Central Administrative Tribunal - Ahmedabad
Bhikhabhai Mangalbhai vs M/O Railways on 28 February, 2025
Central Administrative Tribunal
Ahmedabad Bench,
Ahmedabad
O.A. No.356 of 2016
Orders reserved on : 28.1.2025
Orders pronounced on : 28.02.2025
Hon‟ble Mr. Jayesh V. Bhairavia, Member (J)
Hon‟ble Dr.Hukum Singh Meena, Member (A)
Shri Bhikhabhai,
Son of Shri Mangalbhai,
Age about 65 years
Ex. Fitter Grade -II of the respondents,
Residing at Mafesar Compound,
B/H, Dadabhai Bagh,
Station Road,
Bharuch -392001.
...Applicant
(By Advocate: Shri M.S. Trivedi)
VERSUS
1. The General Manager,
Western Railway,
Churchgate, Mumbai,
2. The Divisional Railway Manager,
O/o DRM, Western Railway,
Divisional Office, BRC Division,
Vadodara - 395623.
...Respondents
(By Advocate: Ms. R.R. Patel)
ORDER
Hon‟ble Mr. Jayesh V. Bhairavia, Member (J):
Being aggrieved by the order dated 26.12.2011 (Annexure A/1 refer), vide which the period from the date of order of the appellate authority till his reporting to for duty, i.e., from 03.02.2000 till 23.01.2008 had been treated as ―DIES NON‖ and further the 2 OA No. 356 of 2016 punishment imposed by the appellate authority, i.e., reduction to stage Rs.3050/- in grade Rs.3050-4590 (RSRP) for five years with future effect modified to 02 years by revisionary authority shall be effected from the date the applicant reported for duty, i.e., 24.1.2008, the applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"(A) That, the Hon'ble Tribunal be pleased to allow this petition.
(B) That the Hon'ble Tribunal further be pleased to hold/declare that the impugned order No. E/308/5/3/C&W/590 dated 26.12.2011 issued by the respondent No. 2 regarding treatment of period from 3.2.2000 till 23.1.2008 as dies non and inaction on the part of the respondents regarding non payment of due arrears of pay and wages and pensionary benefits to the applicant, after issuance of Order No.E/C&W/773/5/2/Vol.II-E/C& W/5223 dated 8.2.2012 regarding pay fixation of the applicant, is ex-facie illegal, arbitrary and unjust.
(C) That, the Hon'ble Tribunal further be pleased to direct the respondents to give/grant all consequential benefits to the applicant on issuance of order No. E/308/5/3/C&W/590 dated 26.12.2011 issued by the respondent No. 2 regarding treatment of period from 3.2.2000 till 23.1.2008 as dies non and Order No. E/C& W/773/5/2/Vol.II-
E/C&W/5223 dated 8.2.2012 regarding pay fixation of the applicant including arrears of revised pensionary benefits with 12% interest and exemplary costs.
(D) Such other and further relief/s as may be deemed just and proper in view of the facts and circumstances of the case may be granted."
2. Brief facts leading to filing of this OA are that :
2.1 This case has a chequered history.
2.2 The applicant, who was working as Fitter Grade-II, retired w.e.f. 1.8.2011 on attaining the age of superannuation.3 OA No. 356 of 2016
2.3 According to the applicant, the applicant while working as Fitter Grade-II was served with a major penalty charge sheet dated 19.01.99 for unauthorised absence from 18.01.98 to 18.11.98. The Disciplinary Authority imposed the punishment of compulsory retirement vide order dated 24.08.99. The Appellate Authority modified the punishment to reduction to lowest stage for five years with future effect tvide order dated02.02.2000, 2.4 Being aggrieved, the applicant had filed OA No.776/01 challenging the above orders and this Tribunal disposed of the same with a direction to file a revision petition and the revisionary authority reduced the period to two years vide order dated 13.04.04.
2.5 Thereafter the applicant preferred OA No.301/04 challenging the said order of the Revisionary Authority dated 24.8.99 and this Tribunal had dismissed the said OA vide Order dated 23.3.2006.
2.6 Thereafter, the applicant approached this Tribunal by filing OA No.338/07 for not taking him on duty and for regularisation of period from 18.1.98 to 18.11.98, 24.8.99 to 13.4.04 and from 02.05.04 to date of reinstatement. This Tribunal, by noting that the applicant had been taken back on duty on 24.1.2008 and that the other relief cannot be said to be consequential relief, disposed of the same vide order dated 5.9.2008 with a direction to the respondents, in case a representation is received within fortnight of receipt of a copy of the said Order, the same shall be considered and decided in terms of the extent rules and 4 OA No. 356 of 2016 regulations within two months. Thereafter, the respondents had passed order dated 1.9.2008 treating the period from the date of compulsory retirement i.e. w.ef. 1.9.99 to the date of reinstatement, i.e., 24.01.2008 as ‗not spent on duty'.
2.7 Aggrieved by the aforesaid Order, the applicant has filed OA No.160/2009 before this Tribunal and this Tribunal vide Order dated 29.10.2009 held that the decision regarding the said period is an appealable order and, therefore, directed the appellate authority to treat the said OA as an appeal and decide the same by a speaking order.
2.7.1 In compliance of the aforesaid order of this Tribunal, the respondents had passed order dated 24.12.2009 vide which the earlier period of unauthorised absence i.e. from 18.1.98 to 18.11.98 was treated as ‗NO WORK NO PAY'; the period for which the employee has been under various punishment should be considered for notional benefits, if permissible/allowed under Railway Rules for Establishment matter; and the period after 12.4.2006 should be considered for all benefits, wages/salary for period beyond 12.4.2006 should again be considered if the employee has presented himself and taken on duty, i.e. performance of his duties.
2.8 Validity of the above order dated 24.12.2009 was challenged by the applicant by filing OA 40/2010 before this Tribunal and this Tribunal vide order dated 16.2.2010 disposed of the same with the following observations:-5 OA No. 356 of 2016
―5. From our earlier order and the order which the DRM has passed as quoted above, it is apparent that the learned DRM mis-directed himself and did not travel within the limits prescribed by us. Therefore, the order impugned is not sustainable and the matter needs further remittance to the DRM for passing ae fresh speaking order in terms of para 11 of our earlier order as already quoted.
6. In the face of the above premises, we set aside the impugned order and remit the matter to the DRM concerned with a direction that within three months from the date of receipt of the copy of this order, he shall strictly in terms of our earlier order, pass a required order. He shall also communicate the same to the applicant.
Copy of this order be forwarded to the DRM concerned without delay and the copy may also be delivered to the applicant for proper use. Accordingly, the OA is disposed of.‖ In compliance of the aforesaid order of this Tribunal, the respondents have passed the order dated 16.8.2010.
2.9 Aggrieved by the aforesaid order dated 16.8.2010, the applicant filed OA 425/2010 challenging the same and this Tribunal vide Order dated 23.6.2011 allowed the same with the direction that ― ―....... Accordingly, impugned order dtd. 16.08.10 is unsustainable in the eyes of law and accordingly said order is quashed. OA is allowed and matter is remitted back to competent authority to pass a detailed comprehensive and reasoned order keeping in view the earlier directions as well as mandate of Rule 1343 IREC.
Aforenoted exercise shall be undertaken as expeditiously as possible but not later than 3 months from date of receipt of this order...‖ 2.10 In compliance of the aforesaid directions of this Tribunal, the respondents have passed the order dated 6 OA No. 356 of 2016 26.12.2011 (Annexure A/1) decided to treat the period from 3.2.2000 to 23.1.2008 as ‗dies non', which is impugned in this OA.
2.11 Thereafter the respondents had passed order dated 8.2.2012 (Annexure A/2) regarding pay fixation of the applicant and had not given any consequential benefits to the applicant.
2.12 Aggrieved by the above orders, the applicant served a legal notice dated 12.12.2014 (Annexure A/5) through his counsel upon the respondents and when the same had not been considered by the respondents, hence, this OA.
3. Learned counsel for the applicant mainly argued that :
3.1 The impugned order dated 26.12.2011 passed by the respondents decided to treat the alleged period of unauthorised absence from 3.2.2000 to 23.1.2008 as ‗dies non' is ex facie illegal, arbitrary and unjust.
3.2 The impugned order is nullity in the eyes oflaw as the same is in fragrant violation of the settled principles of natural justice as the applicant was not given either show cause notice or hearing prior to issuance of the same.
3.3 The legal notice served upon the respondents had not been considered at all by the respondents.
3.4 The applicant is entitled/eligible to get all consequential benefits in pursuant to order dated 8.2.2022 regarding pay fixation of the applicant.7 OA No. 356 of 2016
4. Pursuant to notice issued by this Tribunal, the respondents have filed their reply opposing the claim of the applicant. Learned counsel for the respondents by referring to the counter reply mainly argued that :
4.1 Learned counsel for the respondents by drawing our attention to the Order dated 29.10.2009 passed by this Tribunal in the earlier OA filed by the applicant, being OA NO.160/2009 and contended that the applicant's pay position has been revised in terms of the order of directions of this Tribunal keeping in view the penalties imposed upon the applicant. Further the order dated 26.12.2011 has been correctly issued and that there is no violation of any DAR Rules as the said order is a speaking one.
4.2 Learned counsel further submitted by drawing our attention that this Tribunal while deciding the OA No.160/2009 had clearly observed that ‗the applicant admitted his absence. The logical conclusion will follow. Although the Disciplinary Authority imposed the penalty of compulsory retirement upon the applicant, however, the same was revised by the Appellate Authority to that of reduction to lower stage for five years with future effect vide order dated 2.2.2000 which was further modified by the Revisionary Authority by reducing the period to two years vide his order dated 13.4.2014.
4.3 Learned counsel further submitted that the applicant is misinterpreting the order dated 8.2.2012 (Annexure A/2) as in the same the pay position has bee divided into two parts, one shows the present position and the 8 OA No. 356 of 2016 other by taking into consideration of the applicant's leave without pay and the punishment imposed upon him which is the actual position about his entitlement of pay. It is further submitted that his pay as on 31.8.2011 is Rs.8970/- and not Rs.9520/- as claimed by the applicant. Further the applicant had been granted an increment on 1.7.2011 and his pay had been increased from Rs.8700/- to Rs.9870/-.
4.4 Learned counsel also submitted that as directed by this Tribunal in the earlier litigation, the applicant had neither approached the office of the respondents nor made any representation.
4.5 Lastly, learned counsel submitted that in view of the above submissions, the applicant is not entitled to any relief from this Tribunal and this OA may be dismissed being devoid of merit.
5. In rejoinder, learned counsel besides, refuting the contention of the respondents and reiterating the submissions as noted above, has placed reliance on the decision of the Hon'ble Chhattisgarh High Court in the case of Dr. Gourishankar Patel vs. State of Chhattisgarh, reported in (2022) 06 CHH CK 0018 in support of the claim of the applicant.
6. We have considered learned counsel for the parties and carefully perused the pleadings and the judgment relied upon by the learned counsel for the applicant.
7. What is dies non? Dies non is a legal term that refers to a period of time that is not counted towards an employee's service or salary. It is a penalty measure that can be used to punish employees for unauthorized absences.9 OA No. 356 of 2016
8. At this stage, it is apt to state that it is settled law that award of quantum of punishment is within the domain of the competent authority and this Tribunal while exercising the judicial review should not interfere with the same, except for the reasons to be recorded in writing.
9. There is no dispute that the applicant was unauthorisedly absent during the period from 03.02.2000 till 23.01.2008 as after the Appellate Authority's order dated 2.2.2000 and as in terms of order of the Revisionary Authority dated 13.4.2004, the applicant had not been fully exonerated from the charges and had been reinstated with major penalty of reduction to minimum stage of Rs.3050/- in Grade Rs.3050-
4590 with future effect for a period of 05 years modified to 02 years by Revisionary Authority, he had not reported for duty and had reported for duty only on 24.1.2008 and further the earlier period of unauthorised absence i.e. 24.8.1999 to 2.2.2000 was decided by the then Disciplinary Authority as ―NO WORK NO PAY‖, as the applicant was kept litigating and as such, therefore, the said alleged period was treated by the respondents as ‗dies non' as the applicant remained absence again unauthorisedly.
10. The applicant has not alleged nor pleaded anywhere in the OA that he was prevented to join his duties on or after 2.2.2000 by the respondents. By placing reliance of the provision of Clause 1343 (F.R.
54) of IREC, the respondents have treated the said unauthorised absence as ‗dies non', which reads as under:-
―1343 (F.R.54).--
(1) When a railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty including the period of suspension preceding 10 OA No. 356 of 2016 his dismissal, removal or compulsory retirement, as the case may be; and
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway servant shall, subject to the provisions of sub-
rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be (3) xxxxxxxxxxxx (4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non- compliance with the requirements of clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose; provided that if the railway servant so desire, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal removal or compulsory retirement, as the case may be shall be converted into leave of any kind due and admissible to the railway servant.
Note:- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of -
11 OA No. 356 of 2016a. extraordinary leave in excess of three months in the case of temporary railway servant;
b. leave of any kind in excess of five years in the case of permanent railway servant.
(6) The payment of allowances under Sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.....‖
11. From the gamut of facts, as noted above, it is undisputed that the competent authority had allowed the applicant to report on duty on 24.1.2018. Further from a plain reading of the above provisions of clause 1343 of IREC, it is evident that upon reinstatement of a Govt. employee, the competent authority has the power to determine as to how the period of unauthorised absence has to be treated but the same has to be done only after issuance of show cause notice to the Govt. employee on the quantum proposed and after considering the representation, if any, submitted by the Govt. employee in that connection. Admittedly, the earlier OA 425/2010 was disposed of by this Tribunal vide order dated 23.6.2011 with a direction to the competent authority to pass a detailed comprehensive and reasoned order keeping in view the directions given in earlier litigation as well as mandate of Rule 1343 IREC.
12. In compliance of the said directions, the respondents have passed the impugned order dated 27.12.2011 and having noted the orders passed in applicant's earlier OAs, i.e. OA 160/09 and OA 40/10 as well as provisions of Clause 1343 of IREC as also about reinstatement of the applicant by the Appellate Authority vide order dated 2.2.2000 and punishment which was awarded by the disciplinary authority was modified by the Revisionary Authority vide order dated 13.4.2023.,t he penultimate paras of the same read as under:-
"6. Thus, in terms of sub clause (4) and (5) of IRE, I hereby order as under:
"a. No pay and allowances shall be admissible to applicant for period 18.1.1998 till 24.8.99 i.e. period of unauthorized absence till serving of 12 OA No. 356 of 2016 NIP by disciplinary authority & the same is regularized as leave without pay.
b. Pay and allowances for period 24.8.1999 to 20.2.2000 ie orders of Disciplinary authority to orders by Appellate Authority has already been decided vide orders dtd 2.02.2000 as not spent on duty and decided as „NO WORK NO PAY‟. The period is regularized as leave without pay.
7. The applicant should have reported on duty once orders of appellate authority were passed and exhausted higher channels of appeal but he did not do so and instead kept on litigating. Therefore, the period from date of orders of appellate authority till his reporting to for duty i.e. from 03.02.2000 till 23.01.2008 is to be treated as "DIES NON". Thus, the punishment imposed by Appellate Authority i.e. reduction to stage 3050/- in grade 3050-4590 (RSRP) for five years with future effect modified to 02 years by revisionary authority, shall be effected from date the applicant reported for duty ie 24.01.2008.
8. His pay and allowances be regulated as above and pay be fixed accordingly."
13. If the above speaking order is read with the contents of the provisions of Clause 1343 of IREC, the said period has to be regularized against the leave due in accordance with Clause (ii) of Rule 1344 (2) read with Sub-rule (5) of Rule 1343 of IREC.
14. The Hon'ble Supreme Court in Civil Appeal No. 7011 of 2008 in the matter of Novartis India Ltd v. State of West Bengal &ors, vide judgment dt. 02.12.2008 held as follows:
"19. There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1972. This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of 13 OA No. 356 of 2016 appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 4 and 16 of the Constitution of India in cases of public employment; etc.
20. It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.
21. Large number of decisions have been referred before us by the learned counsel for the parties. It is not possible to deal with each one of them. We may, however, notice a few of them.
22. In M.P. Sate Electricity Board v. Jarina Bee, [ (2003) 6 SCC 579] this Court observed that the award of full back wages was not the natural consequence of an order of reinstatement.
23. In Allahabad Jal Sansthan v. Daya Shankar Rai and another, (2005) 5 SCC 124 the Hon'ble Supreme Court held:-
"6. A law in absolute terms cannot be laid down as to in which cases, and under what circumstances, full back wages can be granted or denied. The Labour Court and/or Industrial Tribunal before which industrial dispute has been raised, would be entitled to grant the relief having regard to the facts and circumstances of each case. For the said purpose, several factors are required to be taken into consideration. It is not in dispute that Respondent 1 herein was appointed on an ad hoc basis; his services were terminated on the ground of a policy decision, as far back as on 24-1-1987. Respondent 1 had filed a written statement wherein he had not raised any plea that he had been sitting idle or had not obtained any other employment in the interregnum. The learned counsel for the appellant, in our opinion, is correct in submitting that a pleading to that effect in the written statement by the workman was necessary. Not only no such pleading was raised, even in his evidence, the workman did not say that he continued to remain unemployed. In the instant case, the respondent herein had been reinstated from 27-2-2001."14 OA No. 356 of 2016
It was furthermore observed :-
"16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. It is necessary for us to develop a pragmatic approach to problems dogging industrial relations. However, no just solution can be offered but the golden mean may be arrived at."
24. Yet again in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey, [(2006) 1 SCC 479], this emphasized that grant or denial of back wages would be subject matter of each case stating :-
"61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."
xxx xxx
26. Again in U.P.S.R.T.C. Ltd. v. Sarada Prasad Misra and another, [(2006) 4 SCC 733], it was held that the grant of back wages is discretionary. It was reiterated that initially it was for the employee to prove that he had not been gainfully employed. It was observed :-
"16. From the above cases, it is clear that no precise formula can be adopted nor "cast-iron rule" can be laid down as to when payment of full back wages should be allowed by the court or tribunal. It depends upon the facts and circumstances of each case. The approach of the court/tribunal should not be rigid or mechanical but flexible and realistic. The court or tribunal dealing with cases of industrial disputes may find force in the contention of the employee as to illegal termination of his services and may come to the 15 OA No. 356 of 2016 conclusion that the action has been taken otherwise than in accordance with law. In such cases obviously, the workman would be entitled to reinstatement but the question regarding payment of back wages would be independent of the first question as to entitlement of reinstatement in service. While considering and determining the second question, the court or tribunal would consider all relevant circumstances referred to above and keeping in view the principles of justice, equity and good conscience, should pass an appropriate order."
xxx xxx
28. In Muir Mills Unit of NITC (U.p.) Ltd. v. Swayam Prakash Srivastava and another, [ (2007) 1 SCC 491], it was held :-
"46. We are also of the view that the award of the Labour Court is perverse as it had directed grant of back wages without giving any finding on the gainful employment of Respondent 1 and held that the discontinuance of the services of a probationer was illegal without giving any finding to the effect that the disengagement of Respondent 1 was in any manner stigmatic. In the decision in M.P. SEB v. Jarina Bee2 this Court held that payment of full back wages was not the natural consequence of setting aside an order of removal. In the instant case, though the termination was as far back as in 1983, the industrial adjudicator has not given any finding on unemployment. This Court in a recent case of State of Punjab v. Bhagwan Singh18 has held that even if the termination order of the probationer refers to the performance being "not satisfactory", such an order cannot be said to be stigmatic and the termination would be valid."
15. In view of the above facts and circumstances of the case and for the forgoing reasons and discussions as well as keeping in view the aforesaid judgments of the Hon'ble Supreme Court and the rules on the subject, we do not find any illegality in the order passed by the respondents in this case. Therefore, we find that the OA lacks merits and deserves to be dismissed.
16. In the result, the OA is dismissed.
16 OA No. 356 of 201617. There shall be no order as to costs.
18. Pending MA, if any, shall also stands disposed of accordingly.
(Dr.Hukum Singh Meena) (Jayesh V. Bhairavia)
Member (A) Member (J)
/ravi/