Delhi High Court
Govt. Of Nct Of Delhi & Ors vs Ashok Kumar on 2 January, 2017
$~R-1-C
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 2nd January, 2017
+ W.P.(C) No.340/2007
GOVT. OF NCT OF DELHI & ORS ..... Petitioners
Through Mr.Rahul Sharma, Adv.
versus
ASHOK KUMAR ..... Respondent
Through None
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J (ORAL)
1. Rule DB was issued in this matter on 18.02.2009.
2. Challenge in this writ petition is to the order dated 10.10.2006 passed
by the Central Administrative Tribunal (hereinafter referred to as "the
Tribunal") in OA 258/2005 filed by the respondent herein whereby the
Tribunal had granted partial relief to the respondent.
3. The respondent had approached the Tribunal seeking a direction to
quash and set-aside the order dated 25.02.2004 passed by the Appellate
Authority whereby one year of approved service was forfeited
permanently, with consequential benefits in terms of seniority,
promotion, etc. A direction was also sought to treat the entire period
from the date of his dismissal to the date of his reinstatement as spent
on duty. The Tribunal found no reason to interfere with the order of the
Appellate Authority, but allowed the second relief in respect of treating
period of absence of the respondent herein.
W.P.(C) 340/2007 Page 1 of 13
4. Brief facts of the case are that a departmental enquiry was initiated
against the respondent on the charge that while posted in 1st Bn. DAP he
was detailed for duty with Govt. Vehicle No.DEG 4996 at PTS Jharoda
Kalan, New Delhi for transportation of force for Ram Lila and VVIP
duty at Rashtrapati Bhawan, etc. on 22.09.1990 with the direction to
remain there till further orders, but he came back along with his vehicle
on 23.09.1990 from PTS, Jharoda Kalan, New Delhi at his own sweet
will. When CHM/MT H.C. Mukhtyar Singh reported the matter to I/C
Deployment, Inspr. Balbir Singh that Const. (Dvr) has returned from
duty, Inspr. Balbir Singh asked the driver as to why he had come back,
the respondent replied "Maine Kya Theka Le Rakha Hai Aur Bhi Driver
Hain" (Have I taken the entire responsibility, there are other drivers
also). He refused to go to back to PTS for duty and a report to this
effect was lodged vide DD No.38-B, dated 23.09.1990 DAP, Control
Room. On a previous occasion also, Const. (Dvr.) Ashok Kumar had
refused to perform duty and a report to that effect was also lodged vide
DD No.53-B dated 08.09.1990. Besides above, he remained absent
willfully and unauthorisedly on following two occasions:
S.No. Absent vide DD Arrived vide DD Period of
No. No. Absence
D H M
1. 13-B dt. 09.08.90 21-A dt. 20.8.90 10 9 20
2. 42-B dt. 03.08.90 29-B dt. 04.08.90 - 22 -
He also absented himself previously on 6 occasions and was awarded
PDs/WP etc.
5. The Inquiry Officer submitted his findings and the Disciplinary
Authority, after going through the findings of the Inquiry Officer,
W.P.(C) 340/2007 Page 2 of 13
awarded the punishment of dismissal from service to the respondent
vide order dated 14.05.1991. The respondent then filed an appeal,
which was considered and rejected by the Appellate Authority vide
order dated 05.09.1991. Thereupon, the respondent approached the
Tribunal through O.A. No.2997/1991, which was also dismissed vide
order dated 03.09.1997. The respondent then filed W.P. (C)
No.822/1999 before this Court which was allowed by an order dated
08.08.2002.Relevant paragraph of which reads as under:
"14. Before a punishment is imposed which deprives an
employee of his bread and butter, the minimum requirement of
the principles of natural justice must be followed. Giving an
opportunity to the delinquent employee of having an assistance
of a friend is a well settled and is a part of principles of natural
justice. As in the instant cases the petitioner has been deprived of
the assistance of a defence assistant the impugned order cannot
be sustained which is set aside accordingly and it is directed that
the petitioner be given an opportunity to cross examine the
prosecution witnesses by a defence assistant of his choice,
whereafter the disciplinary authority may take a decision afresh.
Petitioner shall however continue to remain under suspension.
The writ petition is disposed of without any order as to costs."
(Emphasis Supplied)
6. The respondent was accordingly reinstated in service and remained
under suspension. Departmental enquiry was re-initiated from the
prosecution stage. The Inquiry Officer accordingly submitted his
findings, based on which, the Disciplinary Authority passed an order
dated 13.09.2003 imposing the punishment of forfeiture of three years
of approved service permanently on the respondent. It also decided that
the intervening period from the date of dismissal to the date of
reinstatement i.e. 14.05.1991 to 02.10.2002, the period of suspension
from 03.10.2002 to 09.06.2003 as well as the period of unauthorized
absence for ten days from 09.08.1990 to 20.08.1990, shall be treated as
W.P.(C) 340/2007 Page 3 of 13
period not spent on duty. The respondent then filed an appeal and the
Appellate Authority in its order dated 25.02.2004 reduced the
punishment to that of forfeiture of one year of approved service
permanently. Aggrieved, the respondent had approached the Tribunal
by filing application bearing OA No. 258/2005.
7. The OA did not find favour with the Tribunal as far as it is related to
the quantum of punishment awarded to him. However, the Tribunal
granted partial relief to the applicant/ respondent herein by directing
payment of 50% of salary for the period 14.05.1991 to 02.10.2002.
The Tribunal had further directed that the respondent would be entitled
to full salary for the period from 03.10.2002 to 09.06.2003, after
deducting subsistence allowance; and the period of unauthorised
absence from 09.08.1990 to 20.08.1990 was to be regularized by grant
of leave of the kind due. Aggrieved by the order dated 10.10.2006, the
petitioners have filed the present writ petition.
8. Learned counsel for the petitioners submits that the Tribunal erred in
law as well as in principle while passing the impugned order dated
10.10.2006. Counsel contends that the Tribunal has wrongly granted
benefit to the respondent based on the judgment of the Apex Court in
the case of UPSRTC Ltd. v. Sarada Prasad Misra and another, 2006
(V) AD (SC) 102: (2006) 4 SCC 733. It is contended that the Tribunal
has failed to appreciate that in the judgment inUPSRTC Ltd. (supra),
the Apex Court had only granted 50% of back-wages from the date of
the Award of the Labour Court till reinstatement, while in the present
case, various other benefits have also been awarded to the respondent.
Learned counsel also contends that the Tribunal has failed to take into
account that the respondent was dismissed from service which decision
W.P.(C) 340/2007 Page 4 of 13
was also upheld by the Tribunal. It is only when the respondent
approached the High Court, the matter was remanded back for fresh
adjudication and the respondent was immediately reinstated in service
on 03.10.2002 and kept under suspension till 09.06.2003 and from
09.06.2003 his services were regularized. Thus, the petitioners herein
cannot be saddled with payment of 50% of salary to the respondent
from 14.05.1991 to 02.10.2002.
9. Learned counsel submits that the Tribunal has erred in granting 50% of
the back-wages to the respondent for the period, i.e. from 14.05.1991 to
02.10.2002 during the period he was dismissed from service. It is
contended that the respondent could not have been granted 50% of the
back-wages for the entire period.
10. Counsel submits that the Tribunal has also erred and failed to take into
account that the respondent had remained absent from 09.08.1990 to
20.08.1990 which was unauthorized, however, the Tribunal has
directed the petitioners to regularize the said period by grant of leave of
the kind due.
11. As an alternative argument, learned counsel has placed reliance on the
judgment in the case of Vijay Singh v. Union of India& Ors.,(2007) 9
SCC 63, where having regard to the nature of charges framed, no back-
wages were allowed to the appellant therein by the Supreme Court of
India. Mr.Sharma, learned counsel for the petitioners, submits that in
the present case also, the respondent had shown complete indiscipline
and violation of the mandatory provisions of law.
12. We have heard the learned counsel for the petitioners and narrated the
facts of this case in the paragraphs aforegoing. It may be noticed that
the Tribunal did not find fault in the order passed by the Appellate
W.P.(C) 340/2007 Page 5 of 13
Authority but has only varied the order with respect to payment of
back-wages. Paras 13 to 15 of the impugned order read as under:-
"13. That leaves us with the issue relating to treatment of the
period of absence, which has been treated as not spent on duty.
In this connection, in the first place, it is to be noted that the
order of the Appellate Authority, while modifying the substantive
punishment of forfeiture of approved service permanently from
three years to one year, has not recorded any specific decision
relating to the period of dismissal, suspension, etc. In the case of
ASI Sube Singh v. Union of India & Ors. (supra), the applicant
therein was granted certain reliefs in this regard, as stated
earlier. In that case the applicant was dismissed on account of
his involvement in a criminal case. In the present OA, the charge
against the applicant is of misconduct and certain amount of
indiscipline. He is, therefore, entitled to no less relief than was
granted to the applicant in ASI Sube Singh v. Union of India &
Ors. (supra).
14. In view of the facts and circumstances of the case
mentioned above, we find that the decision of the respondents to
award the reduced punishment of forfeiture of one year approved
service permanently, does not deserve to be interfered with in the
interest of maintenance of discipline in the police force.
However, we see no reason why he should be denied relief in
terms of treatment of period of his absence since it was, to a
large extent, due to prolonged legal proceedings for which
neither party could be held responsible.
15. In the result, placing reliance on the judgment of the
Hon'ble Supreme Court in the case of U.P.S.R.T.C. Ltd. v.
Sarada Prasad Misra & Anr. (supra) and the order of this
Tribunal in ASI Sube Singh v. Union of India & Ors. (supra),
we direct the respondents to pay 50% of the salary to the
applicant for the period from 14.05.1991 to 2.10.2002. As far as
the period of suspension is concerned, since the applicant has
been subsequently reinstated, he shall be entitled to full salary
for the period from 03.10.2002 to 09.06.2003, if not already
paid, after deducting the subsistence allowance, if any, paid to
the applicant. The period of unauthorized absence from
09.08.1990 to 20.08.1990 shall be regularized by grant of leave
of the kind due. This exercise shall be completed within a period
W.P.(C) 340/2007 Page 6 of 13
of 3 months from the date of receipt of a copy of this order."
(Emphasis Supplied)
13. We find no ground to interfere with the order passed by the Tribunal, as
the Tribunal has taken note of all the facts and also rightly applied the
law as far as payment of back-wages is concerned. The law in respect
of back-wages was recently considered by us in Ajyodha Prasad v.
Union of India & Ors., 2016 SCC OnLine Del 6536, the relevant
paragraphs of which read as under:
"8. The short point which arises for consideration before this
court iswhether the petitioner is entitled to back wages for the
period he wasdisengaged and did not carry out any work. The
second question,which arises is that in case the petitioner is
entitled to back wages,would he be entitled to full back wages or
part thereof.
9. The consistent view of the Supreme Court has been that the
payment of back wages is not a natural consequence of
reinstatement, but it is the discretionary power at the hand of the
court, which is to be exercised by the court after considering the
facts and circumstances of the case. In the case of Hindustan Tin
Works v. Employees, (1979) 2 SCC 80, wherein it was held that:
"11. In the very nature of things there cannot be a strait-
jacket formula for awarding relief of back wages. All
relevant considerations will enter the verdict. More or
less, it would be a motion addressed to the discretion of
the Tribunal. Full back wages would be the normal rule
and the party objecting to it must establish the
circumstances necessitating departure. At that stage the
Tribunal will exercise its discretion keeping in view all the
relevant circumstances. But the discretion must be
exercised in a judicial and judicious manner. The reason
for exercising discretion must be cogent and convincing
and must appear on the face of the record. When it is said
that something is to be done within the discretion of the
authority, that something is to be done according to the
Rules of reason and justice, according to law and not
humour. It is not to be arbitrary, vague and fanciful but
legal and regular (see Susannah
W.P.(C) 340/2007 Page 7 of 13
Sharp v. Wakefield [(1891) AC 173, 179] )."
10. In P.G.I. of Medical Education & Research v. Raj Kumar,
(2001) 2 SCC 54, it was held as under:
"9. The Labour Court being the final court of facts came
to a conclusion that payment of 60% wages would comply
with the requirement of law. The finding of perversity or
being erroneous or not in accordance with law shall have
to be recorded with reasons in order to assail the finding
of the Tribunal or the Labour Court. It is not for the High
Court to go into the factual aspects of the matter and there
is an existing limitation on the High Court to that effect. In
the event, however the finding of fact is based on any
misappreciation of evidence, that would be deemed to be
an error of law which can be corrected by a writ of
certiorari. The law is well settled to the effect that finding
of the Labour Court cannot be challenged in a proceeding
in a writ of certiorari on the ground that the relevant and
material evidence adduced before the Labour Court was
insufficient or inadequate though, however, perversity of
the order would warrant intervention of the High Court.
The observation, as above, stands well settled since the
decision of this Court in Syed Yakoob v. K.S.
Radhakrishnan [AIR 1964 SC 477 : (1964) 5 SCR 64].
...
12. Payment of back wages having a discretionary element
involved in it has to be dealt with, in the facts and
circumstances of each case and no straight-jacket formula
can be evolved, though, however, there is statutory
sanction to direct payment of back wages in its entirety. As
regards the decision of this Court in Hindustan Tin Works
(P) Ltd. [(1979) 2 SCC 80 : 1979 SCC (L&S) 53 : (1979)
1 SCR 563] be it noted that though broad guidelines, as
regards payment of back wages, have been laid down by
this Court but having regard to the peculiar facts of the
matter, this Court directed payment of 75% back wages
only."
(Emphasis Supplied)
11. At the same time, there is no precise formula for ascertaining
back wages as the same depends upon the facts and
circumstances of the case. In U.P. State Brassware Corporation
Ltd. v. Udai Narain Pandey, JT 2005 (10) SC 344, the Supreme
Court held that:
"No precise formula can be laid down as to under what
circumstances payment of entire back wages should be
allowed. Indisputably, it depends upon the facts and
circumstances of each case. It would, however, not be
correct to contend that it is automatic. It should not be
granted mechanically only because on technical grounds
or otherwise an order of termination is found to be in
contravention of the provisions of Section 6-N of the U.P.
Industrial Disputes Act."
(Emphasis Supplied)"
14. The present case is to be decided on the touchstone of the law laid
down by the Apex Court.
15. It may be noted that on account of indiscipline and on the respondent
refusing to go back to PTS for duty, DD No.38-B dated 23.09.1990 was
lodged. Based on the findings of the Inquiry Officer and Disciplinary
Authority, he was awarded the punishment of dismissal from service
vide order dated 14.05.1991. An appeal was filed by the respondent,
which was rejected by the Appellate Authority. This had led to the
filing of the first application before the Tribunal, being O.A.
No.2997/1991 which was also dismissed. The respondent, thereafter,
filed W.P. (C) 822/1999 which found favour with this Court and this
Court held that even the minimum requirement of the principles of
natural justice had not been followed as the respondent was not given
assistance of a friend or assistant during the course of enquiry and set-
aside the impugned orders by an order dated 08.08.2002. The
respondent was not paid salary from 14.05.1991 onwards for which the
respondent cannot be faulted in view of the order which was passed by
the Appellate Authority at the first round before the matter was
remanded by the High Court. After the matter was remanded back, in
the second round the Inquiry Officer submitted his findings, based on
which, the Disciplinary Authority passed an order dated 13.09.2003
imposing the punishment of forfeiture of three years of approved
service permanently. It also decided that the intervening period from
the date of dismissal to the date of reinstatement i.e. 14.05.1991 to
02.10.2002, the period of suspension from 03.10.2002 to 09.06.2003 as
well as the period of unauthorized absence for ten days from
09.08.1990 to 20.08.1990, shall be treated as period not spent on duty.
The respondent then filed an appeal and the Appellate Authority in its
order dated 25.02.2004 reduced the punishment to that of forfeiture of
one year of approved service permanently.
16. In this backdrop, the respondent, in our view, cannot be deprived of his
back-wages once having succeeded in the matter. The Tribunal has
already taken a conservative view in the matter by granting 50% of
back-wages. No interest has been awarded, which in our view, requires
no interference.
17. Mr.Sharma, learned counsel for the petitioners has placed reliance on
the Ground „D‟ of the writ petition stating that the Apex Court in
UPSRTC Ltd. (supra), had granted the respondent therein 50% of the
back-wages only from the date of the Award of the Labour Tribunal till
the date of reinstatement. Accordingly, it has been contended that the
respondent would be entitled to 50% back-wages from the date
03.10.2002, when he was reinstated by the order this Court.
18. We find no force in the submission made by Mr.Sharma, learned
counsel for the petitioners, for the reason that the sequence of events as
having narrated by us in aforegoing paragraphs would show that the
first punishment awarded to the respondent was dismissal from service.
The respondent thereafter filed an appeal, which was rejected and OA
filed before the Tribunal was dismissed; but the High Court allowed the
writ petition filed by the respondent, finding that the petitioners herein
had not complied with the principles of natural justice and the matter
was remanded back and the respondent was given an opportunity to
cross-examine the witnesses. The same would show that there was no
lapse or delay on the part of the respondent herein who has been
regularly pursuing the matter. In UPSRTC Ltd. (supra), the
respondent workman was found to be responsible for a delay of seven
years from the date of termination to approaching the Conciliation
Officer. This reason had prevailed upon the Supreme Court in denying
back-wages for the said period, which is not applicable in the present
case. The relevant paragraphs of the judgment of the Supreme Court
read as under:
"12. In our opinion, however, the limited grievance of the
learned counsel for the Corporation is well founded. Admittedly,
the order of termination was passed on 6-9-1975. Admittedly, an
application was made to the Conciliation Officer, Allahabad by
the workman on 17-7-1982, that is, after about seven years from
the date of termination. In the circumstances, therefore, the
Corporation is justified in raising legitimate objection as regards
payment of wages for the said period. Since the respondent had
invoked jurisdiction of the labour forum after seven years, it
would not be appropriate to direct the appellant Corporation to
pay wages for the intervening period.
...
17. Considering the case-law on the point and applying the
principles laid down therein to the facts of the present appeal, we
are of the view that the respondent workman is not entitled to
back wages from 1975 when his services were terminated. The
award was passed in the instant case on 17-9-1984 but was
stayed by the High Court vide interim order dated 25-3-1985.
The interim order was modified on 4-2-1988 and the first
respondent was reinstated immediately on 9-2-1988. In our
opinion, therefore, ends of justice would be met if the workman is
allowed back wages to the extent of 50% from the date of the
award till he was reinstated in service."
(Emphasis Supplied)
19. We find this submission to be unacceptable also for the reason that
after the matter was remanded back, the petitioners passed an order of
forfeiture of three years of service, which was thereafter reduced to one
year by the Appellate Authority. The fact that even the first order
passed by the petitioners, did not find favour after the matter was
remanded back and in these circumstances, the respondent herein
cannot be deprived of atleast 50% of back-wages especially when the
fault lay with the petitioners herein and not with the respondent.
20. We are also unable to accept the submission of the learned counsel that
the Tribunal had erred in not considering the gravity of charges as in
the case of Vijay Singh (supra)an FIR was lodged against the
petitioner under Section 325 read with Section 34 of the Indian Penal
Code; while in the present case, the allegations against the respondent
was showing lack of discipline and not following orders. As the nature
of misconduct in the said case was substantially graver than the present
case; accordingly the judgment, in our view, does not come to the aid
of the petitioners.
21. As far as the observation of the Tribunal by which unauthorized
absence from 09.08.1990 to 20.08.1990 is to be regularized, we find no
justification for the same and the order is modified to this extent.
22. The writ petition is disposed of in above terms.
23. By an interim order dated 16.01.2007, this Court has directed the
petitioners to deposit 50% of the amount due along with Rs. 5,000
towards litigation expenses of the respondent herein. The respondent
would be entitled to the entire amount so deposited together with
interest accrued thereon. The balance amount be released in favour of
the respondent within six weeks from the receipt of this order. In case
the amount is not released by the petitioners within six weeks, the
respondent would be entitled to interest @ 6% per annum.
G.S.SISTANI, J.
VINOD GOEL, J.
JANUARY 02, 2017
// /ka
