Central Administrative Tribunal - Kolkata
D Bhusan vs Civil Aviation on 6 September, 2023
1 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. O.A. 350/00074/2002 Date of order:
M.A. 350/00029/2023
M.A. 350/00053/2023
Present : Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Anindo Majumdar, Administrative Member
Dilip Bhusan,
Son of Sri Benoy Kanta Bhusan,
Aerodrome Assistant Department,
Residing at 8/2, Maitra Para Lane,
Santipur,
District - Nadia,
Pin - 741
..... Applicant
VS.
1. Union of India,
Service through the Secretary,
Ministry of Civil Aviation and Tourism,
Department of Civil Aviation,
New Delhi,
Pin - 110 003.
2. The Director General of Civial Aviation and Tourism,
Govt. of India,
Civil Aviation Department,
Technical Centre,
Opp. Safarjung Airport,
New Delhi - 110 003.
3. The Chairman,
Airport Authority of India
(National Airport Division),
Erstwhile National Airport Authority,
Rajiv Gandhi Bhawan,
Safdarjung Airport,
Arabinda Marg,
New Delhi - 110 003.
4. The Regional Controller of Air Safety,
Department of Civil Aviation,
Calcutta Region,
Calcutta Airport,
Kolkata - 700 052.
2 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023
5. The Secretary,
Government of India,
Ministry of Personnel,
Public Grievances and Pensions,
Department of Personnel & Training,
Lok Nayek Bhawan,
New Delhi - 110 003.
6. Joint Director General for
Director General of
Civil Aviation,
Technical Department,
Civil Division,
Opposite to Safdarjung Airport,
New Delhi - 110 003.
..... Respondents
For the Applicant : Mr. S.P. Ghosh, Counsel
Mr. D. Ghosh Roy, Counsel
For the Respondents : Mr. R. Haldar, Counsel
Mr. A. Chaturvedi, Counsel
Md. Shakil, Counsel
Mr. A. Bhowmick, Counsel
ORDER
Per Mr. Jayesh V. Bhairavia, Judicial Member:
Heard the Ld. Counsel for the parties.
The facts, in brief, are as under:-
1.1. The applicant herein was initially appointed as Aerodrome Assistant under Director General of Civil Aviation (in short referred as DGCA), Calcutta Airport vide order dated 3.8.1986.
1.2. The applicant joined at Dum Dum Airport at Kolkata in a regular post of Aerodrome Assistant on 19.2.1986.
1.3. He worked under the DGCA, GOI from 19.2.1986 to 31.5.1986. 1.4. By following provision of Sub-Section (3) of Section 13 of National Airports Authority Act, 1985, the DGCA vide order dated 31.5.1986 the service of applicant herein along with other 72/73 Aerodrome Assistants (now Superintendent ATC) were placed on deputation to 3 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 erstwhile National Airports Authority of India (hereinafter referred as NAA) with effect from 1.6.1986. In the said list/order, the name of the applicant was placed at Srl. No. 71 (Annexure A/1 of the O.A. refer).
1.5. The NAA gave an offer to all deputationist including the applicant to exercise option to be absorbed in NAA, consequent to which notice of absorption in the regular service of NAA dated 15.9.1989 along with prescribed format of application to be submitted by the employee and the terms and conditions of the CAD staff in NAA has been provided to the concerned employee. A copy of the said option form along with the prescribed format are annexed at Annexure A/4 in the O.A. The office of the DGCA had also prepared statement showing the service particulars of the staff who had opted out of NAA wherein the name of the applicant figures at Srl. No. 11. (Annexure A/2 of the O.A. refer).
1.6. At the relevant time, the applicant was posted at Gaya under NAA. 1.7. After the applicant rendered service in the NAA from 1.6.1986 to 30.9.1993, he was sought to be repatriated from NAA to Civil Aviation Department vide Memorandum No. DA/AE/ES-4 (424) dated 20.9.1993 issued by Regional Executive Director, Airport Authority of India, Kolkata. In the said Memorandum it was stated that as per NAA Headquarter letter dated 23.8.1993, Shri Dilip Bhushan, the applicant herein Aerodrome Assistant posted to the office of Regional Controller of Air Safety, Civil Aviation department Kolkata accordingly stands relieved of his duty from that department on the afternoon of 30.9.1993 with instruction to report to the office of Regional Controller of Air Safety, CAD, Kolkata Airport. (Annexure A/3 refer).
4 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 1.8. Vide letter dated 20.8.1993, the then Director of Aerodrome Kolkata, NAA conveyed the Executive Director (P&A), NAA, New Delhi that Shri Dilip Bhushan, Aerodrome Assistant, who is a CAD recruitee opted for retention in CAD and so long he is placed under deputation to NAA. At the time of inception of NAA, he was posted in Gaya and was not aware of pros and cons of his absorption in NAA. Now, he has been called back to CAD and he wishes to stay back in NAA and has requested for his retention. Copy of his representation has been also forwarded with the said letter and had requested the competent authority to try to retain him in NAA as well to get his service regularized with effect from 2.10.1989 as same had been done in other cases by accepting the applicant's technical resignation from CAD. (Annexure A/3(A) refer).
1.9. Before the representation of the applicant and the recommendation of the Director of Aerodrome Kolkata, NAA for retaining the applicant in NAA could be considered, the Office of the Deputy Director General, GOI by considering the applicant as surplus staff of Civil Aviation department since all the staff of AAI / CAD were transferred to NAA with post and there was no existence of any post in AAI / CAD had issued an order of redeployment of the applicant to the post of Accountant in Geological Survey of India, Kolkata HQ vide Memorandum dated 22.2.1994 (Annexure A/5 page 49 of the O.A.) . 1.10. In the said Memorandum it has been stated that the applicant's name was nominated by the Ministry of Personnel, Public Grievances & Pension & DoP&T, New Delhi for redeployment and he has been offered a temporary appointment to the post of Accountant. Accordingly, vide memorandum dated 22.3.1994, the Regional 5 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 Controller of Air Safety, Kolkata Region relieved the applicant of his duties from the office with instructions to report to the Administrative Officer, GSI, Kolkata (Annexure A/6 refer).
1.11. On receipt of memorandum dated 22.2.1994 and the relieve order dated 22.3.1994, the applicant made another representation dated 26.3.1994 before the DGCA, New Delhi and had requested the authorities not to relieve him from NAA and allow him to revise his option so that he may opt to stay in NAA instead of CAD (Annexure A/7 refer) followed by another representation dated 14.2.1995 (Annexure A/8 refer). 1.12. Vide Memorandum dated 20.7.1995, (Annexure A/9 refer) Office of DGCA informed the applicant that his case was referred to the DoP&T for final decision and in response to it the DoP&T had advised that since Sri Dilip Bhushan has been relieved to join the post of Accountant in the Geological Survey of India, he should report for duty in the concerned office.
Further, it has been stated that once a person has been redeployed and he has been given offer of appointment, he is bound to accept the offer otherwise action may be taken against him as per O.M. dated 16.10.1990, which stipulates that if a surplus employee is offered alternative placement but he refused to join such post or wilfully fail to join the said post within a period specified etc. his surplus post in the surplus staff establishment should be abolished, further action for his deployment closed and his service may be terminated upon service of a notice of termination upon him under appropriate rule. Accordingly, the applicant was directed to report for duties as Accountant in the Geological Survey of India within a period of one month from the date of receipt of the memorandum failing which it will be presumed that he 6 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 is not interested in his redeployment. In that event, his service will be deemed to have been terminated from the post of Aerodrome Assistant in the surplus staff establishment in the Department, effective from the date of his release from the surplus staff establishment. 1.13. Thereafter, in supersession of office letter dated 18.4.1995 and as per directive of DoP&T conveyed vide letter dated 21.7.1995, the applicant is permitted to report for duty to the post of Accountant in Geological Survey of India vide letter dated 30.8.1995 (Annexure A/10 refer). 1.14. Being aggrieved with the order dated 30.8.1995, the applicant had approached this Tribunal by way of O.A. No. 1180 of 1995. 1.15. By way of interim direction dated 28.10.1997, this Tribunal had observed as under:-
" Both sides appear and we have heard them.
On prayer of Mr. Das, Ld. Counsel for the petitioner, we give liberty to the petitioner to join any post offered to him by the respondents, without prejudice to the rights and contention of either parties.
Further, on hearing the Ld. Counsel for both the parties, we consider it to be a fit case for adjudication. The application is accordingly admitted subject to the question of limitation being kept open. Respondents may file further reply, if any, within one month. Plain copy of both the parties."
1.16. Thereafter, vide order dated 20.9.1999 this Tribunal while allowing the said O.A. had observed in para 8 of the order as under:
"In view of the above, the case of the applicant, therefore, requires justifiably to be reconsidered afresh. If the cadre of Aerodrome Assistant and the post of Aerodrome Assistant have been transferred to NAA as stated in paragraph 3 and 4 of the supplementary reply of the respondents then the applicant automatically becomes absorbed in the NAA as part and parcel of the establishment of NAA from the initial date of his deputation i.e. 1.6.1986 and there is no question of asking for any option in that case. If the respondents, specifically, respondent No. 2 finds that it is not so then the cadre of Aerodrome Assistant and the post of the applicant continued to 7 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 be and exists under them and, therefore, he should be allowed to work and continue on the post without any hindrance. We, therefore, hereby allow this application and direct the respondent authorities specifically respondent No. 2 to consider and decide the case of the applicant according to our observations within a period of three months from the date of communication of this order by passing a reasoned and speaking order and communicating the same to the petitioner within a week thereof."
1.17. Being aggrieved by the order dated 20.9.1999 passed by this Tribunal, the original respondents filed WPCT No. 43 of 2000. The Hon'ble High Court by upholding the order passed by this Tribunal, dismissed the said WPCT vide judgment dated 3.5.2000 with a direction that the case of the applicant shall be decided within a stipulated time (Annexure A/14 refer).
1.18. In compliance of the directions issued by this Tribunal in O.A. No. 1180 of 1995 and the order dated 3.5.2000 passed by the Hon'ble High Court of Calcutta in WPCT. 43/2000, the respondents / DGCA had re- considered the case of the applicant in light of order dated 28.9.1999 passed by this Tribunal and rejected the request of the applicant vide order dated 5.7.2000 (Annexure A/15) mainly on the ground that the statutory requirements under the NAA Act, 1985 and the instructions issued by the Government under CCS (Re-deployment of Surplus Staff) Rules, 1990 does not allow the department to either let applicant automatically become absorbed in the NAA or continue to work in the DGCA. (Annexure A/15 refer).
1.19. Being aggrieved with the said speaking order dated 5.7.2000, the applicant had initially approached Hon'ble High Court at Calcutta by way of Writ Petition No. 20046(W)/2000, the said petition came to be dismissed vide judgment dated 13.7.2001 on the ground of 8 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 maintainability. At the same time, the Hon'ble High Court granted liberty to the petitioner i.e. applicant herein to approach this Tribunal for redressal of his grievance.
1.20. Accordingly, the present O.A. 74/2002 has been filed by the applicant challenging the legality of order dated 5.7.2000 issued by the DGCA and sought relief (a) to quash and set aside the impugned order dated 5.7.2000 issued by DGCA. Further, he has prayed for (b) issuance of a direction regulating the service of the applicant in NAA in the post of Aerodrome Assistant from 2.10.1989 as was done in other cases by accepting technical resignation from Civil Aviation Department (CAD) with the benefit of continuity of service from the date of initial appointment in CAD dated 19.2.1986. Further, pray for (c) restraining the respondent authorities from giving effect to or further the order dated 5.7.2000 (Annexure A/13 to the O.A.) and issuance of the direction upon the respondents to allow the petitioner (the applicant herein) to work in the Airport Authority of India, National Airport Division erstwhile NAA in the post of Aerodrome Assistant (now named as Superintendent (ATC)) with benefit of continuity of service from the date of initial appointment in the Civil Aviation Department dated 19.2.1986, and (d) for issuance of direction upon the respondents to allow the petitioner to resume work in the AAI erstwhile NAA in the post of Aerodrome Assistant with the benefit of continuity of service. The applicant had also sought interim relief for an order restraining the respondents from taking any steps or action on the basis of impugned order dated 5.7.2000 (Annexure A/13 to the O.A.) 1.21. After completion of pleadings, the matter (in O.A. No. 74 of 2002) was finally decided on 7.8.2003 wherein this Tribunal had quashed and set 9 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 aside the impugned order dated 5.7.2000 being contrary to the direction issued by this Tribunal in its earlier order.
1.22. The original respondents, being aggrieved with the order dated 7.8.2003 challenged the same by filing WPCT No. 983 of 2003. The Hon'ble High Court by affirming the order passed by this Tribunal held that the placement of the applicant with Geological Survey of India as Accountant was an illegal act, as by virtue of legal finding of the Tribunal, he continues to be an Aerodrome Assistant from the date of his joining the NAA and directed the respondent department to take follow up action of the order of the Tribunal forthwith as well shall take note of the salary he received in course of his discharging duty in the Government department on illegal repatriation. Hence, no further payment of salary is called for in view of receipt of his salary previously. With the said observation, the WPCT was dismissed vide judgment dated 20.12.2007.
1.23. Being aggrieved with the judgment dated 20.12.2007, the original respondent i.e. petitioner in WPCT 983 of 2003 had approached the Hon'ble Apex Court by filing SLP (C) 17504 of 2008.
1.24. Since the prayer for grant of stay against the judgment passed by the Hon'ble High Court was disallowed by Hon'ble Apex Court vide order dated 10.12.2010 in the SLP filed by the original respondents, the original applicant had filed Contempt Petition being CPAN No. 310/2011 before the Hon'ble High Court at Kolkata. The original respondents by filing compliance affidavit agreed to take the applicant on the employment in Airport Authority of India with back wages and benefits w.e.f. 2.10.1989, the said Contempt Petition was subsequently dropped along with order passed by the Hon'ble High Court in WPCRC 10 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 267 (W)/2011 dated 21.2.2012 by taking into consideration the affidavit of compliance to the effect that a substantial amount has been paid and outstanding if legitimately due and payable and had not been paid, Hon'ble High Court directed that it would be open for original applicant to initiate appropriate proceedings before appropriate forum for which leave was granted.
1.25. The applicant has been paid month salary as Sr. Superintendent (ATC) month by month.
1.26. Thereafter, the pending SLP before the Hon'ble Apex Court was finally decided vide order dated 13.9.2022 being Civil Appeal No. 10639/2010. The Hon'ble Apex Court by referring to the order passed by this Tribunal and the judgment passed by the Hon'ble High Court had disposed of the said appeal vide order dated 13.9.2022 with the following relevant observation and direction:-
"Mr. Vikramjit Banerjee, learned Additional Solicitor General, contends that it could not be pointed out by the respondent that in terms of the order passed by the Tribunal on 7.8.2003, any order was passed by the office of the Director General of Civil Aviation. Therefore, the effective order is that of 5.7.2000. Though the said order has been set aside but there is no order on record to show that the respondent has joined either the office of the Director General of Civil Aviation or the Airports Authority of India. There is a lack of clarity as to whether the respondent had worked, at all. It is the case of the respondent that he attained the age of superannuation from the Airports Authority of India on 31.1.2021. But there is no document on record to support the fact that he was permitted to join Airports Authority of India at any point of time.
Therefore, we deem it appropriate to set aside the order passed by the Hon'bl High Court and that by the Central 11 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 Administrative Tribunal passed on 7.8.2003 and restore O.A. No. 74 of 2002 to its original number. The learned Tribunal is requested to decide the question of the status of the respondent herein and as to whether the respondent has been reinstated, if at all or joined which Department/Authority after the order dated 07.08.2003 was passed by the Central Administrative Tribunal.
Since the matter is old, we hope that the Central Administrative Tribunal shall take up the matter and decide the same expeditiously, preferably within six months from the date the parties appear before the Tribunal, Kolkata Bench. The parties shall appear before the Tribunal, Kolkata Bench on 7.11.2022.
Pending interlocutory application(s), if any is/are disposed of."
2. It emerges from the record that on receipt of copy of order dated 13.7.2022 passed by the Hon'ble Apex Court in Civil Appeal No. 10639 of 2010 (Airport Authority of India v. Dilip Bhushan & ors.), this Tribunal in compliance of it issued notice returnable on 7.11.2022 to all the parties of O.A. No. 74 of 2002. Since none appeared on behalf of the original applicant and on request of the officers present on behalf of the original respondents issue fresh notice returnable on 22.11.2022 and the original applicant was directed to be suitably represented on the returnable date as well the respondents.
2.1. Thereafter, on the request of Ld. Counsel for the parties, liberty was granted to place on record additional documents since the Ld. Counsel for the applicant stated that the applicant retired from his service after rendering service under Airport Authority of India on 31.1.2021 and Regional Executive Director (ER) had issued retirement certificate stating therein that the applicant designated as Sr. Superintendent 12 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 (ATC) after rendering 34 year 11 months and 12 days of service has retired from the service of AAI. . Though the applicant has been paid his monthly salary till his retirement but after his retirement he has not been paid Gratuity, Leave Encashment and monthly pension and other outstanding dues. He would argue that he may be allowed to submit his additional documents.
2.2. In the meantime, the applicant has filed M.A. No. 29 of 2023 whereby he sought leave to place on record various documents such as orders passed by this Tribunal and Hon'ble High Court, Hon'ble Supreme Court etc. 2.3. In addition to it, the applicant has also filed M.A. No. 53 of 2023 whereby by referring to the documents produced by him in the O.A. as well separate M.A. 29 of 2023, stated that during the pendency of this O.A., he retired and due to change of circumstances it is necessary for the ends of justice to allow him to substitute his prayer (d) & (e) with following substituted prayer :
"(d) Direction upon the respondents to grant monthly pension in favour of the petitioner after retirement of the petitioner on 31.1.2021 from Airport Authority of India with a further direction to release outstanding pension amount after retirement on 31.1.2021.
(e) Direction upon the respondents to release and approve Gratuity, all Earned Leave (EL) and Half Pay Leave (HPL) for service rendered upto the date of retirement on 31.1.2021 including all leave encashment in favour of the petitioner and outstanding payment still due in connection with servitude and service lineage and NE-10 pay scale on the basis of 34 years 11 months service since joining from 19.2.1986."
2.4. During hearing on 19.1.2023, this Tribunal upon hearing both the Counsels observed that:
" xxxxxx
13 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023
Both the Counsels agreed that after 7.8.2003, subject to the outcome of the SLP, he was reinstated on 25.11.2011 and he continuously worked till his superannuation."
After arguing for some time, both the Counsel submits that liberty be granted to file their short written notes of arguments, by mentioning the relevant documents in the record of the present O.A. within two weeks.
Considering the aforesaid, liberty granted to both the Counsel as sought for.
List this mater for final hearing on 07.02.2023."
(emphasis supplied) 2.5. Both the Counsels have filed their written notes of argument and the matter was taken up for final hearing subsequently.
2.6. Ld. Counsel for the applicant by referring to the order passed by this Tribunal and Hon'ble High Court would argue that in fact in terms of the interim directions issued by this Tribunal in O.A. 1180 of 1995 dated 28.10.1997, wherein it has been ordered by this Tribunal that without prejudice to his rights and contentions, he can join the post of Accountant in GSI during the pendency of the O.A. . Accordingly, by mentioning the direction issued by this Tribunal he had submitted his joining report before the GSI. However, the said joining report has been treated as conditional and as such he was not allowed to join his duty, for which the applicant was left to suffer.
Thereafter, the impugned speaking order dated 5.7.2000 was set aside by this Tribunal vide order dated 7.8.2003 in O.A. 74 of 2002. The WPCT filed thereon by the respondents came to be dismissed. The respondents failed to get any interim relief in SLP filed by them against the judgment passed by the Hon'ble High Court. Thereafter, the applicant was reinstated on 25.11.2011 in compliance of the directions 14 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 issued by the Hon'ble High Court and had been paid all the back wages. Being satisfied with the affidavit of compliance filed by the respondents, the Contempt Proceeding instituted against the original respondent was dropped by the Hon'ble High Court.
Thereafter, while working with AAI as Sr. Superintendent (ATC) on attaining the age of superannuation, he was allowed to retire on 31.1.2021. In this regard, the respondents had issued retirement certificate wherein the respondents have admitted that the applicant had rendered 34 years 11 months and 12 days of service and retired as Sr. Superintendent (ATC). He submits that since the applicant has superannuated, the respondents are required to release his pension and all other retiral dues including Gratuity etc.
3. Per contra, Ld. Counsel for the respondents by referring to the material on record would argue as under:
3.1. The applicant had submitted his option and had chosen not to be absorbed in NAA. The applicant and some other employees who had not opted to be absorbed in NAA remained and continued to be an employee of Civil Aviation Department (CAD), GOI under DGCA and then supernumerary post was created by DGCA on 9.3.1993 and kept in surplus staff cell of DoP&T. 3.2. Subsequently, they had been redeployed in different Central Government departments. All such officials except the applicant herein joined their Government department where they had been rehabilitated and redeployed. The applicant was relieved on 22.3.1994 to join as an Accountant in Geological Survey of India in the same pay scale of Aerodrome Assistant on his redeployment. He was paid salary upto 15 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 22.3.1994 by the DGCA. The applicant did not join GSI and had instead filed a case being O.A. No. 1180 of 1995 before this Tribunal. 3.3. By way of interim order dated 28.10.1997, this Tribunal had granted him liberty to join the offered post on his deployment without prejudice to his rights and contention but his conditional joining was not allowed by GSI. Thus he did not join the GSI.
3.4. Thereafter, this Tribunal while disposing the O.A. 1180 of 1995 vide order dated 28.9.1999 held that the applicant Dilip Bhushan automatically become absorbed in NAA as part and parcel of the establishment of NAA from the initial date of deputation i.e. 1.6.1986 and there is no question of asking any option in that case. If the respondent No. 2 i.e. DGCA finds that it is not so, then the cadre of Aerodrome Assistant, and the post of applicant continues to exist under them and directed the respondent No. 2 to consider and decide the case of the applicant accordingly. Being aggrieved, the original respondents had filed WPCT No. 43 of 2000 before the Hon'ble High Court, the said WPCT came to be dismissed vide judgment dated 3.5.2000 with a direction to consider the case of the applicant in terms of the orders passed by this Tribunal.
3.5. In the meantime, the DGCA passed the reasoned order on 5.7.2000 in compliance of directions issued by this Tribunal in O.A. No. 1180 of 1995 hence had not challenged the order dated 3.5.2000 passed by the Hon'ble High Court in WPCT No. 43 of 2000.
3.6. Vide letter dated 15.5.1997, the applicant was informed by DoP&T that his request for retention in the parent department (CAD), he cannot be absorbed in the said department in absence of a suitable post to accommodate him. He was further informed that his request for 16 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 retention in the parent department or in NAA cannot be acceded to. The applicant was thus aware about his status as on that day. Further, it is stated that vide letter dated 19.2.1998 the Deputy Director General, GSI informed the Secretary, DoP&T that the applicant who was nominated for the post of Accountant in GSI was not allowed to join the said post as his joining report dated 1.8.1997 being conditional. 3.7. Further, it has been stated that in the meantime, as per interim order passed by CAT, Kolkata Bench dated 28.10.1997 of O.A. 1180 of 1995, the applicant had submitted a joining report in the office for the post but without appearing himself physically, which makes his joining not only redundant rather defunct. Under the circumstances, it was requested that either the applicant be requested to join the department unconditionally and immediately or that department may be allowed to treat the offer of appointment issued to him as cancelled. (the copy of the said letter of the GSI dated 9.2.1998 was forwarded to DGCA as well Regional Controller of Air Safety (CAD) and the applicant as well. 3.8. The applicant was again directed vide O.M. dated 19.2.1998 issued by the office of CAD that he was provided with a last opportunity to join GSI has been accorded, failing which it will be presumed that he is not interested with his deployment. It was also informed that, if he failed to join the post of Accountant in GSI, his service shall be deemed to have been terminated from the post of Aerodrome Assistant in the surplus staff establishment of the CAD. However, without there being any order issued by the competent authority or court of law, he had chosen not to join his duty at the place of his re-deployment.
3.9. It is stated that subsequently this Tribunal quashed and set aside the speaking order dated 5.7.2000 denying the applicant to submit his 17 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 second option for absorption in NAA. The Writ Petition filed before the Hon'ble High Court challenging the said order came to be dismissed vide judgment dated 20.12.2017. Being aggrieved, the respondents had filed SLP (C) No. 10639 of 2010. The prayer of respondents for grant of stay / interim relief against the order passed by the Hon'ble High Court was rejected by the Hon'ble Apex Court.
3.10. Thereafter, the applicant herein was reinstated in AAI on 23.11.2011/25.11.2011 as Sr. Superintendent (ATC) in compliance of the directions issued by this Tribunal as well the Hon'ble High Court and he was paid all the back wages.
Thereafter, during the pendency of SLP filed by the original respondents, the applicant retired as Sr. Superintendent (ATC) on 31.1.2021 on attaining the age of superannuation.
3.11. Subsequently, the Hon'ble Apex Court decided the SLP / Appeal vide judgment dated 13.9.2022 with a direction to this Tribunal to decide the question of the status of the respondents and as to whether the original applicant has been reinstated, if at all or joined which department/authority after the order dated 7.8.2003 passed by this Tribunal.
Ld. Counsel by referring to the material on record further argued that the applicant was reinstated and absorbed on 23.11.2011/25.11.2011 in AAI subject to outcome of the SLP. The said fact has been admitted by the applicant.
It is reiterated by the respondents that the request of the applicant to allow him to change his option was not acceded to vide order dated 5.7.2000. He did not join the post physically on his redeployment and continued to be a surplus staff cell of DoP&T in lieu of supernumerary 18 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 post was created by DGCA on 9.3.1993 under DGCA, Civil Aviation Department (CAD), GOI on his repatriation from NAA. Subsequently, he was absorbed in the month of November, 2011 by AAI and on attaining the age of superannuation, he retired on 31.1.2021 as Sr Superintendent (ATC).
4. Heard the Ld. Counsel for the parties and perused the material on record.
5. It can be seen that the Hon'ble Apex Court vide order dated 13.9.2022 in Civil Appeal No. 10639 of 2010 set aside the order dated 7.8.2003 passed by this Tribunal in present O.A. as well the judgment dated 20.12.2007 passed by the Hon'ble High Court in WPCT. 983 of 2003 and had ordered restoration of the present O.A. Further, it is noticed that the Hon'ble Apex Court in the said order had observed that "there is a lack of clarity as to whether the respondent had worked, at all. It is the case of the respondent that he attained the age of superannuation from the Airports Authority of India on 31.1.2021. But there is no document on record to support the fact that he was permitted to join Airports Authority of India at any point of time." and had directed this Tribunal "to decide the question of the status of the respondents herein and as to whether the respondent has been reinstated, if at all or joined which department / authority after the order dated 7.8.2003 was passed by the Central Administrative Tribunal."
6. In due compliance of the directions issued by the Hon'ble Apex Court, to ascertain the status of the applicant and as to whether he was reinstated or not as well if he was reinstated then in which department he rendered the service after the order dated 7.8.2003 passed by this Tribunal, we have re-examine the material on record as well allowed the parties to place on record additional documents as during the pendency of the SLP / Appeal before the Hon'ble Apex Court the respondents had in fact reinstated the applicant and accordingly he had joined in service and 19 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 subsequently on attaining the age of superannuation, he was allowed to retire from the post of Sr. Superintendent (ATC) on 31.1.2021.
7. It emerges from the record that undisputedly during the pendency of applicant's request to change his option and to allow him to be absorbed in NAA, the applicant was repatriated to the parent department i.e. CAD. However, since all the post of Aerodrome Assistant were transferred to NAA, no substantial post was available under CAD/DGCA. Hence, the applicant's name was nominated by the Ministry of Personnel, Public Grievances & Pension & DoP&T, New Delhi for redeployment as surplus staff and he has been offered a temporary appointment to the post of Accountant in Geological Survey of India, Kolkata. Accordingly, vide memorandum dated 22.3.1994, the Regional Controller of Air Safety, Kolkata Region relieved the applicant of his duties from the office with instructions to report to the Administrative Officer, GSI, Kolkata. As noted hereinabove, the applicant's representation was not considered by the respondents and being aggrieved with the order of deployment, he had approached this Tribunal by way of filing O.A. 1180 of 1995. During the pendency of the said O.A. The applicant had submitted his joining report dated 1.8.1997 wherein he has stated that his joining as Accountant without prejudice and under protest and also subject to the result of O.A. No. 1180 of 1995 filed before this Tribunal. The said joining report was treated being conditional by the GSI and he was not allowed to join his duty. Thereafter, this Tribunal by way of interim order dated 28.10.1997 in O.A. No. 1180 of 1995 had given liberty to the applicant to join any post offered to him by the original respondents without prejudice to the rights and contention of either parties. Accordingly, by referring to the said observation and direction of this Tribunal, the applicant had submitted his another joining report before the GSI. However, the same was also treated as conditional and since same was not submitted physically it was treated as redundant. The said fact has been admitted by the respondents herein, though the original 20 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 respondent directed the applicant to join his duty on his redeployment without there being any reference to any condition but the applicant could not join his duty and in the meantime, this Tribunal disposed of the pending O.A. 1180 of 1995 vide order dated 28.9.1999 whereby it was held that the applicant automatically becomes absorbed in NAA (erstwhile) as part and parcel of establishment of NAA from the initial date of deputation i.e. 1.6.1986 and there is no question of asking for any option in that case. The Writ Petition thereon was dismissed vide order dated 3.5.2000 by the Hon'ble High Court in WPCT No. 43 of 2000.
7.1. Thereafter, vide speaking order dated 5.7.2000, the respondents rejected the representation/claim of the applicant to submit his second option to be absorbed in NAA since same was not permitted under the Rules. This Tribunal vide order dated 7.8.2003 quashed and set aside the said speaking order in O.A. No. 74 of 2002 and same was upheld by the Hon'ble High Court vide judgment dated 20.12.2007and directed to comply with the directions issued by this Tribunal in its earlier order 28.9.1999 as well directions issued vide order dated 7.8.2003. It emerges from record that after the order passed by this Tribunal dated 7.8.2003 till 25.11.2011, the applicant was not reinstated by the respondents though there was no interim order passed by a court of law including the Hon'ble Apex Court in favour of the official respondents. In this regard, it is apt to mention that being aggrieved with the judgment passed by Hon'ble High Court in WPCT. 983/2003 dated 20.12.2007, the official respondent filed Civil Appeal No. 10639 of 2010 along with an application for interim relief being I.A. No. 2 of 2011. The Hon'ble Apex Court dismissed the I.A. No. 2 of 2011 and declined to pass any interim relief as prayed for by the official respondents against the judgment passed by the Hon'ble High Court.
21 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 Therefore, the direction issued by the Hon'ble High Court in WPCT No. 983 of 2003 was complied with by the respondents with reinstatement of the applicant in service of AAI (erstwhile NAA) in the month of November, 2011.
7.2. The official respondents admitted that on his reinstatement and absorption in AAI, the applicant was paid back wages. Based on the affidavit in compliance filed by the official respondents, the Hon'ble High Court dropped the proceedings instituted against them.
At this stage, therefore, it is required to mention that undisputedly after the order passed by this Tribunal dated 7.8.2003, the applicant herein was in fact reinstated only on 25.11.2011 in AAI and in absence of any interim order/relief against the implementation of said directions issued by this Tribunal or the direction issued by the Hon'ble High Court as referred hereinabove, the applicant is deemed to be an employee under AAI (erstwhile NAA). Accordingly, it is not in dispute that after 7.8.2003 on reinstatement of the applicant on 25.11.2011 till the date of his retirement on 31.1.2021 he was paid regular salary by the AAI and, as such, had issued retirement certificate to the effect that he had rendered total 34 year 11 months 12 days of service. Hence, the status of the applicant as an employee of AAI (erstwhile NAA) continued till he attained the age of superannuation.
8. In view of the aforesaid, we deem it fit to hold that the applicant remained to be an employee under CAD / AAI (erstwhile NAA) since he was not allowed to join GSI. He was reinstated by the respondents vide order dated 23.11.2011/25.11.2011 in AAI and he joined his duty and worked there till he attained the age of superannuation i.e. on 31.1.2021. During the period from 7.8.2003 till the date of 22 o.a. 74/2002 with ma. 29/2023 with m.a. 53/2023 reinstatement/absorption in AAI (erstwhile NAA) there is no material on record to substantiate that the applicant was allowed to work by the respondents.
9. Since the applicant has been allowed to retire on attaining the age of superannuation on 31.1.2021 and there is no rebuttal on the part of the respondents with respect to issuance of retiral certificate by mentioning that the applicant has rendered 34 years 11 month and 12 days of service, we deem it appropriate to direct the respondents to disburse all his retirement dues including pension, gratuity etc. expeditiously not later than 16 weeks from the date of receipt of a certified copy of this order.
10. The O.A. is disposed of accordingly in compliance of the directions issued by the Hon'ble Apex Court as referred hereinabove. No costs.
(Anindo Majumdar) (Jayesh V. Bhairavia) Administrative Member Judicial Member