Central Administrative Tribunal - Delhi
Ram Niwas S/O Shri Dharam Singh vs Municipal Corporation Of Delhi on 2 April, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2669/2011 Order reserved on 27th March 2012 Order pronounced on 2nd April 2012 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) Ram Niwas s/o Shri Dharam Singh r/o Village Paprawat PO Najafgarh, New Delhi ..Applicant (By Advocate: Ms. Manpreet Kaur) Versus Municipal Corporation of Delhi Through its Commissioner Town Hall, Delhi-6 ..Respondent (By Advocate: Shri Abhishek Sharma) O R D E R
Shri M.L. Chauhan:
The applicant has filed the present OA, thereby praying for the following reliefs:
(a) Quash and set aside the order dated 2.6.2010 passed by the respondent, which states that the applicant will not entitled to get any salary/ financial benefits for the intervening period i.e. 21.4.1998 to the date of joining on 9.6.2010.
(b) Direct the respondent to give salary/ financial benefits for the intervening period i.e. 21.4.1998 to the date of joining on 9.6.2010.
(c) Award costs of the proceedings and
(d) Pass any other order/direction which this Honble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.
2. Briefly stated, facts of the case are that the applicant was engaged as daily wager Driver by the Municipal Corporation of Delhi (MCD) w.e.f. 13.4.1989. In terms of the decision taken by the respondent to regularize the services of daily wager, the case of the applicant was considered for regularization on 10.1.1996. He was called upon to furnish attestation form to the Deputy Commissioner of Police, Special Branch, New Delhi on 22.1.1996. One of the columns, which were required to be filled up in the attestation form and which are relevant, was column No.11, which reads as under:-
11. Have you ever been arrested, any case pending against you, have you ever been detained, fined or ever been convicted by a Court of law or have you ever been restrained from appearing in any examination by UPSC/University/education organization.
3. The applicant replied to this column in the negative. However, after the verification report was submitted by the Deputy Commissioner of Police, New Delhi on 9.2.1996 containing adverse remarks against the applicant, a show cause notice was served upon him giving him fifteen days time. The basis on which the show cause notice was issued to the applicant was to the effect that he deliberately and knowingly suppressed and concealed the relevant fact of his arrest in case FIR No.70/1984 and FIR No.31/1992. However, the applicant submitted his reply, thereby submitted that he was never arrested in these two aforesaid FIRs and he also denied that there is willful concealment on these facts, as noticed in the show cause notice. Being not satisfied, the respondent discontinued the services of the applicant vide order dated 27.4.1998 holding that the applicant was guilty of suppression of the concealment of material fact about his arrest in the aforesaid FIRs while filling up column NO.11 of the attestation form. Aggrieved by the aforesaid action of the respondent, the applicant filed writ petition before the High Court of Delhi challenging the order of discontinuance of his services, which writ petition has been transferred to this Tribunal and registered as TA-995/2009. This Tribunal held that it is not a case of misrepresentation and concealment of facts and was a case of mistaken impression. Accordingly, the said TA was allowed with a direction to the respondent to reengage the applicant in service and also consider him for regularization from the date others have been accorded the same. Matter was carried to the High Court wherein it has been held that no doubt the show cause notice was limited only to not informing the factum regarding arrest of the applicant in criminal case, a fact, which was not correct since the applicant was never arrested but in fact the intention of the respondent to issue show cause notice was regarding deliberately withholding the facts with respect to column No.11. However, the High Court in exercise of the power under Section 226 of the Constitution of India and the fact that the applicant was working as Driver since 13.4.1989 and the offence in which the applicant has been acquitted do not involve moral turpitude, dismissed the writ petition filed by the respondent.
4. It may be stated here that during pendency of the writ petition before the High Court, the respondent has passed the impugned memorandum dated 2.6.2010 whereby the applicant has not only been reengaged as daily wager Driver but he was also given offer of appointment to the post of Driver on regular basis w.e.f. 1.4.1995 in the pay scale of Rs.1200-2040 plus usual allowances as admissible under phased manner policy of the Corporation for regularization. However, the applicant was not held entitled to get any salary/financial benefits for the intervening period, i.e., from 21.4.1998 to the date of his joining, subject to the outcome of the Writ Petition (C) No.2417/2010.
5. The aforesaid writ petition has been dismissed by the High Court on 27.4.2010, thus, the judgment rendered by the Tribunal, as affirmed by the High Court, has attained finality.
6. The question, which requires our consideration, is whether the applicant is entitled to the financial benefits for the intervening period w.e.f. 21.4.1998 till the date of joining on 9.6.2010. The applicant has contended that once the writ petition against the order of this Tribunal has been dismissed, he is entitled for the salary for the aforesaid intervening period, as the termination of the applicant was held bad by the Tribunal.
7. The further submission made by the learned counsel for applicant is that the applicant is entitled to the salary for the aforesaid period in terms of Rule 54-A (3), which clearly stipulates that if the dismissal of the employee is set aside by the Court on the merits of the case, the period intervening between the date of dismissal to the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full salary to the intervening period, as such the action of the respondent for denying the same to the applicant is illegal in law and the same is liable to be set aside.
8. Another ground pleaded by the applicant for grant of back-wages for the salary for the intervening period is that the services of the applicant have been regularized w.e.f. 1.4.1995, as such he is automatically entitled for the salary for the intervening period from 21.4.1998 to the date of joining, i.e., 9.6.2010.
9. We have given due consideration to the submissions made by the parties and we are of the view that the applicant is not entitled to any relief for the reason dictated hereinbelow.
10. Simply because the order of termination has been set aside by the Tribunal, this fact, if-so-facto, will not entitle the applicant for grant of back-wages. Law on this point is no longer res integra. It has been repeatedly held by the Apex Court that in the seventies and eighties, direction for reinstatement and payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in legal approach now. In recent past there has been a shift in the legal position and in a long line of cases, the Apex Court has consistently taken the view that the relief of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention of the prescribed procedure. At this stage, it will be relevant to notice few decisions. The Apex Court in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, (2006) 1 SCC 479, on consideration of a question whether the direction to pay back wages consequent upon declaration that a workman has been retrenched in violation of the provisions of Section 6N of the U.P. Industrial Disputes Act, 1947 (equivalent to Section 25F of the ID Act, 1947) as a rule was proper exercise, made the following observations:
41. The Industrial Courts while adjudicating on disputes between the management and the workmen, therefore, must take such decisions which would be in consonance with the purpose the law seeks to achieve. When justice is the buzzword in the matter of adjudication under the Industrial Disputes Act, it would be wholly improper on the part of the superior courts to make them apply the cold letter of the statutes to act mechanically. Rendition of justice would bring within its purview giving a person what is due to him and not what can be given to him in law.
42. A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
43. The changes brought about by the subsequent decisions of this Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.
44. ......
45. The Court, therefore, emphasised that while granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages, therefore, cannot be the natural consequence.
11. In the case of J.K. Synthetics Ltd. v. K.P. Agrawaland Another, (2007) 2 SCC 433, while dealing with the question whether an employee is entitled to back wages from the date of termination to the date of reinstatement when the punishment of dismissal is substituted by a lesser punishment (stoppage of increments for two years), the Apex Court has held as under:
15. But the manner in which back wages is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey (2006)1 SCC 479, this Court following Allahabad Jal Sansthan v. Daya Shankar Rai (2005) 5 SCC 124 and Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 2 SCC 363 held as follows: (Uday Narain Pandey case, SCC p. 480d-g) A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.
Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident. 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. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence.
12. In G.M., Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, the Apex Court observed as follows:
8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.
13. The aforesaid view was further reiterated by the Apex Court in the case of Metropolitan Transport Corporation v. V. Venkatesan, (2009) 2 SCC (L&S) 719. At this stage, it will be useful to quote paragraphs 19 and 20 of the said judgment, which thus read:-
19. First, it may be noticed that in seventees and eighties, direction for reinstatement and payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in legal approach now.
20. We recently observed in Jagbir Singh vs. Haryana state Agriculture Marketing Board & Anr.5 that in recent past there has been a shift in the legal position and in along line of cases, this Court has consistently taken the view that the relief of reinstatement with back-wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention to the prescribed procedure.
14. Now let us consider the challenge of the applicant based upon FR 54-A (3). According to us, FR 54-A is not attracted in the instant case. The provisions of FR are applicable when the government servant, who has been dismissed, removed or compulsory retired, is reinstated either as a result of appeal or review or where the order of dismissal, removal or compulsory retirement is set aside by the court of law, which order can be passed either as a result of disciplinary proceedings or when a person is convicted by the criminal court. The present is not a case of such nature. Here, the services of the applicant were not terminated pursuant to the disciplinary proceedings or on account of his conviction by the trial court. Rather his services were discontinued before regularizing the service of the applicant, who was a daily wager and not government servant.
15. Further the discharge of a daily wager cannot be equated with the dismissal, removal or compulsory retirement of government servant, which has a different and separate connotation in service jurisprudence.
16. Now the question, which requires our consideration, is whether the applicant is entitled for back wages for the intervening period when his services were discontinued till his reinstatement on 9.6.2010. The applicant has placed on record the copy of the judgment of this Tribunal in TA-955/2009 (page 27 of the paper book). At this stage, it will be useful to quote the operative portion of the judgment, which thus reads:-
10. Resultantly, for the foregoing reasons, TA is allowed to the extent that impugned order is set aside. Respondents are directed not only to re-engage applicant in service but also consider him for regularization from the date others have been accorded the same. In such an event, consequences as admissible in law, rules and instructions should be ensued upon applicant. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.
17. As can be seen from the portion as quoted above, this Tribunal has not given specific direction to the respondent to grant back wages to the applicant consequent upon his regularization from the date when others have been accorded the same and the consequences, which may ensue on account of such regularization, have been left open for the authorities to be decided in accordance with law, rules and instructions. Admittedly, the applicant has not worked during the period when he was discharged till his reinstatement. Thus, according to us, on the principle of no work no pay, the applicant is not entitled for back wages and we see no infirmity in the action of the respondent whereby the respondent-MCD has denied the salary/financial benefits to the applicant for the intervening period w.e.f. 21.4.1998 to the date of joining on 9.6.2010.
18. Matter can be looked from another angle also. The applicant has not pleaded that during the period when he was out of service he was not gainfully employed. The applicant, if any, is entitled to the full salary only if he is able to show that he was not gainfully employed during the intervening period. Although the burden to proof this fact was initially with the respondent but there has been a noticeable shift in placing the burden of proof in regard to back wages. In Kendriya Vidyalaya Sangathan v. S.C. Sharma, (2005) 2 SCC 363, the Apex Court has held as under:-
16. When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard.
In U.P. State Brassware Corpn. Ltd. this Court observed: (SCC p. 495, para 61) 61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman.
17. There is also a misconception that whenever reinstatement is directed, & continuity of service and & consequential benefits should follow, as a matter of course. The disastrous effect of granting several promotions as a consequential benefit to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether continuity of service and/or consequential benefits should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud, (2003) 2 SCC 212, A.P. SRTC v. Abdul Kareem, (2005) 6 SCC 36 and Rajasthan SRTC v. Shyam Bihari Lal Gupta, (2005) 7 SCC 406.
18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may. (emphasis supplied)
19. As already stated above, the applicant has not pleaded that he was not gainfully employed from the date of his termination. Even on this count also, the applicant is not entitled to get salary/financial benefits. At this stage, we may also refer to another decision of the Apex Court in the case of Basanti Prasad v. Chairman, Bihar School Examination Board & others, (2009) 2 SCC (L&S) 252 whereby while considering the relief regarding grant of arrears of back wages, the Apex Court, relying upon the its earlier judgment in the case of G.M. Tank v. State of Gujarat, (2006) 5 SCC 446, has made the following observations in paragraph 29 of the judgment:
29. It is argued by the learned counsel for the respondent that if the delay is condoned and relief is granted to the appellant, the respondent had to bear the brunt of paying huge arrears of salary and other monetary benefits and, secondly, direction to pay arrears of wages is not automatic and it depends on several factors. The learned counsel has 13 drawn our attention to the observation made by this court in the case of G.M. Tank vs. State of Gujarat, wherein this court has stated :-
32. In the instant case, the appellant joined the respondent in the year 1953. He was suspended from service on 8-2-1979 and got subsistence allowance of Rs 700 p.m. i.e. 50% of the salary. On 15-10-1982 dismissal order was passed. The appellant had put in 26 years of service with the respondent i.e. from 1953-1979. The appellant would now superannuate in February 1986. On the basis of the same charges and the evidence, the department passed an order of dismissal on 21-10-1982 whereas the criminal court acquitted him on 30-1-2002. However, as the criminal court acquitted the appellant on 30-1-2002 and until such acquittal, there was no reason or ground to hold the dismissal to be erroneous, any relief monetarily can be only w.e.f. 30-1-2002. But by then, the appellant had retired; therefore, we deem it proper to set aside the order of dismissal without back wages. The appellant would be entitled to pension.
20. Thus, viewing the matter from any angle, we do not find any merit in the OA, which is accordingly dismissed without any order as to costs.
( Shailendra Pandey ) ( M. L. Chauhan ) Member (A) Member (J) /sunil/