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2011 DIGILAW 59 (DEL)

SHRI PHOOL SINGH v. DELHI TRANSPORT CORPORATION

2011-01-12

INDERMEET KAUR

body2011
NDERMEET KAUR, J. (Oral) CM No.1077/2004 (exemption) Allowed subject to just exceptions. RSA No.19/2004 & CM Nos.1076/2004 (for stay) and 4862/2005 (for stay) 1. This second appeal has been directed against the impugned judgment dated 31.5.2003 which had reversed the finding of the trial judge dated 27.4.1994. Vide the judgment and decree dated 27.4.1994 the suit of the plaintiff Phool Singh seeking declaration and permanent injunction was decreed in his favour. He was held to be reinstated in the service w.e.f. 08.5.1997. The impugned judgment had set aside the said order; the suit of the plaintiff stood dismissed. This is a second appeal. 2. It is not in dispute that the voluntary retirement scheme (VRS) had been introduced by the respondent corporation on 3.3.1993. On 31.3.1993 appellant Phool Singh had exercised his option to participate in this Scheme. On 08.4.1003 he give an application to the Depot Manager (DM) of the respondent corporation withdrawing the said option. On 13.4.1993 the application of the applicant Phool Singh was forwarded to the Secretary DTC Board. On 30.4.1993 a reminder was sent by the appellant Phool Singh to the respondent corporation reiterating his option to withdraw from the VRS which he had opted for on 31.3.1993. On 05.5.1993 calculation of the ex gratia payable to the appellant was made. On 31.3.1993 the ex gratia payment in the sum of 1,44,000/- was forwarded by the cheque to the appellant which amount stood encahsed by him on 07.6.1993. 3. Plaintiff was reinstated and he was continuing in service w.e.f. 08.5.1997 till January 2004 when again he was terminated. This was in implementation of the judgment dated 31.5.2003 on which date the suit stood dismissed. He superannuated in February, 2008. It is not in dispute that in the intervening period i.e. between 01.6.1993 up to 07.5.1997 the salary emoluments and other benefits accruing to the appellant calculated in the sum of 2,30,428/-. It is also not in dispute that a sum of 1,51,330/ was paid to the appellant vide cheque dated 15.2.1996. The ex gratia payment of `1,44,602/- which had been paid to the appellant had been returned by him under the orders of the Court only on 25.8.2009. As per the calculation a sum of 79,115/- is still payable to the plaintiff ,i.e., for this intervening period between 1.6.1993 to 7.5.1997. 4. The ex gratia payment of `1,44,602/- which had been paid to the appellant had been returned by him under the orders of the Court only on 25.8.2009. As per the calculation a sum of 79,115/- is still payable to the plaintiff ,i.e., for this intervening period between 1.6.1993 to 7.5.1997. 4. The appeal was admitted and on 06.10.2009 the following substantial question of law was formulated:- “Whether the appellant could be deemed to have voluntarily retired from the service vide letter dated 31st May, 1993 when he had opted for withdrawal of the VRS on 8.4.1993 before the acceptance of his application dated 31st May, 1993? If not, its effect.” 5. The impugned judgment had not considered this factual scenario in the correct perspective. The appellant had admittedly on 08.4.1993 given an application seeking withdrawal of his VRS for which he had exercised his option on 31.3.1993. It was only later i.e. on 13.4.1994 that his application dated 31.3.1993 had been forwarded. Even prior to the forwarding of his application the appellant has exercised his option to withdraw from the VRS; he was fully entitled to do so. This factual scenario not having been appreciated in the correct perspective, the impugned judgment suffers from a perversity and is accordingly is liable to be set aside. 6. The salary for the period from December 2003 - January 2004 (when he was terminated in terms of the judgment dated 31.05.2003.) up to February, 2008 (when the appellant superannuated) cannot be paid to him as admittedly he had been terminated in terms of the orders of the Court dated 31.5.2003. He had done no work in this period. 7. The Supreme Court in 2009 (2) Scale 170 ; State of West Bengal & Ors. vs. Banibrata Ghosh & Ors. had on the principle “No work no pay” set aside the order of the Division Bench of the High Court where the respondent who had been appointed as an Assistant Teacher against a leave vacancy, after a certain date, he was not allowed to remain in service pursuant to an order passed by the Single Judge; the order of the Division Bench holding that the respondent should be paid 50% of the back wages for the period when he was not in service had been set aside on the principle of “No work no pay”. In view of the ratio of the aforenoted judgment the appellant is not entitled to for pay for this intervening period. 8. The ex gratia payment of `1,44,602/- which had been received by the appellant on 07.6.1993 in spite of the orders of the Court had also been refunded by him only on 25.8.2009 as is evident from the order dated 07.9.2009. 9. The appeal is allowed. The payment of 79,115/- due and payable to the appellant for this intervening period as aforenoted be paid to the appellant within a period of four weeks. 10. The appellant if entitled to pension shall be paid as per the applicable Rules. 11. The substantial question of law is answered accordingly. Appeal is disposed of in the above terms.