Allahabad High Court
Union Of India And Others vs Hemant Kumar Gupta on 5 December, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 28557 of 2012 Petitioner :- Union Of India And Others Respondent :- Hemant Kumar Gupta Counsel for Petitioner :- A.K. Gaur,Rajnish Kumar Rai,S.C. Counsel for Respondent :- V.D. Yadav,A.K. Kunwar,Ashish Gupta,S.C.,Shahid Kazmi Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Challenge in this writ petition under Article 226 of the Constitution of India is to the judgement and order dated 07.02.2012 passed by Central Administrative Tribunal (hereinafter referred to as Tribunal) in Original Application (hereinafter referred to as O.A.) No. 483 of 2007 (Hemant Kumar Gupta Vs. Union of India and others) whereby Tribunal has allowed above mentioned O.A. filed by applicant-respondent.
2. We have heard Mr. Rajnish Kumar Rai, learned counsel for petitioners and Mr. Ashish Gupta, learned counsel representing applicant-respondent.
3. It transpires from record that applicant-respondent Hemant Kumar Gupta was initially appointed as Loco Cleaner vide appointment letter dated 18.02.1976. After joining his duties on the aforesaid post, applicant-respondent was posted at Loco Shed at Allahabad. Subsequently, applicant-respondent was promoted as Diesel Assistant and thereafter vide order dated 22.08.1997 as 'Diesel Shunter'. In the interregnum i.e. in between 18.02.1976 to 22.08.1997, applicant-respondent was also assigned duty of Assistant Loco Diesel Pilot (Driver). Thereafter, applicant-respondent was transferred from Loco Shed Allahabad to Loco Shed Kanpur vide order dated 22.05.1998 passed by Divisional Personnel Officer, Northern Railway, Allahabad. Feeling aggrieved by transfer order dated 22.05.1998, applicant-respondent preferred representation against the same.
4. Moreover, pursuant to transfer order dated 22.05.1998 applicant-respondent was not relieved of his duties from Loco Shed at Allahabad. Considering the aforesaid facts, transfer order dated 22.05.1998 passed against applicant-respondent whereby applicant-respondent was transferred to Loco Shed Kanpur was itself suspended vide order dated 22.07.1998 passed by Senior Divisional Mechanical Engineer, Northern Railway, Allahabad.
5. Thereafter, applicant-respondent was placed under suspension vide order dated 19.08.1998. Even before expiry of period of one month from date of passing of suspension order dated 19.08.1998, another order dated 24.09.1998 was passed whereby suspension order dated 19.08.1998 was revoked.
6. It appears that in spite of revocation of suspension order, applicant-respondent was not allowed to join his duties at Loco Shed Allahabad. He accordingly approached the authorities. Ultimately, an order dated 25.11.1999 was passed by Divisional Mechanical Engineer, Northern Railway, Allahabad whereby applicant-respondent was allowed to join his duties at Loco Shed Allahabad. Since applicant-respondent was deprived of certain benefits on account of delayed joining, he preferred O.A. No. 548 of 2004 (Hemant Kumar Gupta Vs. Union of India and others) before Tribunal. Aforesaid O.A. was disposed by Tribunal vide order dated 01.09.2004. For ready reference relevant extract of the order dated 01.09.2004 passed by Tribunal is quoted herein-under:-
"The grievance of the applicant is that inspite of the order dated 03.05.2002, issued by Divisional Mechanical Engineer addressed to Senior Divisional Engineer, Loco, Allahabad allowing the applicant to join his duties with immediate effect, one Sri Rakesh Kumar Srivastava, Senior Section Engineer is not allowing the applicant to join and perform his duties. Moreover, the applicant is not getting his salary since 1998 without any order. He has already sent representation regarding his grievance to the competent authority i.e. D.H.M., Allahabad but no action has been taken on the representation by the respondents so far. We have gone through Annexure-18 i.e. letter dated 03.05.2002 which fortifies the submissions made by the applicant's counsel. Counsel for the respondents prayed for time for filing counter which we do not consider necessary. This case can be decided at the admission stage itself by issuing a direction to the respondent no.3/Competent Authority to decide the representation dated 20.02.2004 filed by the applicant.
Accordingly, the O.A. is finally disposed of with a direction to respondent No.2, Competent Authority to decide the representation of the applicant by a reasoned order within a period of three months from the d ate of receipt of copy of this order. In the meanwhile the applicant is also directed to file a copy of the representation alongwith copy of this order for early decision in the matter.
No order as to costs. "
7. Applicant-respondent submitted certified copy of order 01.09.2004 before Competent Authority upon which order dated 28.10.2004 was passed by Senior Divisional Mechanical Engineer, North Central Railway, Allahabad directing applicant-respondent to resume his duties under SSE / Loco/CNB Kanpur and thereafter, submit representation. Aforesaid authority concluded that since applicant-respondent has failed to carry out order issued by Railway Administration therefore he is first required to report at SSE / Loco/CNB Kanpur i.e. transferred place of posting and then submit representation, which shall be considered accordingly. Similar order dated 08.02.2005 was passed subsequently.
8. In the aforesaid circumstances, applicant-respondent was forced to file Contempt Application No. 44 of 2005 (Hemant Kumar Gupta Vs. Shri Shyam Krishna Lal Srivastava) in O.A. No. 548 of 2004. Aforesaid Contempt Application came to be disposed of finally vide order dated 29.09.2005 and relevant extract thereof as under:
" It appears from the records that in pursuance of order dated 19.04 in OA 548 of 2004 at least two orders had emanated namely order dated 29.10.04 and 15.02.05. However, kthe counsel for the applicant submits that his further representation was not disposed of by the respondents nor did he receive the order dated 15.02.05. The CCA in para 10 narrates that no action has been taken by the respondents. The narration is obviously incorrect. It is hoped that the respondents would consider all the representations pending before him and pass suitable order as expeditiously as possible. The CCA is disposed of.
3. Copy of this order be sent to the respondents."
9. When in spite of order dated 29.09.2005 passed by Tribunal, no consequential action was taken, Applicant-respondent preferred Contempt application No. 155 of 2006 (Hemant Kumar Gupta Vs. Sri Om Prakash Shaw) before Tribunal, which came to be dismissed as withdrawn vide order dated 21th November, 2006 passed by Tribunal. The same is quoted herein-under for ready reference:
" The applicant has filed this contempt petition as according to him order dated 01.09.2004 and 29.09.2005 passed by the Tribunal have not been complied with by the respondents. A perusal of the documents reflects that the applicant had been asked to resume his duty vide order dated 15.02.2005 and 10.05.2006. The observation of this Tribunal vide para-2 of the order dated 01.09.2004, was to be taken into account while considering the representation of the applicant in addition to order relating to resume his duty. However, that part of the order could be considered by the respondents only after the applicant resumed his duty.
Learned counsel for the applicant wants to withdraw this contempt petition and he hopes that the other part of the order will also be complied with by the respondents after his resumption of duty. The prayer is allowed and the contempt petition is allowed to be withdrawn with the above observation."
10. Ultimately, applicant-respondent again approached Tribunal by filing O.A. No. 483 of 2007 (Hemant Kumar Gupta Vs. Union of India and others) claiming following relief:
"i. This Hon'ble Tribunal may be pleased to direct the respondents to allow the applicant to join at Diesel Shed Allahabad.
ii. This Hon'ble Tribunal may be pleased to direct the respondents to make payment of salary and entire arrears of salary with 18% interest thereupon.
iii. This Hon'ble Tribunal may be pleased to direct the respondents to give all consequential promotions which have been given to the juniors of applicant during this ...
iv.Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
v. Award the costs of the original application in favour of the applicant. "
11. Above mentioned O.A. filed by applicant-respondent was contested by petitioners. A detailed counter affidavit was filed disputing the averments made in O.A. and also the claim of the applicant-respondent.
12. Tribunal upon consideration of pleading of parties allowed above mentioned O.A. vide order dated 07.02.2012 by observing as follows in paragraph 11:-
" 11. O.A. is allowed. The respondents are directed to permit the applicant to resume his duty at Loco Shed, Allahabad forthwith and to pay his the salary as per rules. The applicant is also entitled for all consequential benefits. The respondents are directed to comply this order within a period of the three months from the date when a copy of this order is received by them. The applicant shall also produce a copy of this order before the respondents at the earliest. Nor order as to cost. "
13. Thus feeling aggrieved by judgement and order dated 07.02.2012 passed by Tribunal, petitioners have now approached this Court by means of present writ petition.
14. Mr. Rajnish Kumar Rai, learned counsel for petitioners submits that directions issued by Tribunal directing petitioners to allow applicant-respondent to join his duties at Loco Shed Allahabad and further to pay him salary as per Rules and also grant him all consequential benefits is manifestly illegal. Elaborating his arguments, he submits that applicant-respondent was transferred to Loco Shed Kanpur vide transfer order dated 22.05.1998, therefore, irrespective of order dated 22.07.1998, whereby aforesaid transfer order dated 22.05.1998 was kept in abeyance, applicant-respondent was duty bound to comply with the same.
15. Argument raised before us is wholly misconceived. When transfer order dated 22.05.1998 itself was suspended vide order dated 22.07.1998, and applicant-respondent was not relieved till 22.07.1998, he cannot be forced to join at transferred place, i.e. Loco Shed Kanpur.
16. It is not the case of petitioners that order dated 22.07.1998 suspending transfer order was even revoked. That being so, it was not open to respondent authority to insist upon applicant-respondent to join at the transferred place i.e. Kanpur when order of transfer was already inoperative having been under suspension. Tribunal therefore has not committed any error in allowing claim petition filed by applicant-respondent.
13. Writ petition lacks merit and is accordingly dismissed. Cost made easy.
Order Date :- 5.12.2019 YK