Central Administrative Tribunal - Delhi
Smt. Basanti Devi vs Union Of India Through The General ... on 5 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.2479 of 2011 Orders reserved on : 18.01.2013 Orders pronounced on : 05.02.2013 Honble Dr. Dharam Paul Sharma, Member (J) Honble Mrs. Rajwant Sandhu, Member (A) Smt. Basanti Devi Wd/o Late Sh. Kula Nand Sharma, r/o H.No.3190, Gali No.72, Block E-2, Molar Band Extention, Badarpur, New Delhi. .... Applicant ( By Advocate Shri Yogesh Sharma ) VERSUS 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Delhi Division, New Delhi. 3. The Chairman, Railway Board, Rail Bhawan, New Delhi. .. Respondents ( By Advocate : Shri Rajender Khatter) O R D E R Dr. Dharam Paul Sharma, Member (J) :
The applicant by filing the present Application under Section 19 of the Administrative Tribunals Act, 1985 seeking declaration to the effect that the whole action of the respondents not issuing any fresh circular in place of circular dated 20.6.1994 for granting due increments between the intervening period, i.e. from the date of removal to the date of reinstatement in the light of the judgment of the Jodhpur High Court dated 25.9.2007 upheld by the Honble Supreme Court and further directions to the respondents to re-fix the pay and retirement benefits of the husband of the applicant by granting the due increments to the husband of the applicant during the period from the date of removal to the date of re-instatement in service with all consequential benefits, including the revision of pensionary benefits by extending the benefits of Jodhpur High Court judgement dated 25.9.2007 in CWP No.81/1999 and 183/99 with arrears and interest.
2. The applicant is a legally wedded widow of late Shri Kula Nand Sharma, who was appointed in Railway department on 30.5.1954 and was retired on 31.8.1994 from the post of Driver from Delhi Division and after retirement, he was died on 26.7.1996.
3. In the year 1980-1981, there was General Railway Employees strike (Locomen Strike) called by the Union and the Railway authorities took a decision to remove all the Railway employees those who had participated in the strike under Rule 14 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968 without conducting any enquiry. The husband of the applicant was also removed from service on 2.3.1981. The husband of the applicant along with number of other employees filed their cases before the Honble Delhi High Court and other benches of the Tribunal and other High Courts which were subsequently transferred to this Tribunal which were allowed by the following directions:-
In the result, we set aside the orders of the appellate authorities/reviewing authorities rejecting the appeals/review petition of the applicants and the orders of the disciplinary authorities dismissing the applicants from service. In O.A.Nos.24/86, 369/86, 232/87, 402/88, 403/88, 694/88, 808/88, 809/88, 810/88, 811/88, 812/88, 865/88,868/88, 869/88, 810/88, 811/88, 812/88, 865/88, 868/88, 869/88, 870/88, 871/88, 883/88, 44/89, 46/89, 92/89, 93/89, 103/89, 231/89, 298/89, 299/89 and 300/89, we direct the appellate authority to conduct an enquiry either himself or through an enquiry authority appointed by it in accordance with the Railway Services (Discipline and Appeal) Rules, 1968. If an enquiry is not possible at all, the applicants will be entitled to be reinstated with all consequential benefits. In O.A. Nos.233/87, 329/87, 767/87, 43/89 and 45/89 it is represented that the applicants have since retired. The question of holding an enquiry in their cases does not, therefore, arise. The orders of the disciplinary authority/appellate authority in these cases are set aside as has been done by the Gawhati Bench in O.A. No.408/86 (Golul Ch. Earua & Ors. vs. Union of India & Ors). The applicants therein will be entitled to receive the salary for the period from the date of dismissal to the date of their attaining the age of superannuation and thereafter to pension as if they had retired from service on attaining the age of superannuation.
4. Against the aforesaid orders of the Tribunal, Civil Appeal No.4681-82 of 1992 and other connected appeals (titled Union of India and others vs. R. Raddappa and others) have been filed before the Honble Supreme Court which were disposed of vide order dated 5.8.1993 which reads as follows:-
I) Employees who are dismissed under rule 14 (2) for having participated in the Loco Staff Strike of 1981 shall be restored to their respective post within a period of three months from today (5.8.93).
II) a) Since more than three years have elapsed from the date of the Tribunals, it is just and fair to direct the appellant to pay the employees compensation equivalent to their years salary inclusive of dearness allowance calculated on the scales of pay prevalent in the year, the judgment was delivered, i.e., in 1990.
b) This benefit shall be available even to those employees who have retired from service. In those cases, where the employees are dead, the compensation shall be paid to their dependents. The compensation shall be calculated on the scale prevalent three years immediately before the date of retirement or death.
(III) Although the employees shall not be entitled to any promotional benefit they shall be given NOTIONAL CONTINUITY for the purpose of calculation of pensionary benefits. This benefits shall be available to the retired employees as well as those who are dead by calculating the period till the date of retirement or death. In compliance of the aforesaid judgment of this Tribunal, the respondents have fixed the pay of the petitioners allowing all increments that fall due during the period between their dismissal from service and reinstatement, but the same was subsequently withdrawn upon clarification from the Railway Board, whereby refixed the pay of the petitioners without allowing increments for the period from the date of their dismissal and reinstatement/retirement and an amount of overpayment was worked out as paid to the petitioners. Feeling aggrieved the petitioners filed number of representations but when not responded to, they filed Original Applications before this Tribunal. The said OAs were dismissed by the Tribunal Jodhpur Bench on the ground of delay as well as on merit by observing that retiral benefits can be given only when the employee is on duty. The Tribunal had also observed that the impugned order of re-fixation of pay was passed in July, 1994 and the OAs were filed in the year 1997, therefore, the OAs were time barred. The said order of the Tribunal was challenged by some of the petitioners before the Honble High Court of Rajasthan at Jodhpur vide DB Civil Writ Petition No.81/1999 and 183/1999, the said Writ Petition was allowed by the High Court vide its order dated 25.9.2007, a copy of which is at Annexure A/3 (Collectively) whereby the High Court while fortifying their view by the judgment of the Honble Supreme Court in the case of Babu Lal Jain vs. State of M.P. and ors., (2007) 6 SCC 180, wherein the Honble Supreme Court has observed that 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 or misrepresentation. The mistake, if any, took place on a misconception of law., held that the clarification issued by the Railway Board is contrary to the directions of the Honble Supreme Court. Even no recovery can be affected from the petitioners as there was no mistake, fraud or misrepresentation on the part of the petitioners. The aforesaid Writ Petitions were allowed and impugned orders refixing the pay of the petitioners as also directing recovery of excess payment from the petitioners were set aside. The respondents were directed to revise the pension of the petitioners as per earlier pay fixation made prior to the clarification of the Railway Board. Thereafter, the aforesaid order of the High Court of Rajasthan at Jodhpur was challenged by the respondents vide Civil Appeal Nos.1493-1494/2009, which were dismissed vide order dated 17.4.2009, a copy of which is at Annexure A/3 (Collectively).
5. On 23.3.2010, one similarly situated person as that of the husband of the applicant, namely, Shri Inder Singh filed OA No.2206/2009 filed OA seeking the benefit of the judgment of the Honble High Court of Rajasthan at Jodhpur which was allowed vide order dated 23.3.2010 with the directions to the respondents to grant due increments to the applicant during the period 2.2.1981 to 2.11.1993 with all benefits as extended by the Jodhpur High Court by revising the pay of the applicant within a fixed time period. However, the applicant herein was denied the benefit of the aforesaid judgment of the Honble High Court of Rajasthan at Jodhpur which was upheld by the Honble Supreme Court on the basis of clarification issued by the Railway Board dated 20.6.1994 which has now been declared contrary to the directions of the Honble Supreme Court. It is further submitted by the applicant that once the order dated 20.6.1994 has been declared contrary to the directions of the Honble Supreme Court in such situation, the Railway Board is bound to issue fresh orders for granting the due increments for intervening period by way of extending the benefit of the aforesaid judgment to all the similarly situated persons but no action has been taken by the Railway Board till date. Feeling aggrieved of the above inaction of the respondents, the applicant has filed the present Application seeking the reliefs as mentioned above.
6. The respondents have filed their counter reply, wherein they have submitted that in compliance of the Honble Supreme Court of India order dated 11.12.1992, Shri Kalanand was reinstated in service as on 11.12.1992 and intervening period was decided as dies non and given notional continuity from the date of removal to the date of reinstatement for the purpose of calculation of pensionary benefits vide order dated 1.7.1994. The respondents have further submitted that the pay of the applicant was fixed strictly in consonance with the clarification issued by the Railway Board vide order dated 20.6.1994 without allowing the increments which fell due during the intervening period. So far as the orders of the Honble High Court of Rajasthan at Jodhpur dated 25.9.2007 is concerned, they have submitted that the said case cannot be squarely applied in this case. However, they have not stated any reasons as to why the same is not applicable to the facts of the present case.
7. At the hearing, learned counsel for the applicant has produced before us a copy of order passed in similar circumstances case dated 18.11.2010 passed by this Tribunal in OA No.3837/2010, which was upheld by the High Court of Delhi and also upheld by the Honble Supreme Court in SLP No.13286-88/2012 in the matter of Union of India and others etc. vs. Mahabir Prasad and others vide order dated 27.8.2012. Learned counsel for the applicant has also produced before us a copy of order passed in similar circumstanced case, namely, OA No.2494/2011 in the matter of Raj Nath Pathak & ors. vs. UOI and others decided on 11.09.2012 in which the orders and judgments of the Tribunal, High Courts and the Honble Supreme Court as referred to above have been taken into consideration and the said OA was disposed of with the directions to the respondents to consider the case of the applicants also in the light of the judgment of the Honble Apex Court and pass a reasoned and speaking order within a fixed time frame.
8. In support of the applicants claim Shri Yogesh Sharma, the learned counsel cited the cases of Harcharan Singh and others vs. Union of India, through General Manager, Northern Railway, New Delhi and others (OA No.1915/2010 decided on 26th July, 2011); Kitab Singh and another vs. Union of India through General Manager, Northern Railway, New Delhi (OA No.2134/2010 decided on 16th May, 2011); and Narinder Singh and another vs. Union of India through General Manager, Northern Railway, Ambala Division, Ambala and another (OA No.2135/2010 decided on 5th April 2011) wherein the relief claimed by the applicant have been granted to the applicants therein by directing the respondents to extend the benefit of the judgment of Jodhpur High Court as per para 11 of the judgment in the same manner as granted to by the Tribunal to the applicant in OA No.2206/2009 (Inder Singh case supra).
9. Learned counsel for the respondents upon confrontation with the aforesaid judgments has only submitted that the facts and circumstances of these cases are distinguishable to the facts of the present case. However, he is unable to substantiate his submission as to how the facts of the present case are distinguishable.
10. We have heard the learned counsel for the parties and have carefully perused the records of the case.
11. It is admitted fact that the case of the applicant for grant of the relief as prayed for was rejected only on the ground that clarification was issued by the Railway Board vide order dated 20.6.1994 on the basis of which increments were not allowed which fell due during the intervening period. The said clarification issued by the Railway Board was set aside by the Honble High Court of Rajasthan at Jodhpur vide its order dated 25.9.2007 which was upheld by the Honble Supreme Court vide its judgment dated 17.4.2009 passed in Civil Appeal Nos.1493-1494/2009.
12. The issues raised in the Application are no longer res integra for having been judicially decided in the cases cited by the applicants counsel as referred to above.
13. In view of the above and having regard to the facts and circumstances of the case, we direct the respondents to extend the benefit of the judgment of the Jodhpur High Court as per para 11 of the said judgment in the same manner as granted by the Tribunal to the applicant in OA No.2206/2009 (Inder Singhs case) and as followed in the three cases referred to in para 8 above, within three months from the date of receipt of a certified copy of this order.
14. In the result, the OA is disposed of in above terms. No order as to costs.
(Mrs. Rajwant Sandhu) (Dr. Dharam Paul Sharma)
Member (A) Member (J)
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