Central Administrative Tribunal - Delhi
K Alex vs Delhi State Industrial And ... on 13 September, 2024
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C-5, Item -33 O.A. No. 4491/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No.4491/2017
Reserved on: 05.09.2024
Pronounced on: 13.09.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
K. Alex,
S/o Late O. Kunjappan,
Aged about 59 years,
R/o 248, DDA Flats,
Lado Sarai, New Delhi-30.
Presently posted as HEMM Operator,
Working as Senior Manager,
Relocation Division Patparganj,
DSIIDC, Delhi, Group-'B'.
...Applicant
(By Advocate: Mr. Ranjit Sharma)
Versus
DSIIDC, Ltd.,
Through its Chairman,
N-36, Bombay Life Building,
Connaught Circus, New Delhi-01.
...Respondent
(By Advocate: Ms. Deepali Gupta)
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C-5, Item -33 O.A. No. 4491/2017
ORDER
Hon'ble Mr. Manish Garg, Member (J)
1. In the instant OA, the applicant has prayed for the following reliefs:-
"i. hold that the fixation of pay of the applicant vide office-order dt.30-12-2008 at the initial stage of in pay- band 9300-34,800/- +GP 4200 is wrong and illegal and accordingly quash it and direct the respondent to refix the pay of the applicant on re- instatement on 30-9- 2008 in the pay-band 9300-34800 +GP 4200 in continuity of service from the year 1987 in consonance with the calculation vide annexure A5 supra;
ii. further direct the respondent to grant benefit of IIIrd MACP to the applicant iii. direct the respondent further to compensate the applicant for extra hours of work for 49 months in its IMFL Division;
AND/OR iv. pass such other order/s as may be deemed fit and proper."
2. Narrating the facts of the case, learned counsel for the applicant submits that the applicant, who joined the erstwhile Delhi State Mineral Development Corporation (DSMDC) as HEMM Operator, was regularized in service vide order dated 23.01.1989. The DSMDC was wound up in the year 1992 and merged in the Delhi State Infrastructure and Industrial Development Corporation (DSIIDC). On the 3 C-5, Item -33 O.A. No. 4491/2017 ground of reduced activities of the DSMDC, circular dated 27.08.1992 was issued along with a list of employees to be re-deployed elsewhere in which the applicant's name appeared at Sl. No. 48.
2.1. Thereafter, on 13.07.1993, instead of re deploying the applicant, the respondents terminated the services of the applicant under Rule 5 (1) of the Central Civil Service (Temporary Service Rules) whereas other similarly situated persons were re-deployed. However, pursuant to the direction of the Hon'ble Apex Court, the applicant was reinstated in service but he was denied back-wages. He further submits that the pay of the applicant was fixed vide order dated 30.12.2008 at the initial stage in pay-band 9300-34800+4200, which is the subject matter of challenge in the instant OA.
2.2. Highlighting the facts of the present case, the learned counsel for the applicant draws attention to the impugned order dated 30.12.2008 which has been passed pursuant to the Judgment dated 23.09.2008 of the Hon'ble Apex 4 C-5, Item -33 O.A. No. 4491/2017 Court in Civil Appeal No.5797/2008. The relevant portion of the said judgment reads as under:-
"16. We have already noted herein earlier that we are not convinced with the explanation offered by the Corporation for not redeploying the appellant, his termination must be held to be arbitrary and unjust. Even otherwise, the Corporation could not terminate the services of the appellant by resorting to the Temporary Service Rules and on this ground also, the termination of the appellant was illegal and invalid and is liable to be quashed.
17. For the reasons aforesaid, the judgments of the Single Judge as well as of the Division Bench of the High Court are liable to be quashed and are, accordingly, set aside and the appeal is thus allowed. The Corporation is directed to reinstate the appellant with immediate effect in any organization under the Delhi Administration or absorb him within the Corporation itself. In view of the peculiar facts of this case, no back wages are allowed and no order as to costs."
3. Opposing the grant of relief, the learned counsel for the respondents relies upon the averments made in the counter affidavit and highlights the following paras:-
"1. That vide the present O.A. the applicant is seeking directions for re- fixation of his pay after re-instatement on 30/09/2008 in the Pay Band of Rs. 9300-34800 with GP Rs. 4200/- in continuity of service from the year 1987.
2. That it is humbly submitted that the applicant was granted reinstatement of service in compliance of the Orders of the Hon'ble Supreme Court dated 23/09/2008 in Civil Appeal No.14337 of 2006. The operating part of the order of Hon'ble Supreme Court is reproduced as under :-5
C-5, Item -33 O.A. No. 4491/2017 "17. For the reason aforesaid, the judgments of the Single Judge as well as of the Divisions Bench of the High Court are liable to be quashed and are, accordingly, set aside and the appeal is thus allowed. The Corporation is directed to reinstate the appellant with immediate effect in any organization under the Delhi Administration or absorb him. within the Corporation itself. In view of the peculiar facts of this case, no back wages are allowed and no order as to costs".
xxxxxx
5. That as per aforesaid Order of the Hon'ble Supreme Court, Sh. K. Alex was redeployed in DSIIDC w.e.f. 30/09/2008. The period of his absence from 13/07/1993 to 29/09/2008 was treated as absence from duty and treated as dies-non for all purposes. It is humbly submitted the said period of absence Shri K. Alex was working with Shri S. Ajaya Kumar, Member of Parliament, (Lok Sabha), Ottapalam Constituency, Kerala, in the capacity of his Personal Secretary as can be seen from reference dated 16/09/2008 issued by Shri S. Ajaya Kumar, Member of Parliament, (Lok Sabha) Ottapalam Constituency, Kerala, wherein it has been stated that Shri K. Alex worked with said Member of Parliament in the capacity of his Personal Secretary 16/08/1996 to 15/09/2008."
3.1 Learned counsel for the respondents submits that there was no continuity in service of the applicant and as such, the applicant is not entitled to grant of benefits of back-wages. She relies upon the Judgment dated 02.08.2005 of the Hon'ble Supreme Court passed in the matter of Andhra Pradesh State Road Transport Corporation (APSRTC) vs. Abdul Kareem, 2005 LawSuit 6 C-5, Item -33 O.A. No. 4491/2017 (SC) 1031. The relevant portion of the same reads as under:-
"Reverting to the facts of the case at hand, as already noticed, the Labour Court specifically directed that the reinstatement would be without back wages. There is no specific direction that the employee would be entitled to all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back wages, he could claim a benefit of increments notionally earned during the period when he was not on duty or during the period when he was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence.
In view of what has been stated above, both the Learned Single Judge and Division Bench had erred in law in allowing the benefit of increments notionally to the employee during the period when he was out of service. Both the orders in C.A. No. 7797 of 2003 are set aside."
4. In rejoinder, the learned counsel for the applicant submits that the findings of the above referred case does not apply in the case of the applicant herein as the employee is to be held guilty as per the said case and not otherwise. He further submits that the applicant was given promotion in the higher pay grade which is reflected from the order dated 09.02.2009 w.e.f. 30.10.2009. Learned counsel further highlights the Clause 2 of the 7 C-5, Item -33 O.A. No. 4491/2017 Minutes of the 194th Meeting of the Board of Directors held on 28.10.2002, which reads as under:-
"2) Officers falling in Group A&B (posts upto scale of Rs.10000- 15200) category may be considered for grant of "Merit Pay Scale", who have completed 7 years of service in a grade of pay, on the basis of their self assessment report and ACRs duly considered by a DPC and acceptance of the recommendations by the Managing Director. (The officer shall be entitled for benefit of fixation of pay under FR 22)."
4.1 Learned counsel for the applicant informs that the applicant superannuated on 30.11.2017 and though he preferred a representation, no action has been taken so far in the case of the applicant. He further highlights the para
(vi) at page 8 of the OA, which reads as under:-
"vi.During his service after reinstatement the applicant served the Corporation in India Made Foreign Liquor (IMFL for short) shops for more than 49 months from 1-6-2010-3-6-2012 and from 1-5- 2015 to 3-6-2017.During this period the applicant served the Corporation every day from 12 to 10 PM Monday to Friday and 10 AM to 10 P.M on Saturday and Sunday without there being weekly off except on dry days fixed by the Excise Department. The applicant, in return, got no extra payment for extra work. The applicant is annexing some relevant attendance sheet as Annexure A8 this Hon'ble Tribunal's perusal and the orders of his posting (Annexure A9 Colly)."
4.2 Learned counsel for the applicant relies upon the decision rendered in the matter of Rajendra Singh Bisht 8 C-5, Item -33 O.A. No. 4491/2017 vs. Dsldc., 128 (2006) DLT 500, 2006 (3) SLJ 509 Delhi in so far as the relief of Over Time Allowance is concerned.
5. We have heard the submissions of the respective parties and gone through the records of the case.
6. ANALYSIS :
6.1 Dealing with the term "Consequential benefit" in public law, in Om Pal Singh v. Disciplinary Authority and Ors., (2020) 3 SCC 103, a two Judge Bench of the Hon'ble Supreme Court held that consequential benefits and continuity of service as also grant of back wages is not a natural consequence of reinstatement. It was noticed in the above decision that the ratio of Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors., (2013) 105 SCC 324 was not brought to the judicial notice of the Hon'ble Tribunal.
6.2 In Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors. (supra), the Hon'ble Supreme Court was dealing with a case where an employee of a school was terminated. The said termination was set aside by the School Tribunal and reinstatement with full back wages 9 C-5, Item -33 O.A. No. 4491/2017 was directed. Upon challenge against the Tribunal's order, the quashing of termination was upheld by the High Court but the direction for back wages was set aside. The Supreme Court considered Hindustan Tin Works Pvt. Ltd.
v. Employees of Hindustan Tin Works Pvt. Ltd., (1979) 2 SCC 80, which observes that when termination is found to be invalid, award of full back wages is the normal rule. Though, the Hon'ble Supreme Court notes that even in Hindustan Tin Works (supra), there can be no straight jacket formula for awarding back wages.
6.3 The Court in Deepali Gundu (supra), further analyzed various other decisions on this issue, including J.K. Synthetics vs. K.P. Agrawal & Anr. 2007 AIR SCW 1357 and culled out the position of law as under:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) XXX
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C-5, Item -33 O.A. No. 4491/2017
iv) The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised.
It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts 11 C-5, Item -33 O.A. No. 4491/2017 should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 6.4. The decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two Division Bench decisions of the Hon'ble High Court of Delhi in Mahabir Prasad v. DTC, (2014) 144 DRJ 422 and Jagdish Chander v. DTC, 2020 LLR 754, wherein in the facts of the said case (Mahabir Prasad v. DTC case) reinstatement was directed by the Labour Commissioner, with continuity of service but without back wages. Thereafter, DTC reinstated the workman without any back wages and without any benefits on notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging this, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and 12 C-5, Item -33 O.A. No. 4491/2017 other terminal benefits. In this case, the Division Bench of the Hon'ble High Court observes as under:
"20. The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held that that the enquiry against him illegal; went into the material an found that the charge of misconduct was baseless. It consequently directed reinstatement without back wages. Whilst the denial of back wages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable. It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty.
21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in the 13 C-5, Item -33 O.A. No. 4491/2017 grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms; there shall be no order as to costs."
6.5. In the case of Jagdish Chander (supra), reinstatement was directed with full back wages. Upon challenge, the High Court in an LPA had modified this order to deny back wages, but DTC had agreed to not challenge reinstatement, to grant the benefit of continuity of service and to compute pension accordingly. Thereafter, the Workman was not given ACP benefits and various other benefits. Since the Division Bench in LPA had recorded that it was upholding the award based on DTC's assurance that continuity of service would be given, the Court directed the Workman's pay scale to be fixed by notionally granting him increments and benefits under the ACP scheme, held as under :-
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C-5, Item -33 O.A. No. 4491/2017 "28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. While in Mahabir Prasad (supra) the Labour Court had ordered reinstatement with continuity but without back wages, in the present case the Labour Court ordered both reinstatement and full back wages. The DB of this Court modified the Award only to the extent of denying the Petitioner full back wages but acknowledged that the intent of the Award was to grant the Petitioner continuity of service. This is plain from the operative portion of the order of the DB partly allowing DTC's LPA. It explained the rationale for denial of full back wages as follows: "In our considered opinion, when the corporation has agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop.
29. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement and in applying the law as explained in Mahabir Prasad (supra) that while this would not entitle him to promotions, the Petitioner would upon reinstatement be entitled to the increments on the pay scale he was drawing at the time of termination of his services and further that for the purpose of gratuity and pension he would be treated as having been in service throughout.
30. The CAT erred in referring to the decision of the Supreme Court in S. Narsagoud (supra) which has been squarely dealt with and rejected by a subsequent decision of the Supreme Court in Deepali Gundu Surwase (supra). In fact, the CAT failed to take notice of the aforesaid judgments in spite of the Petitioner raising this specific point in his RA No. 39/2016.
31. For the aforementioned reasons, the impugned orders of the CAT are hereby set aside. The Respondent/DTC is directed to: i. Fix the Petitioner's pay scale by notionally granting him the increments and benefits under the ACP Scheme to which he now stands entitled."
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C-5, Item -33 O.A. No. 4491/2017 6.6 In view of above discussions and analysis of the ratio
in above cited case laws, illustratively, the consequential benefits would mean and include:-
(i) Increments
(ii) HRA and CCA
(iii) Notional Refixation of pay upon reinstatement
(iv) Leave encashment
(v) Festival Advance/Flood Advance
(vi) Productivity Linked Bonus/ Adhoc bonus
(vii) Interest
(viii) ACP/MACP
(ix) Seniority
(x) Promotion
6.7 In Om Prakash & Ors. v. Delhi Jal Board, 2015
XAD (Delhi) 448, the Hon'ble Delhi High Court while considering a case where reinstatement was directed with immediate effect and whether in such a case regularization ought to be given to the workman held that 'continuity of service' ought to be read into the relief of reinstatement and directed regularization in accordance with the policy of the Management held as under:-
"18. In view of the aforesaid decisions, coupled with the fact that while granting the relief of reinstatement even the back wages were also granted. That being so, the mere fact that along with the relief of reinstatement the word "continuity of service" has not been mentioned does not mean that the said relief was not granted. That being so, 16 C-5, Item -33 O.A. No. 4491/2017 the mere fact that the word "with immediate effect" was mentioned in the award does not mean that the Court impliedly declined the relief of continuity of service."
6.8 In the present case, it is not disputed that though back wages have not been awarded to the applicant, the Hon'ble Apex Court would have never contemplated of giving restrictive meaning so as to deny the "consequential benefits" on notional basis moreso, when the applicant was not at fault. Moreso, the applicant was given promotion in the higher pay grade which is reflected from the order dated 09.02.2009 w.e.f.30.10.2009. The Clause 2 of the Minutes of the 194th Meeting of the Board of Directors held on 28.10.2002, reads as under:-
"2) Officers falling in Group A&B (posts upto scale of Rs.10000-15200) category may be considered for grant of "Merit Pay Scale", who have completed 7 years of service in a grade of pay, on the basis of their self assessment report and ACRs duly considered by a DPC and acceptance of the recommendations by the Managing Director. (The officer shall be entitled for benefit of fixation of pay under FR 22)."
6.9 The applicant superannuated on 30.11.2017 and though he preferred a representation, no action has been taken in his case, which ought to have been taken by the respondents.
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C-5, Item -33 O.A. No. 4491/2017 6.10 The applicant relies upon the decision rendered in the matter of Rajendra Singh Bisht vs. Dsldc., 128 (2006) DLT 500, 2006 (3) SLJ 509 Delhi insofar as the relief of Over Time Allowance is concerned. We do not find substance in said arguments qua Over Time Allowance as they pertain to a very long period. The same ought to have been raised at an appropriate stage. There is no material or documents to substantiate the said claim of Over Time Allowance at this belated stage except for reliance on Rajendra Singh Bisht (supra).
7. CONCLUSION :
7.1. In view of the above analysis, we partly allow the OA and direct the respondents to re-fix the pay of the applicant on re-instatement on 30.09.2008, albiet on notional basis, since he has already superannuated on 30.11.2017. We also direct the respondents to consider applicant's claim for grant of 3rd MACP, if the applicant had completed 30 years of the service from date of appointment. Accordingly, the pension of the applicant be re-fixed within a period of two 18 C-5, Item -33 O.A. No. 4491/2017 months from the date of receipt of certified copy of this order.
7.2. All pending MAs, if any, shall also stand disposed of.
No costs.
(Dr. Anand S. Khati) (Manish Garg) Member (A) Member (J) /yaksh/