respondents.
2. Mr. R.V. Sinha, learned counsel appearing for the petitioners submits
that respondents were initially appointed as daily wagers on 29.08.1992 and
22.12.1992 respectively in the office of the Custodian, the Special Court
(TORTS) Act, 1992, Banking Division (Department of Financial Services),
Ministry of Finance and while serving in the capacity of daily wagers they
were granted temporary status in the scale of pay of Rs.750-940/- with effect
from 01.07.1994 in terms of DOPT O.M. No.51016/2/90-Estt. Dated
10.09.1993. One of the benefits under the said scheme was that after
rendering three years‟ continuous service after conferment of temporary
status, the casual labourers would be treated at par with temporary Group
„D‟ employees for the purpose of contribution to the General Provident
Fund. Accordingly, they became members of the GPF Scheme and they
contributed to the said fund regularly till 04.03.2003. However the
petitioners vide their letter dated 04.03.2003 dispensed with their service
with effect from 05.03.2003. This decision of the petitioners was challenged
by the respondents vide O.A. No.605/2003 and while deciding the said O.A.
the Tribunal directed the petitioners to reconsider the respondents for re-
engagement. The order passed by the Tribunal was challenged by the
petitioners before this Court vide W.P.(C) No.1991/2004 but the same was
dismissed as withdrawn vide order dated 09.03.2004. These respondents
were finally engaged by the petitioner as Group „D‟ employees on
01.02.2007 and 19.07.2006 respectively and after their reinstatement they
made representations to the petitioners to re-fix their pay after counting their
past service rendered by them and to open a GPF account through DRT-II
Chandigarh and transfer the amount in their previous GPF account. Another
request which was made by the respondents was to count their previous
service for admitting them to the old pension scheme under CCS (Pension)
Rules. This request made by the respondent was rejected by the petitioner
and this is how the respondents filed the O.A. seeking the following reliefs:-
" (a) Declare the impugned letter dated 15.02.2012
issued by Office of Custodian and letter dated 27.02.2012
issued by Shri Rajiv Sharma, Under Secretary to the
Govt. of India, Ministry of Finance, as arbitrary,
discriminatory, unreasonable, unjust, and inequitable and
quash and set aside the same.
(b) Direct the respondents to treat the applicants in
continuing service with effect from 05.03.2003 for the
benefits of placing them in old pension scheme as the
applicants were reinstated in service on direction of
Hon ble Tribunal.
(c) Direct respondents to deduct the subscription
towards GPF with effect from 05.03.2003 in continuance
to previous subscription as per Scheme of 10.09.1993
and to refund the amount with interest which was
deducted from salary towards New Pension Scheme.
(d) Direct respondents to re-fix the basic pay
keeping in view the earlier basic pay that is Rs.2,960/- as
on 04.03.2003 wherein on re-engagement on 01.02.2007
and 19.07.2006 respectively the basic pay was fixed at
Rs.2550/- which is arbitrary.
(e) Direct respondents to pay the salary for the
broken period that is from 5.3.2003 till their
reinstatement on 01.02.2007 and 19.07.2006 respectively
with interest.
(f) Direct respondents to count the broken period
that is 05.03.2003 till their reinstatement on 01.02.2007
and 19.07.2006 respectively as qualifying service by
regularizing as duty or leave.
(g) Any other relief may deem fit by the Hon‟ble
Tribunal in given circumstances."
3. The order of the Tribunal was then challenged by the respondents in
W.P. (C) No.5281/2013 in the High Court and the High Court vide its order
dated 26.08.2013 quashed the order passed by the Tribunal dated 12.12.2012
and gave the direction to the Tribunal to decide the O.A. afresh after
pleadings in the matter were completed. It is after the remand that the
Tribunal decided the O.A. vide the impugned order dated 28.05.2014.
Operative para of the order dated 28.05.2014 passed by the Tribunal is
reproduced hereunder:-
" 18. In view of the above facts and circumstances of
the case, this OA is allowed and the impugned letters of
the Respondents Annexure A-1 dated 15.02.2012 and
Annexure A-2 dated 27.02.2012 are quashed and set
aside. Further, the Respondents shall treat the applicants
in continuous service w.e.f. 29.08.1992 and 22.12.1992
respectively as daily wagers and holders of temporary
status w.e.f. 01.07.1994. The period from 05.03.2003 to
31.01.2007 in the case of the first applicant and the
period from 05.03.2003 to 19.07.2006 in the case of the
second Applicant shall be treated as duty for all purposes
except back wages. Accordingly, their membership in the
GPF shall again be continued w.e.f. from 01.02.2007 and
19.07.2007 respectively. They shall also be admitted to
the Pension Scheme reckoning their initial engagement as
casual labour w.e.f. 29.08.1992 and 22.12.1992
respectively and holders of temporary status w.e.f.
01.07.1994. Consequently, the amount which has been
deducted from their salary towards New Pension Scheme
shall be refunded with interest at GPF rates. Respondents
are further directed to refix their basic pay on their
reengagement on 01.02.2007 and 19.07.2007
respectively, by granting notional increments for the
period from 05.03.2003 to 31-1-2007/05.03.2003 to
19.07.2007 and keeping in view their earlier basic pay,
i.e., Rs.2960/- as on 04.03.2003. The up-to-date arrears
of pay and allowances arising out of such
fixation/refixation of pay shall be given to the
Applicants. The aforesaid directions be complied with,
within a period of 2 months from the date of receipt of a
copy of this order."
4. Before arriving at the said decision, the Tribunal placed reliance upon
the order dated 04.01.2013 passed by this Court in W.P. (C) No.4300/2012
and another connected case titled "Union of India through General Manager,
Northern Railway & Anr. V. Sita Ram". The Tribunal has also referred to
some of its own decisions wherein the Tribunal took a view that the period
spent by such employees in continuous service even as daily wagers and
holders of temporary status shall be treated on duty for all purposes except
back wages. The Division Bench of this Court in another case being
W.P.(C) 8146/2014 titled "Union of India & Ors. v. Uma Shankar and Anr."
has also upheld the order passed by the CAT involving an identical issue. In
a batch of Special Leave Petitions involving identical issue, Union of India
has challenged the decision of this Court and the Hon‟ble Supreme Court
has also dismissed the batch of Special Leave Petitions vide order dated
24.02.2015.
5. Considering the fact that the legal position with regard to the issue
involved stands well settled, therefore, we do not find any reason to interfere
in the impugned order dated 28.05.2014 in O.A. No.4147/2012 passed by
the learned Central Administrative Tribunal, Principal Bench. The
petitioner is directed to implement the directions given by the learned
Tribunal within a period of two months from the date of this order.
6. Dismissed.
KAILASH GAMBHIR
(JUDGE)
I.S.MEHTA
(JUDGE)
FEBRUARY 27, 2015
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