Rukmani Devi Pathak vs B. N. Vaish & Anr.
2017 Latest Caselaw 6859 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +        W.P.(C) No.7379/2013

                                        Date of Decision: 30.11.2017

       RUKMANI DEVI PATHAK                        ..... Petitioner
                    Through           Mr.Harshit Sanwal, Adv.

                            versus
[[[[




       B.N. VAISH & ANR.                         ..... Respondents

                      Through         Mr.Saurabh Chadda, Adv. with
                                      Ms.Alka Dhupar, ASO from the
                                      Deptt.
       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MS. JUSTICE REKHA PALLI

HIMA KOHLI, J (ORAL)

1. The legal heir of late Shri B.K. Pathak/petitioner herein, has

prayed for quashing the order dated 28th June, 2013, passed by Central

Administrative Tribunal, Principal Bench, New Delhi in C.P.

No.61/2004 filed against the respondent/Indian System of Medicare &

Homeopathy, on the ground that they had not complied with the order

dated 31st July, 1992 passed by the Tribunal in O.A 1207/1990, the

order dated 26th February, 1996 passed in CP No.227/1995 and the

order dated 11th October, 2001 passed by the Supreme Court in C.A.

No.213/1999.

2. Before dealing with the submissions made by learned counsel

for the petitioner, it is necessary to briefly refer to the facts that are

relevant to decide the present petition.

3. In the year 1987, Smt. Nirmal Rai and some other employees

had filed a writ petition in the Delhi High Court registered as WP (C)

No.1775/1987 for restraining the respondents from closing down the

College and for directions to pay them their salary in accordance with

the approved UGC scale, along with all consequential benefits. The

said petition was dismissed by the Court on 3rd June, 1987 and the

review petition filed by the petitioner therein, was also dismissed on

14th August, 1987.

4. Subsequently, OA No.1340/1988 was filed by Smt.Nirmal Rai

and some other employees stating inter alia that they were working as

Laboratory Assistants on an ad hoc basis with the Sanatan Dharam

Ayurvedic College and Hospital which was a private institution

managed by a Society and was affiliated with the examining body of

Delhi Administration for B.A.M.S since 1977. The aforesaid OA was

allowed by the Tribunal vide order dated 25 th October, 1991, by

observing therein that the fact of the takeover of the management of

the College by the Delhi Administration, had not been disputed and

the said takeover appeared to have been formalized by a Government

Resolution which was not on record. The contention of the Delhi

Administration that they had taken over only the responsibility of the

students and not the staff, was turned down and the Tribunal observed

that once the management of the College had been taken over by the

Delhi Administration, then the teaching and non-teaching staff would

also automatically come on the payrolls of the Delhi Government. As

a result, the Tribunal disposed of the captioned Original Application

filed by Smt.Nirmal Rai and other employees on 25 th October,

1991,with directions to the Delhi Government to treat them as its

employees since they had been rendered surplus consequent upon

closure of the College w.e.f. April, 1991. It was further directed that

the applicants shall be given an alternate placement in Delhi

Administration, commensurate with their qualifications and

experience. They were also held entitled to payment of allowances for

the period from the date of takeover of the management of the

College, till they were given alternate jobs along with all

consequential benefits.

5. Relying on the aforesaid order passed by the Tribunal in the

case of Smt. Nirmal Rai (supra), Shri Birender Kishore Pathak, the

Predecessor-in-interest of the petitioner herein, filed OA

No.1207/1990 before the Tribunal praying for identical relief, as

granted to Smt.Nirmal Rai and other employees in OA No.1340/1988.

The said original application was allowed by the Tribunal vide

judgment dated 31st July, 1992 by holding that the facts involved were

identical and the ratio of the judgment dated 25 th October, 1991 in

Nirmal Rai's case, shall apply to the case of Sh. Birender Kishore

Pathak.

6. Aggrieved by the judgment dated 25th October, 1991 passed in

OA No.1340/1988, the Delhi Administration preferred SLP

No.3524/1992, which was dismissed by the Supreme Court vide its

order dated 21st July, 1992.

7. Thereafter, the Delhi Government approached the Tribunal by

way of an application, for seeking clarification of the operative part of

the judgment dated 25th October, 1991, which came to be decided on

9th November, 1992, wherein the Tribunal had clarified that the

petitioners in the Original Application, shall be paid the pay and

allowances for the period from the date of takeover of the

management of the College, till they were given alternate jobs by the

Delhi Administration, at the same rate as applicable to employees of

the corresponding ranks in the Delhi Administration.

8. It is undisputed that the petitioner's predecessor-in-interest was

absorbed as a Demonstrator on 3rd January, 1996 in Delhi

Administration and vide order dated 15th June, 2002, the Delhi

Government had paid a sum of Rs.51,300 to the petitioner herein, as

arrears of backwages for the period from March, 1989 to 2 nd January,

1996, at the rate of Rs.625/- per month in terms of a certificate issued

by the College in the same manner in which he was being paid by the

College. Amounts were also disbursed to Smt.Nirmal Rai in a similar

manner.

9. As Sh.Birender Kishore Pathak was not satisfied with the

amounts received, he filed a contempt petition registered as CP

No.61/2004, questioning the basis of the calculation of the amounts

paid to him. Vide order dated 7th May, 2004, the Tribunal directed the

Delhi Government to pay the amounts to the petitioner w.e.f. April,

1986 to February, 1989 and also granted him liberty to revive the

contempt petition in case of non-payment. While passing the

aforesaid order, the stand taken by the Delhi Government that the

College had not been taken over by it during the period reckoned from

1986 to 1989, was turned down by the Tribunal, in the absence of any

proof produced by the respondents to demonstrate the same.

10. The Delhi Administration challenged the order dated 7 th May,

2004 and the review order dated 4th August, 2004 passed by the

Tribunal, by filing a writ petition in the High Court, registered as WP

(C) No.6530/2005. Vide order dated 30th August, 2010, passed in the

aforesaid petition, the Division Bench restored CP No.61/2004 filed

by the petitioner and directed the Tribunal to decide the same afresh

after taking into consideration the contentions urged by both sides.

11. Based on the aforesaid order, the matter was placed back before

the Tribunal which has passed the impugned order dated 28th June,

2013, recording inter alia that the decision in the case of Smt.Nirmal

Rai (supra), stood overruled by a Full Bench of the Tribunal vide

judgment dated 3rd July, 1995 in the case titled Dr.J.P. Sharma &

Ors. Vs. Chief Secretary, Delhi Administration & Ors., wherein it

was held that none of the employees of the College had become

employees of the Delhi Administration, as there was no material on

record that could demonstrate that Delhi Administration had taken

over the College, though undoubtedly, a proposal to the said effect

was mooted in the year 1987. We are informed that the decision dated

3rd July, 1995 passed in the captioned case, was challenged by the

aggrieved parties before the Supreme Court but the SLP was later on

dismissed as withdrawn. As a result, the said judgment of the Full

Bench of the Tribunal has attained finality.

12. In the impugned judgment, after holding that once it is clear that

the Delhi Government had never taken over the management of the

College and all the employees of the College were merely being paid

the salary from out of the grant-in-aid which was being released as

assistance to the management of College. The Tribunal disposed of

the contempt petition with the observation that there was no question

of wilful disobedience of any order passed by the Tribunal that would

warrant action in contempt proceedings and resultantly, the question

of payment of any backwages by the Delhi Administration in any pay

scale before the absorption of Sh.Pathak, as a Demonstrator, would

also not arise. Aggrieved by the said judgment, the petitioner has filed

the present petition.

13. Learned counsel for the petitioner submits that there was a clear

direction issued by the Tribunal vide order dated 26 th February, 1996

in CP No.227/1994 that the Delhi Administration shall pay salary,

allowances and all other consequential benefits to Shri Patnaik, from

the date of takeover of the management of the College by the Delhi

Government, till he was absorbed elsewhere. He submits that non-

compliance of the direction amounts to wilful disobedience of an order

passed by the Tribunal, which fact has not been appreciated in the

impugned order. He also submits that a meeting had taken place in

April, 1986 between the Delhi Administration and the management

and the students of the College for the purposes of taking over of the

College and in principle, a decision on that lines was taken and based

on the said decision, the College had continued to function till the year

1991. In these circumstances, the respondents-Delhi Government

cannot be permitted to urge at such a belated stage that the College

was never taken over by it.

14. Learned counsel also relies on the judgment in the case of Smt.

Nirmal Rai (supra), to state that in the said case, it was clearly held

that the College had been taken over by the Delhi Administration in

the year 1986 and employees of the College were to be treated as

Government employees and in the year 1996, they were also absorbed

as employees of the Delhi Government and on the same analogy, Shri

Patnaik should also be treated at par with Smt.Nirmal Rai.

15. Mr.Chadda, learned counsel for the respondents counters the

aforesaid submissions by relying on the judgment dated 3 rd July, 1995

passed by a Full Bench of the Tribunal in the case of Dr.J.P. Sharma

(supra), to state that the entire matter has achieved a quietus after the

said judgment having attained finality and it can no longer be urged by

the petitioner that the contempt petition was maintainable once it has

been declared that the Delhi Government had never taken over the

College and all that it had done was to extend grant-in-aid to it for the

purposes of meeting the requirement of payment of salaries etc. to the

teaching and non-teaching staff. He submits that even the judgment

passed by the Tribunal in favour of Shri Patnaik, was based on the

decision in the case of Smt.Nirmal Rai (supra) and once the said

decision has been overruled by a Full Bench of the Tribunal, the

petitioner cannot claim any benefit under the said judgment. He adds

that in any case, the Delhi Government had released an amount of

Rs.51,300/-as arrears of backwages in favour of the petitioner which

was also actually not payable as the College had never been taken over

by the Delhi Government.

16. We have heard the learned counsels for the parties and carefully

perused the relevant orders. It is an admitted position that after the

judgment dated 25th October, 1991 passed by the Tribunal in the case

of Smt.Nirmal Rai (supra) followed by the judgment dated 31st July,

1992, passed in the case of Shri Birender Kishore Pathak, the

predecessor-in-interest of the petitioner herein, the entire issue was

revisited by a Full Bench of the Tribunal in the case of Dr.J.P.

Sharma & Ors. (supra), wherein it was clearly held that at no stage

had the Delhi Government taken over the subject College though there

was a move in that direction in the year 1986. Further, it has been

observed that the decision in the case of Smt. Nirmal Rai (supra) was

not delivered in the correct perspective and in these circumstances, the

said judgment could not apply in rem to the other employees of the

College. In fact the judgment in the case of Smt.Nirmal Rai (supra)

had been specifically overruled by the Full Bench of the Tribunal and

it was also declared that the employees of the Society did not become

the employees of the Delhi Administration and their status remained

as that of employees of the Society, even though salaries were

disbursed to them from out of the grant-in-aid released by the Delhi

Administration to the management of the College.

17. In view of the fact that the aforesaid judgment has attained

finality, the Tribunal cannot be faulted in dismissing the contempt

petition filed by the petitioner and arriving at a conclusion that there

was no wilful disobedience of the order dated 31 st July, 1992. The

entire judgment in the case of Smt.Nirmal Rai (supra) was premised

on the fact that the management of the College, had been taken over

by the Delhi Administration, which premise was subsequently held to

be wrong in the case of Dr.J.P. Sharma (supra) and it was further

clarified that the College had in fact remained with the Society and the

decision to its takeover in 1986, had actually not fructified. Thus, the

question of non-compliance by the Delhi Administration, of any order

passed by the Tribunal, does not arise.

18. In the above facts and circumstances, we have no reason to

disagree with the findings returned by the Tribunal. Accordingly, the

present petition is dismissed. In the facts of the case, the parties are

liable to bear their own costs.

(HIMA KOHLI) JUDGE

(REKHA PALLI) JUDGE

NOVEMBER 30, 2017/aa