Central Administrative Tribunal - Allahabad
Dineshwar Prasad Tiwari vs Divisional Railway Manager N C Rly on 22 December, 2021
Reserved
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 22nd day of December, 2021.
Hon'ble Mr. Tarun Shridhar, Member (A)
Original Application No. 330/00851/2018
With
Original Application No. 330/141/2018
1. Dineshwar Prasad Tiwari aged 64 years S/o Mahabeer Prasad
Tiwari, R/o C/o S. D. Tiwari, 439-D/18-F, Indira Nagar Colony,
Buxi Khurd, Kachchi Sadak, Daraganj, Allahabad.
2. Ram Chandra Mishra S/o Mahanarayan Mishra, R/o EWS 2/219
Yojn III Avas Vikas Colony Jhunsi, Allahabad.
........... Applicants in O.A. No. 851 of 2018
By Advocate: Shri Ashish Srivastava
Versus
1. Union of India through Divisional Railway Manager, Allahabad
Division, North Central Railway, Allahabad.
2. Divisional Personal Officer, Allahabad Division, North Central
Railway, Allahabad.
3. Assistant Commercial Manager, North Central Railway,
Allahabad.
------- Respondents in O.A. No. 851 of 2018
By Advocate: Shri Pramod Kumar Pandey.
With
Dinesh Chandra Tripathi aged about 69 years S/O R.N. Tripathi, R/O
Vill. Bulun Ka Purwa Anapur Allahabad.
........... Applicants in O.A. No. 141 of 2018
2
By Advocate: Shri Shivendu Ojha, Shri Ashish Ojha, Shri
Neeraj Kumar Tripathi and Shri Dhanajay Singh Yadav.
Versus
1. Union of India through Divisional Railway Manager, Allahabad
Division, North Central Railway, Allahabad.
2. Divsional Personal Officer, Allahabad Division, North Central
Railway, Allahabad.
------- Respondents in O.A. No. 141 of 2018
By Advocate: Shri Pramod Kumar Pandey.
ORDER
Delivered By Hon'ble Mr. Tarun Shridhar, Member (A) Present Shri Ashish Srivastava, learned counsel for the applicant and Shri Pramod Kumar Pandey, learned counsel for the respondents.
2. The applicants are aggrieved by denial of pension and other retiral benefits to them despite having rendered long years of service in the North-Central Railway. To this effect, they seek the following relief in the instant O.A.:
" I. This Hon'ble Tribunal may be pleased to direct the respondents department to pay the pension and other retiral benefits to the applicants without any further delay along with the consequential benefits thereupon also regularize the period from 2005 till the retirement for all purposes.
II. Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.
III. Award the costs of the original application in favour of the applicant."3
3. Brief facts of the case are that the applicants entered into the service of the Railways as Porters in the year 1982 and subsequent to their successfully completing the recruitment examination, they were appointed as Coach Attendants in the year 1983 and worked in that position till the year 2004. In the year 2004, on account of restructuring of the Railways, several positions of Coach Attendants were rendered surplus and these Coach Attendants were redeployed. In the aforesaid redeployment order, the applicants along with other similarly placed persons were deployed / appointed to various Group D positions in the Railways. However, the applicants did not accept this redeployment scheme/proposal since the position of Coach Attendant where they were posted was said to be a Group C post. The applicants instead of joining at their redeployed positions, challenged the order of redeployment through several rounds of litigation. To cut a long story short, the applicants kept awaiting the outcome of these litigations and finally without their redeployment order reaching its logical conclusion, the applicants attained the age of superannuation.
4. Shri Ashish Srivastava, learned counsel for the applicants points out that the applicants have rendered continuous service as regular employees of the Railways in the position of Coach Attendants from the year 1983 to the year 2005. This is an undisputed fact. Further, it is not disputed that both the applicants attained the age of superannuation on 31.03.2013 and 31.03.2014 respectively. However, neither did the Railways authorities issue any order of retirement nor sanction pension and other retiral benefits in their favour. Learned counsel draws attention to several documents on record which according to him establishes that at one stage, the concerned authorities had accepted the claim of the applicants. In particular, he draws my attention to a document at Page 23 of O.A. which is a revised Pay Fixation order pursuant to a Railway Board Circular. This order categorically mentions that the concerned employees shall be given consequential benefits.
5. He also draws attention to a document dated 19.08.2014 bearing No. ET4/CA/Court Case which is a communication from Senior Divisional Personnel Officer, North Central Railways, Allahabad 4 directing that the former surplus Coach Attendants who were redeployed but remained absent from duties from the date of such redeployment till date of superannuation are to be considered for pension and accordingly their pension applications/forms complete in all respects should be submitted urgently so that the retiral dues could be sanctioned and paid.
6. At this stage, the learned counsel for the respondents draws attention to the orders passed in two of the Original Applications wherein similar issues were agitated. In O.A. No. 744/2012, one Tej Singh & othrs had assailed the orders vide which Coach Attendants were redeployed without any success. While disposing of that Original Application, the Tribunal had held that the act of the applicants in not joining their redeployment positions and their continued absence actually amounted to an abandonment of service and the organisation. The Tribunal also observed that it also clearly manifests an intention of the applicants to abandon their services and hence their case cannot be treated as that of a mere unauthorized absence which could invite disciplinary proceedings. Accordingly, the said O.A. was dismissed.
7. Learned counsel for the respondents goes on to inform that the orders of the Tribunal passed in this O.A. on 03.11.2014 are under challenge in the Hon'ble High Court of Allahabad wherein the Writ Petition is still pending and no interim relief has been provided to the applicants by the Hon'ble High Court. The second O.A., the learned counsel refers to is O.A. No. 35/2014 wherein on 01.06.2018, the Tribunal has held that there is no dispute as to the fact that the applicants rendered continuous service till the year 2005 and therefore claiming the pension for that period is their legitimate and bona fide due which must be paid to them. However, the learned counsel mentions that the North Central Railways who were the respondents in that O.A. have challenged the order of the Tribunal in the Hon'ble High Court of Allahabad and that order has been stayed. (Page 113 of the Supplementary Affidavit of O.A. No. 141 of 2018). In the Order, the Hon'ble High Court had recorded the submission of the counsel for the petitioners i.e., the Railways that the fact that the employees had abandoned the services was not considered by the Tribunal in its right 5 spirit by giving them the relief of the payment of pension and other retiral dues. Learned counsel submits that since the facts, circumstances and situations of the applicants in the present O.A. are identical, they cannot be given the benefit to any of the past service rendered from 1983 to 2005 as once an employee has abandoned his duties and position, it amounts to permanent severing of relationship with the employer.
8. Shri Ashish Srivastava, learned counsel for the applicants contends this argument by pointing out that terming the case of the applications as abandonment of service or position is an incorrect appreciation of the facts in the instant case. He points out to an order passed by the Assistant Commercial Manager, North Central Railways, Allahabad which is placed at Page 30 of the O.A. dated 11.10.2013 wherein there is a clear mention that disciplinary proceedings were initiated against the applicant No. 1 and vide the aforesaid order, these proceedings were withdrawn without any prejudice. The letter clearly mentions that the charge sheet under the disciplinary proceedings was issued for unauthorized absence from duties w.e.f. 26.01.2005. Learned counsel argues that this conclusively establishes that the case of the applicants does not amount to abandonment of service and it is a matter of unauthorized absence for which they had been proceeded against under the Railways Services Disciplinary and Appeal Rules. Learned counsel mentions that an identical charge sheet for unauthorized absence was issued to the applicant No. 2 also. He goes on to argue that since the case of the applicant is entirely on a different footing than the matter of Tej Singh & othrs, the analogy drawn by the learned counsel for the respondents does not hold water. Accordingly, not only are the applicants entitled to the benefit of the full pension for the period up to 2005 but also the notional benefit of the period from 2005 till their actual date of superannuation.
9. I have heard the arguments put forth by the learned counsel for the parties at great length and meticulously examined all the relevant documents on record.
610. The arguments have covered the entire gamut of issues involved in the instant O.A., however, the relief sought is limited to the payment of pension and other retiral benefits and it would be appropriate that I confine to this issue primarily.
11. In O.A. No. 35 of 2014, the final order dated 01.06.2018 categorically directs the respondents to finalise the pension and retiral dues of the applicant in that O.A. Since the status of the applicant in that O.A. is identical to that of the present applicants i.e., he too was a Coach Attendant who got redeployed in the year 2004 and never joined duties till the age of his superannuation, there is little scope for me to take a contrary view. For the sake of clarity, the operative part of the order passed on 01.06.2018 in O.A. No. 35 of 2014 is reproduced below:
" In view of the above discussions and taking into the fact that the respondents have not issued any specific order regarding the forfeiture of past services of the applicant for the purpose of pension under the Railway Servants (Pension) Rules, 1993 and that there is no dispute about the applicant's service till 30.09.2005, the respondents are directed in the interest of justice, to finalise the pension and retiral dues based on the applicant's services till 30.09.2005 as per rules within three months from the date of receipt of a copy of this order."
12. No doubt, this order has been stayed by the Hon'ble High Court of Allahabad in Writ 18750 of 2018 vide order dated 07.09.2018, a bare perusal of the said order of the Hon'ble High Court of Allahabad makes it apparent that the order has been stayed with an observation that the matter requires consideration. This view, taken by the Hon'ble High Court is apparently on account of the contention made by the learned counsel for the petitioner that the respondents i.e., Tej Singh who was applicant in O.A. No. 35 of 2014 had abandoned his services and hence could not claim retiral dues. In my view, the stay order is specific with respect to the matter of Tej Singh and should not have any direct bearing in the instant matter.
713. In the other O.A. bearing No. 744 of 2012, referred to in the preceding paragraphs, the Tribunal, in its order dated 03.11.2014 had dismissed the prayer of the applicants to quash the impugned order of redeployment with which the applicants were aggrieved on the grounds that they had abandoned their duties. That order does not anywhere state or even hint that this would result in forfeiture of their past services and loss of pension and other retiral dues. Moreover, the documents on record repeatedly referred to by the learned counsel for the applicant do give a clear indication that the applicants were, at one stage, proceeded against for unauthorized absence from duty. Whether these proceedings were taken to a logical conclusion or not is not known through the documents on record. However, this issue would not be of great relevance in view of the opinion held and direction given by this Tribunal in O.A. No. 35 of 2014.
14. Therefore, I am clear in my view that since the applicants had performed continuous service and duties with effect from 1983 to 2005, it would be unfair to snatch away the rights and benefits of this service in one stroke because they agitated their redeployment to a lower position and as a protest, did not join their duties on such a position. No doubt, the applicants too are guilty of misdemeanor and indiscipline in their refusal to accept the orders even though they may have been seriously aggrieved by the same. There were enough alternatives available before the respondents to proceed against the applicants for misconduct and punish them for such misconduct and indiscipline in accordance with the rules. Therefore, the interest of justice demands that the applicants be sanctioned all their retiral dues including pension on the basis of the services rendered by them till the year 2005, specifically till the date on which they were actually present on duties. To this extent, the present O.A. is allowed.
15. However, I am not inclined to give them the notional benefit for the purpose of computing the retiral dues for the period from the date they absented themselves from the duties till the date they attained the age of superannuation as they had themselves chosen not to join duties 8 and hence got retired in absentia without holding any position in the organization.
16. The respondents are directed to sanction and pay the bona fide pension and other retiral dues as admissible to the applicants within a period of four months from the date of the receipt of this order.
17. With the above directions, the O.A. stands disposed off.
18. There shall be no order as to costs.
(Tarun Shridhar) Member (A) (Ritu Raj)