Central Administrative Tribunal - Hyderabad
Vijay Kumar vs M/O Railways on 27 February, 2020
OA 730/2019
1
Central Administrative Tribunal
Hyderabad Bench
OA No.021/730/2019
Hyderabad, this the 27th day of February, 2020
Hon'ble Mr. B. V. Sudhakar, Member (A)
Vijay Kumar, S/o Chhote Lal, aged 38 years
Occ: Assistant Loco Pilot, Group C
O/o The Chief Crew Controller
South Central Railway, Guntakal Depot
Guntakal Division, Guntakal.. ... Applicant
(By Advocate: Shri K.R.K.V.Prasad)
Vs.
1. Union of India rep. by
The Secretary, Railway Board
Ministry of Railways
Rail Bhavan, New Delhi.
2. The General Manager
South Central Railway
Rail Nilayam, Secunderabad
3. The Principal Chief Electrical Engineer
South Central Railway
Railway Nilayam, Secunderabad.
4. The Chief Motive Power Engineer
General Manager's Office, 2nd Floor
Rail Nilayam, South Central Railway
Secunderabad.
5. The Senior Divisional Electrical Engineer (TRSO)
South Central Railway, Guntakal Division,
Guntakal. ... Respondent(s)
(By Advocate:Sri T. Sambasiva Rao proxy of Sri V. Vinod Kumar, SC for Railways)
OA 730/2019
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O R D E R (Oral)
2. The OA has been filed in regard to the inaction of the respondents in allowing the applicant to perform regular duties as Assistant Loco Pilot (ALP), and thereby denying allowances as are admissible.
3. Brief facts of the case are that the applicant is alleged to be involved in not assisting the Loco Pilot of Train No.16592 of Hampi Express from passing the signal at the danger point while approaching the Oddarahalli Railway Station, as Assistant Loco Pilot. For this lapse, he was removed from service on 22.01.2015 by the disciplinary authority and on appeal it was reduced to reduction of pay by one lower stage for a period of 4 years without postponing the future increments. Applicant was reinstated on 03.08.2015 treating the intervening period from removal till his date of joining as `dies-non'. The revision petition filed was disposed on 03.10.2016 confirming the modified penalty. Applicant, upon undergoing medical examination and qualifying for A-1 category, joined duty on 03.08.2015. After two years of working as Assistant Loco Pilot, the applicant was directed to undergo Aptitude Test and in the same he was declared as unqualified on 15.09.2017. The said Aptitude Test was reported to be conducted based on Railway Board's order No.130/2016, dated 09.11.2016. After being disqualified in the Aptitude Test, the applicant was not allowed to perform the regular duties and OA 730/2019 3 was engaged in unspecified stationery duty. Resultantly, the applicant was deprived of performing the regular duties in the post for which he was appointed. Aggrieved, OA is filed.
4. The contentions of the applicant are that the Railway Board order dated 09.11.2016 is not applicable to him. Further, the said order does not have any direction to conduct the Aptitude Test. The applicant was permitted to perform his regular duties after reinstatement without conducting any Aptitude Test, hence, on a later date, i.e. after a span of 2 years, forcing the applicant to work in stationery duties is arbitrary and unjust.
5. Respondents in the reply statement confirmed that the applicant for having failed to identify the aspect of UP Home signal of Oddarhalli station which was in ON position, was proceeded on disciplinary grounds and removed from service on 22.01.2015 and on appeal it was reduced to reduction of pay, as affirmed by the applicant. Whenever a running staff is involved in train accidents, they are subjected to special medical examination after the accident. Applicant was accordingly examined and found to be fit on 02.01.2015 and, therefore, he was allowed to work as Assistant Loco Pilot. Thereafter, Railway Board's order dated 09.11.2016, was issued in regard to re-training of Loco Pilots (Running Staff) who are involved in Signal Passing At Danger (in OA 730/2019 4 short, SPAD) cases. Running Staff would mean even Assistant Loco Pilot and, therefore, the applicant was subjected to Aptitude Test and for having failed the same, he was posted to stationery duties. It is not only the applicant but 38 other Running Staff involved in SPAD were directed to undergo Aptitude Test. Consequently, the applicant cannot be deployed in normal running duties since it involves aspect of safety.
6. Heard both the counsel and perused the pleadings on record.
7. I) Learned counsel for the applicant made a vain attempt to claim that the Railway Board letter dated 9.11.2016 is not applicable to ALPs but such a submission did not impress the Tribunal since the subject head of the letter unquestionably refers to running staff. ALP comes under the ambit of the running staff and hence to state that the said letter does not include ALP lacks the steam power to drive the engine of his avowed argument. In fact, the Fly Leaf referred to by the respondents is the last nail driven on to the coffin of the argument of the counsel, since it elaborates, in no uncertain terms, that the applicant has to take over the role of Loco Pilot in emergency and in certain other specified circumstances. Hence, the submission made in this context by the learned counsel for the applicant is bereft of sound logic.
a) II) Thus, after the demolition of one of his averments, without giving up, Ld Counsel for the applicant submitted across the bar a OA 730/2019 5 letter dated 24.02.2020 issued by the respondents in regard to the appeal made by the applicant for running duties, wherein it was clarified that the Railway Board letter under reference is not applicable to the applicant and that he can be engaged for running duties on complying with certain provisos stated therein. This clarification clinches the issue. Based on this clarification, applicant can be called upon to perform running duties, for which he approached the Tribunal to intervene on his behalf.
b) III) Continuing his effort to advance the cause of the applicant, learned counsel for the applicant submitted one another letter issued by the Central Railway Zone dated 04.12.2012, wherein running allowance has been allowed. The said letter reads as under:
"Division are advised that Running staff utilized in stationary duties are entitled for pay element of 30% / 120 KM Running Allowance for duties performed in a month, inclusive of rest days."
The above need necessarily to be extended to the applicant following the observations of the Hon'ble Apex Court in a catena of judgments, extracted hereunder:
c) Amrit Lal Berry vs Collector Of Central Excise, (1975) 4 SCC 714 :
"We may, however, observe that when a citizen aggrieved by the action of a Government Department has approached the Court and obtained a declaration of law is his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the Department concerned OA 730/2019 6 and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court."
d) Inder Pal Yadav Vs. Union of India, 1985 (2) SCC 648:
"...those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment if not by anyone else at the hands of this Court."
e) V CPC report, para 126.5 - Extending judicial decision in matters of a general nature to all similarly placed employees:
We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed & Ors Vs. UOI & Ors, (OA 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh V. UOI [(1992) 19 ATC 94 (SC)], dt. 20.07.1998; K.I. Shepherd V. UOI [(JT 1987 (3) SC 600)]; Abid Hussain V. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."
f) In a latter case of Uttaranchal Forest Rangers' Assn (Direct Recruit) Vs. State of UP (2006) 10 SCC 346, the Apex Court has referred to the decision in the case of State of Karnataka Vs. C. Lalitha, 2006 (2) SCC 747, as under:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently."
IV) Moreover, it is interesting to note that the applicant after the SPAD was allowed to perform running duties for nearly 2 years on clearing the prescribed medical test. Suddenly, with the advent of the Railway Board OA 730/2019 7 letter dated 09.11.2016, which became an albatross around the applicant's neck, respondents indulged in a knee jerk reaction of subjecting the applicant to the aptitude test resulting in the pitiful story of the applicant presented in paras supra. When one could ably perform the running duties for nearly 2 years, the respondents ought to have reckoned this aspect and got the much needed clarification, which they, of course did, but alas after the tragedy of disengaging the applicant from running duties. Well, it appears, that the respondents were dazed in deciding as to what to do first, disengage and seek clarification or the vice versa. Respondents choose the line of least resistance and play safe, the infamous age old undying bureaucratic practice, by adopting the riskless option to disengage till clarification is received. Reminds of the famous conundrum as to whether it is the chicken or the egg being the first. This is where administrative acumen comes to the fore given the environmental contours of operational aspects of the respondents organisation. To further this view point, learned counsel for the applicant pleaded that the respondents often are hard pressed for running staff, which, in a way, adversely affects mobility of the trains in terms of they running late inviting the wrath of the general public. Therefore, in the said circumstances the respondents should have gone slow and enforced the directions laid in letter dated 09.11.2016 of the Railway Board after being lucid on the same as was administratively and OA 730/2019 8 operationally required. Unfortunately, it was not to be and therefore, the litigation calling upon the Bench to resolve.
V) The learned counsel for the respondents was equally aggressive in defending the decision of the respondents by rebutting the submissions of the learned counsel for the applicant, in avowing that safety is paramount and therefore, the Railway Board instructions contained in the legendary letter cited, rang loud and clear requiring imperative action without any semblance of hesitation. After failing the test prescribed as per the letter dated 09.11.2016, crying hoarse by the applicant that he was disengaged from running duties should not be a source of misplaced sympathy, since safety of passengers and Railway assets get prioritised over the claim made. With his vast experience in the respondents organisation, the learned counsel for the respondents narrated certain gory details of accidents which occurred causing loss of life and astronomical damage to railways assets to drive home the point that safety can be no issue of compromise. Albeit, serious in content to hear, but the letter issued by the respondents dated 24.02.2020 makes it indubitably explicit that the Railway Board signorma does not apply to the applicant. Moreover, one need to note that the applicant did perform running duties after the SPAD for quite a long time. Forget not that an administrative instruction, as per law, will have prospective effect, unless OA 730/2019 9 specified to the contrary with valid reasons. Ultimately, after reams of paper were exhausted in internal correspondence the final outcome let out by the respondents, as was expected after a rational analysis, was that the letter dated 9.11.2016 is inapplicable to the applicant. In effect, the Railway Board letter was, thus, later clarified to have posterior effect. In addition, Central Railway Zone letter, as an angel gift, spoken about in the above paras, has paved the path to pay the eligible running allowances for running staff engaged in stationary duties. VI) Thus, in view of the aforesaid deliberations, there can be no other outcome but to direct the respondents to engage the applicant in running duties on conforming to the provisos laid down in the letter dated 24.02.2020 and also pay the running allowances with consequential benefits thereof, if any, as has been allowed by the Central Railway vide letter dated 04.12.2012 for the period for which the applicant was utilized in duties other than running duties. Time calendared to implement is 3 months from the date of receipt of the copy of this order. VII) With the above direction, the OA is allowed to the extent indicated above. No costs.
(B. V. Sudhakar) Member (A) nsn