Maharaja Agarsen Model School vs Suman Abbi & Anr.
2015 Latest Caselaw 8776 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Reserved on : 04.11.2015
%                                        Decided on : 26.11.2015

+      L.P.A.785/2010

       MAHARAJA AGARSEN MODEL SCHOOL        ..... Appellant
                   Through: Ms.Shobha Bonny Mehra, Advocate

                       versus

       SUMAN ABBI & ANR.                      ..... Respondents/Applicant

Through: Ms.Beenashaw Soni, Adv. for R-1 Mr.Satyakam, ASC with Mr.Nikhil Bhardwaj, Adv.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (JUDGMENT)

C.M.No.15977/2015 (for direction)

1. The applicant Suman Abbi was working as a Librarian in

Maharaja Agarsen Model School, CD-Block, Pitam Pura, New Delhi

(hereinafter referred to as 'the school'). She dismissed from service

by the School pursuant to the major penalty imposed on her vide order

dated 28.06.2003. She had preferred an appeal under Section 8 (3)

read with Rule 120 (3) of the Delhi School Education Act and Rules,

1973. The appellate authority vide order dated 13.08.2010 set aside

C.M.No.15977/2015 in LPA No.785/2010 Page 1 the order of dismissal. She was directed to be reinstated in service

with 50% of the back wages. This order was challenged by the school

vide W.P.(C) No.6143/2010. The said writ petition was dismissed by

the Single Judge and the order dated 13.08.2010 of the appellate

authority was confirmed. The said order of the Single Judge was

challenged by the school vide L.P.A.no.785/2010 before this Court.

The following directions were issued by the Court while disposing of

the LPA vide order dated 30.07.2015:

"Accordingly, the impugned judgment is modified to the extent that the back wages/arrears of salary payable in accordance with the order, i.e. 50% shall be calculated after excluding the period for which the petitioner was in employment or was earning, i.e. excluding the period between 19.01.2008 till 21.09.2010. The decision of the learned Single Judge is affirmed but with the above modification.

The appellant is also directed to pay interest @ 8% on the said amount from the date of the impugned judgment of the learned Single Judge, i.e. 10.09.2010. The payment shall be made within two weeks. The appeal is disposed off in the above terms. All pending applications are disposed of as not pressed."

2. This application has been filed by the applicant Ms.Suman

Abbi alleging that the school while calculating the back wages has

excluded the period from 19.01.2008 to 21.09.2010 treating it as

period when the applicant was not in service and has erroneously

C.M.No.15977/2015 in LPA No.785/2010 Page 2 denied her the increments which she had earned during this period

and this has led to huge financial loss to her. It is further alleged that

the act of the school, treating this period as break in service is not

only contrary to the rules and regulations but is also against the order

of this Court and the school has wrongly deducted a sum of

Rs.2,82,419/- from the total amount due to her as back wages after

she was reinstated into service. She has claimed that the school/non-

applicant be directed to pay her the balance amount of back wages

along with all the other consequential benefits.

3. On the other hand, it is contended by school that it has duly

complied with the order dated 30.07.2015 of this court. It is contended

that the period (19.01.2008 to 21.09.2010) during which the applicant

was in the employment of another employer, needs to be considered

as non est since she cannot be considered being in service during this

period with the school and this period has to be excluded for all

purposes which also includes the grant of increment.

4. Ms.Shobha Bonny Mehra, learned counsel appearing for the

school has relied on the Fundamental Rules and Supplementary Rules,

General Rules, Part I (FRSR) governing the parties. It is submitted

C.M.No.15977/2015 in LPA No.785/2010 Page 3 that the conjoint reading of F.R.9 (6), which defines the duty and the

explanation to F.R.26 which defines the period during which an

employee can be treated on duty, it is apparent that it is the period

during which the government servant draws pay on that post and since

during this period the applicant was in the employment of another

employer, she could not have drawn pay from the school therefore she

could not be termed as being on duty during this period hence not

entitled to any increment or benefits for that period on her

reinstatement, especially when this Court has specifically excluded

the benefit of back wages for this period to the applicant.

5. On the other hand, Ms.Beenashaw Soni, learned counsel

appearing for the applicant Ms. Suman Abbi has contended that when

the dismissal, removal or compulsory retirement of a government

servant is set aside, the intervening period on reinstatement has to be

treated as duty for all purpose and has relied on Rule 54-A of FRSR

General Rules Part I.

6. We have given due consideration to the rival contentions of the

parties.

C.M.No.15977/2015 in LPA No.785/2010 Page 4

7. As is apparent from the order of this court dated 30.07.2015

while upholding the order of reinstatement of the applicant with 50%

back wages/arrears of salary, ordered that while calculating the back

wages/arrears of salary, the period from 19.01.2008 till 21.09.2010

during which applicant was in employment and was earning, shall be

excluded. The meaning of the order of this court dated 30.07.2015 is

that the applicant shall not be entitled for the back wages for this

period because she had been gainfully employed and earning during

this period.

8. The consequences that follow on setting aside the order of

dismissal has been spelt out in Rule 54 of FRSR General Rule Part I.

While Rule 54 deals with the situation when order of dismissal is set

aside vide an order other than the order of the Court, Rule 54 A deals

with entitlements of reinstated Government Servant under order of a

Court. Rule 54-A is reproduced herein:

"F.R. 54-A.- (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is re-instated without holding any further enquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowance in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.

C.M.No.15977/2015 in LPA No.785/2010 Page 5 [(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non- compliance with the requirements of the clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall subject to the provision of sub-rule (7) of rule 54, be paid such [amount (not being the whole) of the pay and allowances 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, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period, [which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice:

Provided that any payment under this sub-rule to a Government servant other than a Government servant who is governed by the provisions of Payment of Wages Act, 1936 (4 of 1936) shall be restricted to a period of three years immediately preceding the date on which the judgement of the court was passed or the date of retirement on superannuation of such Government servant, as the case may be.

(ii) 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 judgement of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of Rule 54.] (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

C.M.No.15977/2015 in LPA No.785/2010 Page 6 such dismissal, removal or compulsory retirement, as the case may be, and the date of re-instatement 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, as the case may be.

(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) Any payment made under this rule to a Government servant on his re-instatement shall be subject to adjustment of the amount if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant."

9. This rule makes it very clear that when a government servant is

reinstated, his/her period of absence from duty shall be regularized

and he/she shall be paid pay and allowances as per Rule (2) or (3).

10. Rule 3 mandates that on reinstatement under order of a Court

the period from date of dismissal to date of reinstatement shall be

treated "as duty for all practical purposes" and shall be paid full pay

and allowances as if he/she had not been dismissed. The provision

uses the expression "shall" leaving no discretion to the authority but

to treat the period from date of dismissal to date of reinstatement as

"on duty". Under sub rule (5) the authority is only permitted to adjust

C.M.No.15977/2015 in LPA No.785/2010 Page 7 the earning of the dismissed employee during the intervening period

from date of dismissal to date of reinstatement. Sub Rule (5) of Rule

54-A is supplementary to Sub Rule (3) which directs that pay and

allowance are to be calculated by treating the reinstated employee on

duty from the period of dismissal to reinstatement and Rule (5) allows

the authority to deduct any sum, which the reinstated employee had

earned during this period. In this case this court had issued specific

directions to the effect that the applicant shall be paid 50% of the pay

and allowances payable to the applicant of course after deducting the

pay and allowances payable to her from the period 19.01.2008 to

21.09.2010, that does not mean that during this period she shall not be

considered on duty which right has accrued to her in view of Rule 54-

A (3).

11. Learned counsel for the school/non-applicant on the other hand

has relied on Rule 9 (6) of FRSR wherein the 'duty' is defined and

also on FR 26 explanation which clarifies that a person can be said to

be on duty on a post if he draws pay for such period, and since the

applicant during the period 19.01.2008 till 21.09.2010 had not drawn

any salary from the non-applicant, being in employment of other

C.M.No.15977/2015 in LPA No.785/2010 Page 8 employer, she cannot considered to be on duty during this period and

thus is not entitled to the benefits which would accrue to her during

this period. This argument of learned counsel for the non-applicant

has no merit for the simple reason that the case of the applicant is

fully and squarely covered by Chapter VIII of FRSR, Volume I. As

discussed above, all the consequential benefits to the applicant flow

from Rule 54-A of FRSR.

12. For the foregoing reasons, we hereby direct the school/non-

applicant to treat the applicant on duty during the period 19.01.2008

to 29.09.2010 and grant her consequential benefits accrued to her

within four weeks. It is clarified that she shall not be paid wages

earned by her during this period. Any amount payable to her shall be

released to her within four weeks from today.

13. The application is disposed of in above terms.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

NOVEMBER 26, 2015 rb

C.M.No.15977/2015 in LPA No.785/2010 Page 9