Central Administrative Tribunal - Allahabad
Ram Shankar vs Union Of India on 27 July, 2018
(Reserved on 11.07.2018)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Original Application No. 330/00666/2009
This the 27th day of July, 2018
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Ram Shankar, Son of Barkhu Vishwakarma, R/o Village Shitalpur, Post
Batainia, District - Santkabirnagar .
..........Applicant
By Advocate: Shri S.N. Pandey
Versus
1. Union of India through the General Manager, North Eastern
Railway, Gorakhpur.
2. The Divisional Railway Manager (Personnel), North Eastern
Railway, Izzatnagar, District - Bareilly.
3. Divisional Railway Manager (Signal), North Eastern Railway,
Izzatnagar, District Bareilly.
4. Punjab National Bank, Bank Road, Gorakhpur - 273001.
..........Respondents
By Advocate : Shri Ajay Kumar Rai
ORDER
DELIVERED BY:-
HON'BLE MR. GOKUL CHANDRA PATI, (MEMBER-A) By way of the instant original application (in short OA) filed under section 19 of the Administrative Tribunals Act, 1985, the applicants have prayed for following main reliefs :-
"i. Issue an order or direction in the suitable nature, quashing the impugned order dated 29.12.08 (Annexure A-1) to this O.A.).2 O.A. NO. 666/2009
ii. Issue an order or direction in the suitable nature, commanding the respondent to issue pension payment order in favour of the applicant after calculating his past services (about 24 years) as rendered by him prior to 1991. iii. Issue an order or direction in the suitable nature, commanding the respondent to pay regular monthly pension alongwith arrears of pension as well as release the deducted retirement dues to the applicant within a period to be specified by this Tribunal".
2. The applicant was appointed as a casual labour under the respondents on 23.5.1966. He was regularized and was also promoted. It is the case of the applicant that in the year 1990, he fell ill and was under
treatment of the Railway doctors due to which he and was not able to perform duty. In support of his illness, the applicant has annexed a number of medical certificates at Annexure A-2, which have not been disputed by the respondents in their Counter Reply filed by the respondents. After being declared fit after his treatment, the applicant joined duty in 1991 and was given posting at different places and there was no interruption in his service till his retirement on 30.06.2008. After his retirement, he was surprised to be informed by the respondents that his period of service prior to 1991 will not be considered for pension and his appointment would be treated to be from 1.1.1991 and accordingly, the PPO dated 14.07.2008 (Annexure A-9 to the OA) was issued by the respondents treating his date of appointment to be 1.1.1991. The applicant submitted representation dated 2.7.2008, on which no action was taken and the applicant filed OA No. 866/2008. This OA was disposed of by this Tribunal of at the admission stage with a direction to the respondents to decide the representation dated 2.7.2008 with the OA filed by the applicant and the decision is to be communicated to the applicant with two months.
3. Thereafter, the respondents have passed the impugned order dated 29.12.2008 (Annexure A-1 to the OA), rejecting the representation of the applicant and this order has been impugned in this OA on the following grounds:-
3 O.A. NO. 666/2009(i) After the applicant became medically fit to join duty, he was given a posting vide order dated 21.8.1991, allowing the applicant to join duty (Annexure A-3) as stated in para 4(ii) and para 4(iii) of the OA.
(ii) The applicant submitted medical certificates for the period of absence due to his illness and submitted application for regularization of the period of his absence, but no action was taken and he was assured that it will be regularized at the time of retirement [para 4(vi) and 4(viii) of the OA].
(iii) The respondents did not pass any order or issue any notice regarding the period of absence or forfeiture of his past service. [para 4(ix), 5 (iv) of the OA]
(iv) Copy of the Provident Fund ledger (Annexure A-6), Pay slips for the month of May, 2018 (Annexure A-9), his service book and the identity card show applicant's date of appointment to be 23.5.1966.
(v) The applicant has never been intimated that his service period is being reduced and being a semi-literate person, he is unable to understand how his past services can be ignored. [para 4(xi) and 4(xiv) of the OA]
(vi) Since 1991, the applicant was given two promotions on the basis of his seniority from 23.5.1996 his date of joining in service. [para 4(xv) of the OA]
(vii) The impugned order dated 29.12.2008 has been passed illegally without mentioning any reason and without any notice. [para 5(ii) and 5(iv) of the OA]
(viii) No pension has been paid to the applicant in spite of issuing the PPO dated 14.7.2008 and the applicant is entitled for interest for delayed payment, as stated in para 4(xxii) of the OA.
4. In the Counter Reply filed by the respondents, following points are mentioned:-
• Contents of the OA have been generally denied. But regarding the averments in the OA regarding the applicant's absence from duty 4 O.A. NO. 666/2009 for the period he was not well and he was under treatment of the Railway Doctors, have not been specifically contradicted. • In reply to the contention in the OA that he was not given any notice before passing the impugned order and the decision was taken without any intimation to the applicant and no reason has been mentioned in the impugned order about reduction of his qualifying service, the respondents have not denied specifically. It is not stated in the Counter Reply as to whether any notice to the applicant was issued before taking the impugned decision to treat the period from 1.1.1990 till 31.12.1990 as break in service and not to count his service period prior to 1.1.1991 as qualifying service. • It is further stated in the Counter that the decision to treat the period from 1.1.1990 till 31.12.1990 as break in service was communicated to the applicant while passing the order dated 29.12.2008 in compliance of the order dated 22.08.2008 of this Tribunal passed in OA No. 866/2008.
5. The applicant has filed the Rejoinder reiterating the stand in the OA. It is stated that during the period from 1.1.1990 to 31.12.1990 alleged to be the period of unauthorized absence of the applicant from duty as per the Counter Reply, it is stated that the applicant was under treatment which can be verified from the records. It is also stated that the impugned order dated 29.12.2008 is illegal as it is not passed under any rules.
6. In reply to the Rejoinder affidavit, the respondents have filed a Supplementary Counter Affidavit (in short SCA) stating that the period of absence from 10.12.1989 till 31.12.1990 has been treated as break in service by the competent authority which has been informed to the applicant while passing the order dated 29.12.2008. Reference to para 918 of Indian Railway Establishment Code, Volume-I (in short IREC) has been made, in which it is provided that the break in service period of a subscriber, unless condoned, would entail forfeiture of service before the break for the purpose of calculating special contribution admissible under the para 915. It has also been stated that as per the Railway Board 5 O.A. NO. 666/2009 circular RBE No. 102/87, the competent authority for the purpose of imposing break in service is the appointing authority or an authority of equivalent or higher rank (Annexure SCA-2 to the SCA).
7. We have heard the learned counsel for the parties, who reiterated the averments in their respective pleadings. We have also perused the materials/documents available on record. Learned counsel submitted the written argument within time stipulated vide order dated 11.07.2018, reiterating the averments in the pleadings. The fact that the applicant did not furnish any application for period of absence from 01.01.1990 to 31.12.1990 was highlighted in written argument which also referred to para 918 of the IREC. As stated by the respondents in the SCA, imposition of break in service would result in forfeiture of the service prior to such break in service. But the para 918 of the IREC as stated in para 4 of the SCA and in para 918 of IREC is for the purpose of the entitlement for special contribution under para 915 of the IREC as clearly stated in para 4 of the SCA. We do not understand how the para 918 of IREC would imply forfeiture of the service prior to the period of break in service for counting of qualifying service for pension, which is the main dispute in this case. The para 918 of IREC does not justify the action of the respondents not to count the period of the applicant's service prior to break in service imposed on him. On perusal of the Railway Services (Pension) Rules, 1993, it is seen that the rule 42 the said rules provides for effect of interruption in service for pension and the said rule 42 states as under:-
"42. Effect of interruption in service- (1) An interruption in the service of a railway servant shall lead to forfeiture of his past service, except in the following cases namely: -
(a) authorised leave of absence;
(b) unauthorised absence in continuation of authorised leave of absence so long as the post of absentee is not substantively filled;
(c) suspension, where it is immediately followed by reinstatement whether in the same or a different post, or where the railway servant dies or is permitted to retire or is retired on 6 O.A. NO. 666/2009 attaining the age of compulsory retirement, while under suspension;
(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest;
(e) joining time while on transfer from one post to another.
(2) Notwithstanding anything contained in sub-rule (1) the appointing authority may, by order, commute retrospectively the period of absence without leave as extraordinary leave."
Hence, as per the above rule, the period of service prior to any interruption in service, which would include the break in service also, will be forfeited for the purpose of pension and the said the sub-rule (2) of the above rule also allows the appointing authority to commute retrospectively the period of absence without leave as extraordinary leave.
8. The respondents have quoted the Railway Board circular RBE No.102/87 vide para 5 of the SCA and annexed a copy of the said circular at Annexure SCA-2 of the SCA and the said circular states as under:-
"Instructions have been issued to the Railway Board's letter No. dated 03.07.1985 providing for issue of Show Cause Notice to comply with the spirit of High Court judgment, before competent authority imposes 'break in service...."
It is clear from the above that the Railway Board circular RBE No. 102/87 and Railway Board letter dated 03.07.1985 referred therein, provide for issue of a show cause notice to the railway servant before the competent authority takes a decision to treat the period of absence as 'break in service'.
9. It is noticed that no where in the pleadings, the respondents have claimed that the applicant was issued anya show cause notice before taking the decision to treat the period from 1.1.1990 to 31.12.1990 as break in service for the applicant. In reply to the applicant's averment 7 O.A. NO. 666/2009 that no notice was issued by the respondents before taking the impugned decision, nothing specific has been mentioned in the Counter Reply or in SCA to counter it except routinely denying it. In case any prior notice was issued to the applicant before taking the decision to impose break in service as required under RBE No. 102/87 and Railway Board letter dated 03.07.1985 or before the decision to forfeit the service prior to the break in service period, then the respondents should have specifically stated so in the pleadings and copy of such notice could have been furnished alongwith the pleadings. In absence of any such pleadings, the averment of the applicant that no notice was issued prior to taking the decision regarding break in service and consequent forfeiture of past service for pension purpose is considered to be correct. Hence, it is clear that no such notice was issued as required under the Railway Board circular RBE No. 102/87 and as required by the principles of natural justice, which have been violated by the respondents in this case. Further, the averments in the pleadings of the respondents show that the decision to treat the period of absence as break in service leading to forfeiture of his past service for pension purpose, was communicated by the order dated 29.12.2008 which was passed in pursuance to the order of this Tribunal. In other words, the respondents did not feel it appropriate to pass an order to treat the period of absence as break in service and on the applicant's entitlement for retiral benefits as per the rules, till the applicant approached this Tribunal in first round of litigation in OA No. 866/2008. No order was communicated to the applicant till 29.12.2008 which also does not indicate if any show cause notice was issued to the applicant prior to taking the decision as stated in order dated 29.12.2008. We are, therefore, of the considered view that there has been gross violation of the principles of natural justice and violation of the RBE No. 102/87 by the respondents in this case.
10. In a similar case involving break in service of a railway servant for participating in illegal strike Hon'ble Apex Court in the case of Shiv 8 O.A. NO. 666/2009 Shanker and Another vs. Union of India and others 1985 SCC (L&S) 387 has held as under:-
"..........In Dayal Saran Sanan v. Union of India this Court had pointed out that an order of forfeiture of past service cannot be made without observing the principles of natural justice. The principle of the case was applied by the High Court of Rajasthan to cases of break in service on account of participation in illegal strike also. In one of the cases, namely, Karan Singh v. Union of India Civil Writ Petition No. 1889 of 1981 S.C Agarwal, J., after referring to the decision of this Court in Dayal Saran Sanan v. Union of India observed:
"In view of the decisions aforesaid, it must be held that an order with regard to the break in service which results in forfeiture of the past service of a Railway employee, cannot be made without observing the principles of natural justice."
The learned Counsel for the respondents urged that para 1301 of the Railway Establishment Manual read with para 1304 enabled the Railway authorities to forfeit the service of a Railway servant for participation in an illegal strike unless condoned by the competent authority. We are not now on the question of competence of the Railway authority to make an order of forfeiture of service. The question before us is whether the principles of natural justice should be observed when an order of forfeiture of service on the ground of participation in an illegal strike is to be made. Neither para 1301 nor para 1304 of the Railway Establishment Manual excludes the observance of the principles of natural justice either expressly or by necessary implication. We, therefore, allow the writ petitions and quash the orders dated February 19, 1981, February 21, 1981 and February 18, 1981 which have been filed as Annexures I, II and III of the writ petition. The writ petitions are allowed as indicated."
In the case of Dayal Saran Sanan v. Union of India 1980 3 SCC 25, Hon'ble Apex Court has held as under:-
"...............In our view neither the loss of lien contemplated by Article 189 nor the forfeiture of past service contemplated by Article 420 has anything to do with the withholding of pension and gratuity. We do not want to express any opinion on the question whether Article 189 of the Civil Services Regulations is inconsistent with the provisions of Article 311(2) of the Constitution. For the purposes of the present case it is sufficient to say that it has no relevance on the 9 O.A. NO. 666/2009 question of grant or withholding of pension. Again we think that whatever relevance forfeiture of past service under Article 420 of the Civil Services Regulations may have in connection with matters relating to advancement in service etc. it has no bearing on the question of the grant or the withholding of pension. We do not also think that an order of forfeiture of past service can be made without observing the principles of natural justice....................................."
As per the ratio of the judgments mentioned above, the respondents cannot treat a period of service as break in service without adhering to the principles of natural justice. As discussed in para 9 above, there is gross violation of natural justice as well as violation of the Railway Board circulars in this case.
11. It is further noticed that the applicant has averred that he was absent from duty as he was under treatment under Railway doctors and has claimed in para 4(vi) of the OA that he had submitted Medical Certificates in support of his claim and copies of these medical certificates have been annexed at Annexure A-2 to the OA. In the Counter Reply, the respondents have not stated anything as to whether the applicant had submitted medical certificates as stated in para 4(vi). In para 4(viii) of the OA, the applicant stated that he had submitted an application for regularization of the period of absence due to medical reason. In reply, it is stated in para 10 of the Counter Reply that the applicant did not move any application in respect of unauthorized absence and submitted any application P.M.C. issued by the Railway Doctor after his unauthorized absence
12. Since the applicant has not furnished any proof in support of his contention that such an application for regularization of the periods has been submitted by him as claimed in para 4(viii) of the OA, it is not possible for us to accept this contention of the applicant. But contentions of the applicant regarding furnishing of medical certificate are correct since it has not been contradicted by the respondents. and fitness 10 O.A. NO. 666/2009 certificate are found to be correct. In fact, furnishing of fitness certificate has been admitted in para 10 of the Counter Reply. In view of the fact that there was enough proof on record that the reason for the applicant's absence from duty during a specific period was due to medical reason and as soon as he was declared fit by the Railway doctor, he had reported for duty, it would have been appropriate for the respondents to get the matter inquired to see if the applicant deliberately remained on unauthorized absence for the period from 01.01.1990 to 31.12.1990 in question or he had to remain absent due to medical reason as claimed by the applicant. At least, the applicant should have been given an opportunity of hearing before taking a decision to treat the period in question as a break in service, without passing any written order to that effect till issue of the impugned order dated 29.12.2008.
13. In view of the above discussions and following the ratio of judgments of Hon'ble Apex Court discussed in para 10 of this order, we are of the considered opinion that the impugned order dated 29.12.2008 (Annexure A-1) cannot be sustained and hence, it is set aside and quashed. The respondent no. 2/competent appointing authority for the applicant is directed to treat the period of absence of the applicant from 01.01.1990 to 31.12.1990 (as stated in para 8 of the Counter Reply) as extraordinary leave under the rule 42 read with the rule 36 of the Railway Services (Pension) Rules, 1993 provided that this period from 01.01.1990 to 31.12.1990 shall not be counted for the purpose of pension as the applicant failed to submit any application for regularization of the period of absence as discussed in para 12 of this order. But the past service of the applicant prior to the period from 01.01.1990 till 31.12.1990 shall be treated as qualifying service for the purpose of pension and other retiral benefits of the applicant as per the rules, which shall be re-calculated and the revised pension and other retiral dues of the applicant shall be disbursed by the respondents within 3 months from the date of receipt of a copy of this order alongwith an interest at the rate of 8% per annum on the arrear amount of his retiral dues as per 11 O.A. NO. 666/2009 the rules. In case of failure on the part of the respondents to pay the dues within the time as specified above, the applicant will be entitled for higher interest at the rate of 12% per annum from the date the payment was is due till the date of the actual payment to the applicant and such interest paid by the respondents shall be recovered as per the rules from the railway servants otherwise found responsible for delay in disbursement of retiral dues to the applicant as per this order. .
14. The OA is allowed in terms of above directions. No costs.
(RAKESH SAGAR JAIN) (GOKUL CHANDRA PATI)
MEMBER-J MEMBER-A
Anand...