Central Administrative Tribunal - Delhi
Trilok Singh S/O Shri Surender Singh vs Union Of India Through General Manager on 18 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.2211/2010 This the 18th day of August 2011 Honble Shri M. L. Chauhan, Member (J) Honble Smt. Manjulika Gautam, Member (A) 1. Trilok Singh s/o Shri Surender Singh Ex Loco Pilot Goods r/o WZ-104, Pucci Haveli Village Tihar, New Delhi-18 2. Anup Singh s/o Shri Chandra Kishan Singh Ex Loco Pilot Goods r/o WZ-104, Pucci Haveli Village Tihar, New Delhi-18 3. Molar Singh s/o Shri Hans Raj Ex-Diesel Assistant 56/6-A, Rly Colony 40 Mor Sarai, Kauria Pual Delhi 4. Ramesh Chander s/o Chautan Lal Gupta Ex-Loco Pilot Goods 56/6-A, Rly Colony 40 Mor Sarai, Kauria Pual Delhi ..Applicants (By Advocate: Shri V M Srivastava for Shri Mahesh Srivastava) Versus 1. Union of India through General Manager Northern Railway, Baroda House, New Delhi 2. The Divisional Railway Manager DRM Office Pahar Ganj, New Delhi 3. The Divisional Railway Manager DRM Office Ambala Cantt, Ambala ..Respondents (By Advocate: Shri Shailendra Tiwary) O R D E R
Shri M.L. Chauhan:
The applicants, four in number, have filed this OA, thereby praying that they should be extended the benefit of the judgment rendered by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.81/1999 decided on 25.9.2007 and direction may be given to the respondents to grant due increments to the applicant during the period between w.e.f. 30.1.1981 to 4.11.1993.
2. Briefly stated, facts of the case are that the services of the applicants were terminated under Rule 14 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968 for having participated in the loco staff strike in the year 1981. However, subsequently they were reinstated in service pursuant to the direction given by the Apex Court in Union of India v. R Raddappa & others (Civil Appeal Nos.4681-82 of 1992) decided on 5.8.1993.
3. The applicants have also placed on record a copy of the order dated 19.12.2009 (Annexure B) addressed to applicant Nos.1 and 2 whereby they have been informed that they are not entitled to the benefit of the judgment of the High Court of Jodhpur, as they are not party in the aforesaid writ petition. It is on the basis of these facts the applicants have filed this OA for the aforesaid reliefs.
4. The respondents have filed the reply opposing the claim of the applicants.
5. We have heard the learned counsel for the parties and perused the material placed on record. We are of the view that the matter is squarely covered by the judgment rendered by this Tribunal in Jeet Singh & others v. Union of India & others (OA-3456/2010) decided on 31.5.2011 wherein the similar issue was involved and the claim of the applicants was opposed on same contentions, which have been raised in this OA. At this stage, it will be useful to quote paragraphs 7 to 10 of the order of this Tribunal in Jeet Singhs case (supra), which thus read as under:-
7. We have heard the learned counsel for the parties and gone through the material placed on record. We agree with the contentions of the learned counsel of applicants that the present case is squarely covered by the judgment of the Rajasthan High Court as well as the judgment rendered by this Tribunal in the case of Inder Singh, decided on 23.3.2010, relevant portion of which is reproduced hereinabove. The Rajasthan High Court did not agree with clarification so given by the Railway Board pursuant to the judgment rendered by the Apex Court that the petitioners will not be entitled to the increments from the date of their dismissal till reinstatement for the purpose of fixation of pay and thus while allowing the Writ Petition in paras 8-11, had made the following observations:
In our view, the action of the respondents in refixing the pay of the petitioners without allowing increments from the date of their dismissal till the date of reinstatement/retirement is contrary to the established principle of service law and in fact, is in violation of directions given by the Honble Supreme Court. The Honble Supreme Court has clearly directed that the employees shall be given notional continuity from the date of termination till the date of restoration for the purpose of calculation of pensionary benefits. Thus, the petitioners are entitled to get fixation of their pay treating them to be in continuous service and are also entitled to get fixation of their pay from the date of termination till the date of retirement by adding increments and accordingly they are also entitled to get pensionary benefits on the pay after allowing increments.
9. We are also fortified in our view by the judgment of Honble Supreme Court in the case of Babu Lal Jain Vs. State of M.P. and Ors. (2007) 6 SCC 180. In the said judgment, the Honble Supreme Court has observed as under:
15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud of misrepresentation. The mistake, if any, took place on a misconception of law.
10. Thus, we are of the view that the clarification issued by the Railway Board is contrary to the directions of the Honble Supreme Court. Even no recovery can be effected from the petitioners as there was no mistake, fraud or misrepresentation on the part of the petitioners.
11. Consequently, the present writ petitions a well as original applications are allowed. The judgment of the Central Administrative Tribunal as well as the impugned orders refixing the pay of the petitioners as also directing recovery of excess payment from the petitioners are set aside. The respondents are directed to revise the pension of the petitioners as per earlier pay fixation made prior to the clarification of the Railway Board, within a period of three months from the date of supply of certified copy by the petitioners. Cost is made easy.
8. Thus, in view of the finding recorded by the Jodhpur High Court in the aforesaid Writ Petitions, relevant portion of which has been extracted above, we are of the view that the applicants are also entitled to the benefits in terms of the observations made by the High Court of Jodhpur in the case of Prashudayal through LRs Smt. Bidami & others v. Central Administrative Tribunal, Jodhpur Bench & others, in Writ Petition (Civil) No.81/1999 and connected matters and in the light of the directions given by this Tribunal in the case of Inder Singh (supra).
9. We do not agree with the submissions made by the learned counsel for the respondents that the present OA is required to be dismissed on the ground of limitation, as the applicants have not come before this Tribunal when the cause of action had arisen in their favour in the year 1994 when their pay was re-fixed in terms of the clarification issued by the Railway Board. It may be stated that it was incumbent upon the respondents to extend the benefit of the judgment rendered by the Jodhpur High Court to all the similarly situated persons, as direction was of declaratory nature inasmuch as the benefit of increment during the period w.e.f. 2.2.1981 to 2.11.1993 when the applicants were re-instated in service pursuant to a judgment of the Apex Court in R. Redeppa (supra), was denied in terms of the clarification issued by the Railway Board to the judgment rendered by the Apex court, which clarification was considered by the Jodhpur High Court in its judgment dated 25.09.2007 and it was specifically held that the clarification issued by the Railway Board is contrary to the directions of the Honble Supreme Court and those petitioners were entitled to fixation of their pay, treating them to be in continuous service and are also entitled to get increments from the date of termination till reinstatement by adding increments and accordingly they are also entitled to pensionary benefits after allowing increments. Thus the directions given by the Jodhpur Bench in the aforesaid terms were of general application to all similarly situated employees. When it has been specifically held that clarification issued by the Railway Board is contrary to the directions given by the Apex Court, thus it cannot be said that the relief granted to the petitioners by the Jodhpur Bench is only applicable to the petitioners therein and such a benefit should not be extended to a person who has approached this Tribunal at this belated stage. It may be stated that the judgment was rendered by the Jodhpur High Court on 25.09.2007 and the SLP filed against the judgment of the Jodhpur High Court was also dismissed by the Apex Court on 12.10.2009. It is only thereafter that the applicants have approached this Tribunal. Be that as it may, we are of the view that it is not a case of such nature where on the principle it can be said that applicants being fence-sitters, who sleep on their right have waived their rights, cannot be granted the benefit on the basis of the judgment rendered by the Court. As already stated above, it is a case of such nature where the relief granted by the Court is in the nature of declaratory relief, which is intended to apply to all employees in a particular category irrespective of whether they are party to the litigation or not and further the judgment rendered by the High Court has held the clarification given by the Railway Board to the judgment rendered by the Apex Court contrary to the judgment rendered by the Apex Court. Thus, it was not permissible for the respondents not to extend the benefits of the judgment of the Jodhpur High Court to similarly situated persons. The view, which we have taken is inconformity with law laid down by the Apex Court in the case of Bharat Sanchar Nigam Limited v. Ghanshyam Dass & Ors., 2011 (1) SLJ SC 472, whereby the Apex Court has laid down a law under what circumstances fence-sitters cannot claim remedy based upon earlier judgment and in what circumstances similarly or similarly situated employees are entitled to the benefit of the judgment. At this stage, it will be used to quote para-13 of the judgment, which reads thus:
13. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:
a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
d) where the court expressly directs that the relief granted should be extended to those who have not approached the court.
10. According to us, the principles as laid down by the Apex Court in para 13 (b) and (c) above are fully applicable in the facts and circumstances of this case. Accordingly, we are of the view that applicants have made out a case for grant of relief and the respondents are directed to extend the benefit of the judgment of the Jodhpur High Court as per para-11 of the judgment in the same manner, as was granted by the Tribunal to applicants in OA-2206/2009. The OA stands disposed of accordingly with no order as to costs.
6. The reasoning given by this Tribunal in the aforesaid case, as reproduced above, is squarely covered in the facts and circumstances of the present case. Accordingly, we are of the view that the present OA can be disposed of with a direction to the respondents to extend to the applicants the benefit of the judgment of the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition No.81/1999 decided on 25.9.2007 in the same manner as was granted by the Tribunal in Jeet Singhs case (supra).
7. The OA shall stand disposed of in the aforesaid terms with no order as to costs.
( Smt. Manjulika Gautam ) ( M.L. Chauhan )
Member (A) Member (J)
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