Madhya Pradesh High Court
Union Of India vs S.C. Shukla on 27 February, 2017
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR.
DIVISION BENCH: HON'BLE THE ACTING CHIEF JUSTICE
AND HON'BLE MRS. JUSTICE ANJULI PALO.
W. P. No. 9425/2013
Union of India & others
Vs.
S.C. Shukla
&
W. P. No. 22296/2013
Union of India & others
Vs.
Manoj Sharma
____________________________________________________________
Mr. Atul Choudhary, learned Counsel for the petitioner/Union of
India.
Mr. Manoj Sharma, learned counsel for the respondent/S.C. Shukla.
Mr. A.P. Singh, learned counsel for the respondent/Manoj Sharma. ____________________________________________________________ (Order) 02/03/2017 As per: Hon'ble The Acting Chief Justice, As common questions of law and facts and involved in both of these writ petitions filed by the Railway Administration, challenging the orders passed by Central Administrative Tribunal, Bench Jabalpur, we are disposing of these matters by this common order, and for the sake of connivance the facts and documents available in the record of W.P.
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W.P. Nos.9425/13 & 22296/13 No.9425/2013 [Union of India & others vs. Mr. S.C. Shukla] are referred to in this order.
2. The respondent, namely, Mr. S.C. Shukla was working as Assistant Chief Ticket Inspector (ACTI) in the pay scale of Rs.5500-9000/-. He was appointed to the said post on 07.06.2004, a major penalty charge-sheet was issued to him on 14.03.2008, thereafter, punishment of compulsory retirement from service was imposed upon him after conducting an inquiry in accordance to the provisions of Railway Servant (Discipline & Appeal) Rules, 1968. He challenged the same and sought quashment of the order of punishment (Annexure-A/1) dated 23.01.2012. The main ground canvased in the application filed before the Central Administrative Tribunal was that the impugned order passed by the Senior Divisional Commercial Manager is void ab initio, on the account of the fact that the said authority has no jurisdiction to impose the punishment as under the relevant rules, the respondent- Mr. S.C. Shukla was appointed to the post of ACTI after due approval and concurrence of the ADRM, therefore it is only the ADRM who could impose the punishment. After taking note of various provisions and the rules, so also a judgment rendered by the Bombay Bench of the Central Administrative Tribunal in the case of one H.K. Tiwari vs. Union of India. The Tribunal accepted the contentions and allowed the application. Challenging the same and contending that the Tribunal has committed grave error in interfering into the matter and holding that the Senior DCM is not the competent authority, this petition has been filed under Article 227 of the Constitution of India by the Railway Administration.
3. Similarly, in W.P. No.22296/2013, Mr. Manoj Sharma was promoted on the post of Senior Parcel Clerk after approval and concurrence of the Senior DCM, but as the impugned action was taken by the Divisional Commercial Manager (DCM) on identical grounds, challenge was made by Mr. Manoj Sharma and the same was allowed by the Tribunal vide
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W.P. Nos.9425/13 & 22296/13 order passed on 11.09.2013. While allowing the application of Mr. Manoj Sharma reliance has been placed on the order dated 26.02.2003, passed in the case of S.C. Shukla (supra), who is petitioner in W.P. No.9425/2013. Again in the case of Mr. Manoj Sharma challenge is made to the order on identical grounds as are canvased in the case of Mr. S.C. Shukla in W.P. No.9425/2013.
4. Even though various grounds are raised in the writ petition by the Railway Administration and the same are refuted by the respondents/employees represented by their respective counsel, we find that when these proceedings were pending it was brought to the notice of this Court that in the case of one Mr. Ganesh Ram Kushwaha similar action was taken and it was stated that identical order was passed in the case of Mr. Ganesh Ram Kushwaha also by the Central Administrative Tribunal which has been implemented by the Railway Administration, and in his case the Railway Administration has not challenged the order, and therefore, it was argued that a different yardstick is being followed in the case of present respondents- Mr. S.C. Shukla and Mr. Manoj Sharma, and similar benefits should be granted as has been granted to Mr. Ganesh Ram Kushwaha. In this regard specific averments on an affidavit were made in W.P. No.9425/2013 vide I.A. No.8670/2014, and therefore when these submissions were made on 13.11.2014, this Court passed the following order, which reads as under:
"From the documents filed by respondent particularly I.A. No.8670/2014, it is seen that in the case of Shri Ganesh Ram Kushwaha who said to have been proceeded under similar circumstances and in whose case also Tribunal has quahsed the punishment order because he was punished by a subordinate Authority who had not approved the promotion of the higher post.
The Tribunal has held that employee who have been promoted by the approval of an Authority, the punishment order by the Sub-ordinate Authority is unsustainable.
It is the case of the respondents that because of the identical case of Shri Ganesh Ram Kushwaha vide office note filed along with I.A. No.8670/2014, the Railway Authority has
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W.P. Nos.9425/13 & 22296/13 given benefit, but in the present case the Railway Authority has applied a different yardsticks which warrants consideration.
The Railway Authority is directed to file an affidavit as to why the case of the petitioner is not decided and has not been granted benefit as has been granted to the similarly situated employee one Shir Ganesh Ram Kushwaha.
An affidavit to that effect filed by the Competent Authority within two weeks."
[Emphasized Supplied] And called upon the Railway Administration to file an affidavit of competent authority explaining the aforesaid aspect of the matter. In pursuance thereto, we find that an affidavit of Railway Administration alongwith an office note (document No.1) was issued to the petitioner under Right to Information Act vide I.A. No.8670/2014 and affidavit of the Competent Officer has been filed by the Railway Administration vide covering memo No.898/2015. On going through the said affidavit of Mr. Navdeep Prakash Agrawal, Divisional Commercial Manager, West Central Railway, Bhopal we find that even though in the case of Ganesh Ram Kushwaha vs. Union of India in O.A. No.166/2010, decided on 13.11.2013, by the Tribunal identical orders were passed by the tribunal, but as Ganesh Ram Kushwaha had died, it is stated that the Railway Administration has implemented the order in his case and has not challenged the order and the affidavit of Mr. Navdeep Prakash Agrawal. The para No.2 & 3 of the said affidavit gives the following reasons for the aforesaid action.
"2. That the learned CAT/JBP decided the OA No.166/2010, Ganesh Ram Kushwaha vs. UOI on 26.11.2013 as under, "Since the Original Applicant has already died, the prayer in regard to taking him back on service is no more relevant. However, he shall be deemed to be reinstated in service on the day immediately prior to his death. The treatment of intervening period between the date of compulsory retirement and his deemed reinstatement in service shall be decided by the competent authority, as per the relevant provisions of Fundamental Rules. Thereafter, his retrial benefits, including Family Pension shall be revised as per the
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W.P. Nos.9425/13 & 22296/13 decision of competent authority on treatment of period of absent of duty. The applicant shall be paid arrears, if any, on account of, revision of retrial benefits, as well as, decision of competent authority on the issue of amount of payment to be made for the intervening period as per the Fundamental Rules. This exercise shall be completed with in a period of 3 months from the date of passing of this order."
3. That, since the Original Applicant of the aforesaid case Shri Ganesh Ram Khushwaha has died on 01.06.2013 hence the competent authority of the Railway Administration has decided to comply the aforesaid order of learned Tribunal under the Fundamental Rule 1344 (F.R.54A)(2)(i) read with rule (7) of rule 1343(F.R.54) of the Indian Railway Establishment Code- Volume-II."
5. Mr. Manoj Sharma, learned counsel for the respondent in W.P. No.9425/2013, and Mr. A.P. Singh, learned counsel for the respondent in W.P. No.22296/2013 argued that when on identical facts in the case of Ganesh Ram Kushwaha the judgment is implemented and no challenge has been made the respondents herein are also entitled to get similar treatment. That apart, Mr. Manoj Sharma, Advocate invites our attention to the order passed in the case of Ganesh Ram Kushwaha in O.A. No.166/2010, decided on 26.11.2013, available as Document-A, in I.A. No.1001/2014, and pointed out that in the case of Ganesh Ram Kushwaha when the application was decided by the Tribunal the applicant- Ganesh Ram Kushwaha had already died and the judgment was rendered in favour of his legal heirs and inspite thereof the order has been implemented and he also informs us that subsequent to the death of Ganesh Ram Kushwah and after implementing the order in his case, compassionate appointment has been granted to his legal heirs, and therefore, he argued that it is clear case where with regard to identical orders passed by the Tribunal the Railway Administration, a statutory authority, a "State" within the meaning of Article 12 of the Constitution of India has adopted discriminatory attitude and on this ground alone the writ petitions filed by the Railway Administration should be dismissed.
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W.P. Nos.9425/13 & 22296/13 Mr. A.P. Singh, Advocate also support the argument advanced by Mr. Manoj Sharma, Advocate.
6. Even though by filing a detailed affidavit the respondents have tried to justify the action and by referring to the rule position had tried to indicate that the interpretation of the rules and finding recorded to say that impugned punishment is not by competent authority, a patent illegality or error has been committed by the Railway Administration, we are of the considered view that in the peculiar facts and circumstances of the cases we need not to go into the said question. The question before us is as to whether we should approve the procedure and the attitude of Railway Administration in adopting a pick & choose method in the matter of implementing and challenging the identical orders passed by the Central Administrative Tribunal in case of three employees, as is evident from the material that have come on record, we find that on identical grounds in the case of all three employees, namely, S.C. Shukla in W.P. No.9425/2013, Manoj Sharma in W.P. No.22296/2013 and Ganesh Ram Kushwaha in O.A. No.166/2010. The punishment orders were quashed by the Central Administrative Tribunal and in the case of Ganesh Ram Kushwaha the order passed by the Tribunal has been implemented in its letter and spirit and all benefits accruing from the judgment have been conferred to the legal heirs of Ganesh Ram Kushwaha, whereas in the case of present respondents- Mr. S.C. Shukla and Mr. Manoj Sharma a different attitude has been adopted and the only reasons stated in the affidavit filed by Mr. Navdeep Prakash Agrawal, in pursuance of order passed by this Court on 13.11.2014, is that because Ganesh Ram Kushwaha has expired a sympathetic view has been taken. We are unable to accept the aforesaid contention. It is not a case where after judgments was passed in the case of Ganesh Ram Kushwaha, while he was alive the railway challenged the same and then implemented it after his death.
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W.P. Nos.9425/13 & 22296/13
7. On the contrary, if we go through the detailed order passed in the case of Ganesh Ram Kushwaha available on record, we find that during the pendency of proceedings itself before the Central Administrative Tribunal, Ganesh Ram Kushwah died his legal heirs were brought on record and when his legal heirs were contesting the matter the Railway Administration was opposing the prayer and wanted that the application should be dismissed. However, after judgment was passed in the case of Ganesh Ram Kushwaha identical to the case of present respondents Mr. S.C. Shukla and Mr. Manoj Sharma, a note-sheet available on record filed as Document No.1 alongwith I.A. No.8670/2014 goes to show that a proposal was made to implement the judgment and plead Ganesh Ram Kushwaha who have been reinstated prior to his death and all consequential benefits be granted to him. In the order proposed with the note-sheet it is indicated that the Tribunal has quashed all punishment order on the ground that disciplinary authority has no jurisdiction and since the applicant had died he is liable to for reinstatement in his service on the date immediately prior to his death and the period from the date of penalty and reinstatement shall be deiced by the authority as per the fundamental rules and his retiral benefits should be considered. However, in this note-sheet mention is made about pendency of these two writ petitions filed against Mr. S.C. Shukla and Mr. Manoj Sharma. We find that by adopting a sympathetic view in the case of Ganesh Ram Kushwaha the judgment has been implemented. If Ganesh Ram Kushwaha had expired even prior to rendering of the order passed by the Tribunal in his case on 17.09.2013, and in his case the judgment could be implemented, we see no reasons as to why similar benefit should not be granted to the present respondents also after keeping the legal question involved in the matter open for consideration under appropriate case as and when required. Its a case where identical actions were taken against three employees, in the case of all three employees identical order were passed by the Central Administrative Tribunal, however in the case of one employee order has been implemented by the Railway and benefits is
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W.P. Nos.9425/13 & 22296/13 conferred on the legal heirs of the employees, even though the employee had died much before his case was decided by the Central Administrative Tribunal, but in the case of present two respondents- Mr. S.C. Shukla and Mr. Manoj Sharma a differential treatment is being mented on them. We fail to understand the justification for the same if evaluated in the backdrop of the fact as are narrated herein above. In fact when the matter was considered by this Court on 13.11.2014, this Court was prima faice of the view that Railway authority should not apply different yardsticks in dealing with identical cases of the employees. We were prima faice of the view at that point of time and we wanted to examine the reasons behind or the justification for doing so by the Railway Administration and now on the justification as given in the form of affidavit of Mr. Navdeep Prakash Agrawal, we are of the considered view that the justification given cannot be accepted. Its a case where a statutory authority a "State" under Article 12 of the Constitution of India instead of maintaining parity and giving equal treatment to similarly situated employee in the matter to deal with them and implement the order passed by Central Administrative Tribunal has evolved different yardsticks which cannot be approved by us. In the case of Ganesh Ram Kushwaha, the sympathetic attitude adopted was not because he died after the judgment rendered by the Tribunal, but it was a case, where when the matter was pending before the Tribunal, he died and his legal heirs were contesting the same, the Railway Administration was prosecuting the matter and opposing the prayer of the employee and his legal heirs, at that point of time they did not withdraw the impugned order of punishment nor did the Railway Administration consider the prayer made by Ganesh Ram Kushwaha while he was alive or when the proceedings were pending before the Tribunal. Having contested the same and having lost, now the benefit is being granted to the legal heir of Ganesh Ram Kushwaha. There is no reason as to why similar benefit should not be granted to the present two respondents also merely because they are alive and would be entitle to reap the benefit of the order during there lifetime it does not mean that a different treatment should be
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W.P. Nos.9425/13 & 22296/13 mented upon them. Its a case where action taken against all three employees were based on identical fact. The orders passed on identical facts were quashed by the Tribunal and if the Railway Administration has implemented the order of the Tribunal in one case i.e., in the case of Ganesh Ram Kushwaha, we see no reasons as to why it should not be implemented likewise in the case of present two respondents Mr. S.C. Shukla and Mr. Manoj Sharma also.
8. Accordingly, keeping in view the aforesaid, we find that it is not necessary to go into various other aspect of the matter. The petitioner- Railway Administration is liable to grant similar benefit to the present respondents also as has been granted to Ganesh Ram Kushwaha and his family members including his legal heirs who has been appointed on compassionate ground and is still working in the department. On account of the aforesaid, we allow the objections raised by the respondents, dismiss both the petitions on the grounds as are indicated herein above and leave the legal questions involved in the matter open to be considered at an appropriate stage as an when required.
(RAJENDRA MENON) (SMT. ANJULI PALO)
ACTING CHIEF JUSTICE JUDGE
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