Central Administrative Tribunal - Hyderabad
A Satyanarayana vs M/O Railways on 29 April, 2021
Rs A. Satyanaryana S/o A. Bheemaiah, GA No. 167/2020 CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH OA/021/00167/2020 Date of CAV + 21.04.2021 Date of Pronauncement : 29.04.2021. Aged about 61 years, Gro', Oce : Mail Express Guard, (Under the arders of Compulsery Retirement), Kalipet Railway Station, Kajipet, | R/o HUNa.2-10-13/1/6/1, New Banjara Enclave, Bollaram, Secunderabad-S00010. (By Advocate: Dr. A. Raghu Kumar) Vs. 1}. The General Manager, South Central Railway, Rail Nilayam, Secunderabad. 2. The IMvisional Railway Manager (Personal Branch), South Central Railway, 4" Floor, Sanchalan Bhavan, Secunderabad Division, Secunderabad. 3. The Additional Divisional Railway Manager (0), and Appellate Authority, Secunderabad Division, Sanchalan Bhavan,Secunderabad. 4. The Senior Divisional Operation Manager, and Disciplinary Authority, Ovo Divisional Railway Manager, SCR, Secunderabad Division,Secunderabad. Respondents (By Advocate: Mr. V. Vinod Rumar, SC for Rlys) ww Page Loaf OA No. 1672020 ORAL ORDER
(As per Hon'ble Mr. Ashish Kalia, Judicial Member) Through Video Conferencing:
2.
This application is filed for the following relief:
"In view of the above facts and circumstances the applicant herein pray that this Hon*ble Tribunal may be pleased to call for the records pertaining to the impugned orders in Lr. Na. SCR/P- $C/66 1 (aVOPTG/ONG/2017, dated 29.01.2020 rejecting the prayer of the applicant for grant of pension and pensionary benefits protecting his pay in the post and grade held as Mail Express Guard with pay of Rs.25,900/- in the scale of Rs.9300-34800 + GP 4200 (e* CPC/Level-6 in 7° CPC) for the purpase of pension and pensionary benefits and quash and set aside the same as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and rules on the subject matter and consequently declare that the applicant 1s entitled for treating the period of absence from 21.03.2016 to 20.04.2017 as leave due and also for pension and pensionary benefits on the basis of his last pay as Rs.25,900/- in the scale of Rs.0300- 34800 + GP 4200 (6" CPC/Level-6 in 7" CPC), in the interest of justice, and be pleased to pass such other order or orders as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case,"
The brief facts of the case are that the applicant while working as Mail Express Guard in the pay scale of Rs.9300-34800 + GP 4200 was subjected to the penalty of reduction to a lower grade / post, ic. to the past of Goods Guard in the pay band of Rs.5200-20200 + GP 2800/-, for a period of twelve months with a further direction that the penalty will have effect on both the pay and the seniority of the ernployee on his. restoration to the higher grade / post. However, on appeal, the same was modified to that of nine months period through Appellate Authorities order dated Page 2 of 7 Ss.
OA No. 1677/202018.07.2016. As the applicant was medically unfit, he remained absent from 5 41.03.2016 to 13.02.2017 and submitted a Medical Certificate to that i extant. The Respondents have not considered the said Medical Certificate and consequently the applicant was not restored to his original position.
+ This action is challenged in this OA and notices were issucd, A ae } 513. Respondents put appearance. Mr. ¥. Vinod Kumar, learned Senior Central Government Standing Counsel for Respondents Aled reply statement. Jt is submitted that the applicant Mr. A. Sathyanarayansa was found positive in Breath Analyzer test in the year 201), which is mandatory for running staff before commencement of duty, to check the influence of alechol and he was issued with major penalty charge sheet, which resulted in imposition of penalty of reduction to lower grade Le, from the post of Mail Express Guard to Goods Guard in the Grade Pay of Rs.2,800/ and his pay was fixed at Rs.8000/- for a period of 12 months with further direction that the reduction will have effect on pay and seniority of the applicant, vide order dated 03.03.2616, 4, The applicant has preferred an appeal, on which the penalty was reduced from 12 months to 9 months, which was effective from 03.03 2016 to 02.12.2016. During the currency of the penalty, the applicant again remained absent unauthorizedly from 21.03.2016. Another charge sheet was issued to him for unauthorized absence which culminated with the imposition of Compulsory Retirement from service with full terminal benefits.
5. The penalty order was passed on 20.04.2017. The applicant continued to be an unauthorized absentee till the date of Compulsory * Retirement je 20.04.2017. The total number of days ot tmauthorized Page Sof?
OA No. 1687/2020absence was 395 days. [it is further submitted that the applicant Compulserily Retired from service when he was in the Grade Pay of Rs.4,200/- is incerrect. In fact he has been awarded the punishment of reduction of pay from Rs.9300-34800 + GP 4200 as having been found in intoxicated condition while on duty and found positive in breath analyzing ie ; best, He has not completed the tenure of the punishment and never restored "a8 Mail Express Guard with Grade Pay of Rs.4200 and remain in the lower post.
5. The applicant has filed OA No.658/2018 where this Tribunal has directed the General Manager of the Respondents to look personally into the matter after ascertaining entire facts including Miness of the applicant and if he (he General Manager) fully satisfied and pass an order on the period of absence from duty from 22.06.2016 ull the date of Compulsory Retirement, consequently the Grade Pay of Rs.4200/- be restored.
7. Heard Dr. A. Raghu Kumar, learned counsel for the applicant and race Mr, V. Vined Kumar, learned Standing Counsel for Respondents at length, who appraised the legal position.
8, Keeping thumb over the facts and circumstances of the case, the applicant, who was found intoxicated while on duty, penalty was imposed upon him by reducing his Grade Pay from Rs.420Uv- to Rs. 2800/- for a period of 12 months but the same was reduced by the Appellate Authority to 9 months period. Learned Counsel for the applicant tned to convince this Tribunal that he has submitted Medical Certificate from the private Docter which was not considered by the Respondents while regularizing "
the period of unauthorized absence. Contrary to this, Mr V.Vinod Kumar, learned Standing Counsel for Respondents submits that, though the Page 4 of 7 OA No. 167/2020 applicant was supposed to go to Railway Doctor but even otherwise the:3
a RY Eg BS es : \ Respondents were ready to consider the Medical Certificate, but the' applicant remained absent even during the currency of the peanalty of reduction of Grade Pay from Rs.4200/- to Rs.2800/-. Had the applicant ~~ joined the duty and completed the 9 months penalty period, he could have } Sibeen allowed to join in the Mail Express Guard in the Grade Pay of Rs.4200/-, Applicant has absented for total number of 368 days. As per the directions of this Tribunal in OA No. S58/2O18, decided on 26.07.2019, which reads as under:
i 1} Arguments were beard and documents perused. Two pensities in quick srecessian had been passed against the applicant, When the penalty Invelved reduction of pay, on the expiry of the period of currency, the same automatically gets restored.
it is clear from the records that the applicant was imposed the penalty of reduction from grade pay of Rs.4200 of Mail Goard to the grade pay of Rs 2800 of Goods guard for a period of 9 months, an 3.3.2016 with loss af seniarity and pay. The penalty of reduction to lower grade would end on 31B2016. However, duc to ill health he conkd not join duty and hence was further proceeded againat, resulting in the penalty of compulsory retirement being imposed on 204.2017. The question is whether the initial penalty of redaction to a lower grade pay had been fully suffered and whether the applicant had automatically got the higher grade pay restored on conmpletion of nine montha reckoned from 03.03.2016.
Le Hypothetically, had the applicant not gone on leave from March, 2016, his grade pay would have been reduced from Rs.4200 to Rs.2800 and the same continued tll Q212.2016 where alter, his grade pay would have been antomationlly restored by O3.12.2016. Hon the other hand, the applicant was on leave with half the average pay, then again, he would have suffered the penalty of redaction of Grade Pay, his entitled pay at half the average pay would have been worked out only by taking ANG secount the Grade Pay at Rs 2800/-. tn the exfreme case of leave without any pay and allowances, if the applicant remained on leave without any leave at credit and he is not granied advance leave under Siaave not due" while the leave stood sanctioned, then he wend not get any pay and allowances, but here again the pay shall be worked out WHR the Grade Pay of Rs.2800/- but while artiving at the net amount, the same due to leave on foas of pay vould be nil. But the fact of his suffering the penalty during that month also cannot be denied.
i) The applicant belongs te the last category but with a slight difference that he was on unauthorised leave. Ui is this situation that has to be addressed, it ig not out of place to state that the applicant could not joi duty dre to acute Liveracis. Applicant was in a helpless slate and hence he did not appeal against the penalty of compulsory retirement, These are factors which have to be factored in implementing and imposing penalties. Even as per rules, when a second penalty fs being imposed disciplinary guihority haa te indicate as to how the earlier penalty will be treated while imposing a farther penalty, Respondents sere aware af the earlier penalty and hence the disciplinary authority need to have taken care in stating the process to be followed in implementing the two penalties, In fret, Railway Board order ECD&A} 62 Od No. 167 /2026 | VRE, » f RC G46 dated 26.10.1964 ( Page 6 of Reply statement ) clearly stipulates that after the L expiry of the period of penalty of reduction, the concerned enrployee has to be ' Automatically re-promoted to the original grade from which he was reverted.
IV} In the instant case, the absence of the applicam during the currency af the first penalty is beyond his control because of his dl bealth. The penalty of com puisocy retirement had been on the basis of a charge sheet for his unauthorized absence from 31 O3.2016 to 21.06.2016. His absence thereafter was not kept in view in respect of this charge sheet. The Competent authority could well, keeping in mind, the automatic restoration of the higher pay after currency of penalty, treat the absence from 22.06.2016 ill the date of passing of the second penalty of compulsory retirement on IG.O420L7 ax one of sanctioned leave but on loss of pay. In that event, as on 03.12. 2016 the Ingher prade pay would get restored, 'This requires regularization of absence af the applicant Tdue to his sickness, for the period from June, 2016 fll the date of compulsory retirement, The General Manager has all ihe powers under the provisions of the TREC and TREM in respect of Group © and D personnel, As such, justice demands that the General Manager considers the case af the applicant sympathetically to treat the absence of the applicant as under:-
{a} 21-03-2016 to 31-06-2016: Unauthorized.
(hy 22-03-2016 to 20-04-2017; Regularised as Leave w/o pay.
Vv} By regularizing the absence as above, the applicant's grade pay as on 03.12.2016 would automatically get restored to Rs 4200/- se that the applicant's pension and other terminal benefits would correspondingly increase. This suggestion is made by this Tribanal on account of the fRet that the absence of the applicant was duc te serious HIness and if was beyond his control forcing him io be away from official duties.
Otherwise, the applicant and his family would be lésing a substantial amount of pension.
VI} It is pertinent to mention that in so far'as pension is concerned, the same being one of a welfare measiire, interpretation relating lo pension should be liberal as held by the Hon'ble Supreme Court in the case of Subrata Sen vs Union of India (2001) 8 SCC 7E wherein, iowas held as under:-
"49 observed in Nakara pension Is neither a bounty, nor a matter of grace depending upon ihe sweel will of the employer, nor an ex gratia payments is a _ paynient for the past services rendered. it 8 a social welfare meanure rendering sacio-ecanamic justice to thase who it the heyday af their life ceaselessly foiled for the employer on an assurance that in their old age they would nat be left a the hareht."
VID And, such a bers! interpretation has been. warranted in view of the precise purpose of pension acheme as held by the Hor ble Apex Court in the case ay Kerala SRTC vs K.O. Varghese (2003) 12 SCC 293+ "4A peasion scheme consistent with available resources pusst provide that the pensioner would he able to live: (i) free Prom want with decency, independence and selfrespect, anid (11) af a standard equivalent at the preretirement i vel © Viewed from the above, there is full justification for relaxation being given tG The case of the applicant.
VIE In view of the above, this GA is disposed ef with a direction ta the General Manager of the respondents organsiation that he would personally look inte the case, ascertain the entire fret, Including the iiness of the applicant and if fully satished that the applicant's absence was not accentuated by any deliberate act of the applicant Sut he had been a victim of his serious ailment, necessary orders may be passed regularizing the period of absence from 22.06.2016 ull ihe date of compulsory retirement a6 leave without pay ang eonsequently, the Grade Pay be restored to Rs. 4200 Pave 6 of 7 + GA No.167/2020 apd the pension and terminal benefits worked out accordingly. The applicant may be informed of the final decision. 'This drill may be completed within a period of font months from the date of communication of this onder.
With the above direction the OA is disposed of with no order as to costs. 9, The next ground taken by the learned counsel for the applicant is tha this Tribunal has directed the Respondent General Manager to consider "once again taking into account by ascertaining the fact of illness and after )/ fully satisiying of the applicant's absence, which is a deliberate act or not.
In case the applicant found victim of serious ailment, necessary order may be passed reguiarizing the period from 22.6.2016. This Tribunal has considered the earlier direction passed by this Tribunal by considering the earlier direction passed by this Tribunal. By considering the earlier order passed by it, whereby a discretion has been awarded fo the General Manager to ascertain facts and circumstances of the case, whether the absence was generally on the ground of iiness or otherwise. The Respondent General Manager has taken over the matter and passed orders rejecting the applicant's plea. This Tribunal's direction was to consider the applicant's case has been duly complied with as this T tribunal has never asked the Respondents Department to restore the applicant's pay to Grade Pay of Rs.4200/- taking into consideration the Medical Certificate issued by the Private Dactor.
10. Thus, this Tribunal is fully satisfied that there is no merit in the present Original Application. Same is accordingly dismissed with no order as TO COSTS,