Central Administrative Tribunal - Jabalpur
N.C. Chakraborty S/O Late N. ... vs Union Of India-Through General Manager on 15 July, 2016
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH,
CIRCUIT SITTING : BILASPUR
Original Application No.203/00340/2015
Bilaspur, this Friday, the 15th day of July, 2016
Mr. G.P.Singhal, Administrative Member
1. N.C. Chakraborty S/o Late N. Chakraborty
Aged about 76 years R/o Friends Colony,
Behind Raja Tent House, Station Road,
Ward No.24, Shahdol (PO & PS) MP State PIN : 484001
2. Akbar Ali, S/o Late Dost Mohmmad,
Aged about 69 years. R/o: Care Sri A.K.Singh,
H.No.13 Sahara Vihar, Kasira Torwa (PO & PS),
Bilaspur, CG State PIN 495004
3. Smt.V.Kameshwari Devi, W/o Late V.K.Sharma,
Aged about 70 years, R/o Care M.S.Ratnam, H.No.1/22,
Gita Nagar, GE Road, Opp: Ayurvedic College,
Vivekanand Ashram (PO) Saraswati Nagar PS, Raipur,
Raipur Dist, CG State PIN 492001.
4. Smt.Dhoopali Singh, S/o Late Kusum Singh,
Aged about 76 years, R/o Near Satyam Video,
Ward No.29, Purani Basti, Shahdol (PO & PS & Dist)
MP State, PIN 484001.
5. Smt.Savitri Devi, W/o late Mahendra Prasad,
Aged about 59 years, R/o Panchsheel Nagar (West),
BMY Charoda, Bhilai Marshalling Yard (PO&PS),
Durg Dist, CG State PIN 490025 -Applicants
(By Advocate Shri K.R.Nair)
V e r s u s
1. Union of India-Through General Manager, SEC Railways,
Bilaspur, Bilaspur Dist, CG State PIN-495004
2. Chief Personnel Officer, SEC Railways,
Headquarters Office, Personnel Department,
Bilaspur Dist, Bilaspur (CG) PIN 495004
3. Senior Divisional Electrical Engineer (OP)
SEC Railways, Bilaspur Division,
Bilaspur (CG) PIN 495004 -Respondents
(By Advocate Shri Vivek Verma)
ORDER
By filing this Original Application, the applicants have prayed for direction to the respondents to grant all the benefits increments notionally for the period between the date of their removal and reinstatement and treat the said period as continuous service for the purpose of computing pension and to revise and re-fix the pension on that basis including payment of arrears which are flowing from the orders of the Honble High Court of Rajasthan, Delhi and Honble Supreme Court and Principal Bench of this Tribunal.
2. The admitted facts of the present case are that applicants and late husbands of applicants, who have died in the meantime, had participated in all India loco running staff strike in the year 1981, and they were removed from service. However, they were reinstated in service in pursuance of the orders of the Honble Supreme Court.
3. The learned counsel for the applicants has contended that the issue involved in this Original Application is no more res integra as the same has already been decided by the Principal Bench of this Tribunal in OA No.3456/2010 (Jeet Singh and others Vs. Union of India and others), vide order dated 31st day of May, 2011. It would be, therefore, appropriate to extract the relevant portion of the aforesaid order dated 31.5.2011 passed by the Principal Bench of the Tribunal in the matter of Jeet Singh (supra).
Applicants, seven in number, who have retired from service in the years 1992, 1997, 1998, 2004 and 2007 as per particulars given in para 4.1 of the OA, have filed this OA thereby praying that the action of the respondents in not granting due increments between the intervening period from the date of removal to the date of reinstatement in terms of Railway Boards circular dated 20.6.1994 is contrary to the judgment rendered by the Jodhpur High Court dated 25.09.2007, as upheld by the Apex Court and that applicants being similarly situated persons are entitled to the same benefit, as were extended to the petitioners before the Jodhpur High Court. Applicants have further prayed for quashing of the impugned order dated 22.6.2010 (Annexure A-1), whereby the representations of the applicants were rejected on the ground that the judgment cited by the applicants is not applicable to them, as they were neither a party in the said OA nor the Eastern Railway was a respondent in the said case.
(2). Briefly stated, facts of the case are that the applicants were dismissed from Railway service under Rule 14 (2) of the Railway Servants (Discipline & Appeal) Rules, 1968 for having participated in the Loco staff strike in the year 1981. Later on the applicants were re-instated in service in view of the judgment dated 5.8.1993 delivered by the Apex Court in the case of Union of India v. R. Raddappa & others, Civil Appeal No.4681-82 of 1992. The relevant extract of the judgment dated 5.8.1993 has been reproduced by the applicant in paragraph 4.3 of the judgment, which thus reads:
(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 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 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.
(3). It is the further case of the applicants that the judgment of the Apex Court was further clarified by the Railway Board by issuing a clarificatory order dated 20.6.1994 and as per para-2 of such clarification only notional continuity of service was to be given for the purpose of pensionary benefits and employees were not held entitled for annual increments during the intervening period as also for reckoning the intervening period for fixation of seniority. It is the case of the applicants that since no increment was granted to the employees consequent upon reinstatement pursuant to the judgment of the Apex Court, similarly situated persons approached the Tribunal for seeking relief for their fixation of pay after granting benefit of increments during the relevant period, but the OA was dismissed by the Tribunal but subsequently the matter was carried to the High Court of Rajasthan at Jodhpur in DB CWP (C) No.81/1999 and 183/1999 and the same was decided in favour of the employees vide judgment dated 25.9.2007. It is further stated that the SLP filed against the judgment of the High Court has also been dismissed by the Apex Court vide order dated 17.4.2009. Applicants have further stated that they are also similarly situated persons with Inder Singh who had already filed OA No.2206/2009 before this Tribunal for seeking the benefit of the judgment of the Jodhpur High Court and the said OA was allowed by this Tribunal vide judgment dated 23.3.2010, with the following observations:
6. In the result, for the foregoing reasons, we allow the OA with a direction 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 Jodhpur High Court (Supra) by revising the pay of the applicant within a period of three months from the date of receipt of a copy of this order (4). The grievance of the applicants is that since they are also similarly situated to that of applicant in OA No.2206/2009, who had been extended the benefit of the judgment of the High Court, as such similar relief should be granted to them.
(5). Respondents have filed a reply thereby opposing the claim of the applicants on the ground that the present OA is hopelessly barred by limitation, as according to the respondents applicants have prayed for grant of increment during the period between 1981 to 2.11.1993 with consequential benefits, which is hopelessly barred by limitation.
(6). On merits it has been stated that the pay of the applicants was fixed strictly in accordance with the clarification issued by the Railway Board vide letter dated 20.6.1994, without allowing increments, which fell due during the intervening period, which clarification was issued in terms of the judgment rendered by the Apex Court in the case of R. Redeppa (supra). Learned counsel of respondents has also cited number of decisions to substantiate his plea.
(7). We have heard the learned counsel for the parties and gone through the material placed on record. We agree with the contentions of the learned counsel of applicants that the present case is squarely covered by the judgment of the Rajasthan High Court as well as the judgment rendered by this Tribunal in the case of Inder Singh, decided on 23.3.2010, relevant portion of which is reproduced hereinabove. The Rajasthan High Court did not agree with clarification so given by the Railway Board pursuant to the judgment rendered by the Apex Court that the petitioners will not be entitled to the increments from the date of their dismissal till reinstatement for the purpose of fixation of pay and thus while allowing the Writ Petition in paras 8-11, had made the following observations:
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 Vs. 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 of 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 a 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. (8). Thus, in view of the finding recorded by the Jodhpur High Court in the aforesaid Writ Petitions, relevant portion of which has been extracted above, we are of the view that the applicants are also entitled to the benefits in terms of the observations made by the High Court of Jodhpur in the case of Prashudayal through LRs Smt. Bidami & others v. Central Administrative Tribunal, Jodhpur Bench & others, in Writ Petition (Civil) No.81/1999 and connected matters and in the light of the directions given by this Tribunal in the case of Inder Singh (supra).
(9). We do not agree with the submissions made by the learned counsel for the respondents that the present OA is required to be dismissed on the ground of limitation, as the applicants have not come before this Tribunal when the cause of action had arisen in their favour in the year 1994 when their pay was re-fixed in terms of the clarification issued by the Railway Board. It may be stated that it was incumbent upon the respondents to extend the benefit of the judgment rendered by the Jodhpur High Court to all the similarly situated persons, as direction was of declaratory nature inasmuch as the benefit of increment during the period w.e.f. 2.2.1981 to 2.11.1993 when the applicants were re-instated in service pursuant to a judgment of the Apex Court in R. Redeppa (supra), was denied in terms of the clarification issued by the Railway Board to the judgment rendered by the Apex court, which clarification was considered by the Jodhpur High Court in its judgment dated 25.09.2007 and it was specifically held that the clarification issued by the Railway Board is contrary to the directions of the Honble Supreme Court and those petitioners were entitled to fixation of their pay, treating them to be in continuous service and are also entitled to get increments from the date of termination till reinstatement by adding increments and accordingly they are also entitled to pensionary benefits after allowing increments. Thus the directions given by the Jodhpur Bench in the aforesaid terms were of general application to all similarly situated employees. When it has been specifically held that clarification issued by the Railway Board is contrary to the directions given by the Apex Court, thus it cannot be said that the relief granted to the petitioners by the Jodhpur Bench is only applicable to the petitioners therein and such a benefit should not be extended to a person who has approached this Tribunal at this belated stage. It may be stated that the judgment was rendered by the Jodhpur High Court on 25.09.2007 and the SLP filed against the judgment of the Jodhpur High Court was also dismissed by the Apex Court on 12.10.2009. It is only thereafter that the applicants have approached this Tribunal. Be that as it may, we are of the view that it is not a case of such nature where on the principle it can be said that applicants being fence-sitters, who sleep on their right have waived their rights, cannot be granted the benefit on the basis of the judgment rendered by the Court. As already stated above, it is a case of such nature where the relief granted by the Court is in the nature of declaratory relief, which is intended to apply to all employees in a particular category irrespective of whether they are party to the litigation or not and further the judgment rendered by the High Court has held the clarification given by the Railway Board to the judgment rendered by the Apex Court contrary to the judgment rendered by the Apex Court. Thus, it was not permissible for the respondents not to extend the benefits of the judgment of the Jodhpur High Court to similarly situated persons. The view, which we have taken is inconformity with law laid down by the Apex Court in the case of Bharat Sanchar Nigam Limited v. Ghanshyam Dass & Ors., 2011 (1) SLJ SC 472, whereby the Apex Court has laid down a law under what circumstances fence-sitters cannot claim remedy based upon earlier judgment and in what circumstances similarly or similarly situated employees are entitled to the benefit of the judgment. At this stage, it will be used to quote para-13 of the judgment, which reads thus:
13. The principle laid down in K.I. Shephard (supra) that it is not necessary for every person to approach the court for relief and it is the duty of the authority to extend the benefit of a concluded decision in all similar cases without driving every affected person to court to seek relief would apply only in the following circumstances:
a) where the order is made in a petition filed in a representative capacity on behalf of all similarly situated employees;
b) where the relief granted by the court is a declaratory relief which is intended to apply to all employees in a particular category, irrespective of whether they are parties to the litigation or not;
c) where an order or rule of general application to employees is quashed without any condition or reservation that the relief is restricted to the petitioners before the court; and
d) where the court expressly directs that the relief granted should be extended to those who have not approached the court. (10). According to us, the principles as laid down by the Apex Court in para 13 (b) and (c) above are fully applicable in the facts and circumstances of this case. Accordingly, we are of the view that applicants have not made out a case for grant of relief and the respondents are directed to extend the benefit of the judgment of the Jodhpur High Court as per para-11 of the judgment in the same manner, as was granted by the Tribunal to applicants in OA-2206/2009. The OA stands disposed of accordingly with no order as to costs.
4. Having gone through the aforesaid order of the Principal Bench of the Tribunal, and the admitted facts of the present case, I am of considered view that the present applicants/husbands of the applicants, were similarly placed as that of the applicants before the Principal Bench of the Tribunal in the matters of Jeet Singh (supra) and therefore they are also entitled for the same relief as has been granted to them by the Principal Bench of the Tribunal.
5. In the result, the present Original Application is disposed of with a direction to the respondents to extend the benefit of the aforementioned judgment of Honble Jodhpur High Court, to the present applicants, in the same manner, as was granted to the applicants in OA No.2206/2009 before the Principal Bench of the Tribunal. No costs.
(G.P.Singhal) Administrative Member rkv 8 OA No.203/00340/2015
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