Central Administrative Tribunal - Delhi
Ashok Kumar vs Northern Railway on 29 May, 2025
1
Item -99 Court V OANo.2379/2022
Central Administrative Tribunal
Principal Bench
OANo. 2379/2022
Reserved on: 21.05.2025
Pronounced on: 29.05.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
Ashok Kumar
Age 62 years
S/o Shri K.C. Sachdeva
Ex Diesel Cleaner Northern Railway
R/o 1/9, Old Rajinder Nagar
New Delhi-110060
...Applicant
(By Advocate: Mr. Padma Kr. S.)
VERSUS
1. Union of India, through
The General Manager
Northern Railway
HQ Baroda House
New Delhi-110001
2. Divisional Railway Manager
Northern Railway
New Delhi-110001
...Respondents
(By Advocate: Mr. Ashish Singh)
2
Item -99 Court V OANo.2379/2022
ORDER
By Hon'ble Mr. Manish Garg, Member (J): -
The applicant has filed present Original Application under Section 19 of the Administrative Tribunals Act., 1985, seeking the following reliefs: -
"(a) Quash and set aside the Order dated 10.6.2022 (ANNEXURE A-1).
(b) Direct the respondents to refix the pay on reinstatement by granting notional increment and refix the pension of the Applicant accordingly.
(c) Direct the respondents to treat the suspension period from 06.08.1990 till 18.5.1991 followed by reinstatement for the purpose of full or part of salary and increment during suspension.
(d) Direct the respondents to grant arrears of pay and pension and interest on the arrears.
(e) Pass any other order(s) as may be deemed fit and proper under the facts and circumstances of the case."
2. Highlighting the facts of the case, learned counsel for the applicant submitted that in the present matter a penalty of removal of service was imposed upon the applicant vide order dated 18.05.1991 which was set aside by this Tribunal vide order dated 12.05.1997 in OA No. 2171/1992. The operative portion of the Tribunal‟s order dated 12.05.1997, reads as under:
"5.. In the result, this application partly succeeds and it is hereby partly allowed. The impugned order of removal from service as affirmed by the Appellate Authority is set aside and the respondents are directed to reinstate the applicant in service within a period of two months from the date of 3 Item -99 Court V OANo.2379/2022 receipt of a copy of this order without any back wages or seniority on the basis of his past service. However, the period between the date of the impugned order of removal and the date of reinstatement shall be treated as qualifying service for the purposes of post retirement benefits. No cost."
2.1 The applicant filed Review Application No. 176/1997 against the Order dated 12.5.1997 which was rejected by this Tribunal vide its Order dated 12.5.1997 but with specific observation that the benefits denied by the original order dated 12.5.1997 was only "backwages and seniority on the basis of past service". This Tribunal vide Order dated 12.8.1997 observed as under:
"What has been denied to the applicant is the backwages and seniority on the basis of past service."
2.2 The applicant challenged the Order dated 12.5.1997 before the Hon'ble High Court of Delhi vide WP(C) No. 4200/1997 which was partly allowed vide order dated 29.10.2018. The operative portion of the order dated 29.10.2018 reads as under:
" 7. Having regard to these considerations, the Court hereby directs that the petitioner shall be entitled to seniority from the date of his re-instatement and at the same time also entitled to all service benefits for the period from his initial date of appointment in 1987 till the date of his removal and thereafter from the date of his reinstatement till the date of superannuation.
The writ petition is partly allowed in the above terms."4
Item -99 Court V OANo.2379/2022 2.3 The applicant also filed a Review Petition No.26/2021 in WP(C) No.4200/1997 for the purpose of fully allowing the writ petition. While considering the Review Petition No.26/2021, the Hon'ble High Court observed that it is in the form of a clarificatory application and disposed of the Review Petition as under vide Order dated 16.4.2021:
"6.. It is therefore clarified that the petitioner, in additional to the reliefs granted by this Court in order/judgment dated 29 October, 2018, shall also be entitled to the relief which was granted to the petitioner by CAT Le. of the period between the date of removal from service and reinstatement being counted towards qualifying service for the purpose of computation of retirement benefits.
7.. The applications are disposed of."
2.4 The Hon'ble High Court while disposing of the Review Petition also passed the following further direction in WP(C) No.4200/1997 vide Order dated 16.4.2021:
"8. The respondents are directed to forthwith, within six weeks hereof, re-compute the retiral benefits of the petitioner and to, within the said time, also pay the additional amounts if any found due to the petitioner. If the payments, if any found due to the petitioner are not made within six weeks as sought, the same shall also incur interest @ 9% per annum from the expiry of six weeks till the date of payment."
2.5 Pursuant to the above mentioned order dated 16.04.2021, the applicant received an amount of Rs.1,48,473/-, in his account on 21.5.2021 incorrectly calculating the retirement benefits, without any notional 5 Item -99 Court V OANo.2379/2022 increments for the period from 1990 to 1997. 2.6. Thereafter, on 12.08.2021, the applicant made a representation on 12.08.2021, wherein he requested that his pay and pension be fixed correctly by granting notional increments for the period between removal and reinstatement as the said period has been counted as qualifying service. However, on 14.06.2022, the respondents rejected the case of the applicant. Hence, this O.A. 2.7. Learned counsel for the applicant contended that vide the impugned order the respondents have not granted the benefit of the period from removal from service to reinstatement which has been declared as the qualifying service. Learned counsel further contended that the applicant is entitled to the fixation of his pay by adding the notional increments during the period between removal from service and reinstatement. He added that the applicant‟s suspension period from 06.08.1190 till his removal, which was followed by reinstatement has also been treated as period spent on duty.
3. Opposing the grant of relief, learned counsel for the respondents drawing strength from the averments made in 6 Item -99 Court V OANo.2379/2022 their counter affidavit, submitted that the Hon‟ble High Court while considering the Review Petition No. 26/2021, observed that it is in the form of a Clarificatory application and disposed of the Review Petition as under vide Order dated 16.4.2021:
"It is therefore clarified that the petitioner, in additional to the reliefs granted by this Court in order/judgement dated 29th October, 2018, shall also be entitled to the relief which was granted to the petitioner by CAT i.e. of the period between the date of removal from service and reinstatement being counted towards qualifying service for the purpose of computation of retirement benefits."
3.1 Learned counsel further submitted that by earlier order dated 12.05.1997 in OA 2171/92, the applicant was entitled for seniority from his date of reinstatement i.e. 11.07.1997 and the period between the date of the impugned order of removal i.e. 18.05.1991 and the date of reinstatement i.e. 11.07.1997 shall be treated as qualifying service for purposes of post-retirement benefits. However afterwards, CWP 4200/97 was finalized and Hon'ble High Court directed that the petitioner was entitled to seniority from the date of his reinstatement, i.e., 11.07.1997 and at same time also entitled to all service benefits for the period from his date of appointment, i.e., 17.12.1987 till the date of his removal, i.e., 18.05.1991 and thereafter from the date of his reinstatement i.e. 11.07.1997 till the date of 7 Item -99 Court V OANo.2379/2022 superannuation.
4. Heard learned counsel for the respective parties and perused the pleadings available on record.
5. ANALYSIS :
5.1 Dealing with the term "Consequential benefit" in public law, in Om Pal Singh v. Disciplinary Authority and Ors., (2020) 3 SCC 103, a two Judge Bench of the Hon‟ble Supreme Court held that consequential benefits and continuity of service as also grant of back wages is not a natural consequence of reinstatement. It was noticed in the above decision that the ratio of Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors., (2013) 105 SCC 324 was not brought to the judicial notice of the Tribunal.
5.2 In Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors. (supra), the Hon‟ble Supreme Court was dealing with a case where an employee of a school was terminated. The said termination was set aside by the School Tribunal and reinstatement with full back wages was directed. Upon challenge against the Tribunal‟s order, the quashing of termination was upheld by the Hon‟ble High Court but the direction for back wages was set aside. The Hon‟ble Supreme Court considered Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., (1979) 2 SCC 80, which observes that 8 Item -99 Court V OANo.2379/2022 when termination is found to be invalid, award of full back wages is the normal rule. Though, the Hon‟ble Supreme Court notes that even in Hindustan Tin Works (supra), there can be no straight jacket formula for awarding back wages. 5.3 The Court in Deepali Gundu (supra), further analyzed various other decisions on this issue, including J.K. Synthetics vs. K.P. Agrawal & Anr. 2007 AIR SCW 1357 and culled out the position of law as under:
"33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
iii) XXX
iv) The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not 9 Item -99 Court V OANo.2379/2022 exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v.
Employees of Hindustan Tin Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."
5.4. The decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two Division Bench decisions of the Hon‟ble High Court of Delhi in Mahabir Prasad v. DTC, (2014) 144 DRJ 422 and Jagdish Chander v. DTC, 2020 LLR 754, wherein in the facts of the said case (Mahabir Prasad v. DTC 10 Item -99 Court V OANo.2379/2022 case) reinstatement was directed by the Labour Commissioner, with continuity of service but without back wages. Thereafter, DTC reinstated the workman without any back wages and without any benefits on notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging this, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and other terminal benefits. In this case, the Division Bench of the Hon‟ble High Court observes as under:
"20. The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase(supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held that that the enquiry against him illegal; went into the material an found that the charge of misconduct was baseless. It consequently directed reinstatement without back wages. Whilst the denial of back wages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable. It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v. State of Punjab 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it 11 Item -99 Court V OANo.2379/2022 would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty.
21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in thegrade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms;
there shall be no order as to costs."
5.5. In the case of Jagdish Chander (supra), reinstatement was directed with full back wages. Upon challenge, the Hon‟ble High Court in an LPA had modified this order to deny back wages, but DTC had agreed to not challenge reinstatement, to grant the benefit of continuity of service and to compute pension accordingly. Thereafter, the Workman was not given ACP benefits and various other benefits. Since the Division Bench in LPA had recorded that it was upholding the award based on DTC‟s assurance that continuity of service would be given, the Court directed the Workman‟s pay scale to be fixed by notionally granting him increments and benefits under the ACP scheme, held as under :-
"28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. While in Mahabir Prasad 12 Item -99 Court V OANo.2379/2022 (supra) the Labour Court had ordered reinstatement with continuity but without back wages, in the present case the Labour Court ordered both reinstatement and full back wages.
The DB of this Court modified the Award only to the extent of denying the Petitioner full back wages but acknowledged that the intent of the Award was to grant the Petitioner continuity of service. This is plain from the operative portion of the order of the DB partly allowing DTC's LPA. It explained the rationale for denial of full back wages as follows: "In our considered opinion, when the corporation has agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop.
29. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement and in applying the law as explained in Mahabir Prasad (supra) that while this would not entitle him to promotions, the Petitioner would upon reinstatement be entitled to the increments on the pay scale he was drawing at the time of termination of his services and further that for the purpose of gratuity and pension he would be treated as having been in service throughout.
30. The CAT erred in referring to the decision of the Supreme Court in S. Narsagoud (supra) which has been squarely dealt with and rejected by a subsequent decision of the Supreme Court in Deepali Gundu Surwase (supra). In fact, the CAT failed to take notice of the aforesaid judgments in spite of the Petitioner raising this specific point in his RA No. 39/2016.
31. For the aforementioned reasons, the impugned orders of the CAT are hereby set aside. The Respondent/DTC is directed to: i. Fix the Petitioner's pay scale by notionally granting him the increments and benefits under the ACP Scheme to which he now stands entitled."
5.6 In view of above discussions and analysis of the ratio in above cited case laws, illustratively, the consequential benefits would mean and include:-
(i) Increments
(ii) HRA and CCA
(iii) Notional Refixation of pay upon reinstatement 13 Item -99 Court V OANo.2379/2022
(iv) Leave encashment
(v) Festival Advance/Flood Advance
(vi) Productivity Linked Bonus/ Adhoc bonus
(vii) Interest
(viii) ACP/MACP
(ix) Seniority
(x) Promotion 5.7 In Om Prakash & Ors. v. Delhi Jal Board, 2015 XAD (Delhi) 448, the Hon‟ble Delhi High Court while considering a case where reinstatement was directed with immediate effect and whether in such a case regularization ought to be given to the workman held that „continuity of service‟ ought to be read into the relief of reinstatement and directed regularization in accordance with the policy of the Management held as under:-
"18. In view of the aforesaid decisions, coupled with the fact that while granting the relief of reinstatement even theback wages were also granted. That being so, the merefact that along with the relief of reinstatement the word"continuity of service" has not been mentioned does notmean that the said relief was not granted. That being sothe mere fact that the word "with immediate effect" was mentioned in the award does not mean that the Court impliedly declined the relief of continuity of service."
5.8 In the present case, it is not disputed that though back wages have not been awarded to the applicant, the Hon‟ble High Court as well as Tribunal would have never contemplated of 14 Item -99 Court V OANo.2379/2022 giving restrictive and narrower meaning so as to deny the "notional increments " for determining the qualifying service for retiral dues, when the applicant was not at fault. The language used in para 7 of the decision by the Hon‟ble High Court rendered in earlier round of litigation was quite clear and explicit, i.e., "all service benefits" akin to concept of "continuity in service". "
5.9 Following the applicant's superannuation, a representation was submitted by him on 12.08.2021, which was subsequently rejected through the impugned order dated 10.06.2022. The respondents claimed that the Hon'ble High Court's directive was limited to extending benefits after superannuation. However, the respondents misinterpreted the clear and simple meaning of "all service benefits" as intended by the Hon'ble High Court. The directive was to grant all service benefits notionally, as the Court did not award back wages or seniority for determining qualifying service for retirement benefits. Consequently, the applicant was only entitled to notional benefits, which cannot be equated with granting seniority.
6. CONCLUSION :
6.1. In view of the above analysis, we hold that the applicant is entitled for grant of notional increment. Further, we direct the respondents to re-fix the pay of the applicant for the period from 15 Item -99 Court V OANo.2379/2022 date of suspension till date of his reinstatement, albeit on notional basis. Accordingly, the pension of the applicant be re- fixed and arrears be paid thereto within a period of two months from the date of receipt of a certified copy of this order. 6.2. The O.A. is allowed only to this limited extent. Pending M.A.s, if any, shall also stand disposed of. No costs.
(Rajinder Kashyap) (Manish Garg)
Member (A) Member (J)
/ks/