Delhi High Court
Bharat Heavy Electricals Ltd ... vs Jitendra Mohan Singh on 30 August, 2017
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DECIDED ON: 30.08.2017
+ LPA 571/2017, CM APPL.31430-31431/2017
BHARAT HEAVY ELECTRICALS LTD (BHEL).... Appellant
Through: Mr. J.C. Seth, Advocate.
versus
JITENDRA MOHAN SINGH ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE R.K. GAUBA
S.RAVINDRA BHAT, J.(ORAL)
1. The appellant Bharat Heavy Electricals Ltd (hereafter referred
to as "BHEL") is aggrieved by an order of this Court whereby the
respondent's writ petition was allowed. The restricted claim of the
respondent in the writ petition preferred was for grant of consequential
benefits - which according to the Single Judge included arrears of
salary and allowances for the period from 16.02.2013 to 08.11.2015.
2. The genesis of the controversy is the order of transfer issued by
BHEL to the respondent, its officer. At that stage, the
officer/petitioner was aggrieved; he claimed that being an individual
with special disabilities, the BHEL ought to have retained him in the
original place of working. The BHEL had declined the request and
insisted that he moves to the place he was posted. This led to the filing
of W.P.(C) No.9036/2015. That petition was dismissed on the first
date of hearing in limine on 21.09.2015. Aggrieved, the employee
carried the judgment in appeal to the Division Bench. The Division
Bench noticed that the Single Judge's findings were that since the
ailment which the employee complained of, i.e., some kind of mental
illness did not fall within the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1995,
he could not get the relief. The Division Bench then noted the
findings and report of the Medical Board constituted by the BHEL
which had reported that he was suffering from Paranoid Schizophrenia
and that "he is advised to take his medicines regularly and requires
constant support & supervision by caregivers (i.e. family)". The
Division Bench thereafter went on to find as follows: -
"8. Learned counsel for the respondent has not been
able to point out as to how this Board was not competent
to opine on the mental condition of the appellant. Further
the authenticity of this report is not disputed. The
appellant has placed on record discharge summary dated
August 16, 2013 from the VIMHANS which diagnosed the
appellant to be suffering from Paranoid Schizophrenia.
9. Indubitably the Act does not provide for reservation of
post on the ground of mental illness, however the Act
recognises "mental illness" as a disability as defined
under Section 2(i). There being nothing on record to
dispute the mental illness of the appellant and the Board
constituted by the respondent advising him to take
regular medicines and noting that he requires constant
support and supervision by care-givers i.e. family, the
respondent ought to have taken a sympathetic view; on
the contrary however they resorted to an obstinate stand
that the appellant should once join at Bhopal and
thereafter his case for recalling at Delhi would be
considered.
10. In the decision reported as (2004) 11 SCC 402 State
of U.P. and Ors. Vs. Gobardhan Lal the Supreme Court
laid down a rule of caution to the Courts to not interfere
in the transfer orders unless the order of transfer is
shown to be an outcome of a mala-fide exercise of power
or violative of any statutory provision (an act or rule) or
passed by an authority not competent to do so. The
guidelines laid down by the Supreme Court are not
exhaustive and in a given case the Court can weigh the
equities................."
3. In view of the above findings, the Division Bench held that the
writ petition deserved to be allowed. The transfer orders dated
15.01.2013 and 04.02.2013 were, therefore, quashed.
4. The employee/writ petitioner had to approach this Court again -
this time with the grievance that despite the quashing of the transfer
order, BHEL refused to treat him as in service and that the period
between 16.02.2013 and 08.11.2015 (when he was allowed to join)
after the Division Bench order, was treated as period not spent on
duty. The second writ petition W.P.(C) 12067/2016, therefore, sought
a direction to treat the said period as having been spent on duty and
grant consequential benefits. The Single Judge by the impugned
order held as follows: -
"8. I may only record here, during the course of his
submissions, Mr. Seth has stated that there is no concept
of Seniority in the respondent Organization. He also
states, that the promotion is subject to the Rules and
petitioner meeting the merit/benchmark. There is no
dispute on that proposition of law. When it was put to Mr.
Seth that the effect of the impugned action would result in
the petitioner losing the benefit of service between the
period February 16, 2013 and November 08, 2015, for
the purpose of eligibility for promotion, he states that for
the purpose of eligibility, the period in question shall be
taken into consideration. In other words, the period of
eligibility for promotion shall not be affected. I take this
submission on record. If that be so, the only issue needs
to be decided is, whether the petitioner is entitled to the
back wages for the period between February 16, 2013
and November 08, 2015 and the said issue needs to be
decided in favour of the petitioner for more than one
reason, inasmuch as the Division Bench has allowed the
writ petition by quashing the order of transfer. The
consequence thereof is, the petitioner should be put on
the same position as if such order has not been
passed/issued. Secondly, if the benefit of salary for the
said period is denied, it would mean that his nonjoining
at Bhopal was unjustified, which is not the case as the
transfer order has been quashed.
9. Insofar as the judgment of the Supreme Court in the
case of Virender Kumar (supra) relied upon by Mr. Seth
is concerned, the same shall not be applicable in the facts
of this case, inasmuch as the Supreme Court denied the
benefit of pay from retrospective date for the following
reasons:- (i) The entitlement of promotion of the
respondents in that case was on rota quota rule which
was held as inequitable and irrational. (ii) The rota quota
rule has to be worked out from the year 1954. (iii) The
higher posts were not vacant and were manned by others,
who were paid. (iv) The respondents had not actually
worked, therefore on the principle of no work no pay, the
respondents were denied the pay.
10. It is not the case here, inasmuch as it is not a case of
promotion from retrospective date. Rather, the petitioner
was transferred for certain unjustifiable reasons,
otherwise he could have worked on the said post and
earned salary. The judgment is distinguishable and has
no applicability."
5. Mr. J.C. Seth, learned counsel appearing for the BHEL urged
that since the previous judgment, i.e., quashing the transfer orders did
not deal with any aspect other than the validity of the transfer order
and did not grant any further relief, the respondent/employee's claim
was unfounded and in fact barred by the principle of res judicata. He
also urged that the Single Judge in effect has enlarged the scope of the
Division Bench's order and, therefore, overstepped his jurisdiction. It
was secondly urged that no one can claim back wages as a matter of
right or claim consequential benefits, unless the Court specifically so
directs in its judgment or order recording the essential and main
entitlement to be put back into the employment. It was submitted that
in light of the principles established by no less than five Supreme
Court judgments, the grant of consequential benefits and arrears of
salaries (which was not even claimed by the petitioner) was
unwarranted.
6. As far as the second contention with respect to res judicata is
concerned, this Court would rest its conclusion on two observations.
Firstly, the principle of res judicata or constructive res judicata stricto
sensu applies to civil proceedings - it is applied not in the strict letter
of the term but only in its underlying principle to writ proceedings
which are necessarily more flexible.
7. Consequently and more importantly, the essence of the
respondent/employee's grievance was that the BHEL had by
overlooking his serious disability undermined the therapy and
treatment to be undergone by him and thereby acted in an illegal and
unconstitutional manner. Although no personal malice has been
attributed yet the insensitivity of BHEL in ignoring the expectation of
the individual was impugned. The Single Judge did not agree with the
plea. However, the pointed findings of the Division Bench and its
observations with respect to mala fides underlined that BHEL was
utterly unsympathetic and determined to reject his request to be
retained in employment. Upon that reasoning, the Division Bench
went on to quash the transfer order. This meant that the orders were a
nullity from their inception. In such an event, it would be wholly
iniquitous for the Court tasked with enforcing the law and keeping in
mind the larger public interest, to overlook the just claim of the
individual who was kept away from employment on account of an
illegal order. The invocation of the "no work no pay" ruling by a
public employer BHEL in the circumstances is not only inequitable
but entirely contrary to its obligation to follow the principles
underlined under Article 14 of the Constitution.
8. As far as the question of the Single Judge overstepping the
jurisdiction and enlarging the directions of the Division Bench is
concerned, the Court notices that the Single Judge merely gave effect
to the consequences of the Division Bench order which nowhere
precluded such relief. Notably at the time when the employee went to
the Single Judge, the question of consequential benefits did not arise.
9. In view of the above reasons, the Court finds no merit in the
appeal; it is accordingly dismissed.
10. Order dasti.
S. RAVINDRA BHAT
(JUDGE)
R.K. GAUBA
(JUDGE)
AUGUST 30, 2017
/vikas/
