Central Administrative Tribunal - Ernakulam
K. Aboobacker Naha vs Union Of India Represented By on 14 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 955/2010
Tuesday, this the 14th day of February, 2012
CORAM:
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
K. Aboobacker Naha,
S/o. P. Kunhikoya Mutty Marackar Haji,
(Retd. Station Master Gr. I/
South Western Railway, Mysore Division),
Residing at : "Shaheen Manzil",
Near Court Complex, Parappanangady P.O.,
Malappuram District. ... Applicant.
(By Advocate Mr. T.C. Govindaswamy)
v e r s u s
1. Union of India represented by
The Secretary to the Government of India,
Ministry of Railways (Railway Board),
Rail Bhavan, New Delhi.
2. The General Manager,
South Western Railway,
Headquarters Office, Hubli,
Dharwar District, Karnataka.
3. The General Manager,
Southern Railway, Headquarters Office,
Park Town P.O., Chennai - 600 003
4. The Chief Personnel Officer,
South Western Railway,
Headquarters Office, Hubli,
Dharwar District, Karnataka.
5. The Divisional Railway Manager,
South Western Railway,
Mysore Division, Mysore.
6. The Divisional Personnel Officer,
South Western Railway,
Mysore Division, Mysore.
7. The Senior Divisional Finance Manager,
South Western Railway,
Mysore Division, Mysore. ... Respondents
(By Advocate Mr. Sunil Jacob Jose)
This application having been heard on 24.01.12, the Tribunal on
14.02.12 delivered the following:
O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant who entered service as Assistant Station Master on 01.04.1971 retired as Station Master Grade-I, Mysore Division, South Western Railway on 30.06.2008. For having participated in a strike on 11.08.1997 by detaining 7 trains for 2 minutes each, he was imposed with 3 punishments. The punishment of break-in service resulted in issuance of the impugned Pension Payment Order dated 29.09.2009 granting pension for the service rendered between 12.08.1997 to 30.06.2008 at Rs. 3610/- only. Aggrieved, the applicant has filed this O.A for the following reliefs:
(i) Call for the records leading to the issue of Annexure A-1 and quash the same to the extent it calculates the applicant's pension and other retirement benefits only for the service rendered between 12.08.1997 to 30.06.2008;
(ii)Declare that the applicant is entitled to reckon the whole of his service from 01.04.1971 to 11.08.1997 for the purpose of his pension and other retirement benefits and direct the respondents to grant all consequential benefits thereof;
(iii)Direct the respondents to re-fix the pension of the applicant , commuted value of pension , retirement gratuity, leave salary etc. duly reckoning the applicant's entire service from 1.4.71 to 30.06.08 with all its consequential benefits of arrears of pension arising therefrom;
(iv)Direct the respondents to grant the applicant interest @ 12% per annum calculated from 01.09.08 on the delayed payment of pension, commuted value of pension, retirement gratuity, leave salary etc. to be compounded annually till the date of full and final settlement of the same;
(v)Award costs of and incidental to this application;
(vi)Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.
2. The applicant contended that there is no provision in the Railway Services (Pension) Rules, 1993, enabling the respondents to deprive him of the benefits of the service rendered by him from 01.04.1971 to 11.08.1997. The forfeiture of past service in respect of the applicant along with 22 others is arbitrary and discriminatory in as much as only in Mysore Division such penalty imposed on the applicant and others, were not withdrawn/cancelled for participating in a nationwide strike. The failure on the part of the Railway Board to take a decision on the request of the applicant and others for condonation of break-in service is no reason to deprive him of the service rendered prior to 11.08.1997. The applicant is entitled to interest on the delayed payment of the retirement benefits for the period from 12.08.1997 to 30.06.2008.
3. The respondents contested the O.A. In their reply statement, they submitted that in regard to the facts of the case as submitted by the applicant, those averments which are consistent with the facts that are available on record are admitted as a matter of record and those averments that are not consistent are specifically denied as false. It was admitted that they had directed the applicant and others to submit individual representation for condonation of break in service for seeking the orders of the Hon'ble President of India. As the matter is pending before the Hon'ble President of India for communicating the orders condoning the break in service, the respondents cannot interfere in the matter .
4. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicant and Mr. Sunil Jacob Jose, learned counsel for the respondents and perused the records.
5. The respondents in their reply statement had submitted that those averments which are consistent with the facts that are available on record are admitted and those averments that are not consistent are specifically denied as false. They have not taken the trouble of specifically listing out those facts that have been admitted and those facts that have been not admitted by them. They have not disclosed the facts that are available on record. Therefore, adverse inference is drawn against the respondents. The applicant has submitted that 3 employees out of the 23 involved in the strike on 11.08.1997, namely S/Shri S. Kumar, Robert James and Balakrishnan were granted all benefits of their past service upon their retirement. The strike was nationwide , but only in Mysore Division, punitive action was taken against them. These facts would show that 23 employees were discriminated against and the applicant alone was further put to severe discrimination.
6. Vide letter dated 07.08.1998 at Annexure A-4, the DRM/MYS had proposed as under :
"S.BALASUBRAMANIAN, Divisional Office,
DRM/MYS Personnel Branch,
Mysore
D.O. No. Y/P.227/DAR/AISMA/Genl.Corresp. Dated : 07.08.98
Dear Sri. Sivaramakrishna,
Sub: Condonation of Break-in Service -
All India Station Masters Assn.
On 11/12.8.1997.
---------
In response to the call given by the AISMA (an unrecognised Union) to participate in strike by stopping all trains at signal for 2 minutes between 0.00 hours to 24.00 hours of 11.08.97, a General Circular was issued for a benefit of all employees indicating that the proposed strike on 11.08.97 was illegal and the consequence in participation of such illegal strike would lead to DAR action, break-in service etc. Inspite of this, a section of Station Masters of this Division, whose names are enclosed in the Annexure had detained the Trains at Signals deliberately. All the employees were imposed with the punishment of :-
1) reduction to next lower stage in time scale of pay for a period of 36 months (NR)
2) No work, no pay
3) Break-in Service On perusal of the appeals and after going through, their past record of service and their present performance trend of the staff, but for their participation in strike, it is felt the penalty of period of break-in service imposed on these employees is too severe. Further, it is also noted that although the employees participated in the strike, they did not induce other employees to take part in the strike. It is also learnt that such a severe action of imposing break-in service on those employees who had not taken a leading role has not been implemented in other divisions of Southern Railway.
In view of the above, I would request you to process the case for condoning the break-in service imposed on these employees.
With regards Yours sincerely Sd/-
Encl: as above.
Shri R.SIVARAMAKRISHNA C.P.O./MADRAS"
Almost 14 years have elapsed, the matter of condoning the break-in service is not yet finalised . The delay and lethargy in finalising the matter is unreasonable and shocking.
7. The respondents have not challenged the contention of the applicant that there is no provision in the Pension Rules enabling forfeiture of past service in the event of imposition of break-in service. Again, adverse inference against the respondents has to be taken. They have not defended the impugned Annexure A-1 order which does not reckon the service rendered by the applicant from 01.04.1971 to 11.08.97 making it arbitrary, discriminatory and contrary to law. The respondents have not responded to the charge that even for the period from 12.08.1997 to 30.06.2008, his pension was granted in September, 2009, one year and 3 months after his retirement and that as per Rule 87 of the Pension Rules, he is entitled to interest.
8. The direction given by the respondents to the applicant and others to submit individual representation for condonation of break-in service for seeking the orders of the Hon'ble President of India shows their inclination to condone the break-in-service, but they have not disclosed when this proposal was sent to Hon'ble President of India and what follow up action was taken.
9. In the above facts and circumstances of the instant O.A, I am of the considered view that the impugned Annexure A-1 order dated 29.09.09 is liable to be quashed to the extent it calculates the applicant's pension and other retirement benefits only for the service rendered between 12.08.97 to 30.06.08., being discriminatory, arbitrary and contrary to law. Ordered accordingly. The respondents are directed to refix the pension of the applicant, commuted value of pension, retirement gratuity, leave salary etc. duly reckoning the entire service of the applicant from 01.04.1971 to 30.06.2008 with all consequential benefits of arrears of pension arising therefrom with interest @ 8% per annum calculated from 01.09.2008 on all payments of retirement benefits till the date of full and final settlement of the same within a period of 60 days from the date of receipt of a copy of this order.
10. The O.A. is allowed as above with no order as to costs.
(Dated, the 14th February, 2012) (K. GEORGE JOSEPH) ADMINISTRATIVE MEMBER cvr.