Central Administrative Tribunal - Delhi
Smt.Kailash Soni vs Union Of India Through The General ... on 10 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
OA No.2813/2011
MA No.2014/2011
MA No. 2953/2011
Reserved on 14.09.2012
Pronounced on 10.05.2013
HONBLE SHRI SUDHIR KUMAR, MEMBER (A)
HONBLE SHRI A.K.BHARDWAJ, MEMBER (J)
1. Smt.Kailash Soni,
Wd/o Late Shri Om Prakash Soni,
R/o H.No.38, Sawaan Naar,
Near Shivala Bhaiyan, Amritsar (Punjab).
2. V.K.Thukral,
S/o Late Shri Satnam Rai,
R/o 1219/25B, Harnam Nagar,
Ludhiana (Punjab).
3. Smt.Karnail Kaur,
Wd/o Late Shri Teja Singh,
R/o Vill. & PO Farida Nagar,
Tesh. Pathankot,
Distt.Gurdaspur (Punjab).
Applicants.
(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, Firozpur Division,
Firozepur (Punjab).
Respondents.
(By Advocate: Shri Shailendra Tiwary)
ORDER
By Shri Sudhir Kumar, Memebr (A):
MA No.2014/2011 filed by the applicants praying for being permitted to join together to file the joint application is allowed.
2. The applicants, who are the legal representative of three deceased Railway employees, have approached this Tribunal for grant of life time arrears of pay of the deceased Railway employees with due increments during the period from the date of the termination of their services to the date of their reinstatement.
3. The brief facts of the case are that the deceased Railway government servants, whose legal representatives are before us, were dismissed from their services under Rule 14 (2) of the Railway Servants (Disciplinary & Appeal) Rules, 1968, for having participated in the Locomen Staff Strike in the year 1981. Later on, in view of the ratio of the judgment dated 05.08.1993 of the Honble Apex Court in the case of Union of India vs. R.Raddappa & Others in Civil Appeal No.4681-82 of 1992, along with many others, the deceased railway employees were also reinstated back in service. The ratio of the Honble Apex Courts judgment was as follows:
Overall picture is that there are five types of employees, one, whose claim petition before tribunal has been allowed and they have been directed to be reinstated, second; whose claims petitions had been allowed to a limited extent, namely, the appellate and revising authority had been directed to re-examine their cases; third, those who have retired during pendency of the claim petitions; fourth, where the claim petitions have been dismissed because the appeals filed had already been dismissed; and those who did not approach the Court and the Government have taken a decision to re-employ them. We are not concerned with last category. But the rationale behind this decision of the Government is to stop the injustice done to those employees. It has not been found by any tribunal that the orders passed against the respondents was in any manner justified. In other words, the exercise of power was arbitrary. If this be so as is apparent then there can be no justification for denying the benefit to employees. Technical arguments apart once this Court is satisfied that the participants in the strike were unjustly treated the Court is not only competent but has an obligation to act in a manner which may be just and fair. Keeping this in light we issue following directions:
(i) Employees who were 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.
(ii) (a) Since more than three years have elapsed from the date the orders were found to be bad on merits by one of the tribunal it is just and fair to direct the appellant to pay the employees compensation equivalent to three years salary inclusive of dearness allowances calculated on the scale of pay prevalent in the year the judgment was delivered, that is, 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 but they shall be given notional continuity from the date of termination till the date of restoration for purposes of calculation of pensionary benefits. This benefit shall be available to retired employees as well as those who are dead by calculating the period till date of retirement or death. Sd/-
(S.C. AGRAWAL) Sd/-
(R.M. SAHAI) New Delhi.
August 5, 1993 (Emphasis supplied).
4. The judgment of the Honble Apex Court was later on clarified by the Railway Board, by issuing a clarificatory circular dated 20.06.1994, stating inter alia as follows:
No. E(D&A)94RCC-9 dated 20.06.1994
The General Manager (P),
The Northern Railway,
New Delhi.
(Attn: Shri A.P.Nagrath, C.P.O.(A)
Sub: Implementation of Supreme Court orders in
respect of Loco Running Staff dismissed/removed
from service under Rule 14(ii).
Please refer to your railways letter No.E (D&A)/Inr/Bd/14(ii)/90/Pt.II dated 24.3.94 on the above subject.
2. Since the Court has laid down that only notional continuity of service be given for purpose of pensionary benefits, employee will not be entitled to annual increments during the intervening period as also for reckoning the intervening period for fixation of seniority.
3. Your Railways decision not to pay HRA and CCA is in order.
(Emphasis supplied).
5. After this Railway Board Clarification was issued, the three dismissed Railway servants, who were the husbands/father of the applicants before us, were not granted benefits as they had expected, and the intervening period of service was not counted for the purpose of fixation of pay and allowances, and they were not granted any increment in respect of the intervening period. However, two similarly situated persons, other than the deceased husbands/father of the present L.Rs before us, approached the Jodhpur Bench of this Tribunal, praying for seeking relief for re-fixation of their pay after granting the benefit of increments during the relevant period when they were out of their employment, but their OAs were dismissed by Jodhpur Bench of this Tribunal. Subsequently, the L.Rs of those two dismissed Railway servants approached the Honble High Court of Rajasthan at Jodhpur in the DB CWP (C) No.81/1999 Prabhu Dayal vs. CAT & Ors. with DB CWP (C) No. 183/1999 Shyam Lal Vs. CAT & Ors. Orders of the Honble High Court of Rajasthan at Jodhpur came to be passed on those two Writ Petitions on 25.09.2007, a copy of which has been filed by the present applicants at pages 19 to 24 of the paper book.
6. In that case, one of the petitioners Shyam Lal had been reinstated in service, while the second petitioner Prabhu Dayal was paid his retiral dues, and pensionary benefits. Later on, once the clarifications dated 20.06.1994, as cited above was received from the Railway Board, the respondent-Railway had re-fixed the pay of those petitioners, without allowing increments for the period from the date of their dismissal from service till the date of their reinstatement/retirement, and, accordingly, some amounts were worked out as overpayments made to the petitioners, against which they had represented. The Jodhpur Bench of this Tribunal had rejected the OA before it on the ground of delay, and also on merit, by observing that the impugned order of re- fixation of pay was passed in July 1994, and the OAs had been filed in the year 1997, and were, therefore, time-barred. The Honble Rajasthan High Court at Jodhpur did not accept this ground for this Tribunal to reject the OA. The Honble Rajasthan High Court at Jodhpur thereafter went on to interpret the Honble Apex Courts judgment, to decide as follows:-
7. So far as merit of the case is concerned, the pensioners were reinstated in service in compliance of the directions of the Honble Supreme Court and the Honble Supreme Court has directed that the respondents to pay compensation to the employees equivalent to three years salary inclusive of dearness allowance calculated on the scale of pay prevalent in the year the judgment was delivered i.e. in 1990. In compliance of the directions of the Honble Supreme Court, the respondents fixed the pay of the petitioners allowing all increments that fell due during the period between their dismissal from service and reinstatement/ retirement, but later on, in view of the clarification of the Railway Board, the pay of the petitioners was refixed without allowing increments for the period from the date of their dismissal and reinstatement/retirement.
8. In our view, the action of the respondents in refixing the pay of the petitioners without allowing increments from the date of their dismissal till the date of reinstatement/retirement is contrary to the established principle of service law and in fact, is in violation of directions given by the Honble Supreme Court. The Honble Supreme Court has clearly directed that the employees shall be given notional continuity from the date of termination till the date of restoration for the purpose of calculation of pensionary benefits. Thus, the petitioners are entitled to get fixation of their pay treating them to be in continuous service and are also entitled to get fixation of their pay from the date of termination till the date of retirement by adding increments and accordingly they are also entitled to get pensionary benefits on the pay after allowing increments.
9. We are also fortified in our view by the judgment of Honble Supreme Court in the case of Babu Lal Jain V/s State of M.P. and Ors. (2007) 6 SCC 180. In the said judgment, the Honble Supreme Court has observed as under:
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..
10. Thus, we are of the view that the clarification issued by the Railway Board is contrary to the directions of the Honble Supreme Court. Even no recovery can be effected from the petitioners as there was no mistake, fraud or misrepresentation on the part of the petitioners.
11. Consequently, the present writ petitions as well as original applications are allowed. The judgment of the Central Administrative Tribunal as well as the impugned orders refixing the pay of the petitioners as also directing recovery of excess payment from the petitioners are set aside. The respondents are directed to revise the pension of the petitioners as per earlier pay fixation made prior to the clarification of the Railway Board within a period of three months from the date of supply of certified copy by the petitioners. Cost is made easy.
Sd/- Sd/-
(DEO NARAYAN THANVI)J. (P.B. MAJMUDAR) J.
(Emphasis supplied).
7. Against this order of the Rajasthan High Court at Jodhpur, the Railways filed an S.L.P. before the Apex Court, which came to be dismissed on 17.04.2009.
8. Another person, similarly placed as the husband/fathers of the present applicants L.Rs before us, one Shri Inder Singh, also filed an OA No.2206/2009 before Principal Bench of the Tribunal, in which, relying upon the judgment of the Honble Rajasthan High Court at Jodhpur, directions were issued to the respondents by the Tribunal on 23.03.2010 to grant due increments to the applicant before it during the period of his dismissal from 2.2.1981 to 2.11.1993. Fourteen more similarly placed applicants who approached this Principal Bench of the Tribunal in OA No.1915/2010 Harcharan Singh & Ors. vs. Union of India & Ors. decided on 26.07.2011, were also allowed the same benefit, as the applicant in OA No.2206/2009. The applicants/L.Rs of the deceased Railway servants before us have submitted that they had also sent legal notices to the respondents for extending the same benefit to them, but no reply was received.
9. The applicants before us have, therefore, taken the ground that since the order passed by the Railway Board dated 20.06.1994 has been declared contrary to the directions of the Honble Supreme Court, therefore, in such a situation, the Railway Board is bound to issue such orders for granting the due increments for the intervening periods when the husbands/father of the L.Rs/applicants before us were out of service, and whereafter they were fully exonerated and reinstated in service. They have taken the ground that the intervening period should be treated as duty for the purpose of fixation of pay and allowances, and not granting the same is illegal, and contrary in the eyes of law. It has also been pleaded that once similarly situated persons had been granted the benefits of pay fixation for the intervening period, and when once such claim has been upheld by the Honble Rajasthan High Court, as well as by the Honble Apex Court, by dismissing the SLP filed before it, there is no reason and justification to deny the same benefits to the L.Rs/applicants before us. In the result, the applicants had prayed for the following reliefs as follows:-
(i) That the Honble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the Railway Board not issuing any fresh circular at the place of circular dt. 20.6.1994 for granted due increments between the intervening period that from the date of removal to the date of reinstatement in the light Honble Jodhpur High Court judgment 25.9.2007 upheld by Supreme Court is illegal, arbitrary and discriminatory and consequently pass an order directing the railway Board to issue fresh order for extending the benefits of Honble Jodhpur High Court judgment to all the similarly situated persons.
(ii) That the Honble Tribunal may graciously be pleased to pass an order directing the respondents to re-fix the pay and retirement benefits of the husband/father of the applicant by granting the due increments to the husband/father of the applicant during period from the date of removal to the date of retirement from service with all the consequential benefits including the revision of pensionary benefits, by way of extending the benefits of Honble Jodhpur High Court judgment dated 25.9.2007 in Civil Writ Petition No.81/99 and 183/99 with arrears and interest and grant the life time arrears of deceased railway servants to the applicants.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
10. The respondents first filed a Miscellaneous Application No.2953/2011 for deletion of Respondent No.3 the Chairman, Railway Board from the array of party respondents. This M.A was never considered and decided, and has to be disposed of by us today in terms of Section 80 of the Civil Procedure Code, 1908, whereby, for a claim against Northern Railway, the Chairman, Railway Board, cannot be made as a party, and only the General Manager of that Railway has to be the party, which legal position has been upheld by the Honble Apex Court in the case of State of Karnataka vs. General Manager, Southern Railway, Madras AIR 1976 SC 2538. In view of this the MA No.2953/2011 of respondents for deletion of the Chairman, Railway Board from the array of respondents is allowed and his name is not being mentioned in the top cause list of this order as finally being pronounced today.
11. In the counter reply as filed on 09.11.2011, the respondents had taken the stand that the OA is barred by limitation, and the cause of action, if any, had accrued to the deceased applicants in the year 1993, when the services of the deceased applicants were restored to their original post, or they were sanctioned retiral dues, if they had retired in the interregnum, and they were not given increments for the intervening period, from the date of termination of their services till the date of restoration of their services/superannuation. It was submitted that this OA filed late by more than 7 years is clearly barred by limitation. It was further submitted that the applicants cannot be allowed to plead a continuing wrong as per the law laid down by the Honble Apex Court in the case of Union of India vs. Tarsem Singh (2008 SCC (L&S) 878). It was further submitted that the applicants are required to explain the delay in filing the Original Application right from 1993, as per the law laid down by the Honble Apex Court in the case of State of Karnataka vs. S.M. Kotrayya (1996 SCC (L&S) 1488), which they had failed to do so in the present case. It was further submitted that the applicants have not filed any Miscellaneous Application seeking condonation of delay in filing the OA, which is a must, as per the law laid down by the Honble Apex Court in Ramesh Chandra Sharma Vs. Uttam Singh Kamal (2000 SCC (L&S) 53). The respondents had further tried to distinguish the case of the present applicants from the case of the case of the petitioners namely, Prabhu Dayal and Shyam Lal, who had filed the Writ Petitions before the Honble Rajasthan High Court at Jodhpur, whose case was directed only against the recovery of the excess payments, and which writ petitions were allowed only based upon the judgment passed by the Honble Supreme Court in the case of Babu Lal Jain vs. State of M.P. & Ors. (2007) 6 SCC 180. It was pointed out that the Honble Rajasthan High Court at Jodhpur had not quashed and set aside the clarification dated 20.06.1994 (reproduced in para 4/above) issued by the Railway Board, and had only simply directed that no recovery can be effected from the two petitioners before it, as there was no mistake, fraud or misrepresentation on the part of the petitioners before it in the excess payments having been made to them.
12. Opposing the present OA, it was submitted that applicants are claiming themselves as the legal heirs of the deceased Railway employees, who were working in Firozpur Division, and only the Chandigarh Bench of this Tribunal has appropriate territorial jurisdiction to decide and adjudicate the present OA, and since the applicants had not filed any Transfer Petition before the Honble Chairman to transfer any such Original Application filed before the Chandigarh Bench, to be heard before this Principal Bench of the Tribunal , this OA deserves to be dismissed on this ground alone. It was further submitted that the pay of the three deceased Railway employees concerned had already been fixed correctly, as per the directions of the Honble Supreme Court and Railway Board letter No. E (D&A) 94RC 6-9 dated 20.06.1994, vide their office letter No.727-E/2/3746/P2A, dated 27.06.1995.
13. It was further submitted that since the Honble Apex Court had in its detailed order in R. Raddappas case (supra) only granted notional continuity of service, to be counted only for the purpose of pensionary benefits, such reinstated employees were neither entitled to annual increments during the intervening period, nor for reckoning the intervening period for the purpose of fixation of their seniority, and, it was submitted that in that context the clarification of the Railway Board dated 20.06.1994 was wholly in accordance with the judgment of the Honble Apex Court in R. Raddappas case (supra). It was denied that the present applicants can be allowed the benefit of the judgment in OA No.2206/2009 mentioned above. The respondents had thereafter again reproduced the portion of the Honble Apex Courts judgment in the matter of Union of India & Ors. vs. R. Radappa & Anr. in Civil Appeal No.4681-82 of 1992 dated 05.08.1983 (supra) to buttress their arguments in this regard. They had, therefore, prayed that the applicants are not entitled to the reliefs prayed for by them, and had prayed for the OA to be dismissed.
14. Heard. During arguments, the parties produced copies of the order dated 18.11.2010 passed in O.A. No.3837/2010 by this Principal Bench, in which again the decision of the Tribunal in the case of Inder Singh vs. UOI and Anr. in OA No.2206/2009 decided on 23.03.2010 (supra) was reiterated, and the respondents were directed to consider the case of the four applicants in that OA also accordingly. Since there has been a delay in preparation of the present judgment, in between, on 26.02.2013, the learned counsel for the applicant also submitted a copy of the order passed by another Coordinate Bench of this Tribunal in OA-2479/2011, in which orders were pronounced on 5.2.2013 Smt. Basanti Devi v. Union of India & Ors., in which the facts of the case were discussed as under:
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 three 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 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.
15. It was also pointed out that another related case in Union of India & Ors. etc. v. Mahabir Prasad & Ors. in SLP No.13286-88/2012, which had come up before the Honble Apex Court, was dismissed on 27.08.2012, but with no orders on merits having been passed by the Honble Apex Court.
16. Though the Honble Apex Court has emphasized that the Benches of this Tribunal must follow the view taken by the co-ordinate Benches, but this direction applies only when there is no law laid down already by either the Honble Apex Court itself, or by the respective Honble High Court concerned, which is contrary.
17. It may be noted here that the only the decision of the Honble Apex Court on merits in the case of the persons dismissed in the Locomens Strike is the original order dated 05.08.1993 in R. Radappa & Another (supra), in which the Honble Apex Court has decided the case on merits and proceeded to give specific directions as already reproduced in para 3/above. On all other occasions when the connected matters reached it, the Honble Apex Court only dismissed the SLPs in limine.
18. We cannot dare to venture to explain, or interpret the orders or directions of the Honble Apex Court, which the Honble Apex Court itself alone can do. But, for the sake of obeying and giving effect to it, we have to state as to how we understand it. According to our understanding, the distillate of the orders of the Honble Apex Court dated 5.8.1993 can be paraphrased by us, for our use, as under:
1) The dismissed employees were ordered to be restored to their respective posts, at the levels which they held at the time of their participation in the Loco Staff strike of 1981 before their dismissal, within a period of three months from the Honble Apex Courts order. This, to our understanding, means that the Honble Apex Court did not foresee, or lay down, or permit, or allow, anybody to be re-appointed or restored to any post/position/level of seniority, other than the one which he held at the time of his dismissal for having participated in the Loco Staff Strike of 1981. Therefore, to the best of our understanding, the Honble Apex Court had in its benevolence ordered for reinstatement of all the dismissed employees, but had not ordered for anybody being allowed any types of service benefits in respect of the intervening period, when he was not in service of the Railways, since the restoration/reinstatement was ordered by the Honble Apex Court specifically to their respective post only, from which their dismissal from service had been made. As a result, the Honble Apex Court did not foresee, or lay down, or permit, or allow, the benefits of actual service, in respect of any period of interregnum whatsoever. So, there can be no question of any increments, or seniority. The continuity of service had the only ramification of consideration of the same for pensionary benefits.
2) In (ii) (a) of the order, the Honble Apex Court had noted that since more than three years had elapsed from the first date the orders of termination after the strike were found to be bad on merits by one of the Benches of this Tribunal, in order to provide an element of equitable relief, in its benevolence, and for the specific stated purpose of equating all the others with those persons who had obtained favourable orders from one or the other Benches of the Tribunal, in its benevolence the Honble Apex Court felt that it is just and fair to direct the appellant-Railway to pay all such dismissed employees, then ordered to be reinstated, compensation equivalent to three years salary of theirs, inclusive of dearness allowance calculated on the scale of pay prevalent in the year 1990, when the first favorable judgment of one of the Benches of this Tribunal was delivered in favour of a few of the dismissed employees. Therefore, it is clear that while so ordering the Honble Apex Court was clear in its mind that while it was equating all the dismissed employees being ordered to be reinstated (whether they had filed cases or not) with those who had obtained relief from one of the Benches of the Tribunal in 1990 or thereafter, before 05.08.1993 order of the Honble Apex Court, it had no intention whatsoever, and had not so expressed in its order, directly or indirectly, for according any other service benefit whatsoever to the employees being so reinstated under its orders, in respect of the period from the dates of their dismissal in 1981, up to 1990, when one of the Benches of the Tribunal has passed the first favourable order. Therefore, none of the employees so ordered to be reinstated by the Honble Apex Court through its order dated 05.08.1993 could be held to be entitled for any other financial or service benefit whatsoever, for the period from 1981 to 1990, except their salary for the three years period prior to such re-instatement/restoration in the year 1993, as a one-time compensation for the whole period of 12 years from the date of their dismissal in 1981 till the date of restoration of their services, after the Apex Courts orders.
3) Further clarifying its order in Para (ii) (a), the Honble Apex Court had laid down that this benefit of one time compensation shall be available even to those employees who had retired from service at any point of time during this period of 12 years from 1981 to 1993, and also to the dependents of those dismissed employees, who had died at any point of time in the interregnum period of 12 years between 1981 to 1993. However, in order to provide them also parity with the benevolent concession allowed to all the dismissed and later reinstated employees through para (ii) (a) of its judgment, and to maintain the parity at the same level of 3 years salary as a one time compensation as mentioned in para (ii) (a) of its judgment, the Honble Apex Court had ordered that even in respect of such persons, who had, in the meanwhile in between 1981 and 1993, retired or had died, the one time benevolent compensation payable to them shall be calculated on the pay scale, which was prevalent three years immediately before their respective dates of retirement or death. The only meaning which could be ascribed to this is that if the employees concerned had retired from service, or had died, in the year 1992, the one-time benevolent three years compensation payable to them was to be calculated on the basis of the pay scale prevalent for his level in 1989; if the employee concerned had retired or died in the year 1991, the one-time benevolent three years compensation was to be calculated on the basis of the pay scale prevalent in his case in 1988; and if the employee concerned had retired or died in the year 1990, the one-time benevolent compensation in his case was to be calculated on the pay-scale prevalent in his case in the year 1987; and so in all cases, the pay scales as prevalent in their cases three years, immediately before the date of their retirement or death was to determine the quantum of one-time compensation. It is not further clear from the wording of this judgment dated 05.08.1993 of the Honble Apex Court that it had passed any orders for payment of any compensation in respect of those dismissed employees who had, in the meanwhile, in between 1981 and 1990, attained the age of superannuation, or had died before the orders of their dismissal were found to be bad on merits by one of the Benches of this Tribunal in 1990, after which the then Railway Minister had issued a statement in March, 1990, on the Floor of the Parliament, assuring that the cases of the dismissed employee would be reviewed, and a decision would be taken for their reinstatement, following which the orders of the Railway Board were passed on 20.06.1990 for review of the cases, as has been noted by the Honble Apex Court in its judgment itself. But, we think that the benevolence of one-time compensation as ordered by the Honble Apex Courts judgment was, mutatis mutandis, available and applicable even for those employees who had attained the age of superannuation or had died in the period after their 1981 dismissal, till such retirement or death.
In Para (iii) of its judgment the Honble Apex Court had clearly mentioned that although the employees shall not be entitled to any promotional benefit, but that only for the purpose of calculation of their pensionary benefits, they shall be given notional continuity from the date of their termination, till the date of their restoration in service, and had clarified that this benefit will be available also to the retired employees, as well as to those who are dead, by calculating the period from the date of their dismissal till the date of retirement or death as qualifying service for the purpose of pension and other retiral benefits. In this portion of its order, the Honble Apex Court had not made any stipulation whatsoever about the number of years in respect of which it was extending the benefit of notional continuity of service to the retired or dead employees. Therefore, we understand that the benefit of notional continuity in service was ordered by the Honble Apex Court even in the cases of those employees who could not be restored into service after its order dated 05.08.1993, because before they could have been so restored in service, they had either attained the age of superannuation, or were no more. But one thing is clear that the Honble Apex Court had clearly laid down that those employees whose services were being ordered by it to be restored, at the same level which they had occupied at the time of their dismissal in 1981, were, even after restoration of their services, held not to be entitled to any promotional benefits, and that the notional continuity of their service from the date of their 1981 termination, till the date of their restoration in service at the same level as in 1981, would only be for the purposes of providing continuity of service for the purpose of calculation of pensionary benefits.
19. Therefore, it is our considered view that the clarification dated 20.06.1994 issued by the Railway Board was fully in accordance with the Honble Apex Courts judgment, in R. Raddappa (supra), which has remained unaltered on merits till date. Honble Apex Court itself has clarified in many of its judgments that the dismissal of SLPs, in limine, which is what happened whenever the later connected matters reached the Honble Apex Court, does not amount to declaration of law constituting binding precedents.
20. In this connection, the observations of the Honble Apex Court in the case of State of Punjab and Others vs. Surinder Kumar and Others (1992) 1 SCC 489=AIR 1992 SC 1593 may be cited as below with the submission that the observations of the Honble Apex Court have to be read in the context of the judgment in which such observations were made, and even if the Honble Apex Court has issued an order, and it apparently seems to be similar to the facts of a particular case, the High Court or any lower Court cannot straightaway apply that judgment unless the facts fit on all fours in both the cases concerned:-
6. A decision is available as a precedent only if it decides a question of law. The respondents are, therefore, not entitled to rely upon an order of this Court which directs a temporary employee to be regularised in his service without assigning reasons. It has to be presumed that for special grounds which must have been available to the temporary employees in those cases, they were entitled to the relief granted. Merely because grounds are not mentioned in a judgment of this Court, it cannot be understood to have been passed without an adequate legal basis therefor. On the question of the requirement to assign reasons for an order, a distinction has to be kept in mind between a Court whose judgment is not subject to further appeal and other Courts. One of the main reasons for disclosing and discussing the grounds in support of a judgment is to enable a higher Court to examine the same in case of a challenge. It is, of course, desirable to assign reasons for every order or judgment, but the requirement is not imperative in the case of this Court. It is, therefore, futile to suggest that if this Court has issued an order which apparently seems to be similar to the impugned order, the High Court can also do so. There is still another reason why the High Court cannot be equated with this Court. The Constitution has, by Art. 142, empowered the Supreme Court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge.
7. It is true that the High Court is entitled to exercise its judicial discretion in deciding writ petitions or civil revision applications but this discretion has to be confined in declining to entertain petitions and refusing to grant relief, asked for by petitioners, on adequate considerations. and it does not permit the High Court to grant relief on such a consideration alone.
8. We, therefore, reject the argument addressed on behalf of the respondents that the High Court was entitled to pass any order which it thought fit in the interest of justice. Accordingly we set aside the impugned order and allow the appeal, but in the circumstances without costs.
21. Further, in the case of Collector of Central Excise, Calcutta vs. M/s Alnoori Tobacco Products and Anr. 2004 (6) SCALE 232, the Honble Apex Court had adverted to the law on Precedents, and had observed as below that disposal of cases by blindly placing reliance on a decision is not proper, and that the Courts (and Tribunals) should not place reliance on decisions without discussing as to how the factual position fits in with the fact situation of the decision on which reliance is placed, by stating as follows:-
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (AC at p. 761), Lord MacDermott observed: (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge...."
13. In Home Office v. Dorset Yacht Co. Lord Reid said (All ER p. 291 g-h), "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) observed: "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
22. Besides in Y. Satyanarayan Reddy vs. Mandal Revenue Officer, A.P. JT 2009 (12) SC 181=(2009) 9 SCC 447, it has been viewed that the dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court decision, and it does not constitute any binding precedents. Para-23 of the judgment reads as under:-
23. It is well-settled that the dismissal of a Special Leave Petition in limine does not amount to a clear affirmation of the High Court decision and it does not constitute any binding precedent. (See : Workmen vs. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119; Indian Oil Corporation Ltd. vs. State of Bihar, (1986) 4 SCC 146; Supreme Court Employees' Welfare Association vs. Union of India, (1989) 4 SCC 187; CIT vs. Shree Manjunatheaware Packing Products & Camphor Works, (1998) 1 SCC 598; P. Nallammal & Anr. vs. State, (1999) 6 SCC 559; UP State Road Transport Corporation vs. Omaditya Verma & Ors., (2005) 4 SCC 424).
23. In the context of continuity of service, and counting of past service in the case of reinstatement ordered by Courts/Tribunals, we may cite the judgments of the Honble Delhi High Court, in the cases of Azad Singh & Ors. vs. Delhi Transport Corporation in W.P. (C ) No.978/2010 dated 16.02.2010, Chander Pal vs. The CMD, M/s Delhi Transport Corporation in W.P. (C ) No.7419/2011 dated 24.11.2011, the Honble Madras High Court judgment in the case of Krishnamoorthy, N. vs. Abhijit Datta and Ors. dated 22.02.2005 delivered by a Bench of Honble Lordships Justice M. Katju and D. Murugesan, and the Honble Apex Court judgment dated 15.01.2003 in A.P.S.R.T.C. and Anr. vs. S. Narsagoud 2003 (2) AWC 1287 SC: 95 (2003) CLT 611 SC in which it was held in Paragraphs 6-9 as below:-
6. The said regulations have been framed and promulgated in exercise of the statutory powers conferred on the Corporation. Para 13 of the Regulations provides inter alia as under :
"13. (1) All duty in a post on a time-scale counts for increments in that time-scale.
(2) Service in another post, whether in a substantive or officiating capacity, service on deputation and leave other than extraordinary leave or leave without pay count for increments in the time-scale applicable to the post on which the employee holds a lien, as well as in the time-scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended :
Provided that the competent authority shall have the power in any case in which it is satisfied that the extra-ordinary leave or leave without pay, as the case may be, was taken on account of illness or any other cause beyond the employee's control, to direct that such period shall count for increments under this clause.
Explanation : Where an employee is appointed to officiate in a post on a time-scale of pay but has his pay fixed below the minimum of the time-scale under Clause (5) of the Regulation 9, the period of officiating service shall not count for increments under Clause (2) above.
xxx xxx xxx (8) A period of overstayal after the expiry of leave of joining time, as the case may be does not count towards increments unless it is commuted into extraordinary leave or leave without pay, as the case may be and extraordinary leave, or leave without pay is specifically allowed to count for increments.
xxx xxx xxx"
7. On September 8, 1992, the Corporation issued Circular No. 19/92 (sic) laying down guidelines for implementation of the Awards of Labour Courts in the matter of fixation of pay of employees reinstated pursuant to such Awards subject to result of writ petitions. The circular provides inter alia as under :
"(2) When an employee is reinstated into service with continuity of service only, the last pay drawn by the employee has to be fixed at the appropriate stage in the revised pay-scale 1989 without adding any notional increment for the period out of service.
xxx xxx xxx (4) On fixation of pay as on the date of reinstatement annulled increment may be regularly drawn.
xxx xxx xxx"
8. However, it appears that consequent upon the judgment of the learned single Judge dated August 16, 1999 and other similar judgments disposing of the writ petitions, the Corporation was compelled to issue another circular whereby it directed that, in view of the said judgments of the High Court it was necessary that in a case where an employee was directed to be reinstated with continuity of service the pay of the employee shall be re-fixed by giving notional increments for the period out of service though the monetary benefit of revised fixation shall be given only from the date of reinstatement. The effect of the judgment of the learned single Judge, upheld by the Division Bench and the Circular issued consequent upon the judgment of the High Court is that the employee being reinstated, in spite of having been held guilty of unauthorised absence from duty, continues to earn increments though there is no payment of wages for the period of absence. This results into an incongruous situation, submitted the learned counsel for the appellant.
9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service.
(Emphasis supplied)
24. It may be seen that Regulation Para-13 of the A.P.S.R.T.C. Leave Regulations regarding counting of service, which was the subject matter before the Honble Apex Court in the above case, is similar or analogous to in pari-materia with the Rule-40 of the CCS (Leave) Rules.
25. In the case of Krishnamoorthy, N. (supra), the Honble Madras High Court had held as below in Paragraph 11-14, relying upon the Apex Courts judgment in the above reproduced case of APSRTC (supra):-
11. Thus, a perusal of the judgment in W.A. No. 482 of 1995 shows that the appellant/N.Krishnamoorthy was only directed to be given continuity of service alone from October 15, 1984. 12. Thus, the question in this case is about the meaning of the expression continuity of service alone from October 15, 1984. Learned counsel for the contempt petitioner states that the above direction means that the petitioner is entitled to get refixation of his salary from October 15, 1984, which means that he is entitled to get increments from October 15, 1984, and also promotion as senior Assistant. This contention has been refuted by the learned counsel for the respondent/bank.
13. In our opinion, there is a difference between the direction for reinstatement with continuity of service with consequential benefits such as increments, promotion etc., and reinstatement with continuity of service alone. In our opinion, these are two different kinds of directions. If the first direction is given, then the employee would be entitled to all increments, promotion etc., but when the second direction is given, it only means that he will get the terminal benefits at the time of retirement as if he had been in continuity of service.
14. A perusal of the order of the Division Bench dated September 16, 1997 shows that the Court did not order continuity of service with attendant benefits such as increments, promotion etc. As held by the Supreme Court in A.P.S.R.T.C. v. S. Narsgoud.:
9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with benefit of continuity in service.
(Emphasis supplied)
26. In W.P. (C ) No.978/2010 Azad Singh & Ors. (supra), the Honble Delhi High Court considered this Tribunals orders dated 09.11.2009 passed in TA No.1254/2009 and TA NO.1255/2009, in which the Tribunal had declined the prayers of the applicants to order the fixation of their salary as if the applicants had continued in service without any break, and to issue a direction to the respondents to pay arrears of salary, after so fixing their basic pay and other benefits. On account of the continued absence of the employees, the case had first gone to the Industrial Disputes Tribunal, and an award had been passed in their favour. However, the Honble Delhi High Court upheld the Award with some modifications, and Special Leave Petitions were thereafter filed by the Respondents before the Apex Court, where it was ordered that the petitioners be reinstated. The Honble Delhi High Court had noted in its judgment dated 16.02.2010 as follows:-
In the Supreme Court while re-instating the petitioners, it had been clarified that during the period they were out of employment though that period had to be taken into account for the purpose of continuity of pensioner benefits but as far as the arrears for the period were concerned when they were absent, no specific order was passed. The petitioners were given a time limit of three weeks for joining the duties.
Pursuant to the orders passed by the Supreme Court two of the petitioners became entitled for re-instatement. The other two petitioners whose appeals were not pending before the Supreme Court also became entitled for similar relief and their appeals in other Courts were disposed of.
The petitioners thereafter, however filed the original application seeking that since they have been reinstated, their emoluments should be re-fixed as if they were never out of employment and in the circumstances, it was prayed to fix their basic pay at the same stage at which the basic of their contemporaries were fixed as the petitioners had continued in service without any break.
The Tribunal considering the facts and circumstances and noticed that continuity was awarded only as a gesture of goodwill during the interregnum period when the petitioners were not in service in order not to have break in service however, the back wages were totally negated and consequently the petitioners were held to be not entitled for the relief claimed. Under the circumstances, the Tribunal relying on the observations of the Supreme Court, held that there is no question of grant of increments as even wages were not payable to them during the period they were not in service and only the continuity of the service has been awarded for the purpose of pensionary benefits. The Tribunal has also noted that the issue of increment does not arise, as it is only by way of fiction that the period during which the petitioners were out of service, was to be treated as continuous for the purpose of retiral benefits only.
The learned counsel for the petitioner has not disputed that in the Supreme Court the emphasis was on re-instatement and continuity of service was granted during the interregnum as goodwill gesture. This is also not disputed that the back wages were not awarded to the petitioners. Since the back wages were not awarded, the petitioner did not become entitled for increments during the period when they were not of service and the period they were out of service was only to be computed for the purpose of their entitlement to receive the pension. Had the period during which the petitioners were out of service been not computed for considering their entitlement for the pension some of them might not have become entitled even for pension. In the circumstances, the reasoning of the Tribunal that the petitioners are not entitled for increments cannot be faulted nor there is any such irregularity and illegality in the order of the Tribunal which will entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
(Emphasis supplied)
27. This order was followed by the Honble Delhi High Court in the case of Chander Pal (supra) also, wherein the petitioner had challenged the order dated 30.05.2011 passed by this Tribunal in OA No.1988/2010, where the OA had been dismissed, and thereafter the RA No.205/2011 had also been dismissed. Relying upon the Azad Singhs case (supra) also, the Honble Delhi High Court held in Paragraph 9-11 of its orders as follows:-
9. In these circumstances basically two issues were raised by the petitioner before the Tribunal; one pertains to fixation of pay on reinstatement wherein the issue was as to whether the increments for intervening period are to be given to the petitioner or not for the purpose of pay fixation; other issue related to recovery of back wages by the respondent DTC which were paid to the petitioner after the award was rendered in favour of the petitioner by the Labour Court.
10. The Tribunal dismissed the OA of the petitioner vide order dated 30th May, 2011 relying upon the case of Azad Singh, who was similarly situated as the petitioner and whose OA had also been dismissed by the Tribunal & which order had been affirmed by the High Court as well.
11. It is not in dispute that Azad Singh and others were also parties in the appeals before the Supreme Court which were disposed of by the Supreme Court vide order dated 25th April, 2006. In their case also the pay was fixed without giving benefit of increments for the intervening period. The order of Tribunal was affirmed by the Division Bench of this Court in its decision dated 16th February, 2008 in W.P. (C ) No.978/2010 titled Azad Singh & Ors. v. Delhi Transport Corporation. While dismissing the said writ petition this Court affirmed the order of the Tribunal in the following manner:-
The Tribunal considering the facts and circumstances and noticed that continuity was awarded only as a gesture of goodwill during the interregnum period when the petitioners were not in service in order not to have break in service however, the back wages were totally negated and consequently the petitioners were held to be not entitled for the relief claimed. Under the circumstances, the Tribunal relying on the observations of the Supreme Court, held that there is no question of grant of increments as even wages were not payable to them during the period they were not in service and only the continuity of the service has been awarded for the purpose of pensionary benefits. The Tribunal has also noted that the issue of increment does not arise, as it is only by way of fiction that the period during which the petitioners were out of service, was to be treated as continuous for the purpose of retiral benefits only.
The learned counsel for the petitioner has not disputed that in the Supreme Court the emphasis was on re-instatement and continuity of service was granted. During the interregnum as goodwill gesture. This is also not disputed that the back wages were not awarded to the petitioners. Since the back wages were not awarded, the petitioner did not become entitled for increments during the period when they were not of service and the period they were out of service was only to be computed for the purpose of their entitlement to receive the pension. Had the period during which the petitioners were out of service been not computed for considering their entitlement for the pension some of them might not have become entitled even for pension. In the circumstances, the reasoning of the Tribunal that the petitioners are not entitled for increments cannot be faulted nor there is any such irregularity and illegality in the order of the Tribunal which will entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
(Emphasis supplied).
28. Therefore, it is not as if in every case of reinstatement grant of back wages is automatic. In the case of Talwara Coop. Credit & Service Society Ltd. vs. Sushil Kumar (2008) 9 SCC 486, in para-8 the Honble Apex Court had held on 01.10.2008 as follows:-
8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment, viz., whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned etc., should be taken into consideration.
29. In the case of Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., (2012) 8 SCC 417, the Honble Apex Court has upheld the principle behind the Latin Maxim Jura publica anteferenda privatis juribus- meaning that public rights are to be preferred to private rights. In that very judgment, the Honble Apex Court has upheld the Maxim Lex Citius tolerare vult privatum damnum quam publicum malum that the law would rather tolerate a private injury than a public evil. It has also, perhaps not for the first time, but most firmly, recognized Jura fiscalia, the rights of the exchequer, and has upheld them as being superior to the jura personarum, the rights of individual persons. Therefore, unless the Rule position entitles the applicants to full back wages, since increments are an entitlement flowing from the continuity of eligibility of wages, no increments, notional or actual, can accrue to the applicants. Even the Honble Apex Court had in R. Raddappa & Another (supra) not gone beyond giving directions for only notional continuity of the services of those employees, whose services it was ordering for being restored to their respect post.
30. This brings us to the orders of the Honble High Court of Rajasthan at Jodhpur dated 25.09.2007, referred to and reproduced in para 6/above. As can be seen from Para-8 of the judgment of the Honble High Court of Rajasthan at Jodhpur, it had commented adversely upon the abovementioned Railway Board clarification, but had refrained from setting it aside as illegal, and, without setting aside the clarification issued by the Railway Board, it had come to the conclusion that the Honble Apex Courts directions regarding notional continuity meant the reinstated/restored employees being entitled to get fixation of their pay, treating them to be in continuous service, and that they were also entitled to get fixation of their pay from the date of their termination in 1981 till the date of their retirement, by adding increments, and that they are also accordingly entitled to get pensionary benefits on the pay as so re-fixed after allowing increments, while the Honble Apex Courts order dated 05.08.1993 had stated as follows:-
Although the employees shall not be entitled to any promotional benefit but they shall be given notional continuity from the date of termination till the date of restoration for purposes of calculation of pensionary benefits. This benefit shall be available to retired employees as well as those who are dead by calculating the period till date of retirement or death.
31. As reproduced in para 3/above, the Honble Apex Court had in R. Raddappa & Ors. (supra) even prescribed the formulae to be applied for computation of the compensation equal to the salary for the three years period in respect of all those who had retired and died, in the meanwhile, in between 1981 and 1993, and had clearly stated that the employees so being ordered to be reinstated shall not be entitled to any promotional benefits, and their deemed continuity in service shall be only notional in its character. We may also refer to Latin maxims Jura publica anteferenda privatis juribus, according to which public rights are to be preferred over private rights, and when faced with public rights, or faced with Jura fiscalia, i.e., the rights of the exchequer itself, the private rights can be curtailed, even while giving compassionate relief, as has been mentioned earlier also, as the Honble Apex Court had also done on 05.08.1993.
32. In appreciating the words promotional benefit, as used by the Honble Apex Court, we may borrow the definition of promotion, as cited from Websters Comprehensive Dictionary International Edition by the Honble Apex Court itself in the case of State of Rajasthan v. Fateh Chand Soni, (1996) 1 SCC 562. Borrowing from P. Ramanatha Aiyars the Law Lexicon 3rd Edition-2012 we may reproduce as follows:
promotion' means "advancement or preferment in honour, dignity, rank, or grade".
It is not right to say that promotion can only be to a higher post in the service and appointment to a higher scale of an officer holding the same post does not constitute promotion. In the literal sense the word promote means "to advance to a higher position, grade, or honour". So also promotion means "advancement or preferment in honour, rank, or grade". 'Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law also the expression promotion has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post". (See: Union of India v. S.S. Ranade (1995) 4 SCC 462).
33. The case before the Honble Rajasthan High Court at Jodhpur was only a case relating to recovery of excess payments made to the Appellants by the respondent Railways, and, in arriving at its conclusion, in para-9 of the judgment, as reproduced in para 6/above, the Honble High Court of Rajasthan at Jodhpur had relied upon the case of Babu Lal Jain v. State of M.P. & Ors.,: (2007) 6 SCC 180, to state that no recovery could be made if there was no fraud or mis-representation, and the payment had been made in excess due to a mistake which took place due to a misconception of the law, as reproduced above. However, as pointed out above also, the law of the land has since changed. In its judgment in the case of Chandi Prasad Uniyal & Ors. v. State of Uttarakhand & Ors., (2012) 8 SCC 417, the Honble Apex Court has since distinguished and set aside the concept of lack of fraud and misrepresentation on the part of the Government employee, as was followed in the case of Babu Lal Jain (supra), and has held that recovery of public money paid to an employee in excess can be effected from such an employee even if there was no fraud or misrepresentation, on the part of the employee concerned. So, it appears to us that the very foundation or edifice on which the judgment of the Honble Rajasthan High Court at Jodhpur was based does not exist as of now.
34. The case before the Honble High Court of Rajasthan at Jodhpur was only in respect of the recovery of the excess amount paid sought to be made by the respondent Railways from late Shri Prabhu Dayal and late Shri Shyam Lal, and, as mentioned earlier also, the Honble Rajasthan High Court at Jodhpur had not expressly set aside the clarification issued by the Railway Board dated 20.06.1994. Thus no support can be drawn from it in favour of the applicant.
35. It has been repeatedly held by the Honble Apex Court that the coordinate Benches of this Tribunal should follow the ratio of the orders already passed by other coordinate Benches of this Tribunal, and reiterated it in Sub-Inspector Roop Lal vs. Lt. Governor of Delhi through the Chief Secretary Delhi Govt. (2000) 1 SCC 644. However, this axiom would not apply when the latest law of the land, as laid down by the Honble Apex Court, has escaped the notice of the co-ordinate Bench, as can be seen from the fact that Chandi Prasad Uniyal (supra) has not been noticed in the case of Basanti Devi (supra), the order dated 05.02.2013 in which case has been reproduced in para 14/above.
36. The principle of constructive res-judicata was applied by the Honble Apex Court in Service Laws in the case of Commissioner of Income Tax, Bombay vs, T.P. Kumaran, 1996 (5) SLR 675: 1996 (10) SCC 561, and therefore, when once the law as laid down by the Honble Apex Court in R. Raddappa and Ors. (supra) had become final, it operated as re-judicata against any alternative prayer being entertained in respect of the period of interregnum, which was not covered by the orders of the Honble Apex Court dated 05.08.1993. In the case of Divisional Manager A.P. SRTC vs. Kondi K. Rambabu 2000 (9) SCC 270: 2000 SCC (L&S) 905, the Honble Apex Court had commented that relief can be granted on merits, and it can even be moulded to meet the ends of justice. But when there is no merit in the case, in law, the Court cannot, to meet what the applicant/petitioner says are the ends of justice, direct the respondent to do that, which is impermissible for it do in law, and under the Rules that govern that respondent.
37. Here, in the instant case, in its benevolence, overriding the provisions of FR-26 and Rule-40 of the CCS (Leave) Rules, the Honble Apex Court had, in exercise of its power under Article 142 of the Constitution to do complete justice, ordered in the case of R. Raddappa & Ors. (supra) that notional continuity of service was to be granted to be employees whose services were being ordered by it to be restored, and such a direction was not accompanied with a specific direction that the restored/reinstated employees shall be entitled to all the consequential benefits, including the benefit of increment etc., and pay fixation, during the period they were out of service, except a lump sum payment of three years salary as ordered in its benevolence by the Honble Apex Court to be paid ex-gratia, the applicants cannot now be allowed to plead before this Tribunal that such notional continuity of service, as ordered by the Honble Apex Court, should be further extended by granting them, benefit of actual service, including fixation of pay, increments and full arrears, to meet, what they say, are the ends of justice, when the Honble Apex Court had not given any such direction, and had not laid down the law in this regard to that effect, and the Rules of the respondents also do not provide for the notional continuity of service to be accompanied with grant of increments etc., as clarified by the Railway Board Circular (ibid).
38. Fundament Rule-26 prescribes the conditions under which the service rendered by any Government employee counts for increments in a time scale. The applicants cannot derive any benefit out of the provisions of FR-26 also, when specifically the Honble Apex Court had ordered for the deceased being granted only notional continuity of service, and notional can never be actual.
39. It would be relevant here to quote the following meanings of the words notion and notional from the Chambers 20th Century Dictionary & Concise Oxford Dictionary:
Notion means qualities of an object, an idea, an opinion Notional means theoretical, ideal, fanciful, imaginary unreal (Chambers 20th Century Dictionary) Notion means idea, conception, view, opinion, theory, faculty, capability or intention Notional means existing only in thought, imaginary, conveying its own meaning. (Concise Oxford Dictionary)
40. It is clear that the meaning of the word notional includes theoretical, ideal, fanciful, imaginary, existing only in thought, or unreal, and the meaning of the word notion includes mental apprehension, in idea, in opinion and in conception, but not in reality.
41. We have not been able to discern that in any of the orders of the concurrent Benches of this Tribunal, as cited before us, it was noted that the Honble High Court of Rajasthan at Jodhpur had not specifically set aside the clarification issued by the Railway Board. Also, the law even about recovery of excess public money paid to an employee, stands modified as on today, in view of the Honble Apex Courts judgment in Chandi Prasad Uniyals case (supra).
42. Therefore, in stead of being bound to follow the orders of a Co-ordinate Bench of this Tribunal, we are rather bound by the law of land as was declared by the Honble Apex Court on 05.08.1993, in the case of R. Raddappa (supra), and are duty bound to go strictly by the contours of that judgment, which is the only judgment on the merits of the case by the highest Court of the land.
43. In Special Land Acquisition Officer vs. Karigowda & Ors. (2010) 5 SCC 708, the Honble Apex Court had in para 105 viewed as follows:-
An established maxim "boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium", casts a duty upon the Court to bring litigation to an end or at least endure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases particularly covered cases, expeditiously and in consonance with the law of precedents..
(Emphasis supplied).
44. Following this dictum, it is our duty today to put an end to this type of litigation, and, therefore, following strictly the Honble Apex Courts judgment in the case of R. Raddappa (supra), and since we are also not fully convinced that this O.A. has been filed within the period of limitation, the O.A. is rejected, but there shall be no order as to costs.
(A.K.Bhardwaj) (Sudhir Kumar)
Member (J) Member (A)
cc.