Central Administrative Tribunal - Hyderabad
T Munikrishnaiah vs M/O Railways on 12 February, 2024
OA/020/1862/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/020/01862/2015
Reserved on : 31.01.2024
Pronounced on : 12.02.2024
Hon'ble Dr. Lata Baswaraj Patne, Judicial Member
Hon'ble Ms. Shalini Misra, Administrative Member
T. Munikrishnaiah (since deceased) per LR
P. Santha Kumari, W/o. T. Munikrishnaiah,
Aged 61 years, Dy. Station Superintendent,
Chittoor Railway Station, S.C. Railway, Chittoor,
R/o. 13-104, L.B. Nagar, M.R. Palli (Urban),
Chittoor, Andhra Pradeshgh - 517 502.
..... Applicant
(By Advocate: Mrs. Rachna Kumari)
Vs.
1. The Union of India represented by,
The Chief Personnel Officer,
O/o. The General Manager,
Zonal Office, Rail Nilayam, Secunderabad.
2. The Chief Operating Manager,
South Central Railway,
Rail Nilayam, Secunderabad.
3. The Divisional Railway Manager,
South Central Railway, Guntakal,
Anantapur District.
4. The Senior Divisional Operating Manager,
South Central Railway, Guntakal,
Anantapur District.
5. The Divisional Personnel Officer,
O/o. Sr. Divisional Personnel Officer,
South Central Railway, Guntakal, Anantapur District.
... Respondents
(By Advocate: Mrs. B. Gayatri Varma, Sr. CGSC)
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OA/020/1862/2015
ORDER
(As per Hon'ble Dr. Lata Baswaraj Patne, Judicial Member) The applicant filed the OA seeking the following prayer:
"....it is prayed that this Hon'ble Tribunal may be pleased to:
i) to call for the records relating to the impugned order No. GTL/DS(a) 425(a) T.14/3892/TM DT.08.12.2015 passed by 5th respondent on the approval of 4th respondent and quash the same by declaring the said order passed by the respondents as arbitrary, discriminatory, without application of mind, illegal, partly violation of the directions of this Tribunal in OA No. 622/2011 dyt. 29.10.2013 being violation of Articles 14, 16 and 21 of the Constitution of India and the extant Rules of the Railways and the Principles of Natural Justice and consequently, direct the respondent authorities to sanction and arrange the payment of salary and other allowances admissible to the applicant for the intervening period from the date of removal till the reinstatement of the applicant into duty as period of duty which constitute as consequential benefits as referred to in OA No. 11332/2011 dated 21.02.2011 and pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case".
2. The applicant T. Munikrishnaiah, expired during the pendency of the OA on 21.04.2021 and his wife Smt. P. Santha Kumari came on record by filing LR petition i.e. MA 294 of 2022.
3. It is the case of the applicant that, while working as Deputy Station Superintendent, Chittoor, he was charge sheeted on 10.06.2009 Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968, with certain allegations and as he denied the charges, departmental enquiry was conducted, wherein, he was not found guilty. However, the disciplinary authority, suo motu, ordered fresh enquiry by a different enquiry officer, who held the applicant guilty of the charges leveled. The applicant submitted his representation on the enquiry officer's report and thereafter, the disciplinary authority imposed the penalty of removal on the applicant vide order dt. 15.04.2010. Being aggrieved by the said penalty, the applicant preferred appeal on 24.04.2010 and when the said appeal was not being disposed, the applicant filed OA 132/2011, which was disposed on Page 2 of 9 OA/020/1862/2015 21.02.2011 directing the appellate authority to dispose of the appeal. Subsequently, the 3rd respondent vide order dt. 07.04.2011, modified the penalty to that of reduction of pay in the minimum of pay band for a period of 3 years recurring and also treating the intervening period from the date of removal from service to the date of reinstatement into service as dies non. Aggrieved by the same, the applicant once again approached this Tribunal by way of OA No. 622/2011 which was allowed vide order dt. 29.10.2013, by setting aside both the penalty orders dt. 15.04.2010 and dt. 07.04.2011, while holding that the applicant was entitled for consequential benefits.
4. It is the further case of the applicant that, he submitted representation dt. 11.11.2013 to the respondents by enclosing the judgment of this Tribunal in OA 622/2011 requesting for grant of all consequential benefits such are arrears of salary, seniority, service for intervening period and also difference of pay and allowances etc. It is stated that the respondents have issued order dt. 17.03.2014 whereby payment of arrears from 4.7.2011 towards difference of salary was ordered, but the arrears of salary and other allowances and treatment of the intervening period as duty for all purposes has not been ordered. Therefore, the applicant got issued notices on 27.10.2014, and in response, his case was forwarded by the Sr. Deputy Personnel Officer, Guntakal to the Chief Personnel Officer, Secundrabad and consequently, the impugned order dt. 08.12.2015 has been passed, wherein it has been ordered that the intervening period from 22.04.2010 to 04.07.2011 may be regularized as leave due to him as per his leave credit. Thus, the respondents have not treated the said period as duty for all purposes. It is stated that the order of this Tribunal in OA 622/2011 has Page 3 of 9 OA/020/1862/2015 attained finality inasmuch as no appeal has been preferred against the said order. Despite that, the respondents have not fully implemented the order. Hence, this OA.
5. After notice, the respondents entered their appearance through their counsel and filed a reply statement, opposing the relief sought in the OA. It is stated by the respondents that Rule 1344(2) of IREC provides that when the penalty of dismissal, removal or compulsory retirement imposed on a Railway servant is set aside by the court due to non-compliance of the provisions of the Article 311 (1) & (2) of the Constitution, the pay and allowances payable to the railway servant shall be determined by the competent authority after due opportunity to the concerned employee. Whereas, in the instant case, this Tribunal quashed the penalty of removal imposed by the disciplinary authority and the order of the appellate authority modifying the penalty to that reduction of pay. Accordingly, the respondents paid all the arrears of pay and allowances for the eligible period excepting for the intervening period from the date of removal from service to that of reinstatement which was treated as 'dies non' by the competent authority, which was confirmed by the appellate as well as the reviewing authorities. It is further stated by the respondents that, after receipt of notice from the applicant, the case was taken up with the Chief Personnel Officer, who advised that action be taken as per Rule 1344(2) (ii) read with sub-rule (5) of the Rule 1343 of IREC. Accordingly, orders were passed treating the said intervening period as leave due. Thus, the respondents prayed for dismissal of the OA.
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6. Heard learned counsel for both sides and perused the pleadings on record.
7. As seen from the record, the order of removal passed by the disciplinary authority has been subsequently modified to that of reduction of pay in the minimum of pay band for a period of 3 years recurring and also treating the intervening period from the date of removal from service to the date of reinstatement into service as dies non. Challenging the same, OA No. 622/2011 was filed and the same was allowed vide order dt. 29.10.2013, by setting aside both the penalty orders dt. 15.04.2010 and dt. 07.04.2011, while holding that the applicant was entitled for consequential benefits. Consequently, the respondents reinstated the applicant into service, but not granted back-wages. Subsequently, the respondents treated the said intervening period as leave admissible to him.
8. Learned counsel for the applicant argued that the applicant is entitled for back wages and for treatment of the said period as spent on duty for all purposes. On the other hand, learned Standing Counsel for the respondents vehemently opposed the same on the ground that the order of this Tribunal has been fully complied with. Moreover, in the interregnum period, when the OA was pending before this Tribunal, the applicant has been paid as per the order of the appellate authority.
9. It is contended on behalf of the respondents that the applicant has not worked in the intervening period and therefore, he is not entitled for the back wages. Respondents placed reliance on the judgments of the Hon'ble Supreme Court in 2004 (1) SLJ 374 in the matter of Union of India v. Jaipal Page 5 of 9 OA/020/1862/2015 Singh; AIR 1997 SC 1802 in the matter of Ramchodji Ch Thakore v. Bhuj Electricity Board; and AIR 1999 SC 1351 in the natter of Ajait Singh v. Sirhind Coop. Bank. and submitted that the applicant is not entitled for back wages since he was disabled from rendering service on account of his conviction and not on account of any disciplinary action taken by the employer. Therefore, the respondents have rightly declined to grant such benefits from 22.04.2010 till 04.07.2011 and the said period has been regularized against the leave due in accordance with Clause (ii) of Rule 1344 (2) read with Sub-rule (5) of Rule 1343 of IREC. Mere observation of consequential benefits, would per se, not include the back wages
10. The Hon'ble Supreme Court in Civil Appeal No. 7011 of 2008 in the matter of Novartis India Ltd v. State of West Bengal & ors, vide judgment dt. 02.12.2008 held as follows:
"19. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 4 and 16 of the Constitution of India in cases of public employment; etc.
20. It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case.
Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.Page 6 of 9
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21. Large number of decisions have been referred before us by the learned counsel for the parties. It is not possible to deal with each one of them. We may, however, notice a few of them.
22. In M.P. Sate Electricity Board v. Jarina Bee, [ (2003) 6 SCC 579] this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement.
23. In Allahabad Jal Sansthan v. Daya Shankar Rai and another, [ (2005) 5 SCC 124 ] it was held :-
"6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1- 1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001."
It was furthermore observed :-
"16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
24. Yet again in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, [(2006) 1 SCC 479], this emphasized that grant or denial of back wages would be subject matter of each case stating :-
"61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."
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26. Again in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another, [(2006) 4 SCC 733], it was held that the grant of back wages is discretionary. It was reiterated that initially it was for the employee to prove that he had not been gainfully employed. It was observed :-
"16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."
Xxx xxx
28. In Muir Mills Unit of NITC (U.p.) Ltd. v. Swayam Prakash Srivastava and another, [ (2007) 1 SCC 491 ], it was held :-
"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v. Jarina Bee2 this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh18 has held that even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be stigmatic and the termination would be valid."
11. In view of the above, when the issue has been considered at length in the earlier round of litigation, though this Tribunal has set aside the penalty order with consequential benefits as per rules, in our considered view, the applicant is not eligible for the relief sought.
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12. In the circumstances, the OA is dismissed being devoid of merits. No order as to costs.
(SHALINI MISRA) (DR. LATA BASWARAJ PATNE)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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