Gujarat High Court
Abhey Sing Dama vs The Divisional Railway Managar on 19 July, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
C/SCA/11878/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11878 of 2017
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ABHEY SING DAMA....Petitioner(s)
Versus
THE DIVISIONAL RAILWAY MANAGAR....Respondent(s)
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Appearance:
MR OM PRAKASH KHURANA, ADVOCATE for the Petitioner
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CORAM:HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 19/07/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.00. By way of this petition under Article 226 of the Constitution of India, the petitioners had prayed for the following main reliefs :-
"(i). Admit and allow this petition holding the respondent's action as to imposing the deathlike penalty of removal from service as per the impugned orders dated 15/9/1998 and 24/9/2001 (Ann. "A" and "B") respectively and hold the same as quite discriminatory, arbitrary, illegal and unconstitutional for violation of the Articles 14, 16, 21 and 309 of the Constitution of India for depriving the Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 20 23:22:28 IST 2017 C/SCA/11878/2017 ORDER deceased petitioner of his right to life by depriving him of the right to work and earn till his date of retirement on superannuation by imposing punishment of removal from service arbitrarily and illegally without granting the compassionate allowance and gratuity in compliance of Rule 65 of the Railway Service (Pension) Rules, 1993 and be pleased to quash and set aside the same to the extent that the concerned authorities failed in not even passing any order as to granting compassionate allowance / gratuity in compliance of Rule 65 of the Railway Service (Pension) Rules, 1993, and the Railway Board's directives as contained in the letter No.F(E)III/2003/PN I/5 dated 31/7/2008 (Ann."E").
(ii). Be further pleased to direct the respondents to consider petitioner's case as per the last recommendation dated 25/1/2016 (Ann. "C") only for the pensionary benefits / compassionate allowance and gratuity in view of long service of about 23 years as admissible under Rule 65 of the Railway service (Pension) Rules, 1993 with interest @ 12% from the due date till finally paid.
(iii). Be further also pleased to direct the respondents to issue the Memorandum as to deceased petitioner's effective date of Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 20 23:22:28 IST 2017 C/SCA/11878/2017 ORDER removal from service to make payment of all the Settlement Dues like the amount of P.F., GIS and Leave Encashment and the amount lying in his credit in the J.C. Bank etc. with interest @ 12% to the legal representatives from the due date till finally paid and also provided a copy of the details of the due and drawn of the amount as worked out.
(iv). Be further more also pleased to direct the respondents to pay to the petitioner exemplary costs for passing the order dated 15/9/1999 and 24/9/2001 as to removal from service in violation of Rule 65 of the Railway Services (Pension) Rules, 1993 and the Railway Board's directive as contained in the letter No.F(E) III/2003/PN I/5 dated 31/7/2008 (Ann. "E").
(v). Be further also be pleased to hold the Ld. Tribunal's order dated 30/6/2016 in O.A. No.402/2016 with M.A. No.265/2016 and the order dated 10/1/2017 in R.A. No.58/2016 in O.A. No.402/2016 as quite erroneous for not following the various judgements cited under Para 3(vi)(a) to (e) hereinabove and be pleased to quash and set aside those orders also for not doing the natural justice by interfering in the departmental authorities orders as to not granting the Compassionate Allowance and gratuity at the time of issuing Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 20 23:22:28 IST 2017 C/SCA/11878/2017 ORDER the order of removal from service as admissible as per rules and not considering the merits in the matter that that the p petitioner had rendered about 23 years of doteless services."
2.00. It is required to be noted that earlier the concern employee challenged the order of dismissal - penalty of removal from service vide order dated 15/9/1998 and the same was challenged by the employee before the appellate authority and appellate authority confirmed the order of removal passed by the disciplinary authority. The employee challenged the order passed by the appellate authority as well as order of removal before the learned tribunal by way of preferring O.A. No.35 of 2002. That thereafter the learned tribunal vide order dated 9/7/2004 dismissed the O.A. No.35 of 2002 confirming the order of removal passed by the disciplinary authority as well as order passed by the appellate authority. Even one R.A. No.75/2004 preferred by the petitioner in the aforesaid O.A., also came to be dismissed by the learned tribunal.
3.00. In spite of the above, again the petitioner employee preferred O.A. No.402 of 2016 challenging the original order of removal and for the aforesaid reliefs. Considering the fact that earlier the order of removal came to be confirmed by the learned tribunal and the same had attained finality, the learned tribunal has rightly rejected the O.A. while passing the impugned order.
4.00. Now, so far as the submission on behalf of the Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 20 23:22:28 IST 2017 C/SCA/11878/2017 ORDER petitioner to direct the concerned respondent authority to decide the representation dated 25/1/2016 is concerned, it is required to be noted that before the learned tribunal, no proof was submitted that any representation was made. It appears that by the aforesaid representation, the petitioner claimed compassionate pension as well as retirement benefits like gratuity, P.F. etc. The concerned employee came to be removed from service in the year 1998 and even removal order came to be confirmed by the learned tribunal in the year 2004. No grievance at all was made with respect to compassionate pension. After approximately 19 years and above, such a grievance was made with respect to compassionate pension, which is rightly rejected by the learned tribunal.
5.00. Now, so far as the submission on behalf of the petitioner about withholding of the P.F. is concerned, still it will be open for the petitioner employee to pursue the same with the respondent railway authority and if it is found that any amount in the P.F. Account of the concerned employee is lying, the same be dealt with in accordance with law.
With this, present petition stands dismissed. No costs.
Sd/-
(M.R. SHAH, J.) Sd/-
(B.N. KARIA, J.) Rafik...
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