Central Administrative Tribunal - Delhi
Kartar Singh vs Delhi Transport Corporation, Govt. Of ... on 30 January, 2025
Item No.56 (Court - 5) O.A. No.2588/2017
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2588/2017
No.
Reserved on: 08.01.2025
Pronounced on: 330.01.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Kartar Singh, Conductor, RD-11
RD 11 , B.No.12633,
Aged about 65 years, Group 'C'
S/o Gopi Ram,
R/o H.No.5A, Post Office Wali Gali,
Pipalwala Mohalla, Village Badli,
Delhi.
...Ap
...Applicant
(By Advocate: Mr. Anil Mittal)
Mittal
Versus
1. Delhi Transport Corporation,
I. P. Estate,
New Delhi-11 0002.
(through Chairman--Cum-Managing
Managing Director)
...Respondent
(By Advocate: Mr. Ayusha Kumar)
Kumar
Page 1 of 18
Item No.56 (Court - 5) O.A. No.2588/2017
ORDER
Hon'ble Mr. Manish Garg, Member (J):-
(J):
1. Highlighting the facts of the case, the learned counsel for the applicant submitted as under :--
1.1 The applicant was appointed as a Conductor with the respondent on the daily basis in the year 1978 and was regularised in service on 25.04.1979 and was allotted B.No.12633. He continued to work satisfactorily with the respondent.
1.2 Vide charge sheet dated 17.05.1993, the applicant was alleged with the misconduct of not issuing tickets to passengers passengers after collecting due fare and a departmental enquiry was initiated against him and he was held guilty of misconduct. His service was then terminated by the respondent vide order dated 11.10.1994.
1.3 Consequently, the applicant raised an industrial dispute and the same was referred to Labour Court, Delhi for adjudication. The Ld. Labour Court vide order dated 10.07.2002 answered the preliminary issue in favour of the applicant and against the respondent, thereby holding that the departmental Page 2 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 enquiry conducted against the applicant was against the principles of natural justice justice and as such vitiated.
The Ld. Labour Court by order dated 04.10.2002 answered the reference in favour of the applicant and directed the respondent to reinstate the applicant with continuity of service and full back wages. Thereafter, tthe he respondent challenged challenged the award dated 04.10.2002 of the Labour Court before the Hon'ble on'ble High Court and filed a writ petition being W.P (C) No.4620 of 2003. The Hon'ble High Court vide order dated 15.12.2015, while deciding W.P (C) No.4620 of 2003, modified award dated 04.10.2002 04.10.2002 to the extent that the applicant was entitled to 50% back wages instead of full back wages from the date of termination till retirement. The award of reinstatement with continuity of service was not interfered with.
1.4 The Legal Finance Committee of of the respondent, in compliance of order of the High Court dated 28.12.2015, held that the applicant was deemed to be reinstated in service with continuity of service with 50% back wages.
1.5 The respondent, by its letter dated 28.04.2016, Page 3 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 calculated the tota totall length of service of the applicant as 32 years 9 months and 6 days i.e. from 25.04.1979 till 31.01.2012 for calculation of his payable dues and accordingly fixed his pay scale and calculated the amount of back wages, gratuity and pension etc. payable to him. However, the salary of the applicant was not fixed after giving him the benefit of the ACP scheme. Thus, the applicant was paid less amount than what he was entitled to. Therefore, by letter dated 28.10.2016, the applicant requested the respondent tha thatt since he had been granted continuity in service by the courts, he should be given the benefit of all the ACPs and MACP while fixing his salary and thereafter his arrears of salary, gratuity, pension and other benefits be calculated and paid.
The applican
applicantt sent reminder dated 23.02.2017
requesting the respondent for full and proper
compliance of order dated 15.12.2015 passed by hon'ble High Court, thereby, giving the benefit of continuity of service and to fix his pay scale after giving the benefit of ACP and MACP scheme. The respondent by a non speaking non-speaking order dated 25.04.2017 rejected the representation of the applicant and held him not entitled for grant of Page 4 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 ACP/MACP.
1.6 Aggrieved by the impugned order dated 25.04.2017 25.04.2017,, the applicant has filed the present O.A., wherein he has been prayed for the following relief(s):
"((i)
(i) Quash order dt.25-4-2017 dt.25 (Annexure-A.1);
A.1);
(ii) direct the respondent to re-fix re fix the salary of the applicant by giving him the benefit of 1st, 2nd and 3rd ACP/MACP schemes;
(iii) direct the respondent to calculate the amount of arrears of salary, gratuity, leave encashment and pension etc. of the applicant based upon the pay scale as per prayer no.
(iv)) above and to pay him the arrears of salary, gratuity, leave encashment ashment and pension etc. with interest after adjusting the amount already paid.
paid."
1.7 Learned counsel for the applicant added add that the respondent decided to implement the ACP scheme to the employees of DTC from August, 2002. The deserving employees were given the benefits of ACP scheme. The financial up-gradation up gradation was to be granted to the regular employees of group B, C and D service on co completion mpletion on 12 years and 24 years if they did not get any promotion otherwise. The applicant had completed his twelve (12) years in service in the year 1991 and would have completed twenty-four twenty four (24) in service in the year 2003. DTC implemented modified ACP scheme in September, 2008 in which an Page 5 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 employee was entitle entitled d to get next financial up gradat gradation ion on completion of 10 years of continuous service in the same grade pay. The applicant would have completed his 30 years of service on 24.04.2009. During the pendency of the writ petition the applicant attained the age of superannuation on 31.01.2012. 1.8 8 In support of the case of the applicant, applicant, learned counsel for the applicant relied relie upon the decision rendered in W.P. (C) No. 2216/2014 decided on 23.07.2014 by the Hon'ble High Court of Delhi.
2. Opposing the grant of relief, the learned counsel for the respondents reiterate iterated the averments made in the counter affidavit and submitted that the he present OA is not maintainable for execution of an Award passed under the provisions of Industrial Disputes Act. It is submitted that hat appropriate remedy for the appli pplicant cant is to invoke the provisions of Section 29 and/or Section 33 C of the Industrial Disputes Act, 1947 for redressal of his grievance, if any, as it is settled law that when a litigant invokes the provisions of a particular Act and if remedy of redressal is provided in that Act, only the remedy under that Act should be invoked instead of resorting to other Page 6 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 remedies. In the present case, the applicant pplicant had invoked the provisions of Industrial Disputes Act, 1947 which culminated with Award dated 04.10.2012 passed by the Ld. Labour Act. The grievance of the applicant pplicant is thatdespite despite the Award, Award the applicant pplicant has not been granted the benefits of ACP/MACP scheme. In the these circumstances,, the remedy available to the applicant pplicant for redressal of his grievance is provi provided under the provisions of Industrial Disputes Act, 1947. The OA filed by the applicant pplicant by invoking Section 19 of the Administrative Tribunals Tribunal Act, 1985 is therefore, not maintainable and liable to be rejected. 2.1 In support of his contentions, the the learn learned counsel for the respondents relied upon the following case laws:
laws:-
(i) J.K. Synthetics Ltd. vs. K.P. Agrawal and Another reported in (2007) 2 SCC 433;
(ii) A.P. SRTC and Another vs. S. Narsagoud reported in (2003) 2 SCC 212
(iii) A.P. State Road Transport Corporation and others vs. Abdul Kareem with D. Shanker vs. A.P. SRTC, Nizamabad Region reported in (2005) 6 SCC Page 7 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 36.
3. We have gone through the records of the case and heard the learned counsel for the respective parties at length.
4. ANALYSIS 4.1 .1 In Om Pal Singh vs Disciplinary Authority decided on 14 January, 2020 (AIR (AIR 2020 SUPREME COURT 1920, AIRONLINE 2020 SC 36), the Apex Court observed as under :-
"11. In J.K. Synthetics Ltd. v. K.P. Agrawal & Anr. , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows:
"17. There is also a misconception that whenever reinstatement tement 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 6 (2007) 2 SCC 433 higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, nt, 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.S.R.T.C. v. S. Narasa asa Goud [2003 (2) (2) SCC 212], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) (6) SCC 36] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406]."Page 8 of 18
Item No.56 (Court - 5) O.A. No.2588/2017 4.2 .2 We observe that the he issue involved in the present Original Application is no longer res integra in light of decision rendered by the Hon'ble Apex Court in State Of Haryana & Ors. Etc vs O.P. Gupta Etc decided on 12 January, 1996 (reported in JT 1996 (3), 141 1996 SC SCALE (1) 602, AIR 1996 SUPREME COURT 2936), wherein it has been held as under:-
under:
"Having Having regard to the above contentions, the question arises: whether the respondents are entitled to the arrears of salary? It is seen that their entitlement to work arises only when they are promoted in accordance with the Rules. Preparation of the seniority list under Rule 9 is a condition precedent for consideration and then to pass an order of promotion and posting to follow. Until that exercise is done, the respondents cannot annot be posted in the promotional posts. Therefore, their contention that though they were willing to work, they were not given the work after posting them in promotional posts has no legal foundation. The rival parties had agitated their right to seniority.
ty. Ultimately, this Court had directed the appellant to prepare the seniority list strictly in accordance with Rule 9 untrammeled by any other inconsistent observation of the Court or the instructions issued in contravention thereof. Since the order had become ecome final in 1990, when the appeal had been disposed of by the Court by the above directions, the State in compliance thereof prepared the seniority list in accordance with the Rules and those directions and promotions were given to all eligible persons and postings were made accordingly on December 1, 1992. In the interregnum some had retired. As stated earlier, though the deemed date has been given as 1.1.1983, the respondents cannot legitimately claim to have worked in those posts for claiming arrears and, as a fact, they did not work even on ad hoc basis.
This Court in Paluru Ramakrishnaiah & Ors. vs. Union of India & Anr. [(1989) 2 SCR 92 at page 109] Page 9 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 considered the direction issued by the High Court and upheld that there has to be "no pay for no work", i.e., a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of higher post, although after due consideration, he was given a proper place in th the gradation list having been deemed to be promoted to the higher post with effect from the date his junior was promoted. He will be entitled only to step up the scale of pay retrospectively from the deemed date but is not entitled to the payment of arrears of the salary. The same ratio was reiterated in Virender Kumar vs. Avinash Chandra Chadha [(1990) 3 SCC 482] in paragraph 16.
It is true, as pointed out by Sri Hooda, that in Union of India vs. K.V. Jankiraman [AIR 1991 SC 2010] this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of him, he is entitled to the payment payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto."
4.3 .3 In Appeal (civil) 7953 of 2004 State of Kerala & Ors. VS E.K. Bhaskaran Pillai decided on 17/04/2007 17/04/2007,, the Apex Court held as under :-
:
"Sometimes in the matter when the person is superseded and he has challenged the same before Court or Tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the Court may grant sometime full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given Page 10 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult difficult to set down any hard and fast rule. The principle 'no work no pay' cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.
However, so far as present case is concerned, as per directions given by the Court, petitioner's case was considered and it was found that persons junior to him were appointed and he was wrongly denied. Therefore, the petitioner was promoted from retrospective effect i.e. 15.9.1961 but he was not paid the benefit of promotion tion in terms of arrears of salary.
Therefore, he approached the Court and learned Single Judge did not give him the monetary benefit of the promotional post from retrospective effect in terms of arrears of salary. In the review application, the benefit it was given from the date he filed O.P. No. 585 of 1975 i.e. 15.6.1972. This appears to be reasonable. The petitioner did not approach the Court for the back wages from 15.9.1961 but he filed a petition dated 15.6.1972 and the Court granted the benefit from the date of filing of the petition before the Court i.e.15.6.1972.The incumbent in the meanwhile has retired on 31.7.1980.Therefore, looking to the facts and circumstances of the case, the view taken by the High Court appears to be justified and there there is no ground to interfere in it. The appeal is accordingly dismissed with no order as to costs."
4.4 .4 The Court in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others others,, further analysed various other decisions on this issue, including J.K. Synthetics Ltd. Vs. K P Agarwal and Another and culled out the position of law as under:
"33. The propositions which can be culled out from the aforementioned judgments are:Page 11 of 18
Item No.56 (Court - 5) O.A. No.2588/2017
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. XXX
iv). The cases in which the Labour Labour Court/Industrial Tribunal exercises power Under Section 11 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 ty 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 shou 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 ba 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 wrong doings by relieving him of the burden to pay to the employee/workman his dues in the form of full back Page 12 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicato 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.
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 order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis 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 e 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 nches referred to herein above and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman." 4.5 .5 The decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two decision of the Division Bench of the Hon'ble High Court of Delhi in Mahabir Prasad v. DTC, DTC, (2014) 144 DRJ 422 and Jagdish Chander v. DTC, DTC, 2020 LLR 754, wherein in the facts of the said case (Mahabir Prasad v. DTC case) Page 13 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 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 benef benefits also.
Challenging the said decisions, decisions, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and other terminal benefits. In this case, the Division Bench of the Hon'ble High Court observe observed 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 einstatement 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 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 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 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 freezeze him in a pay scale that is no longer Page 14 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 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 increment increments "would not be counted in his time-scale 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 grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to giv 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 betwee 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."
4.6 .6 In the case of Jagdish Chander (supra) (supra), reinstatement was directed with full back wages. Upon challenge, the Hon'ble High Court in an LPA had modified this order to deny back wages, but DTC had agreed not to challenge reinstatement, to grant the benefit of continuity of service and to compute pension Page 15 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 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 on the basis of 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, and held as under :-
:
"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 grantt 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 agr agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement 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 Page 16 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 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 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."
4.7 .7 Applying the ratio laid down n decisions stated above above,, we observe that the case of the applicant falls within the four corners of the decision rendered in Deepali Gundu Surwase (supra). 4.8 .8 We find that once the applicant was reinstated with directi directions ons for continuity in service, the applicant applicant's case ought to have been considered for ACP/MACP Schemes Schemes.. Therefore, the petitioner ought to be accorded the benefits on notional basis.
basis Accordingly, we are of the view that for no fault on the part of applic applicant, his genuine claim cannot be denied.
5. CONCLUSION 5.1 .1 In view of the above detailed analysis, analysis, we allow the present OA and s set et aside the impugned order dated 25.04.2017. W We e direct the Respondents to re-fix the pay pay/pension of the applicant on notional basis Page 17 of 18 Item No.56 (Court - 5) O.A. No.2588/2017 only by giving him the benefit of 1st, 2nd and 3rd ACP/MACP Schemes Schemes. Upon re-fixation re fixation of the pay and pension, the arrears qua the revision of pension shall be restricted to three years prior to date of filing of the off the decision rendered in UOI vs. present OA in light o Tarsem Singh reported in (2008) 8 SCC 648
648. The said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this Order. Pending MAs, if any, shall also stand disposed of accordingly. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/s
/sm/
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