Full Text
HIGH COURT OF DELHI
Judgement reserved on : 14.11.2022
Judgement delivered on : 01.12.2022
BASANT KUMAR CHAUHAN ..... Petitioner
Through:
Advocates who appeared in this case:
For the Petitioner : Ms. Rashmi Gogoi, Advocate.
For the Respondents : Mr. Rakesh Kumar, CGSC with Mr. Sunil, Advocate.
HON’BLE MR. JUSTICE TUSHAR RAO GEDELA
JUDGMENT
1. In the present writ petition, the Petitioner challenges the impugned order dated 16.03.2017 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as the ‘Tribunal’) in O.A. No.324 of 2015 whereby the prayer of the Petitioner seeking setting aside/quashing of the office order dated 17.04.2014 passed by Respondent, denying the benefit of notional pay fixation for the period between 01.01.2006 upto TUSHAR RAO GEDELA, J. W.P.(C) 1076/2018 2 08.01.2014, was rejected.
2. Petitioner had impleaded Respondent No.5, which is the Authority for Advance Rulings, Customs, Central Excise and Service Tax, Ministry of Finance, Department of Revenue, Fourth Floor, Yashwant Singh Place, Chanakyapuri, New Delhi in the present writ petition, which was not impleaded earlier before the Tribunal. Respondent No.5 was made party to the present proceedings as the prayers made in the present writ petition may have a direct bearing upon the Respondent No.5.
3. The brief facts leading to the filing of the present writ petition and as culled out from record as filed and available are as under:- (a). That on being sponsored by the Employment Exchange and following due selection procedure, petitioner was appointed as Staff Car Driver on 02.05.2003 (as narrated in the Order dated 11.09.2006 passed in OA No. 985/2006) on temporary basis in the pay scale of Rs.3050-4590/- under Respondent No.5 vide office order dated 12.05.2003 and placed on probation for a period of two years. (b). Vide communication dated 19.01.2004, Respondent No.3/Office of the Commissioner of Central Excise, Delhi-I invited applications to fill up 49 posts of Driver Grade III on absorption basis. As per the said communication, candidate once selected was not allowed to withdraw his/her name subsequently and period of probation of two years was also specified. It further provided that during this period, if his work was not found satisfactory, he would be reverted to his parent department in his original post. W.P.(C) 1076/2018 3 (c). Petitioner being eligible, applied for the said post through Respondent No.5. On being selected by Respondent No.3, Petitioner was appointed vide Establishment Order No. 142/2005 dated 21.10.2005, as Staff Car Driver on absorption basis on various terms and conditions enumerated therein. Since the Petitioner had accepted the said conditions, he was relieved by Respondent No.5 on 31.10.2005 and joined Respondent No.3 on the same day. (d). On 05.01.2006, Petitioner made a request to Respondent No.3 requesting to revert or repatriate him to his parent department, i.e. Respondent no.5 on account of personal reasons, which request was acceded to and Petitioner was relieved on 09.01.2006. Petitioner immediately submitted the joining report to Respondent No.5, which was not accepted. Aggrieved thereto, Petitioner made a representation to Respondent No.5, on the same day. In response thereto, Petitioner was advised to approach Respondent No.3, vide communication dated 10.01.2006 issued by Respondent No.5. (e). Being not satisfied, Petitioner made further representation on 13.01.2006, followed by a reminder dated 01.02.2006 requesting that permission be granted to join duties. However, Respondent no.5, vide communication dated 07.02.2006 informed the Petitioner that the only post of Staff Car Driver in the said Authority had already been filled up w.e.f. 01.12.2005 by direct recruitment and there was no vacant post. It was further reiterated that since the Petitioner had been appointed as Driver (Ordinary Grade) with Respondent No.3, on absorption basis, Petitioner was asked to approach Respondent No.3. W.P.(C) 1076/2018 4 (f) Petitioner submitted further representations on 25.2.2006 and 20.3.2006 to which Respondent No.5 vide communication dated 24.3.2006 clarified that since his appointment with Respondent No.3 was on absorption basis and that Petitioner did not hold any lien, he cannot be allowed to join duty and make a claim for payment of salary. Petitioner was once again advised to approach Respondent No.3. (g). In the first round of litigation, Petitioner challenged the aforesaid communication dated 24.3.2006 before the Tribunal vide O.A. No.985/2006. Said O.A. was subsequently decided against the Petitioner on 11.09.2006 holding that since the Petitioner did not acquire any lien with Respondent No.5 and had also not sought the relief of deemed confirmation, permission to re-join Respondent No.5 could not be granted. The Tribunal also held that since Respondent No.3 was not arrayed as a party therein, the said O.A. was liable to be rejected on the ground of non-joinder of necessary parties. (h). That thereafter, on 13.09.2006, Respondent No.5 vide its letter dated 13.09.2006 requested Respondent No.3 to recall its order dated 06.01.2006 and enable the petitioner to join Respondent No.3 again. In pursuance to the letter dated 13.09.2006, Petitioner had again approached Respondent No.3 and submitted his joining report as on 19.09.2006. However, the same was not accepted by Respondent No.3. (i). Respondent No.3, on its own, vide letter dated 04.10.2006, sought legal opinion in respect of the attempt of the Petitioner to join W.P.(C) 1076/2018 5 duties as Driver from its Standing Counsel. Respondent No.3 was advised not to take any action as no such direction was made by the Tribunal vide its Order dated 11.09.2006 in O.A. No. 985/2006. (j). Thereafter, Petitioner through his counsel issued a legal notice dated 19.11.2009 to Respondent No.3, seeking permission to join duties and demanding remission of pay and allowances. As there was no response forthcoming from Respondent No.3, Petitioner had again filed O.A. No. 3245/2010 before the Tribunal seeking the reliefs as sought in his legal notice dated 19.11.2009. (k). The Tribunal, vide order dated 28.09.2010, remitted back the issue with a direction to Respondent No.3 to pass a reasoned and speaking order on the averments in the aforesaid legal notice dated 19.11.2009. In compliance thereto, Respondent No.3 passed an order dated 01.12.2010 denying the reliefs sought in the legal notice as being devoid of any merits. As per the Petitioner, Respondent No.3 had committed a factual error in the order dated 01.12.2010 by noting that Petitioner had never approached it for joining duties subsequent to the Petitioner being relieved vide its order dated 09.01.2006. (l). Being aggrieved by the Order dated 01.12.2010 passed by Respondent No.3, Petitioner filed application bearing O.A. NO. 3088/2011 challenging the aforesaid order. After consideration of the contention of both sides, the tribunal vide its order dated 29.10.2013 disposed off the said OA with the following directions:
(n). Petitioner filed an undertaking dated 09.01.2014 in pursuance W.P.(C) 1076/2018 7 to the order dated 06.01.2014. The contents of the undertaking are reproduced herein below for the sake of convenience: “I, Basant Kumar Chauhan, S/o H.K. Chauhan, Age 36Yrs, Resident of A313 *illegible text* Chhattarpur *illegible text* Delhi - 110074, do hereby solemnly affirm and state as under:
1. That in pursuance of order No.C.No.PL-ll0/Driver/Et.I/05/16378. Dt.06.01.2014
2. That I have been asked to submit the undertaking as per para 9(c). I submit the Undertaking as under: i. That I will not claim continuity of my service, seniority, back salary and allowances for the period from 10.01.2006 to till date (viz 08.01.2014).” Thus, the Petitioner had joined and started working as Driver OG in the National Academy of Customs, Excise and Narcotics (hereinafter referred to as ‘NACEN’) w.e.f. 09.01.2014. (o). Pay fixation of the Petitioner was carried out vide the order dated 17.04.2014 on the basis of the existing pay of the Petitioner as on 31.12.2005 in the pay scale of Rs.3050-75-3950-EB-80-4590 in the old scale corresponding to the new pay scale of Rs. 5200-20200 with GP of Rs. 1900/- w.e.f. 09.01.2014. (p). Aggrieved by the pay fixation, Petitioner submitted a representation initially to the Addl. Commissioner (Office of Chief Commissioner of Central Excise), arrayed as Respondent no. 4 on 04.09.2014. Since the Petitioner was discharging his duties with NACEN, he was directed to submit the representation to it. Accordingly the Petitioner submitted the said representation to NACEN on 30.09.2014. (q). No response was received either from Respondent No. 4 or W.P.(C) 1076/2018 8 NACEN, by the Petitioner to his representation dated 30.09.2014 questioning the pay fixation. Petitioner was thus constrained to approach the Tribunal by way of OA 324/2015 seeking the following prayers: “(i) quash and set aside the impugned order dated 17.04.2014 (Annexure-A-1) to the extent not allowing the notional benefit of pay fixation w.e.f. 01.01.2006 upto 08.01.2014; (ii). direct the respondents to allow the benefit of notional pay fixation w.e.f. 01.01.2006 upto 08.01.2014 and accordingly, fix the pay of the applicant as on 09.01.2014 by amending and modifying the office order dated 17.04.2014; (iii). further direct the respondents to consider the case of the applicant for grant of 1st financial upgradation under Modified Assured Career Progression Scheme (MACP Scheme)”. (r). The Tribunal vide Order dated 16.03.2017 dismissed the OA No. 324/2015 primarily on the basis of the undertaking dated 09.01.2014 given by the petitioner to the Respondent No.3 while acceding to the terms and conditions prescribed as per Order dated 06.01.2014 whereby the Petitioner had undertaken not to claim continuity of service, seniority, arrears of salary and allowances for the period from 10.01.2006 to 08.01.2014. The Tribunal also observed that in case any such relief is granted, it would amount to the intervening period between 10.01.2006 to 08.01.2014 being considered as that spent on duty which would be contrary to the undertaking tendered by the Petitioner.
4. It is this Order dated 16.03.2017 which is the impugned before us.
5. Ms. Gogoi, learned counsel for the Petitioner submits that the erroneous finding by Respondent No. 3, that the petitioner did not join W.P.(C) 1076/2018 9 its services after he was repatriated was completely glossed over by the Tribunal. The fact that the petitioner attempted to rejoin the services of Respondent No. 3 was acknowledged by the legal opinion rendered by the advisor to Respondent No.3 from whom the opinion w.r.t. the re-joining the department as driver after repatriation, was sought. The said legal opinion referred to the fact that the petitioner had tried to re-join the services of Respondent No.3. Subsequently, in the Order dated 06.01.2014, Respondent No. 3 acknowledged that the Petitioner had submitted his joining report on 19.09.2006. Thus, the very premise on which the refusal/rejection order was passed by Respondent No.3 is demolished and the petitioner would be deemed to have continued in services. Alternatively, Ms. Gogoi submits that Respondent No.3 deprived the petitioner from discharging his duties by an unlawful order and therefore, on the basis of doctrine of restitution, the petitioner ought to be deemed to have continued on services from 09.01.2006 till 2014. Consequently, the petitioner would be entitled, at least to, the notional pay fixation for the period between 2006 and 2014.
6. Ms. Gogoi also submits that the doctrine of issue estoppel also would be applicable against the Respondent No.3 in so far as the aforesaid issue is concerned.
7. Learned Counsel for the petitioner further contends that the order of repatriation dated 06.01.2006 could not have been passed by Respondent No.3 at all, inasmuch as the petitioner was absorbed by that time as Staff Car Driver under Respondent No.3 and was not W.P.(C) 1076/2018 10 under deputation at all. Therefore, the order of repatriation would not be an impediment in the relief sought by the petitioner.
8. The third submission of learned counsel relates to the undertaking that was directed to be submitted by the petitioner as a precondition for joining the services of Respondent No.3. Learned counsel submits that the said undertaking, in view of the cloud over the legality in the issuance of the repatriation order, loses all its significance. Therefore, it cannot be held against the petitioner to non suit him. Ms. Gogoi also submits that the said undertaking is in any case non-est in law and violative of the dicta of Supreme Court as observed in the case of “Usha Rani Goswami and Ors. vs. The State of Assam and Ors.”, reported as 2011 SCCOnLine Gau 16 rendered on 10.03.2011 by a Single Judge of High Court of Assam at Gauhati.
9. Per contra, Mr. Rakesh Kumar learned counsel for the Respondent did not the dispute the factual matrix of the case as put forward by the Petitioner and as emanating from the records available. He further supports the reasoning given in the impugned order and lays stress on the undertaking given by the petitioner, wherein Petitioner had admitted that he would not claim the continuity for the period 10.01.2006 to 08.01.2014. He submits that the undertaking is binding upon the petitioner and he cannot be allowed to approbate and reprobate or resile from his commitments contained therein.
10. Learned counsel for Respondent also submits that the petitioner never joined duties nor served Respondent No.3 in any capacity during the period in question, hence, there cannot be any entitlement W.P.(C) 1076/2018 11 to pay fixation, actual or notional. Learned counsel submits that the petitioner cannot be permitted to have a windfall. He further submits, by placing reliance on the reasoning given by the Tribunal, that if the claim for pay fixation or other benefits is granted to the Petitioner, it would tantamount to treating him as on duty during this period, which would also be contrary to the undertaking given by the Petitioner.
11. We have given our thoughtful consideration to the facts involved in the case, and are of the considered opinion that writ petition has to be allowed for the following reasons.
12. So far as the contention raised by Ms. Gogoi in respect of the issuance of the relieving order is concerned, the same ought to have preceded by a valid repatriation order which is a sine qua non to such relieving. Once an absorption was done by Respondent No.3, Petitioner came on the rolls of Respondent No.3 and his relation with Respondent No.5 was severed. Therefore, an order of repatriation could be issued by a department only when the services are sought by a borrowing department. In the present case, neither was Respondent No.5 the borrowing department nor was Respondent no.3 the parent department. As per the records available, the Respondent No.5 never sought the services of petitioner on deputation.
13. Thus, there never was a parent department nor any borrowing department for Respondent No.3 to issue an order of repatriation. Therefore, the repatriation order dated 06.01.2006, in whichever capacity it was issued, is non-est and not binding upon the petitioner. As a consequence, the relieving order dated 09.01.2006 has no legs to W.P.(C) 1076/2018 12 stand on and would itself be non-est and not binding upon the petitioner. Hence, the Petitioner could not be said to have been lawfully repatriated by Respondent No. 3.
14. Having regard to the above facts and law, it is clear that the Petitioner was deprived from discharging his duties and Respondent No.3 cannot be heard to say that petitioner did not continue in its services from 10.01.2006 to 08.01.2014. Thus, even by this aspect, the entitlement of the petitioner to notional fixation of pay from 10.01.2006 to 08.01.2014 cannot be denied.
15. In so far as the contention of the Petitioner regarding re-joining of the services with Respondent No. 3 is concerned, it has come on record that Respondent No. 3 has itself acknowledged in written, the attempt made by the Petitioner to re-join its services post issuance of the relieving order dated 09.01.2006. It has also come on record that the petitioner submitted his joining report on 19.09.2006 to Respondent No. 3. All this has been acknowledged by Respondent No.3, in written, in the Order dated 06.01.2014, whereby the Petitioner was directed to join as Staff car driver subject to furnishing of the undertaking.
16. Having regard to the above acknowledgement of Respondent No. 3, there is no doubt that the Petitioner had sought to discharge his duties as Staff Car Driver even subsequent to the relieving letter but was denied to do so by the Respondent No.3. This deprivation is held against the Respondent No.3.
17. It is an admitted position that neither Respondent No. 3 nor W.P.(C) 1076/2018 13 Respondent No. 5 had ever issued any show cause notice to the petitioner on the ground that he had abandoned their services or asked to show cause as to why disciplinary action be not taken against him for not joining services of either of the Respondents. Having failed in not taking any such action, the Respondents cannot hold the same against the petitioner to his detriment.
18. It would be an absurd proposition that the Petitioner who had been absorbed into the services of Respondent No. 3 is today neither in the employment of Respondent No. 3 nor Respondent No. 5 without due process of law. This situation cannot be countenanced. Thus the petitioner is deemed to be continuing in services of Respondent No.3 for the entire period.
19. In so far as the undertaking dated 09.01.2014 submitted by the Petitioner is concerned, from a perusal of its contents, it is vividly clear that Respondent No.3 in exercise of its superior bargaining power had subjugated the Petitioner to agree to conditions which were detrimental to the Petitioner as a pre condition to re-joining the services of the Respondent No. 3. Respondent No.3 considered as a model employer, cannot prejudice its employees to their detriment and thereby deprive them of their legal rights. Such unbridled exercise of administrative power over the petitioner cannot be held against the Petitioner to non-suit him. The same is also violative of the ratio held in the case of Usha Rani Goswami (supra) by the High Court of Assam at Gauhati, wherein it has been observed that- “12. But in this context of the unequal bargaining power of the State W.P.(C) 1076/2018 14 vis-à-vis the teachers who were desperate for salaries and regularization, the clause incorporated by the State through unequal bargaining power is nothing but an unconscionable covenant, forced by the State on a group who hardly had any strength to resist the might of the State. In fact, the Petitioners had practically no choice in the matter and had to relinquish their claim for arrear salaries, despite rendering service for long years. This type of covenant can’t be said to be right or reasonable and amounts to unconscionable contract, as has been held by the Apex Court in Brojo Nath Ganguly (supra).
13. Accordingly having regard to the decision of the Apex Court in Government of Orissa v. Ashok Transport Agency MANU/SC/0414/2002: (2002) 9 SCC 28, the offending contract is declared to be a void covenant which can’t be enforced in law. Unlike a voidable contract, it is void ab initio and the Court is disinclined to refuse relief to the Petitioners, on the basis of such void covenant.” Applying the aforesaid ratio, it is clear that the undertaking dated 09.01.2014 is unconscionable covenant violative of rights of the petitioner and amounts to unconscionable contract and is void ab initio. Thus, we hold that the same cannot be held against the Petitioner.
20. Another vital aspect which would have a bearing on the issue of continuity of services is the fixation of pay of the Petitioner by Respondent No.3. A perusal of the order dated 17.04.2014 (passed by the Ministry of Finance, Department of Revenue) shows that the Respondents had fixed the pay-scale of the Petitioner in the year 2014 on the basis of his last pay drawn as was existing in the year 2005. In case the Respondent No.3 was treating the rejoining of services of the Petitioner in the year 2014 as a fresh entrant, there was no reason as to why it would consider the pay scale of the Petitioner of the year 2005 for the purposes of fitment in the pay band of 2014. From this, it is W.P.(C) 1076/2018 15 clear, that even the Respondent No.3 was considering the services of the Petitioner deemed to be continuing from 2005.
21. In view of the above, the impugned order dated 16.03.2017 passed by the Tribunal in OA No. 324/2015 stands quashed and set aside.
22. Consequentially, the Writ Petition is allowed. However, since the Petitioner has restricted his prayers only to the notional fixation of pay w.e.f. 01.01.2006 to 08.01.2014, we direct the Respondent-3 to notionally fix the pay of the Petitioner as Staff Car Driver w.e.f. 01.01.2006 to 08.01.2014, with all consequential benefits accruing to the Petitioner w.e.f. 09.01.2014 and release the same within 3 months from the date of this order.
TUSHAR RAO GEDELA, J SANJEEV SACHDEVA, J DECEMBER 01, 2022 pe/yg/pr