Central Administrative Tribunal - Allahabad
K K Gupta vs General Manager N C Rly on 3 January, 2025
Reserved on 24.12.2024.
CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD
BENCH, ALLAHABAD
ALLAHABAD this the 03rd day of January 2025.
Present:
HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J)
ORIGINAL APPLICATION NO. 330/01432/2017
K.K. Gupta, aged about 59 years, S/o Shri C.D. Gupta, resident of Arya
Nagar, at and Post Manikpur, District Chitrakut, U.P
...............Applicant.
VERSUS
1. General Manager, North Central Railway, Allahabad.
2. Divisional Railway Manager, North Central Railway, Jhansi.
3. Chief Medical Supdt., Railway Hospital Jhansi, North Central
Railway.
4. Dr. Rajesh Kumar, Contract Medical Practitioner, Health Unit,
Manikpur, District Chitrakut, U.P North Central Railway.
5. Divisional Railway Manager, North Central Railway,
Allahabad.
.................Respondents
Present for the Applicant: Shri Santosh Kumar Kushwaha
Present for the Respondents: Shri Vidya Pati Tripathi
ORDER
BY HON'BLE MR. JUSTICE OM PRAKASAH -VII, MEMBER (J) By means of present O.A., the applicant has sought the following reliefs:-
"(i) To issue, order or direction to respondents for the payment of arrears of salary of the period of 01.04.08 to 16.04.10 along with 9% interest.
(ii) To issue any other direction to the respondents which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(iii) To award the cost of the application in favour of the applicant".
2. Brief facts of the case are that applicant was serving as Pharmacist Grade I in Health Unit, Manikpur, NCR in the pay scale of Rs. 5500-9000. He made a complaint against Dr. Rajesh Kumar, 2 Contract Medical Practitioner, Manikpur to the Chief Vigilance Officer, NCR, Allahabad. Vigilance Department vide letter dated 17.02.2007 asked the applicant to confirm his signature put on the complaint. Applicant confirmed that he has signed the complaint. Vide letter dated 17.11.2007, Dr. Sudhir Kumar, Sr. Divisional Medical Officer, Health and Family Welfare Jhansi was appointed as Inquiry Officer and asked the applicant to cooperate in the enquiry. Applicant has also made a complaint dated 08.12.2007 to Assistant Divisional Medical Officer, Banda against irregularities in Pathological department in Health Unit Manikpur. An enquiry was ordered by Sr. Divisional Medical Officer, Jhansi on the complaint of the applicant. Applicant also moved an application dated 11.03.2008 to the Inquiry Officer in which he stated that Dr. Rajesh Kumar threatened the applicant. Dr. Rajesh Kumar, Contract Medical Practitioner, applicant was transferred vide order dated 18.03.2008 from Health Unit Manikpur to Health Unit Sithauli. Against the transfer order, applicant preferred OA No. 334 of 2008 before this Tribunal and the Tribunal vide order dated 28.03.2008 passed the interim order whereby staying the transfer order till further orders provided that impugned order of charge has not been given effect to by handing over the charge by the applicant. Since the applicant was on leave, he has not handed over the charge in compliance of the impugned transfer order. In compliance of interim order, on 2.4.2008, applicant reported for joining the duty but respondents did not allow to join the applicant on duty. Being aggrieved, applicant filed contempt petition No. 43 of 2008. The Tribunal vide order dated 02.02.2010 finally decided the original application of the applicant and on the same day contempt petition has also been decided. In compliance of direction of the Tribunal, applicant reported for joining his duties by his application dated 05.02.2010, 06.02.2010, 07.03.2010, 15.2.2010 and 09.04.2010 but respondents did not implement the final order passed by the Tribunal. In the meantime, respondents preferred the Civil Misc. Writ Petition No. 13988 of 2010 before the Hon'ble High Court against the order dated 02.04.2010. Initially order of the Tribunal has been stayed by the Hon'ble High Court but finally aforesaid writ petition was 3 dismissed vide order dated 09.03.2017. In compliance of order of the Hon'ble High Court, applicant was permitted to join the duty at transferred place. In the instant OA, applicant is seeking payment of salary for the period of 01.04.2008 and 16.04.2010.
3. I have heard Shri Santosh Kumar Kushwaha, learned counsel for the applicant and Shri Vidya Pati Tripathi, learned counsel for the respondents and perused the records.
4. Submission of the learned counsel for the applicant is that applicant had challenged the transfer order passed against him and an interim order was granted in favour of the applicant on dated 28.03.2008 staying the effect and operation of the impugned order provided charge has not been given effect to by handing over charge by the applicant. Applicant on receiving the interim order moved representation before the respondents to permit him to join the duty but on one ground or other ground, he was not permitted to do so. During pendency of the OA, one contempt petition was filed, which was registered as Contempt Application No. 43/2008. During pendency of the contempt petition, OA No. 334 of 2008 was decided finally on 02.02.2010 with the observation that transfer order dated 14/18.03.2008 has become infructuous/inoperative, thus, it was set aside with the liberty to pass fresh/appropriate order taking into account public interest/administrative exigencies. Referring to the aforesaid fact, it was further argued that aforesaid contempt petition filed on behalf of the applicant was also decided on 02.02.2010 itself with the observation that since OA has already been allowed finally, contempt petition is rendered infructuous. It was next argued that order passed in the OA was challenged by the respondents through Writ 'A' No. 13988 of 2010 before the Hon'ble High Court and effect and operation of Tribunal's order dated 02.02.2010 passed in the OA was stayed. In compliance of the direction given in the aforesaid writ, applicant was relieved and thereafter he handed over the charge of the post and joined on his transferred place. It is further argued that writ petition pending before the Hon'ble High Court was also dismissed later-on yet the applicant 4 had joined at the transferred place on 17.4.2010. Thus, referring to the relief clause, it was further argued that OA be allowed directing the respondents to pay arrear of salary for the period of 1.4.2008 to 16.04.2010 along with interest thereon because despite request made by the applicant and direction issued by the Tribunal, he was not permitted to join the duties. To substantiate his argument, learned counsel for the applicant referred to the facts disclosed in the OA and documents annexed therewith and argued to allow the OA.
5. Learned counsel for the respondents argued that interim protection granted in the OA was that if applicant has not been relieved and charge has not been handed over, effect and operation of the impugned transfer order is stayed. Since applicant has been relieved, due to this reason, he was not permitted to join the duties. As soon as effect and operation of the order passed in the OA was stayed by the Hon'ble High Court in the writ petition, applicant was permitted to join at his transferred place. It was also argued that applicant had already been relieved before passing the interim protection in his favour in the OA. Thus, his absence during the period between 01.04.2008 to 16.04.2010 was unauthorized absence, therefore, he cannot claim arrear of salary for the aforesaid period. Prayer made in the OA cannot be allowed in his favour, thus, referring to the facts disclosed in the counter affidavit and documents annexed therewith, prayer was made to dismiss the OA.
6. I have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire records.
7. Before discussing the submissions raised across the bar, it will be useful to quote the interim order dated 28.03.2008 passed in OA No. 334/2008 which is as follows:-
"O. A. No. 334/0828.03.2008 Hon'ble Mr. Justice A. K. Yog. J.M. 5 Shri S. Lal, counsel for the applicant and Shri A. Tripathi, counsel for the respondent no.1, 2 and 3.
Admit. Issue notice. Notice shall go to respondent no.4.
Until further orders impugned order of transfer dated 18.03.2008 (Annexure A-1) to the OA shall remain stayed provided that impugned order of charge has not been given effect to by handing over charge by the applicant. Learned counsel for the respondents 1, 2 and 3 prays for and granted four weeks time to file reply. This interim order is passed in view of the facts pleaded in para 4(3) to 4(13) of the OA.
List on 08.07.2008".
8. Final order passed in OA NO.334 of 2008 on dated 02.02.2010 is also quoted as below:-
"CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD (This the 2nd day of February, 2010) Present:
Hon'ble Mr. Justice A. K. Yog, Member (J) Hon'ble Mr. S. N. Shukla, Member- (A) Original Application No. 334 of 2008 (Under Section 19 of Administrative Tribunals Act 1985) K. K. Gupta aged about 49 years, S/o Shri C. D. Gupta, Resident of Arya Nagar, at and Post Manikpur, District- Chitrakut, U.P. Applicant By Advocate - Sri Sywamber Lal Versus
1. Union of India, Ministry of Railways, through General Manager, North Central Railway, Allahabad.
2. Divisional Railway Manager (P), North Central Railway, Jhansi.
3. Chief Medical Supdt. Railway Hospital, Jhansi North Central Railway.
4. Dr. Rajesh Kumar, Contract Medical Practitioner, Health Unit, Manikpur, District-Chitrakut, U.P. North Central Railway.
Respondents (By Advocate Shri Avnish Tripathi) Order (DELIVERED BY: JUSTICE A. K. YOG-MEMBER - JUDICIAL) 6
1. This OA is listed along with Contempt Application No. 43 of 2008. With the consent of learned counsel (appearing on both sides), we proceed to hear and decide this Original Application also finally on merit.
2. The applicant has filed this OA No. 334 of 2008 being aggrieved by Transfer order dated 14.03.2008. Para 8 of the OA reads:-
"A. To, issue a writ, order or direction in the nature of certiorari to quash the order of transfer dated 14.3.2008 issued by respondent NO. 2 (Annexure A1) B. To, issue another direction to the respondents not to disturb the applicant at his present working place i.e. from his Health Unit Manikpur (N.C.R.). C. To issue another writ or direction in favour of the applicant. D. To award the cost of the application in favour of the applicant."
3. Para 5 of the OA, (containing legal grounds) shows that the transfer order (dated 14.03.2008-referred in impugned communication letter dated 18.3.2008) is being challenged being arbitrary, illegal and prompted out of BIAS and being vindictive in nature. The applicant urges that he has served for a short time at the last station and normally he should not have been transferred and that transfer order is neither in public interest nor in administrative exigency. According to the Applicant his 'transfer' is being prompted out of irrelevant consideration/s (reference may be made to para 4.5 to 4.13 of the OA). Parties have exchanged pleadings denying each other's case but it is not necessary for us to refer to those pleadings on record.
4. We may recall that the Tribunal passed interim order dated 28.03.2008 and impugned order of transfer dated 14/18.03.2008, (Annexure-1 to the OA) was stayed subject to the condition that impugned order was not given effect to by handing over charge by the applicant. According to the respondents, the applicant stood relieved when one Shri S. K. Ranjan assumed charge of the post held by the applicant. There is no averment that the applicant had handed over charge as required by the stay order. The respondents made no effort to get the interim order modified/vacated on the ground of it being infructuous and the possibility of S. K. Ranjan-taking charge on paper cannot be ruled out.
5. This controversy, compelled the Applicant to file Contempt Application no.43 of 2008. The applicant, therefore, cannot be faulted, and accordingly the applicant claimed 'payment of his salary' ignoring the transfer order.
6. Be that as it may, we find that about two years have already elapsed when interim order was passed. The impugned Transfer Order has lost efficacy. By passage of time, circumstances have drastically changed requiring fresh decision/order in accordance with law
7. The purpose of passing impugned order of Transfer in March 2008 stands frustrated.
8. Without going into the merit or de-merit of the issues raised in this OA or the validity of the impugned order of transfer we declare the said transfer order dated 14/18.03.2008 (Annexure A-1/Compilation-1) as having been rendered infructuous/inoperative and the same is set aside with liberty to pass fresh/appropriate orders taking into account Public interest/ Administrative exigencies in accordance with rules/Guidelines of the department.
9. OA stands allowed subject to the above observations/ directions. No costs".
9. It further appears that proceedings of contempt petition was closed on the day of decision in the OA itself with the observation that OA has finally allowed, thus, contempt petition has become infructuous.
7It further appears that order passed in the OA was challenged before the Hon'ble High Court through Writ 'A' No. 13988 of 2010 in which on dated 22.3.2010 following order was passed:-
"Court No. - 29Case :- WRIT - A No. - 13988 of 2010 Petitioner :- Union Of India & Another Respondent :- K.K. Gupta & Another Petitioner Counsel :- A.K. Roy Hon'ble Sunil Ambwani,J.
Hon'ble Amreshwar Pratap Sahi,J.
A supplementary affidavit had been filed stating that in view of the interim order passed by the Tribunal on 28.3.2008 Shri K.K. Gupta, who had not handed over the charge and had absconded from duties did not work at Manikpur. He remained absent from duties for almost two years and was not paid salary.
We prima facie find that the Central Administrative Tribunal has decided the claim petition without giving any reasons or reasoning in as much as when Shri K.K. Gupta was absent for two years and was not paid salary, he should not have been allowed to join at any place. The matter requires consideration on merits. The observation of the Tribunal that the transfer order passed in March, 2008 stands frustrated, prima facie, does not appear to be correct.
Issue notice to respondent No.1. Steps in a week. The respondent No.1 may file counter affidavit within four weeks. The rejoinder affidavit may be filed within one week, thereafter. List on 17th May, 2010.
Until further orders, the effect and operation of the impugned order of the Tribunal dated 2nd February, 2010 in O.A. No.334 of 2008, K.K. Gupta Vs. Union of India shall remain stayed.
Order Date :- 22.3.2010".
10. It also appears from the record that in compliance with the order dated 22.3.2010, applicant was relieved and thereafter he handed over the charge of the post and joined on transferred place on dated 17.04.2010. Records annexed with the OA clearly reveal that after passing the order dated 28.03.2008, applicant had repeatedly applied/requested from the respondents to permit him to join the duties but he was not permitted to do so. In the judgment and order dated 02.02.2010 passed in the OA No. 334/2008, it was specifically declared the transfer order dated 14/18.03.2008 as having been rendered infructuous and same was set aside.
811. During course of argument, it has been stated that writ petition pending before the Hon'ble High Court has been finally dismissed on dated 09.03.2017 meaning thereby order passed by the Tribunal has attained finality. Applicant was permitted to join his transferred place when the order dated 22.3.2010 was passed in the aforesaid writ. It is also evident from the record that when interim protection granted by the Tribunal in favour of the applicant was not complied with, he approached through contempt petition before the Tribunal. Despite direction given by the Tribunal, applicant was not permitted to join the duties meaning thereby he was compelled to remain without duty. There was no fault on part of the applicant. As soon as interim order dated 28.03.2008 was passed in OA NO. 334 of 2008 staying the effect and operation of the impugned order dated 18.03.2008 and no relieving order has been issued, charge has not been handed over by the applicant, thus, respondents ought to have permitted the applicant to join the duty at the place where from he had been transferred. Since respondents themselves have not permitted the applicant to join the duties ignoring the interim protection granted to the applicant, no handing over/taking over charge has been done at that time, thus, in my considered view applicant is entitled for the salary for the period from 1.4.2008 to 16.4.2010 as he was compelled to remain out of duty.
12. In view of the observations made hereinabove, the OA is allowed. Respondents are hereby directed to treat the applicant's services from April 1, 2008, to April 16, 2010, as regular service and thereafter release arrears of salary for the said period with simple interest at the rate of 6% per annum. This exercise shall be completed within a period of three months from the date of receipt of a certified copy of the order. No order as to costs. All associated MAs are disposed of.
(Justice Om Prakash -VII) Member (J) Manish/-