Central Administrative Tribunal - Delhi
Dr. R.N. Bansal vs Municipal Corporation Of Delhi on 22 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.149/2011 New Delhi, this the 22nd day of July, 2011 CORAM: HONBLE MR. A.K. BHARDWAJ, MEMBER (J) Dr. R.N. Bansal, Aged about 58 years, S/o Shri G.R. Bansal, R/o 38, Ashoka Park (Main), Rohtak Road, Delhi .Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Municipal Corporation of Delhi Through its Commissioner, Town Hall, Chandni Chowk, Delhi 2. The Additional Commissioner (Health), Municipal Corporation of Delhi, Health Department, Town Hall, Delhi 3. The Director (Health Administration), Municpal Corporation of Delhi, Health Department, Town Hall, Delhi Respondents (By Advocate: Shri Praveen Swarup) O R D E R (ORAL)
By an order dated 12.1.2009, the applicant was transferred from Hindu Rao Hospital to Rajan Babu T.B. Hospital (RBTBH). Challenging the said order, the applicant had filed OA No.289/2009 before this Tribunal. On 6.2.2009 when the OA came up for hearing, this Tribunal directed the respondents not to give effect to the transfer order dated 12.1.2009 for a period of 14 days. However, having an impression that the applicant had already been relieved on 13.1.2009 and the interim order was passed on 6.2.2009 only, the respondents could not allow the applicant to join/continue in Hindu Rao Hospital. Thus the applicant filed a Contempt Petition No.66/2009 alleging disobedience of order dated 6.2.2009. During pendency of the Contempt Petition, the OA came up for final hearing and was disposed of in terms of Order dated 6.5.2009 with the following directions:
xxxxx. We have already discussed in detail that applicant could not have been transferred to RBTB Hospital for the reasons narrated above, therefore, order dated 12.1.2009 is not sustainable in law. The same is accordingly quashed and set aside. Respondents are directed to regularize the intervening period in accordance with law.
2. In view of final disposal of the Original Application on 6.5.2009 itself, the Contempt Petition was also disposed of. Seeking review of Order dated 6.5.2009, the respondents filed Review Application No.127/2009. Finding no error apparent on the face of the order under review, this Tribunal dismissed the RA vide order dated 26.2.2010.
3. As per direction contained in Order dated 6.5.2009 passed in OA 289/2009 regarding regularization of the intervening period of the applicant in accordance with law, the respondents passed an Office Order dated 8.11.2009 sanctioning Earned Leave to the applicant for the period from 13.1.2009 to 6.2.2009 and treating the period from 7.2.2009 to 5.5.2009 as without pay on the principle of no work no pay. While denying pay to the applicant for the said period, the respondents considered the same as regularized for the purpose of continuance in service and other benefits.
4. Assailing the aforementioned order dated 8.11.2009 and claiming salary for the period in question, the applicant has filed the present OA making the following prayers:-
i. to quash and set aside the impugned order dated 05.11.2009 (Annexure-A-1) and the impugned order dated 09.03.2010 (Annexure-A-2) and direct the respondents to treat the period from 07.02.2009 to 05.05.2009 as on duty for all intents and purposes and the respondent may be directed to pay, the pay and allowances along with the interest of 15% p.a. till the date of payment;
ii. to pass such other and further order as deemed fit and proper.
5. It is contended by Shri S.K. Gupta, learned counsel appearing for applicant that in view of the decision of Honble Bombay High Court in the case of Ramesh Motilal Khandelwal vs Zilla Parshad, Akola, decided on 17.7.1987 in Writ Petition No.1881/1986, the applicant is entitled to wages for the intervening period. Relevant excerpt of the said judgment reads as under:
16. It has therefore, to be held that the petitioner is entitled to wages in his original pay scale of the post of stenographer although he might have absented himself during the said period. The leave which is admissible to the petitioner cannot be adjusted during this period. The impugned order dated 200.11.1986, therefore, deserves to be set aside and it has to be held that the Zilla Parishad is liable to pay to the petitioner the wages admissible to him as if the impugned order of transfer dated 06.12.1985 was not passed.
17. The last question which remains to be considered is whether the petitioner can be granted damages on account of mental agony as urged by him in this petition. As regards the claim of damages on account of mental agony alleged to be suffered by the petitioner, in our view, it would raise complicated questions of law and fact if the said claim for damages for torturous act were to be considered. In our view, such a claim can be considered in a properly instituted civil suit and not in the instant writ petition. We are, therefore, not inclined to entertain the above claim of the petitioner in the instant writ petition.
In the result, the instant writ petition is partly allowed. The respondent Zilla Parishad is directed to pay wages to the petitioner for the intervening period from 7.12.1985 to 4.8.1986 on the basis of the pay scale of the stenographer ignoring the order of transfer dated 6.12.1985. The impugned order dated 20.11.1986 treating the period of 43 days as earned leave and the remaining period of 43 days as leave without pay is set aside and it is directed that the leave admissible to the petitioner should not be adjusted in this intervening period. The petitioner would be entitled to his costs from the respondents. Rule is made absolute in the above terms. Counsel appearing for the applicant has also placed reliance on the decision of the Honble High Court of Delhi delivered on 26.4.2011 in Writ Petition (Civil) No.590/2008. On the basis of the said judgment it is contended by him that once the order of transfer of the applicant was not sustainable in eyes of law and was interfered with, the applicant was entitled to back wages. In the said case the applicant was transferred from Delhi to Tunir and for the period during which he could not join at the place of transfer, he was allowed back wages. Relevant excerpt of the said judgment is extracted below:
5. The respondent had again been transferred by order dated 11th November, 1998 from Delhi to Tunir, which was objected by him on account of adverse humid conditions which were not in consonance with his medical report which was given by the graded specialists of the petitioners in the year 1994. The respondent had represented against his transfer to Tunir and had filed a writ petition before the High Court which was however, not accepted. However, in his review application, it was directed to consider his medical fitness before posting him to Tunir.
6. Though the High Court in the review application had directed consideration of the medical fitness of the respondent before posting him to Tunir, however, his medical fitness was not ascertained. Rather a major penalty charge sheet under Rule 14 of the CCS (CCA) Rules, 1965 was issued. The allegation of misconduct was that he remained absent from duty w.e.f. 23rd June, 1999 as he failed to report to his place of posting at Tunir which was tantamount to failure on the part of the respondent to maintain integrity and devotion to duty and acting in a manner unbecoming of Government servant.
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14. The Tribunal also took into consideration the order dated 16th April, 2003 re-transferring the respondent from Tunir to Delhi on the same medical ground. Though the respondent was transferred back from Tunir to Delhi without prejudice to the departmental action, however, his posting back from Tunir to Delhi unequivocally reflected his medical conditions which had made him unfit for transfer even in 1999, and consequently, without his medical examination especially pursuant to the order of the High Court dated 24th August, 1999 in RA No.61/1999 in CWP No.4691/1999 the petitioners could not have transferred the respondent from Delhi to Tunir, and his failure to join there, could not be held to be misconduct that could be attributed to him nor could he be punished for the same.
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21. In the totality of the facts and circumstances, there are no such illegalities or perversities in the order of the Tribunal setting aside the orders passed against the respondent by the Disciplinary authority and the Appellate authority and directing the petitioners to accord all benefits to the respondent for the period from 23rd June, 1999 to 27th May, 2003 including retiral benefit. In the facts and circumstances, therefore, there are no grounds to interfere with the order of the Tribunal and the writ petition is therefore, dismissed. However, the parties are left to bear their own costs. Besides above, the learned counsel also placed reliance on the decision of the Tribunal in OA No.349/2005 decided on 2.5.2006 (Gopinath vs. The Central Electricity Authority & Ors). Referring to para-7 of the judgment he contends that for the period of absence on account of transfer, which was not sustained in law, the applicant was entitled to back wages. The said para-7 reads as under:
7. The counsel for the applicant has relied on the judgment of the Honble Bombay High Court decided on 17.7.1987 in Ramesh Motilal Khandelwal v. Zilla Parishad, Anklola, reported in 1991 (SLR) page 666. The Honble High Court had held that when a transfer order is contrary to statutory rules it is illegal and void and if the officer who was transferred by such an order did not obey the same and was absent during the intervening period he will be entitled for the full wages for the period. The respondent in hat case (the Zilla Parishad) was held liable to make good the loss occasioned to the petitioner by reason of his illegal order of transfer. Referring to the decision of the Honble Supreme Court in the case of Nawab Khan Abhas Khan vs State of Gujarat {AIR 1974 SCC 1471}, the learned counsel for applicant submits that once the transfer order is declared invalid, the same has to be so treated. Para 20 of the judgment reads as under:-
20. We express no final opinion on the many wide-ranging problems in public law of illegal orders and violations thereof by citizens, grave though some of them may be. But we do hold that an order which is void may be directly and collaterally challenged in legal proceedings. An order is null and void if the statute clothing the administrative tribunal with power conditions it with the obligation to hear, expressly or by implication. Beyond doubt, an order which infringes a fundamental freedom passed in violation of the audi alteram partem rule is a nullity. When a competent Court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e. the impugned act or order was never valid. The French Jurists call it Linexistence or outlawed order (p. 127 Brown and Garner, French Administrative Law) and could not found the ground for a prosecution. On this limited ratio the appellant is entitled to an acquittal. We allow his appeal.
6. Opposing the Original Application, the learned counsel Shri Praveen Swarup appearing for the respondents submits that on being transferred from Hindu Rao Hospital on 12.1.2009, applicant was relieved from there on 13.1.2009 itself and for a long period i.e. till 6.5.2009 he had not obeyed the transfer order. It is further contended by Shri Praveen Swarup that since the applicant had not performed duty from 7.2.2009 to 5.5.2009, on the principle of no work no pay, he cannot be granted any wage for the said period though the same had been regularized for the purposes of continuity in service and other benefits.
7. As far as the plea of the respondents regarding dismissal of the Contempt Petition is concerned, it can be seen from the record that this Tribunal never approved the attitude of the respondents in not allowing the applicant to continue in service for the period of transfer after the transfer order was set aside and disposed of the CP only for the reason that the OA had been disposed of finally.
8. As far as the legal proposition of no work no pay is concerned, the fundamental issue, which needs to be determined while considering application of such principle is whether an employee did not perform duty for the reasons attributable to him or on account of action of the administration. In the present case, it is apparent that it is because of the transfer order dated 12.1.2009 that the applicant could not continue his duty in Hindu Rao Hospital and since he was aggrieved by the transfer order, he did not join duty there. Thus the impugned orders dated 5.11.2009 and 9.3.2010 cannot be sustained in law and are quashed and set aside. Accordingly the matter is remitted back to the Respondents with the direction to examine the claim of the applicant for pay and allowances for the period from 7.2.2009 to 5.5.2009 in view of the judgments cited hereinabove within a period of two months from the date of receipt of a copy of this order and to pass speaking order. No costs.
(A.K. BHARDWAJ) MEMBER (J) /pkr/ Central Administrative Tribunal Allahabad Bench, Allahabad I authorize Honble ______________________________ to pronounce the order passed in O.A.No.149/2011 on my behalf.
( A.K. Bhardwaj) Member (J)