LPA Nos. 702-03/2003 Page 1 REPORTABLE * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA NOS.702-03 OF 2003 & CM NOS.1699/2003 &827/2007 % Date of Decision : 12 th October, 2007. DELHI DEVELOPMENT AUTHORITY .... Appellant. Through Mr. Jagmohan Sabharwal, Sr. Advocate with Mr.Arun Birbal, Advocate. VERSUS R.S. JINDAL & ANR. .... Respondents. Through Mr. Jayant Bhushan, Sr. Advocate with Mr. Lalit Bhardwaj, Advocate. CORAM: HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA, CHIEF JUSTICE HON'BLE MR. JUSTICE SANJIV KHANNA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not ? 3. Whether the judgment should be reported in the Digest ? SANJIV KHANNA, J. : C.M. NO. 1699/2003 : 1. This is an application for condonation of delay of 216 days in filing of this intra court appeal against the judgment dated 17 th LPA Nos. 702-03/2003 Page 2 December, 2002 passed by the learned Single Judge in the Writ Petition (Civil) No. 2300/1997. This application was allowed vide Order dated 9 th November, 2005. The Supreme Court allowed the appeal filed by the respondent-Mr. R.S. Jindal by its order dated 3 rd November, 2003 with the direction that this application would be heard afresh along with the present Letters Patent Appeal filed by the appellant-Delhi Development Authority (hereinafter referred to as DDA, for short). 2. The Respondent has relied upon several judgments. We do not propose to separately refer to these judgments as the principles of Law are well settled. Delay in filing of an appeal has to be satisfactorily or reasonably explained. However, it is not each days delay that is to be put under scanner nor is it a fault finding exercise by the Courts. Unless it is a case of gross negligence, Courts are liberal in condoning delays where proper explanation and cause for the delay has been set out. Courts dispense justice and therefore unless there are reasons to hold that the delay was deliberately occasioned for gaining an advantage and benefit, a meritorious LPA Nos. 702-03/2003 Page 3 matter should not be dismissed on the ground of limitation. At the same-time we are gradually but certainly moving in the direction of stricter compliance with provisions prescribing time limits and limitation. Normally, no distinction is made between an application for condonation of delay filed by a private party and the Government or public authorities. Government and public authorities should comply with the limitations periods prescribed by law just as it's subjects, if not lead by setting an example. However, Courts are conscious that exerting standard should not be applied in all circumstances and care has to taken about disabilities and the ground reality. The Supreme Court in the case of State of Haryana versus Chandramani and others reported in (1996) 3 SCC 132 has accepted the fact that on account of impersonal machinery, file pushing and inherent bureaucratic methodology imbued in Government and public authorities, decision making process is slow and considerable time is taken, thereby causing delay, sometimes intentionally and sometimes otherwise. In these circumstances the Supreme Court has held that the expression “sufficient cause” should be viewed from a pragmatic LPA Nos. 702-03/2003 Page 4 and justice oriented approach. Similar observations have been made in the State of Nagaland Versus Lipok Ao reported in (2005) 3 SCC 752 and it has been opined that the term “sufficient cause”, should, therefore, be considered with pragmatism in a justice oriented approach rather than technical detection of sufficient cause for every day's delay. 3. DDA has explained the delay, inter alia, stating that after the judgment dated 17 th December, 2002 was passed, the same was made subject matter of rectification/modification of certain typographical errors on an application filed by the respondent. The application was disposed of on 28 th February, 2003 with certain corrections in the judgment dated 17 th December, 2002. It is further explained that due to mistake/error in the office of counsel of the DDA, certified copy of the Order dated 28 th February, 2003 was not applied for. When the default came to notice of the counsel for DDA after verification of records, on 30 th May, 2003 certified copy of the Order dated 28 th February, 2003 was applied for and received on 9 th June, 2003. The certified copy was sent to the office of DDA by the LPA Nos. 702-03/2003 Page 5 counsel along with his written opinion/notes on 9 th July, 2003. It is further stated in the application that the matter had to be examined by Chief Vigilance Officer in DDA whose views/notes were received on 11 th August, 2003 and thereafter it was decided that an intra court appeal should be filed. By order dated 14 th August, 2003, the file was entrusted to the counsel for drafting of an appeal. Correspondence were exchanged between the counsel and DDA and upon receiving the relevant papers, the counsel drafted the grounds of appeal and the appeal was filed on 1 st September, 2003. It may be stated here that DDA has also filed an affidavit of the counsel who was handling the matter before the learned Single Judge. Counsel has admitted that the contents of the application for condonation of delay are correct. Thus admitting default of his office in applying for the certified copy. 4. DDA is a statutory authority and has to naturally rely upon their counsels who conduct cases for supply of certified copies and legal opinion before deciding whether or not to file an appeal. In the present case, as stated above the counsel for DDA has admitted that LPA Nos. 702-03/2003 Page 6 there was default and mistake by his office in sending the certified copy of the Order dated 28 th February, 2003 to DDA. The counsel has also filed his affidavit admitting mistake of his office. We do not think that DDA should be made to suffer because of this mistake made by its counsel. Parties do rely upon their counsel for certified copies. In these circumstances, we feel that DDA should not be penalised and punished for the default made by the office of their counsel. In our system where Government and private citizens rely heavily upon counsel, mistakes made by office of the counsel can result in delay. We are satisfied that in the present case DDA cannot be blamed for the delay till certified copy of the Order dated 28 th February, 2003 was served and received in its office in July, 2003. DDA has been able to show sufficient cause for this period. 5. Even thereafter delay stands explained as the file had to be examined by the Chief Vigilance Officer, DDA and steps had to be taken to file an appeal by drafting grounds and also preparing paper book. In these circumstances, we allow the application and codone the delay in filing the Appeal. LPA Nos. 702-03/2003 Page 7 Application stands disposed of. LPA Nos. 702-03/2003 1. In terms of the order dated 3 rd November, 2003 passed by the Supreme Court and with the consent of the parties we had heard the learned counsel for the parties on merits. It was made clear that in case we allow the application for condonation of delay, we shall also deliver and pronounce judgment on the present Appeals on merits. Background facts 2. The Respondent- Mr. R.S. Jindal was an employee of the appellant- DDA. On 23 rd December,1985, the appellant passed an order for compulsorily retirement of the respondent. WP(C) NO. 168/1986, filed by the respondent challenging the order of compulsory retirement was allowed by a Division Bench of this Court vide Judgment dated 15 th December, 1986, inter alia, holding that there was no justification as the service record of the respondent did not contain any entry to prove that he was a person of doubtful integrity. Direction was given that the respondent would be treated in LPA Nos. 702-03/2003 Page 8 service with continuity of service and consequential benefits. 3. DDA filed a Special Leave Petition before the Supreme Court, which was admitted. On the interim application, the Supreme Court in its Order dated 25 th March, 1987, directed as under:- “There will be a stay on the condition that the respondent is paid is full salary and allowances pending disposal of appeal.” 4. The effect of the aforesaid direction was that the operation of the judgment dated 15 th December, 1986 quashing the Order of compulsory retirement dated 23 rd December, 1985 was stayed but the respondent was to be paid full salary and allowances as if he was in service during the pendency of the appeal before the Supreme Court. 5. On the representations of the respondent and without prejudice to the rights and contentions of the appellant-DDA in the appeal pending before the Supreme Court by order dated 21 st June, 1989, the respondent was posted and worked with DDA till he superannuated on 31 st December,1993. It is an admitted case that the respondent has been paid full salary and allowances for the LPA Nos. 702-03/2003 Page 9 period after 23 rd December, 1985 till he superannuated on 31 st December,1993. 6. The appeal was disposed of by the Supreme Court by Order dated 8 th September, 1994. The Order dated 8 th September, 1994 passed by the Supreme Court in Civil Appeal No. 793/1987 is the crux and the corner stone of the dispute between the parties. For the sake of convenience the Order is reproduced below:- “After addressing the arguments for considerable time, Shri Salve, the learned senior counsel for the respondent seeks permission of the Court to withdrew the civil Writ Petition No. 168/86 in the light of the decision laid by this Court in Balkunthunath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr. (1992 (2) SCC 299) with liberty to approach the DDA to pass an appropriate order on his entitlement to the pension and requests to protect the salary he had received during the period he worked after reinstatement pursuant to the Judgment of the Delhi High Court till he retired on attaining the age of superannuation. We find that the permission sought for and request made are reasonable. Accordingly, the judgment of the High Court of Delhi, dated December 15, 1986 is set aside. The respondent is permitted to withdraw the writ petition and it is accordingly dismissed as withdrawn. Since, the LPA Nos. 702-03/2003 Page 10 respondent was reinstated pursuant to the order of the Division Bench and he continued in service till he attained the age of superannuation by performing the duties of his office during that period, we direct that the salary paid to him during that period shall not be recovered. However, while it would be open to the respondent to make an application to the authorities for fixing his pension, it would be open to the authorities to fix such pension according to rules. The appeal is disposed of accordingly. No costs.” 7. After disposal of the Appeal by the Supreme Court, DDA passed an Order dated 29 th August, 1995 fixing provisional pension on the basis of service rendered by the respondent in DDA. A dispute about the pension component payable by the MCD was raised but stands settled and the same is not a subject matter before us. 8. By another letter dated 15 th December, 1995, DDA informed the respondent that the Chairman/Lt. Governor of Delhi had been pleased to order that the service rendered by the respondent, w.e.f. 23 rd December, 1985 to 31 st December, 1993 would be treated LPA Nos. 702-03/2003 Page 11 and regularised as re-employment period. But the re-employment period would not be counted for computing pension or other retirement benefits. The establishment order dated 15 th December, 1995 reads as under:- “ESTABLISHMENT ORDER NO.4102 DATED 15.12.1995 The Chairman, Delhi Development Authority/Lt. Governor of Delhi has been pleased to order that service rendered by Shri Ranjit Singh Jindal, Chief Engineer (Civil) retired w.e.f. 23.12.85 to 31.12.93 be treated and regularized as a re-employment period. The period of re- employment will not be counted for computing pension or any other retirement benefits. (V.K. JAIN) O.S.D. (PERSONNEL) No.F.9(30)75/PB-I dated 15.12.85 (sic)” 9. Relying upon this re-employment order, disciplinary proceedings were initiated against the respondent on the basis of Rule 9 of the CCS (Pension) Rules which, inter alia, provides that departmental proceedings can be initiated within four years of retirement or re-employment. LPA Nos. 702-03/2003 Page 12 Legal Proceedings 10. The respondent filed a contempt application being Civil Contempt Application No. 574/1996 before the Supreme Court but the same was dismissed in limine. In the said Contempt Application the respondent challenged Order dated 15 th December, 1995. 11. The Establishment order dated 15 th December,1995 and the resultant departmental proceedings were challenged in the WP(C) No.2300/1997. The respondent also made a prayer that the entire period of his service upto the actual date of retirement i.e. upto 31 st December, 1993 should be counted for the purpose of computing and paying his pension or in the alternative the respondent should be treated as retired w.e.f. 23 rd December, 1985 and he should be paid pension from the said date along with interest. It was submitted that the respondent was entitled to computation of pension w.e.f. 23 nd December, 1985 and the said computed pension should be paid along with interest w.e.f. the said date. 12. DDA defended its action in passing the Order dated 15 th December, 1995 for re-employment and its decision to initiate LPA Nos. 702-03/2003 Page 13 departmental proceedings in terms of Rule 9 of CCS (Pension) Rules. During the pendency of the said writ petition, vide order dated 16 th December, 1997, DDA paid amount of Rs.4,03,699/- to the respondent on account of arrears of pension, w.e.f. 23 rd December, 1985 to 30 th November, 1997. Directions in the Impugned Judgement dated 17 th December, 2002 13. Accepting the contentions of the respondent, Ld. Single Judge has quashed Establishment Order dated 15 th December, 1995 by the impugned judgment and has directed that Rs.2,35,234/- with 9% interest towards retirement benefits should be paid to respondent for the period 23 rd December,1985 till superannuation of the appellant on 31 st December,1993. The above figure comprises of Dearness Relief on Pension of Rs.57,410/-, Retirement Gratuity of Rs. 47,375/-, Computation of Pension of Rs.1,00,129/- and leave encashment of Rs.30,320/-. Contentions of Parties. 14. Learned counsel for the appellant-DDA had submitted that he has instructions not to question and challenge the impugned LPA Nos. 702-03/2003 Page 14 judgment of the learned Single Judge to the extent charge-sheet issued against the respondent and Establishment order dated 15 th December, 1995 stands quashed. We need not therefore examine this aspect. The only question and ground raised before us is with regard to the other direction passed by the learned Single Judge directing payment of the above retirement benefits along with interest @ 9% per annum. 15. Ld. Counsel for the appellant had submitted that the respondent has been paid salary for the period 23 rd December,1985 till 31 st December,1993 and he cannot be paid pension for the same period. He had urged that directions given would amount to dual payment of both full pension and salary for the period mentioned above. Since salary stands paid, the direction to make the aforesaid payments cannot be sustained. 16. Ld. Counsel for the respondent had drawn our attention to the order dated 8 th September, 1994 passed by the Supreme Court and submitted that as the order of compulsory retirement has been upheld, therefore, the entire period between 1985 to 1993 should be LPA Nos. 702-03/2003 Page 15 treated as a period when the respondent was working on commercial employment with the appellant and accordingly both pension and salary for this period was payable. He drew our attention to several Rules and urged that both pension and salary should be paid. He also stated that the appellant had themselves paid Rs.4,03,699/- towards salary for the period in question and pension of the same period, except for the amounts directed to be paid by the learned single judge. Findings and Decision 17. A plain reading of the Order dated 8 th September, 1994 passed by the Supreme Court reveals that the respondent had agreed to withdraw Writ Petition (Civil) No. 168/1986 challenging his order of compulsory retirement dated 23 rd December, 1985 and the judgment of the High Court dated 15 th December,1986 in favour of the respondent was quashed and set aside. In terms thereof the respondent is entitled to be paid pension and other retirement benefits and not salary after 23 rd December, 1985. LPA Nos. 702-03/2003 Page 16 18. After the judgment dated 15 th December, 1986, the Order compulsorily retiring the respondent stood quashed, he was deemed to be in service as if he had never retired on 23 rd December, 1985. The Supreme Court by an interim order dated 25 th March, 1987 granted stay but subject to the condition that full salary and allowances would be paid to the respondent during the pendency of the appeal. The result was that instead of pensionary and retirement benefits pursuant to order of compulsory retirement, the respondent continued to get full pay and allowances. 19. Under normal circumstances, the respondent was required to refund the entire salary and allowances paid to him after 23 rd December, 1985 till 31 st December, 1993 in terms of the judgment of this Court dated 15 th December, 1986, which stood reversed and was set aside. Under the Doctrine of Restitution, the entire amount paid had to be refunded and paid back. The doctrine of restitution is recognised under Section 144 of the Code of Civil Procedure, 1908, but the said Section is not fountain head or source of restitution, rather it is a statutory recognition of the pre-existing rule of justice, LPA Nos. 702-03/2003 Page 17 equity and fair play. Courts have inherent right of restitution to do complete justice between the parties and place them in the same position which they would have occupied but for any order or judgment or part thereof which is modified or reversed. Further, when an interim order gets merged into a final order, any benefit taken under the interim order on reversal or modification by the final order, can be directed to be refunded. Benefit taken under a wrong order cannot be perpetuated by keeping it alive and respecting it. Injustice done is undone and unfair gain made by a party causing loss to the other side is set right. (See, observations of the Supreme Court in South-eastern Coalfields Ltd versus State of M.P. and others reported in (2003) 8 SCC 648 and Gurdit Singh versus Nirmal Singh reported in (2000) 8 SCC 551). 20. The Supreme Court was conscious of the fact that in view of the interim order, the respondent had been paid full salary and allowances pending disposal of the appeal vide order dated 8 th September, 1994, i.e. for the entire period between 23 rd December, 1985 till his superannuation on 31 st December,1993. The Supreme LPA Nos. 702-03/2003 Page 18 Court did not direct refund of this amount by the respondent to the appellant-DDA. The reason was that the respondent, after passing of the judgment dated 15 th December, 1986 by this Court and the interim order dated 25 th March, 1987 by the Supreme Court, was “reinstated” and DDA continued to avail of his services till the superannuation of the respondent. As a result, the respondent was paid full salary and allowances. Therefore the salary paid was protected and no order for restitution was passed. 21. DDA has explained “reinstatement” of the respondent in its additional affidavit dated 30 th August, 2004. We have also examined the records and files of DDA in this regard. The respondent had made various representations for being assigned official duties after judgment dated 15 th December, 1986 and the interim order dated 25 th March, 1987 was passed by the Supreme Court. Opinion of a former Chief Justice of India was enclosed with the requests pleading that the respondent may be posted and allowed work during the pendency of the appeal without prejudice to the rights and contentions of the appellant-DDA before the Supreme Court. The LPA Nos. 702-03/2003 Page 19 stand taken by the respondent was that as he was being paid full salary and allowances, it would be in the interest of the public authority that public funds were utilised to the best advantage and therefore services of the respondent should be utilised. It was opined that there was no prohibition in utilising the services of the respondent during the pendency of the appeal inspite of the stay Order granted by the Supreme Court. It was stated that no harm and loss would be caused to the appellant-DDA by taking work from the respondent. In terms of the representations made by the respondent, office order dated 21 st June, 1989 assigning work to the respondent was passed with the following condition :- “The assignment will not prejudice the rights and contentions of the Delhi Development Authroity in the appeal pending in the Hon'ble Supreme Court.” 22. We feel that the respondent cannot claim on the basis of the order dated 21 st June, 1989 that he was commercially employed by the DDA or is entitled to be paid both salary and pension for the period from 23 rd December,1985 till 31 st December,1993. It would LPA Nos. 702-03/2003 Page 20 result in the respondent abrogating his undertaking and statement that no loss or harm would be caused to DDA. The respondent should not be permitted to reprobate contrary to his representations. All along the respondent had agreed and accepted that his posting and allotment of work by the appellant-DDA would be without prejudice to the rights and contentions of the appellant-DDA. Letter dated 21 st June, 1989 specifically states that the work assigned to the respondent was without prejudice to the rights and contentions of the DDA. The appellant acted on the repeated requests of the respondent. The respondent cannot claim that he was re-employed or was commercially employed by the DDA after retirement and therefore entitled to both pension and salary. No such request was made and accepted by the appellant. The respondent is estopped from taking up any such plea to the prejudice of DDA and thereby cause loss to the DDA. In case of re-employment or commercial employment, considered decision on proper appreciation in that regard had to be taken by DDA and an order had to be passed. There is nothing on record to suggest that a conscious decision to re- LPA Nos. 702-03/2003 Page 21 employ or commercially employ the respondent as a retired employee was ever contemplated or taken. DDA, on the other hand, has taken up the garden path that since it was paying full salary and allowances, therefore it would be appropriate that work was assigned and taken from the respondent as otherwise loss was being caused to the public exchequer and public funds. DDA gave in to the request of the respondent on the specific undertaking and the statements made. The respondent now cannot turn around and claim that he was re-employed or commercially employed by DDA, when he had not made any such request, no such request was considered and no re-employment or commercial employment order was passed. 23. Estoppel is normally a rule of evidence but can have the effect of creating substantive rights as against the person who is estopped. It can be used as a rule of creating or defeating rights and read as part of the substantive Rule of Law. Estoppel is also effectively used to prevent circuitry of action and fraud. We can appropriately refer here to the decision of the Supreme Court in B.L.