Central Administrative Tribunal - Delhi
Residential Address vs Union Of India & Ors on 23 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A.NO.3689 OF 2012 This, the 23rd day of April, 2015 CORAM: HONBLE SHRI SHEKHAR AGARWAL, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Om Prakash, s/o Sh.Ram Kishore, Pointsman A, Northern Railway, Railway Station, Suratgarh Residential Address: Railway Qtr. No.E51A, Double Story, Purana Loco, Railway Colony, Suratgarh, Pin 335004 Applicant (By Advocate: Shri G.D.Bhandary) Vs. UNION OF INDIA & ORS 1. General Manager, North West Railway, Jaipur (Raj) 2. The Divisional Railway Manager, North West Railway, Bikaner (Raj) 3. The Secretary, Railway Board, Rail Bhawan, New Delhi 4. The General Manager, Northern Railway, Baroda House, New Delhi . Respondents (By Advocate: Shri Kripa Shankar Prasad) ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following reliefs:
i) direct/command the Respondents to pass valid legal orders on the treatment of the period from 19.9.97 to 13.8.03 as on duty by reviewing earlier orders treating the same as leave without pay, Annexure A-12 in view of the Rule 2044 (FR 54A) with all consequential benefits of pay fixation grant of bonus etc. and make payment of resultant arrears with 24% interest.
ii) direct/command the Respondent to refund the deduction amount already made from the monthly salary of the applicant towards the damage/penal rent in terms of not only the Railway Rules but also the orders of the National Commission of SC/ST.
iii) direct/command the respondents to correctly show his date of appointment as 12.1.82 when the applicant was initially appointed and not 15.8.03 which is being shown by the respondents in the applicants official records.
iv) direct/command the Respondents to grant the correct proper seniority/promotion, consequent to cancelling/ treating the period 19.9.97 to 13.8.03 as LWP, which has to be treated as on duty in terms of statutory provisions.
v) any other relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicant along with heavy costs against the Respondents, in the interest of justice.
2. We have perused the pleadings and have heard Shri G.D.Bhandary, learned counsel appearing for the applicant, and Shri Kripa Shankar Prasad, learned counsel appearing for the respondents.
3. The applicant is a Railway employee. While the applicant was working as a Pointsman A and posted to Delhi Cantonment Railway Station, he was in possession of the Railway Qtr.No.E-109B, Railway Loco Colony, at Delhi Sarai Rohilla, which was duly allotted in his favour. He was transferred to Piperan Railway Station, North Western Railway, Bikaner Division, and relieved from Delhi Cantonment Railway Station on 1.10.1994. As he did not vacate the Railway quarters on his transfer, a show-cause notice dated 15.4.1996 was issued calling upon him to vacate the said accommodation. He neither responded to the show cause notice, nor did he vacate the said Railway quarters. As he continued to occupy the said accommodation, the Railways initiated departmental proceeding on 21.9.1996 for imposition of major penalty on him. The disciplinary proceeding culminated in imposition of punishment of his dismissal from service, vide order dated 19.9.1997. The appeal preferred by him was rejected by the appellate authority, vide its order dated 28.12.1998.
3.1 Being aggrieved, the applicant filed O.A.No.1589 of 2001. The Tribunal, vide order dated 8.4.2003, while allowing O.A.No.1589 of 2001 and quashing both the orders passed by the disciplinary and appellate authorities, remanded the matter to the disciplinary authority for passing a fresh order in accordance with law.
3.2 The applicant was reinstated in service on 13.8.2003. He vacated the said Railway quarters and handed over vacant possession thereof to the Railways on 15.12.2003.
3.3 The disciplinary authority, vide order dated 5.2.2004, imposed on applicant the penalty of reduction in pay for six months. As a consequence, the period of his suspension was treated as spent on duty, while the period from 19.9.1997 to 13.8.2003, i.e., from the date of his dismissal from service to the date of his reinstatement in service was treated as leave without pay.
3.4 On 17.2.2004, the Senior Divisional Operations Manager, North Western Railway, Bikaner, issued order imposing on applicant the damage/penal rent of Rs.2,57,913.6 in respect of unauthorized occupation of the said Railway quarters by him during the period from 1.11.1997 to 15.12.2003 and directed deduction thereof in instalments from the monthly salary of the applicant.
3.5 On 18.11.2005, the applicant, questioning the punishment order passed by the disciplinary authority on 5.2.2004, filed a Revision Petition before the Chief Operations Manager, North Western Railway, Jaipur. The said revisionary authority, vide its order dated 12.1.2006, modified the punishment of reduction in pay for six months to that of Censure.
3.6 On 1.2.2008 the applicant submitted a representation requesting the concerned authority of the Railways to modify the earlier order and treat the aforesaid intervening period from 19.9.1997 to 13.8.2003 as spent on duty.
3.7 There being no response, the applicant moved National S.C. & S.T.Commission. The Commission, vide its decision dated 12.8.2008, directed that the Railways should waive the total damage rent imposed on the applicant and refund him the amount already deducted from his monthly salary.
3.8 On 21.10.2008, the General Manager, N.W.Railway, Jaipur, referred the applicants case to the Railway Board for taking a decision with regard to waiver of the said damage rent of Rs.2,57,913.6. The said Railway authority also issued letters dated 2.2.2009, 23.11.2009, 28.12.2009 and 26.5.2011 requesting the Railway Board to take appropriate decision in the matter. Despite all this, no decision was taken by the Railway Board.
3.9 Having failed to get the desired reliefs, the applicant filed the present O.A. on 21.8.2012 for redressal of his grievances.
4. Opposing the O.A. the respondents have filed a counter reply. The respondents have pleaded that the O.A. filed by the applicant is not only barred by limitation prescribed under Section 21 of the Administrative Tribunals Act, 1985, but also hit by Rule 10 of the CAT (Procedure) Rules, 1987. They have stated that the applicant had filed OA No.121 of 2006 before Jodhpur Bench of the Tribunal challenging the recovery of the damage rent of Rs.2,57,913.6 from him, but had withdrawn the same. The assessment of damage/penal rent for the unauthorized occupation of the Railway quarters was made in terms of the Railway Boards circular (Annexure R-4). The Sr.D.O.M, North Western Railway, Bikaner Division, was competent to pass the order dated 11.3.2014 (Annexure R/3) imposing damage/penal rent on the applicant. As advised by the National SC & ST Commission, the case of the applicant for waiver of damage/penal rent has been referred to the Railway Board. Although the revisionary authority held that the punishment awarded to the applicant by the disciplinary authority was absolutely legal, yet he converted the punishment of reduction in pay for six months into Censure on humanitarian grounds. In view of the above, the respondents have submitted that the applicant is not entitled to any of the reliefs claimed by him and the O.A. is liable to be dismissed.
5. It is the claim of the applicant that after the revisionary authority modified the punishment of reduction in pay for six months to that of Censure, the competent authority ought to have passed consequential order under the relevant rules for treating the intervening period from 19.9.1997 to 13.8.2003, i.e., from the date of dismissal to the date of his reinstatement in service, as spent on duty, and that in spite of his making a representation in the matter, the concerned authority did not issue appropriate order. The further grievance of the applicant is that the order imposing on him the damage/penal rent amounting to Rs.2,57,913.6 was illegal and void inasmuch as the Senior Divisional Operations Manager, N.W. Railway, Bikaner, passed the said order without jurisdiction. Besides, on the basis of the said illegal and void order, a sum of Rs.49,780/- has already been recovered from his salary.
5.1 It transpires from the records that the General Manager, North West Railway, Jaipur (respondent no.1), vide his letter dated 21.10.2008 (Annexure A-2), moved the Secretary (General), Railway Board, Rail Bhawan, New Delhi, to waive the damage/penal rent imposed on the applicant. The said Railway authority also sent letters dated 2.2.2009, 23.11.2009, 28.12.2009 and 26.5.2011 requesting the Railway Board to take appropriate decision in the matter. It is the contention of the applicant that when the General Manager, N.W.Railway, Jaipur, was sincerely pursuing the matter with the Railway Board, he was hopeful of getting appropriate relief from the Railway authorities and that is why he did not approach the Tribunal in the matter. As regards the applicants claim for treating the intervening period from the date of dismissal till the date of his reinstatement in service as spent on duty, the Railway authorities have not taken any decision. It is, thus, submitted by the applicant that as the Railway authorities have failed to take appropriate decisions in the matter, he is not only deprived of getting back Rs.49,780/- deducted from his salary, but also saddled with the purported balance amount of damage rent which has been illegally imposed on him by an incompetent authority. This apart, he has also been continuing to get less salary every month because of non-regularization of the intervening period from 19.9.1997 to 13.8.2003 after the punishment of reduction in pay for six months was modified to Censure.
5.2 In Union of India and others v. Tarsem Singh, (2008) 8 SCC 648, it has been held by the Honble Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted although there is a long delay in seeking remedy with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. It has also been held that if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties.
5.3 After examining the grievances of the applicant in the light of the principles laid down by the Honble Apex Court in Tarsem Singhs case (supra) and the cause shown by him explaining the delay in filing of the O.A, we hold that the O.A. filed by him cannot be said to be barred by limitation. In the circumstances, the plea of limitation raised by the respondents is overruled.
5.4 After considering the pleadings and the contentions of the parties, we have found that the reliefs sought by the applicant are consequential to one another. Therefore, we are not inclined to accept the respondents plea that the O.A. is hit by Section 10 of the CAT (Procedure) Rules, 1987.
6. Coming to the reliefs claimed by the applicant in the Original Application, as reproduced in paragraph 1 above, we have found that the concerned respondent-Railway authorities are yet to consider the claims of the applicant and take appropriate decisions. Considering the totality of the facts and circumstances of the case, we think that it would meet the ends of justice if the respondents are directed to consider the applicants case and take appropriate decision by passing speaking orders within a stipulated period.
7. Accordingly, without expressing any opinion on the merits of the case of the applicant, we issue the following directions:
(i) The Railway Board (respondent No.3) shall consider the claim of the applicant regarding waiver of damage/penal rent, as put forth by the General Manager, North Western Railway, Jaipur (respondent no.1) in the letter dated 21.10.2008 (Annexure A/2) and take appropriate decision within a period of three months from the date of receipt of copy of this order.
(ii) As regards the applicants claim for treating the intervening period from 19.7.1997 to 13.8.2003, i.e., from the date of dismissal of the applicant from service to the date of his reinstatement in service, as spent on duty, the General Manager, North Western Railway, Jaipur (respondent No.1) shall call for the applicants representation dated 1.2.2008 (Annexure A/17) from the Senior Divisional Operation Manager, North Western Railway, Bikaner, and shall consider the same and take appropriate decision within a period of three months from the date of receipt of copy of this order.
(iii) As regards the reliefs claimed in paragraph 8(iii) & (iv) of the O.A., the applicant, if so advised, may make a detailed representation to the competent authority. If such a representation is made by the applicant, we hope and trust the competent authority will consider the same and take appropriate decision within a period of three months from the date of receipt of the applicants representation.
8. In the result, the O.A. is partly allowed. As a consequence, MA No.261 of 2013 filed by the respondents for deletion of The Secretary, Railway Board, Rail Bhawan, New Delhi from the array of respondents is rejected. No costs.
(RAJ VIR SHARMA) (SHEKHAR AGARWAL) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN