Central Administrative Tribunal - Allahabad
Munni Lal vs Union Of India on 3 December, 2021
Reserved on 17.11.2021
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated : This the 03rd day of December 2021
Hon'ble Mr. Tarun Shridhar, Member (Administrative)
Hon'ble Ms. Pratima K Gupta, Member (Judicial)
Original Application No. 330/00271/2011
Munni Lal, Son of Shri Kanhayee Lal, Resident of Village Basani,
Dallupur, Post Basani, District Varanasi. .
. . .Applicant
By Adv : Shri V.K. Srivastava
VERSUS
1. Union of India through its General Manager, Gorakhpur, North
Eastern Railway, Gorakhpur.
2. Divisional Rail Manager, North Eastern Railway (Parichalan),
Varanasi.
3. Divisional Operating Manager, North Eastern Railway, Varanasi.
4. Divisional Rail Manager (P), North Eastern Railway, Varanasi.
. . .Respondents
By Adv: Shri Ajay Kumar Rai
ORDER
Delivered by Hon'ble Ms. Pratima K. Gupta, Member (J) The instant Original Application has been filed under Section 19 of Administrative Tribunals Act, 1985 seeking following reliefs: -
"(a). That by means of suitable order or direction in the nature of Certiorari quashing the impugned order dated 25.05.2007 and 5.1.2011 passed by respondent - Mandal Parichalan Prabandhak, North Eastern Railway, Varanasi (Appellate Authority) Annexure-11 to the compilation-I.
(b) That by means of suitable order or direction in the nature of Mandamus commanding the respondents to regularize the intervening period since 20.02.1991 to 14.02.1992 be treated as spent on duty (as the applicant had submitted medical fitness Page 1 of 9 certificate and admitted by the respondent that the applicant was ill during the alleged absent period and to make the payment of salary for the said period as arrears.
(c). That by means of suitable order or direction in the nature of Mandamus commanding the respondents to make the payment of salary since 27.5.1994 to 9.2.2004 as arrears thereof with interest (as the impugned removal order dated 27.5.1994 has been set aside by the appellate authority vide order dated 10.2.2004) and the said period cannot be marked as Dies non and be treated as spent on duty.
(d). That by means of suitable order or direction in the nature of Mandamus commanding the respondents to count the service period since 20.7.1970 to 20.02.1978 and 27.5.1994 to 19.2.2004 (11 years 10 months and 01 day) for the purpose of pension as qualifying service of the applicant.
(e). That by means of suitable order or direction in the nature of Mandamus commanding the respondents to make the payment of full pension as the applicant had worked satisfactory service more than 33 years qualifying service and to direct the respondents to make the difference of pension with interest as are admissible under rules.
(f). To issue any suitable order or direction as this Tribunal may deem fit and proper under the circumstances of the case.
(g). To award cost of the application to the applicant.".
2. The facts of the case, in brief are:-
2.1 The applicant was served with a major penalty chargesheet on 03.02.1992 (Annexure -1) for unauthorised absence from duty from 20.02.1991 to 14.02.1992. The Applicant duly participated in the enquiry.
The enquiry proceedings culminated in the order dated 01.06.1994 removing the applicant from service, but, as alleged by the applicant, same was never served upon him. The applicant preferred an appeal dated 27.06.1994, which was rejected vide order dated 08.09.1997 followed by revision which was also rejected vide order dated 17.07.1998. Page 2 of 9 2.2 Being aggrieved by the action of the respondents, the applicant filed OA No. 1013/1998, which was partly allowed by this Tribunal vide order dated 04.11.2003 (Annexure-6) with following direction: -
"6. In view of the above, the OA is partly allowed. The impugned appellate order dated 08.09.1997 (Annexure-8) and order dated 17.07.1998 issued by the Reversionary Authority are set aside. The case is remitted back to the appellate authority to decide the appeal of the applicant dated 27.06.1994 (Annexure -7) by a reasoned and speaking order within a period of 3 months"
2.3 In compliance of the order of this Tribunal dated 04.11.2003, the Divisional Railway Manager (the appellate authority) passed the order dated 10.02.2004 (Annexure-7) whereby the order of removal was substituted by fixing the pay of the applicant at the lowest stage of Rs. 2550 in pay scale of Rs. 2550-3200. The applicant against the order dated 10.02.2004 filed a revision and the same was rejected by the Revisionary Authority.
2.6 The applicant had challenged the order dated 10.02.2004 by way of filing OA No. 1397/2004, which, was decided by this Tribunal vide order dated 26.11.2010 (Annexure-10) with following direction: -
"16. Thus, the OA is partly allowed. While the penalty imposed upon the individual is not disturbed, in so far as relief sought for vide para 8(b) and (c) i.e. payment of salary for intervening period and interest thereon are concerned, the applicant has made out a case. The appellate authority is directed to pass appropriate order relating to the treatment of the period between the date of removal and date of reinstatement. This order shall be complied with within a period of two months of the date of communication of this order. No costs."
In the meanwhile the applicant retired on 31.05.2007 on completion of age of superannuation.
Page 3 of 9
3. In compliance of the above order of the Tribunal dated 26.11.2010, the appellate authority passed the order dated 05.01.2011 (Annexure-11). Aggrieved by the order dated 05.01.2011, the applicant has filed the instant OA on following grounds: -
(i). The appellate authority without giving any show cause notice has passed the order dated 05.01.2011 in an arbitrary manner and by ignoring the provision of Rule 2044 of Indian Railway Establishment Code and the observation made in the order dated 26.11.2010.
(ii). The order relating to regularization of the intervening period had already been passed by the appellate authority vide order dated 25.05.2007, a copy of which has not been provided to the applicant nor any opportunity to show cause was given to him before passing the order dated 25.05.2007.
(iii). The applicant fell ill on 20.02.1991 and was under treatment till 14.02.1992, but the respondent passed the order dated 27.05.1994, which the appellate authority had quashed and applicant was reinstated vide order dated 10.02.2004.
(iv). As per the order dated 04.11.2003, passed by this Tribunal in OA No. 1013/1998, the intervening period cannot be treated as absent from duty.
(v). The order dated 05.01.2011 has been passed by ignoring the observation made by this Tribunal.
(vi). The appellate authority had no jurisdiction to pass the order treating the period 27.05.1994 to 09.02.2004 as dies non after the order passed by this Tribunal. The applicant was absent from duty from 20.02.1991 to 14.02.1992 only.
(vii). The applicant was absent due to his illness and due information was given by him. As such, the period from 27.05.1994 to 09.02.2004 cannot be treated as dies-non. The respondents have illegally and Page 4 of 9 arbitrarily marked the whole period from 27.05.1994 to 09.02.2004 as dies- non. Therefore, the impugned order dated 05.01.2011 passed by the appellate authority is liable to be quashed.
4. In support of his claim, learned counsel for the applicant has filed the written submission in which he placed reliance the following judgments :-
(i) Krushnakant B. Parmar Vs. Union of India & another reported in (2012) 1 SCC (L&S) 609.(Para 16,17,18,19,20 &
21).
(ii) Chief Regional Manager, United India Insurance Company Limited reported in (2019) 2 SCC (L&S) 431. (para 16,20 &
21).
(iii) Special Appeal Defective No.386 of 2012 in the case of Gajendra Pal Singh Vs. The District Judge and others by relying the order passed in Deepali Gundu Surwase Vs. Kranti Junior Adhyapak (2013) 10 SCC 324(3). (para No.8)
(iv) OA No.411 of 2000 CAT, Allahabad decided on 17.3.2008.
5. The respondents have filed counter reply wherein It is stated as under:-
(1) In the counter reply, it is stated that the applicant on 20.02.1991 absented unauthorisedly from duty at Rajatalab railway station without any prior permission.
(II) The applicant absented continuously from 20.02.1991 to 14.02.1992 for which he was served with a major penalty chargesheet.
(iii) Thereafter, only after due inquiry proceeding, vide order dated 27.05.1994, the applicant was removed.
Page 5 of 9 (IV) The applicant chose not to file any representation / appeal against the order dated 27.05.1994 (V) In compliance of direction of this Tribunal in order dated 04.11.2003, the case of the applicant was reconsidered by the appellate authority and he modified the order of removal from service by reversion at the minimum of Rs. 2550/- in pay scale of Rs. 2550-3200 for a period of three years with cumulative effect.
(VI) It is further stated by the respondents that although the applicant preferred a revision petition dated 20.05.2002, the Revisionary Authority has considered every ground raised by the applicant in his Revision Petition before rejecting the same.
(VII). It is submitted that during the absent period, the applicant took treatment by a Medical Practitioner despite the fact he was residing nearer to Varanasi, which was totally against the rules. (VIII) It is stated that the applicant was to retire on 31.05.2007 i.e. much prior to the order of the Tribunal dated 26.11.2010, hence the period from 27.05.1994 (the date of removal from service) to 09.02.2004 (the date of reinstatement in service) was required to be regularized before superannuation, therefore, the appellate authority vide order dated 25.05.2007 (Annexure CR-2) converted the period from 27.05.1994 to 09.02.2004 as 'dies non" in the light of Rule 2044 of Indian Railway Establishment Code.
6. In support of his case, learned counsel for the respondents has filed the written submission in which he placed reliance on the following judgments :-
(i) Sanat Kumar Dwivedi Vs. Ghar Jila Sahakari Bhoomi Vikas reported in (2001) 9 SCC 402.Page 6 of 9
(ii) State of Punjab & Ors. Vs. Krishan Niwas reported in 1997 SCC (L&S) 998.
(iii) OA No. 1414 of 2013, CAT, Allahabad Bench passed on 29.12.2020.
7. We have heard learned counsel for both the parties and perused the record. We have also examined the written submissions filed by the learned counsel for both the parties.
8. Before we proceed with the matter it is relevant to reproduce the order dated 01.04.2004 passed by the Appellate Authority, which reads as under :-
"iwjs ekeys ds v/;;u ds mijkUr eSa bl fu'd'kZ ij igqWpk gwW fd fn;k x;k n.M dBksjre gS vkSj izkd`frd U;k; ds fo:) gSa] ekeys ds xq.k&nks'k ij fopkj djrs gq, v/kksgLrk{kjh crkSj vihyh; vf/kdkjh] fu;e&22 ds rgr iwoZ esa fn;s x;s n.M lsok ls fu'dklu ¼fjeqoy½ dks fujLr djrs gq, rFkk vkjksihs dks lq/kkj dk ,d volj iznku djrs gq, bUgsa osrueku 2550&3200 ds osrueku esa U;wure osru 2550@& ij 36 ekg ds fy;s lap;h izHkko ls fu/kkZfjr djrk gwW A
9. Learned counsel for the applicant has mainly argued that the applicant was not afforded an opportunity by the Appellate Authority before passing the impugned order. The Appellate Authority has not considered the reasons that kept the applicant away from work. The judgements relied upon by the applicant do not come to his rescue as in the case of Abdul Karim Khan Vs UOI & ors passed in OA 411/2000. The Authority concerned took a view that no such punishment could be awarded to the applicant as he was nearing the superannuation. In Krushnakant B. Parmar Vs UOI & another. (2012) 3 SSC 178, neither the Inquiry officer nor the appellate authority found the absence wilful while in the present case, the appellate authority has interfered with the order of Disciplinary authority on proportionality and natural justice. In the case of Page 7 of 9 Gajendra Pal Singh, it was the respondents that prevented the applicant therein to discharge his duties. The applicant has further relied on Chief Regional Manager, United India Insurance Company Limited Vs Sirajuddin Khan (2019) 7 SCC 564 wherein the Honble Apex court has held that there is no automatic entitlement to back wages, and the claim is to be adjudicated in accordance with law. In Ganeshi Ram Vs The District Magistrate and another reported in AIR 1967 SSC 356 It was held :-
"that the order of the Railway Authority disallowing payment to the railway servant was passed by it under authority vested in it by Railway Rule 2044 (F.R. 54) (1) and since this rule was a statutory rule, the authority competent to make an order under the said rule fell within the description of the competent authority under Section 7 (2) of the Payment of Wages Act, 1936 : there was no cause of action for the claim made by the reinstated railway Servant and his application for recovery of wages for the period of his absence was misconceived."
10. The learned counsel for the respondent on the other hand argued that the applicant was reinstated on the ground that the penalty was harsh and against principle of natural justice .There is no break in service and the period has been made dies-non on the principle of no work no pay. He further submitted that it was not the case that the respondents have in any way prevented the applicant from discharging his duties. The relied upon judgements fully support the arguments placed by the learned counsel for the respondents.
11. After considering the records, arguments and the relied upon judgements following emerge:
i that the applicant accepted the order of the appellate authority and joined the duty, hence, the applicant cannot challenge the legality of the impugned order.
ii While remanding the matter, the Tribunal did not find any irregularity with the order of disciplinary authority hence did not interfere with it.Page 8 of 9
iii That the applicant prior to his superannuation in 2007 did not apply for period from removal to reinstatement i.e. 1994 to 2004 to be treated as spent on duty. Taking a lenient view, the appellate authority reduced the penalty of removal reinstating the applicant fixing his pay at bottom of the pay scale for 36 months.
iv The respondents were well within their rights under railway rules 2044(FR 54) (1) to deny the back wages to the applicant.
V It is pertinent to observe that the applicant has approached this Tribunal in OA 1397/04 wherein the penalty imposed upon the applicant have not been disturbed.
12. In view of the above, no interference is required in the original application. Accordingly, the OA is dismissed. No order as to costs.
(Ms. Pratima K Gupta) (Tarun Shridhar)
Member (Judicial) Member (Administrative)
Anand...
Page 9 of 9