Central Administrative Tribunal - Delhi
Ramesh Kumar vs Delhi Transport Corporation, Govt. Of ... on 30 October, 2023
1
OA No.140 of 2020
Court No.5 (item No.33
Central Administrative Tribunal
Principal Bench
OA No. 140/ 2020
Reserved on: 11.09.2023
Pronouncement on: 30 .10. 2023
Hon'ble Dr.Chhabilendra Roul, Member (A)
Sh. Ramesh Kumar, Security Guard,
B.No. 11349, SPD Group „C‟
Aged about 61 years
S/o Sh. Amir Singh
R/o Village Garhi Sampla
District Rohtak, Haryana -Applicant.
(Through Advocate: Mr. S.N. Sharma )
Versus
Delhi Transport Corporation,
I.P. Estate,
New Delhi-110002.
(Through Chairman-cum- Managing Director)
(Through Advocate: Mr. Vaibhav Chawla for Mr. Vijay
Chawla )
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicant against the order dated 14.03.2019 passed by the Depot Manager, D.T.C., Sadipur Depot., New Delhi. Vide the above mentioned order, the respondents have retired the applicant retrospectively from the D.T.C. w.e.f. 31.03.2014. 2 OA No.140 of 2020 Court No.5 (item No.33
2. The factual matrix of the case is as follows:-
2.1. The applicant was appointed as Driver with the respondents-D.T.C. in the year January, 1983. The applicant‟s Date of Birth is 26.03.1959. In the year 1986, the applicant developed some defects in his eyesight. The Medical Board of the respondents-Delhi Transport Corporation (DTC) declared the applicant as medically unfit to perform the duties of Driver, vide their letter dated 20.01.1992. Under clause 10 of D.R.T.A (Conditions of Appointment and Service) Regulations of 1952, the applicant was retired from service prematurely on 01.05.1996. The applicant raised an Industrial Dispute in the year 1999. The Labour Court vide its order dated 17.05.1999 held that the premature retirement of the applicant from the service was illegal. The respondents challenged the award by filing W.P.C. No.5891 of 1999 before the Hon‟ble High Court of Delhi. The said W.P.C. was dismissed by the Hon‟ble High Court of Delhi on 28.09.1999. The respondent then filed LPA No. 516/1999 before the Division Bench of the High Court, which vide order dated 04.07.2000 dismissed 3 OA No.140 of 2020 Court No.5 (item No.33 the said LPA. In pursuance of the said order, the respondents have appointed the applicant as Peon vide order dated 27.11.2000. The applicant has accepted the same without prejudice to his rights and contentions for getting the same pay scale and service benefits that he was getting as a Driver. However, the respondents started paying the applicant as per the pay scale of Peon. Being aggrieved, he filed W.P.C. No. 1089/2001 before the Hon‟ble High Court of Delhi, which the Delhi High Court vide its order dated 24.10.2005 allowed and directed the respondents to post the applicant on a post with the same pay scale and the service benefits as applicable to the post of Driver. In pursuant of the said order of the Delhi High Court, the respondents have appointed the applicant as a Vehicle Examiner on the same pay scale and service benefits as applicable to a Driver. In the year 2008, the applicant was re-designated as Security Guard. However, he was paid in the same pay scale and service benefits as applicable to a post of Driver. 2.2. The respondents, vide their communication dated 03.03.2014 informed the applicant that he is going to attain the age of 55 years on 25.03.2014 and 4 OA No.140 of 2020 Court No.5 (item No.33 in case he was found medically unfit, he would be retired as per the extent Regulations prevailing in the respondents-Delhi Transport Corporation. The applicant challenged the order dated 3.3.2014 by filing OA No. 829 of 2014 before this Tribunal and the Tribunal vide its interim order dated 28.3.2014, restrained the respondents from retiring the applicant till the next date of hearing. However, the Interim Order continued and the Tribunal, vide its order dated 21.01.2019 dismissed the OA of the applicant. The respondents vide order dated 14.03.2019 (impugned order) retired the present applicant w.e.f. 31.03.2014, the date as he attained to the age of 55 years, as applicable to the post of Driver. The applicant made representation that as he was working as a Security Guard not as a Driver, the rules and regulations governing the service of Security Guard would apply to him and they would retire him when he attained the age of 60 years i.e., on 31.03.2019.
2.3. Prior to issuance of the retirement memorandum dated 14.03.2019, the respondents stopped assigning any duty to the applicant w.e.f. 30.08.2018. After issuance of retirement memo, the applicant was paid 5 OA No.140 of 2020 Court No.5 (item No.33 gratuity and other retirement benefits calculating his period of qualifying service till upto 30.03.2014. Being aggrieved, the applicant filed the present OA seeking the following relief(s):-
a) Quash memo dated 14.03.2019 (Annexure A-1) and order dated 25.11.2019 (Annexure -A-2) to the extent it retires the applicant.
b) Direct the respondent to retire the applicant with effect from 30.08.2018 and to pay him his post retirement benefits such as Gratuity, Leave Encashment, Provident Fund and Pension etc. along with interest after including the period 01.04.2014 till 30.08.2018 as his qualifying service."
3. On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
4. The applicant in his OA as well as through the averments advanced by the learned counsel for the applicant during the arguments has taken the sole ground that the respondents have erred in retiring him w.e.f. 31.03.2014 vide order dated 25.11.2019. In 6 OA No.140 of 2020 Court No.5 (item No.33 other words, the respondents have retired the applicant retrospectively which is arbitrary and illegal. At best, the respondents could have retired the applicant w.e.f. 30.08.2018, the date when the respondents stopped giving any work to the applicant. As the respondents have treated his date of retirement 31.03.2014, his pay scale for calculating his retirement benefits was taken on 31.03.2014, not as on prevailing on 30.08.2018. Moreover, the act of the respondents is blatantly arbitrary and illegal because the respondents continued to pay him salary till 30.08.2018 and they deducted his Provident Fund from his salary till end of August, 2018, 4.1 In view of above, the learned counsel for the applicant averred that the applicant should be paid his retirement benefits taking the pay prevailing as on 30.08.2018 and pay the post retirement benefits such as Gratuity, Leave Encashment, Provident Fund and Regular Pension treating his date of retirement as 30.08.2018. In other words, the learned counsel for the applicant averred that the period from 01.04.2014 to 30.08.2014 should be treated as qualifying service for all retirement benefits.
7OA No.140 of 2020 Court No.5 (item No.33 4.2. In support of his averments, the learned counsel for the applicant cited the judgment of the Hon'ble Apex Court in Vice-Chancellor, M.D. University Rohtak vs. Jahan Singh in Civil Appeal No. 853 of 2006, decided on 8.3.2007, wherein it was held that in absence of provisions of any specific Act, the action of the executive to make regulations with retrospective effect was held ultra vires. In other words, giving retrospective effect to any existing regulation was held ultra vires. In the said case, the Supreme Court held that the M.D. University Act 1975 did not confer any power to the Executive Council of the said University to regulate with retrospective effect. The para 19 of the said judgment read as follows:
" 19.The Act does not confer any power on the Executive Council to make a regulation with retrospective effect. The purported regulations, thus, could not have been given retrospective effect or retro-active operation as it is now well- settled that in absence of any provision contained in the legislative Act, a delegate cannot make a delegated legislation with retrospective effect."
4.3. In the instant case, the learned counsel for the applicant states that in Clause 10 of D.R.T.A (Conditions of Service) Regulation 1952 has provision 8 OA No.140 of 2020 Court No.5 (item No.33 that, in case it is certified that an employee has become permanently disabled and unfit to discharge duties of a post held by him, the employee shall be retired prematurely. However, in the instant case, the respondents have retired the present applicant vide order dated 25.11.2019 giving retrospective effect of his retirement from 31.03.2014. As it has been held in the Jahan Singh‟s case (Supra), the learned counsel for the respondents averred, that such retrospective retirement is not permissible under the law.
5. Per contra, the learned counsel for the respondents draws attention of this Tribunal to the Counter Affidavit filed by the respondents in the instant case. The learned counsel for the respondents states that as per service condition of the Driver and the order no.99 of the Delhi Transport Corporation, the normal retirement age of Driver is 55 years, whereas this age can be extendable upto 60 years subject to medical fitness of the Driver recommended by the Medical Board of the D.T.C. The applicant was directed to report to the Medical Board for medical checkup vide letter dated 3.3.2014 as he was about to 9 OA No.140 of 2020 Court No.5 (item No.33 attained the age of 55 years in the same month. The applicant was examined by the Medical Board of the respondents on 27.03.2014 and he was declared medically unfit to remain as a Driver. The applicant challenged the above decision of the Medical Board of the respondents before the Central Administrative Tribunal, which stayed the said decision of the Medical Board till further orders vide its order dated 28.3.2014. In view of this, the applicant was retained in service because of the Interim Order given by this Tribunal. As the OA in which the Interim order was given was ultimately dismissed and the applicant did not get any relief, he cannot claim that he remained in service as per the DTC Regulation, and accordingly, the respondents are supposed to retire him and granting him retirement benefits w.e.f. 31.03.2014, the date of normal superannuation. The applicant was rightfully retired from service w.e.f. 31.03.2014 on attaining the age of 55 years because the Medical Board vide its report dated 27.03.2014 declared him medically unfit to remain as a Driver. The applicant was initially appointed as Driver and he remained substantially for the entire period of his 10 OA No.140 of 2020 Court No.5 (item No.33 service till issuance of the retirement order as a Driver and he was drawing the pay scale and the benefits applicable to that of a Driver. It was on humanitarian consideration under which the applicant was given duty of peon at one time and because he agitated against the said arrangement, in pursuance of Court order, he was given the charge of the post of Vehicle Examiner and subsequently, that of a Security Guard in the pay scale of the Driver. Hence the applicant cannot claim the service benefits applicable to a Security Guard as he was not substantially or effectively posted as a Security Guard. 5.1. The learned counsel for the respondents further averred that if any Interim Order was given by any Court and finally if the Court dismisses the petition, the petitioner is not entitled to get the benefit of service for the interregnum period which he served on the basis of such Interim Order. In support of his argument, the learned counsel for the respondents cited the judgment of the Hon‟ble Supreme Court in Chairman-cum-Managing Director Fertilizer Corporation of India and another vs. Rajesh Chandra Shrivastava and Others, decided on 11 OA No.140 of 2020 Court No.5 (item No.33 07.04.2022 ( In Civil Appeal No. 2260 of 2022). In the said judgment, the Hon‟ble Apex Court held that:
"20.It is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him. Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this adhoc payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage."
5.2. The learned counsel for the respondents have further cited the ruling of the Hon‟ble Delhi High Court in Delhi Transport Corporation vs. Dharam Pal (Ex.Driver) 2009 SCC online Del 25 : (2009) 160 DLT 555 (DB) (2009) 123 FLR 217 (Del) : ( 2010 1 LLJ 447 decided on 09.01.2009, wherein it was held that:
"19. There is merit in the submission of the management that sub Section 1 of Section 47 of the Disabilities Act clearly 12 OA No.140 of 2020 Court No.5 (item No.33 indicates that the benefits will be available to the employees till he attains the age of superannuation.
The said Act does not add any additional benefit to a person who has suffered accident for Continuance in service beyond the age of 55 years because of his being medically unfit on reaching that age as he cannot steal advantage over other persons because of his disability. The fact is that whilst an employee would be entitled for payment in the pay scale and would receive service benefits of a driver till he is superannuated irrespective of the fact whether he is medically fit or not, but he will have to retire once he attains the age of 55 years.
Thereafter he cannot say that on account of provisions contained under Section 47 of the Disabilities Act he is entitled to continue in service up to 60 years as is being pleaded because this is not the mandate of Section 47 of the Disabilities Act.
20. Thus we are of the considered opinion that there is nothing in the Disability Act which permits extension of the service of an employee. The protection afforded under Section 47 is to an employee who incurs a disability during the period of his service which certainly means from the date of recruitment and the date of superannuation. If the date of superannuation is 55 years which is extendable on year to year basis subject to medical fitness it cannot be said that service of the employees must be extended on account of the provisions of the 13 OA No.140 of 2020 Court No.5 (item No.33 aforesaid Act even if he is unfit for the Job i.e. to act as a driver."
5.3. The learned counsel for respondents elaborated that in Dharam Pal‟s case (Supra), the Petitioner - respondents in the aforementioned case was working as a Driver under DTC. He incurred physical disability for various reasons before reaching the age of 55 years, which is the age of superannuation for Driver as per their service regulation. In their case, the Medical Board found them unfit and the DTC retired them at the age of 55 years. In other words, the facts and circumstances of the Dharam Pal‟s case (Supra) is exactly the same case as obtaining in the present case. As it has been rightly held by the Hon‟ble Delhi High Court that the Disability Act does not add any additional benefit to a person who suffered with an accident while in service beyond the age of 55 years and being medically unfit on reaching that age. Such employee cannot steal advantage over other persons because of his disability. The Hon‟ble Delhi High Court held that the Drivers have to retire once they attain the age of 55 years. Thereafter they cannot say that on account of provisions contained in the Section 47 of the Disability Act they are entitled to continue in 14 OA No.140 of 2020 Court No.5 (item No.33 service upto 60 years. The same has not been mandated under the Disability Act. 5.4. In view of the above averments, the learned counsel for the respondents states that the impugned order dated 14.03.2019 retiring the present applicant w.e.f. 31.03.2014 is perfectly legal and the applicant‟s subsequent period of service on account of interim stay given by the Central Administrative Tribunal does not entitle him to get retirement benefits extending his qualifying service beyond 31.3.2014 the date he has attained the age of 55 years. As per the DTC Regulation, he was supposed to be retired on that date on attaining the age of 55 years because he was found medically unfit to continue as a Driver.
6. I have gone through the records of the case thoroughly and heard the arguments carefully. In the instant case, the applicant remained in service because of the Interim order granted by this Tribunal vide order dated 21.01.2019 in OA No.829/2014. I do not agree with the contention of the learned counsel for the applicant that the judgment of the Apex Court in Jahan Singh‟s case (Supra) is applicable in the 15 OA No.140 of 2020 Court No.5 (item No.33 instant case. Here, it is not the case that the applicant was retired retrospectively on a particular date by the respondents on their own volition. When the aforementioned OA was dismissed, it implies that the relief sought by the applicant for remaining in service beyond the age of 55 years was declined. Accordingly his effective date of retirement remained as 55 years as the applicant was found medically unfit to remain in service as a Driver on the basis of the Medical Board declaring him unfit vide their report dated 27.3.2014. In view of this, the ratio of the judgment in the Jahan Singh‟s case (supra) is not applicable in the instant case.
6.1 On the other hand, the ratio of judgment of the Hon‟ble Delhi High Court in Dharam Pal‟s case (supra) is squarely applicable in the instant case. The facts and circumstance of the said case is the exactly the same as obtaining in the present case. The Hon‟ble Delhi High Court has held that after attaining the age of 55 years the Drivers are not entitled to remain in service unless they are declared fit by the Medical Board. Hence the order dated 14.03.2019 retiring the applicant when he attained the age of 55 years i.e. on 16 OA No.140 of 2020 Court No.5 (item No.33 31.03.2014, is legitimate. The said order does not suffer on account of any illegality or arbitrariness.
12. In view of the above, the present OA lacks merit and it is dismissed. No order as to the costs.
(Dr. Chhabilendra Roul) Member (A) /mk/