Central Administrative Tribunal - Delhi
Vishvambhar Singh vs M/O Communications on 31 October, 2022
1
OA No. 199/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 199/2021
Order reserved on: 29.09.2022
Order pronounced on: 31.10.2022
Hon'ble Mr. Manish Garg, Member (J)
Vishvambhar Singh
Son of Sh. Bhagwan Shah,
r/o Village Haripur,
Post Office Nayagaun,
Distt. Bulandshahar.
...Applicant
(By Advocate: Mr. S.K.Gupta)
Versus
1. Union of India
Through its Secretary,
Ministry of Communication,
Department of Post,
Dak Bhawan,
Sansad Marg,
New Delhi-110001.
2. Superintendent of Post Offices,
Bulandshahar Division,
Bulandshahar-203001.
3. Post Master, Bulandshahar, 203001.
4. Director Account Postal,
U.P.Circle Section ‗D'
Aliganj, Lucknow-226024.
... Respondents
(By Advocate : Mr. S.N.Verma)
2
OA No. 199/2021
ORDER
This Original Application has been filed by the applicant under Section 19 of Administrative Tribunals Act, 1985, seeking the following relief(s):
―i) to issue order or direction of quashing and set aside the impugned order dated 17.08.2012 passed by the respondent (Annexure A-1) in compilation no. Part-I to this original application).
ii) to issue an order or direction in the nature of mandamus directing the respondents to allow all consequential benefits of appointment on the basis of performance of 1998 examination result of which was declared in March 1999, notionally fixing seniority and pay i.e. counting the period since March, 1999 as notional duty and allow consequential pension, D.C.R.G. and Leave encashment etc. as admissible.
iii) to issue order, rule or direction which the Hon'ble Tribunal may deem fit and proper under the fact and circumstances of the case.
iv) to award the cost of litigation of the Original Application in favour of the applicant against the respondents.‖
2. Brief facts:
2.1 The applicant was appointed as Extra Departmental Delivery Agent (now Gramin Dak Sewak) at Bulandshahar on 01.01.1976.3 OA No. 199/2021
2.2 On 20.12.1998 he appeared in Limited Departmental Examination (LDCE) under 50% quota meant for Group-D employees. Applicant belongs to SC category.
2.3 Vide memo dated 15.03.1999, the result of the LDCE was declared and 3 candidates, namely, Sh. Inderjeet Singh, Sh. Bhikam Kumar Sharma and Sh. Ram Phal Singh were declared successful and Sh. Ram Phal Singh secured 112 marks.
2.4 Thereafter, applicant along with one Sh. Badle Singh filed OA No.1898/1999 before this Tribunal which was allowed on 02.11.2000 directing the respondents to correctly work out, notify and consider the case of the applicants therein for appointment against these posts on the basis of their performance in the examination conducted in December 1998. 4 OA No. 199/2021 2.5 Respondents challenged the aforesaid order before Hon'ble High Court of Delhi by filing Writ Petition which was dismissed. 2.6 In compliance of the directions of this Tribunal, respondents passed order dated 09.08.2001 wherein 5 candidates including Sh. Badle Ram were declared successful but the applicant was not declared successful. 2.7 Feeling aggrieved, applicant filed another OA No.642/2002, which was allowed by this Tribunal on 09.07.2002 by directing ―the respondents to consider the applicant's claim for appointment against a reserved post. If and when the applicant is appointed as above, he will also be entitled to ―consequential benefits‖ in terms of notional seniority/pay fixation on the basis of his performance in 1998 examination‖.
5OA No. 199/2021 2.8 The respondents filed Writ Petition No.7199/2002 before the Hon'ble High Court challenging the decision of this Tribunal. 2.9 The Hon'ble High Court vide order dated 23.08.2004 modified the decision of this Tribunal inter alia held as under:
―....we find it difficult to approve the other direction to pay him consequential benefits from the date three other candidates from the 1998 examination were appointed. This part of the direction is accordingly quashed and writ petition partly allowed.‖ 2.10 Thereafter, applicant was given the offer of appointment vide order dated 10.12.2004, which reads as under:
―In pursuance of order dt. 9.7.02 of this Tribunal at Principal Bench in OA No.642/02 Bishambhar Singh v/s 01 and others, and the Hon'ble High Court Delhi Order dt. 23.8.04 in WP(C) 7199/02, UOI v/s Bishambhar Singh, Shri Bishambhar Singh GDS MD Sarai (Bulandshahr) is hereby selected for appointment in Postman Cadre in the scale of Rs.3050-75-3950-80-4590 and allotted to your unit with immediate effect.
Please issue appointment order immediately after completion of training.‖ 2.11 The applicant has also superannuated on 31.07.2011.
6OA No. 199/2021 2.12 Vide order dated 17.08.2012, respondent No.2 in compliance of order of Allahabad Bench of this Tribunal passed in OA No.562/2012, disposed of the representation of the applicant dated 24.08.2010 and 07.10.2011. 2.13 Respondent No.2 vide order dated 17.08.2012 decided that the applicant would not be given consequential benefits of seniority/pay fixation notionally. Relevant part of the order reads as under:
―In compliance of this order seniority of Shri Bishambar Singh was fixed vide Seniority memorandum ( Gradation List of Postman cadre of Bulandshahr Division corrected upto 01.07.2004) in which Shri Bishamber singh was placed at serial no. 73 and according to which the entry date in the grade is 25.12.2004. As per rule 32E of P & T Volume IV (Appointment and promotion General rules) the seniority of an official in the cadre to which he belongs should be fixed according to the date of his permanent appointment in that cadre (Photocopy enclosed). A copy of this seniority memorandum was also sent to Shri Bishamber Singh vide this office letter No. LC/ New Delhi/CAT/ Bishamber Singh dated 02.01.2006.
Hence in view of aforesaid observations the representation of Shri Bishamber Singh dated 24.08.2010 and 07.10.2011 are disposed of.‖ 7 OA No. 199/2021 2.14 Applicant has relied upon the Government of India OM dated 17.02.2020 whereby the conditions for granting the benefit of old pension scheme were relaxed in terms of para 3(ii), which reads as under:
―(ii) Some of the candidates selected through a common select process were issued offers of appointments and were also appointed before 01.01.2004 whereas the offers of appointment to other selected candidates were issued on or after 1.1.2004 due to administrative reasons/ constraints including pending Court/CAT cases.‖ 2.15 It is also submitted that the matter is squarely covered in terms of para 3(ii) of OM dated 17.02.2020, as applicant was already in service prior to 01.01.2004 but because of pending litigation, the applicant could not be appointed and selected on regular basis. Hence, the applicant is entitled to be granted the benefit of ―Old Pension Scheme‖.
It is contended that applicant was appointed as a result of the exam conducted in December, 1998 and the 8 individuals, as referred to above, whose result were declared 8 OA No. 199/2021 before 01.01.2004, were allowed the benefit of old pension scheme on their superannuation. 2.16 Learned counsel for applicant relied on various decisions of Hon'ble Supreme Court, which are as follows:
(i) WP (C) No.1358/2017 dated 09.04.2019 - Shyam Kumar Choudhary & ors. vs.UOI & ors.
(ii) SLP (C) Diary No.31539/2019 dated 27.09.2019 - UOI & Ors. vs. Shyam Kumar Choudhary & Ors.
(iii) WP (C) No.11169/2019 dated 16.12.2019 - Chander Veer Singh & Ors. vs. UOI & Ors.
(iv) WP (C) No.323/2020 dated 13.01.2020 - Ashok Kumar Sheoran & Ors. vs. UOI & Ors.
(v) WP (C) No.756/2020 dated
28.01.2020 - Dr. Davinder Singh
Brar vs. UOI & Ors.
(vi) WP (C) No.1569/2021 dated
15.02.2021- Jaswinder Singh & Ors. vs. UOI & Ors.
3. Respondents filed their counter reply and vehemently opposed the contentions raised by the applicant in the OA inter alia contended that the applicant and one Sh. Badley Singh 9 OA No. 199/2021 appeared in the examination held on 20.12.1998 for the post of Postman. The result of the examination was declared on 16.03.1999, but due to lower position in the merit list, both of them could not be selected against the vacancies for the year 1998. Thereafter, applicant approached various courts of law for redressal of his grievance and due to pendency of his cases before this Tribunal and the Hon'ble High Court, the order of appointment could be issued to the applicant only on 10.12.2004. It is also contended that the applicant claiming pension on the basis of his service with the respondents as Extra Departmental Delivery Agent (EDDA) since 01.01.1976 is not permissible as per GDS Conduct and Engagement Rule, 1964 applicable to him. According to this rule, there is no provision of pension for GDS employees as they are not considered as departmental employee and the daily duty hours of a GDS are 3.00 to 10 OA No. 199/2021 3.30 hours and not 8.00 hours per day as applicable to other employees covered under pension scheme of the Government. Hence, on the basis of the period during which he was engaged as GDS on 01.01.1976; worked as EDDA since 01.01.1976 to 24.12.2004; and received Time Related Continuity Allowance (TRCA) every month and not any pay, his duty was fixed for minimum 3 to 3.30 hours only being part time job and not full time. Therefore, he cannot claim any pension and other allowances, which were paid to departmental employees.
4. Heard Mr. S.K.Gupta, learned counsel for applicant and Mr. S.N.Verma, learned counsel for respondents and perused the pleadings on record and written submissions filed by both the learned counsel.
5. Based on the aforesaid submission by the respective counsel for the parties, the core issue emerges for consideration in the facts of the 11 OA No. 199/2021 case is to the point as to "whether the denial of consequential benefits" as per the order dated 23.08.2004 passed by the Hon'ble High Court would tantmount to denial of the retiral benefits, i.e., the pensionary benefits and leave encashment to the applicant?"
6. Analysis:
6.1 The legal maxim ―ubi jus ibi remedium‖ means wherever there is wrong there must be a remedy which is guiding principle for all the Courts of law.
6.2 As can be seen, the concept definition of ―consequential benefits‖ has nowhere been defined in any statutory provision/Act in service jurisprudence. The nearest word ―benefit‖ can be determined and analysed in respect of the word ―consequential relief‖, which has been stated under the Court Fees Act and also in terms of Section 34 of the Specific Relief Act.12 OA No. 199/2021
6.3 It would be apt to highlight Section 7(4)(c) of the Court Fees Act, 1870, wherein the word "consequential relief" has been noticed and defined and reads as under:
"7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:--
*********
(iv) In suits--
********** for a declaratory decree and consequential relief.
--(c) to obtain a declaratory decree or order, where consequential relief is prayed."
6.4 Section 34 of the Specific Relief Act, 1963 (Ref : Section 42 Old Act of 1877)¸ reads as under :-
―34. Discretion of court as to declaration of status or right.
--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:13 OA No. 199/2021
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.‖
7. The Full Bench of the Hon'ble Allahabad High Court in Kalu Ram vs Babu Lal And Ors, decided on 22 April, 1932 reported in AIR 1932 All 485 held as under:-
―In our opinion, the expression "consequential relief" in Section 7(4)(c) means some relief which would follow directly from the declaration given, the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief. A consideration of all the Clauses (a) to (f), Sub-section 4, Court-fees Act leads to the same conclusion.
9. The Court has to see what is the nature of the suit and of the reliefs claimed having regard to the provisions of Section 7, Court-
fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court-fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Suppose a plaintiff asks for a declaration that the defendant is liable to pay him money due under a certain bond and also asks for recovery of that amount; or suppose that he asks for a declaration that he is the owner of certain property and is entitled to its possession and asks for recovery of its possession : surely the reliefs for the recovery 14 OA No. 199/2021 of money or for the recovery of possession cannot be treated as a mere consequential relief which can be arbitrarily valued at any low figure and court-fees paid on that arbitrary valuation only. In our opinion where a suit is for the cancellation of an instrument under the provisions of Section 39, Specific Belief Act the relief is not a declaratory one. It falls neither under Section 7(4)(c) nor under Schedule 2, Article 17(3), but, under the residuary article, Schedule 1, Article 1, Court- fees Act. We hold therefore that the court-fee payable on the first relief is governed by Schedule 1, Article 1.‖
8. In the case of Krishna Chandraji vs. Shyam Behari Lal, AIR 1955 Allahabad 177, the Hon'ble High Court of Allahabad observed as under:
―5. According to our view the definition given in the Full Bench case does not mean that all reliefs which flow from the declaratory relief must amount to "consequential reliefs". The definition mentions four ingredients which go to make up the meaning of this expression "consequential relief". The first is that the relief should follow directly from the declaration given; the second is that the valuation of the relief be not capable of being definitely ascertained; the third is that the relief is not specifically provided for anywhere in the Act; and the fourth is that the relief cannot be claimed independently of the declaration as a substantive relief.‖
9. We have, in our Civil Procedure Code, a provision in Order II, rule 2, which is salutary 15 OA No. 199/2021 and which has been accepted in our country, without any criticism, for a fairly long time. Sub-clause (3) of that rule provides that if a person is entitled to more than one relief in respect of the same cause of action, he may sue for all or for any of such reliefs; but if he omits, except with the leave of the Court, to sue for any of such reliefs, he shall not afterwards sue for the relief so omitted.
10. Reference is drawn to a recent judgment passed by the Hon'ble Apex Court in Civil Appeal No. 1382 of 2022 Padhiyar Prahladji Chenaji (Deceased) through L.R.s Versus Maniben Jagmalbhai (Deceased) Through L.R.s and Ors., dated 3.3.2022, wherein it has been held as under:-
―11. From the impugned judgment and order passed by the High Court, it appears that the High Court has not properly appreciated the distinction between a substantive relief and a consequential relief. The High Court has observed that in the instant case the relief of permanent injunction can be said to be a substantive relief, which is clearly an erroneous view. It is to be noted that the main reliefs sought by the plaintiff in the suit were 16 OA No. 199/2021 cancellation of the sale deed and declaration and the prayer of permanent injunction restraining defendant No.1 from disturbing her possession can be said to be a consequential relief. Therefore, the title to the property was the basis of the relief of possession. If that be so, in the present case, the relief for permanent injunction can be said to be a consequential relief and not a substantive relief as observed and held by the High Court. Therefore, once the plaintiff has failed to get any substantive relief of cancellation of the sale deed and failed to get any declaratory relief, and as observed hereinabove, relief of injunction can be said to be a consequential relief. Therefore, the prayer for permanent injunction must fail. In the instant case as the plaintiff cannot be said to be in lawful possession of the suit land, i.e., the possession of the plaintiff is ―not legal or authorised by the law‖, the plaintiff shall not be entitled to any permanent injunction.
11.1 An injunction is a consequential relief and in a suit for declaration with a consequential relief of injunction, it is not a suit for declaration simpliciter, it is a suit for declaration with a further relief. Whether the further relief claimed has, in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.‖
11. This Tribunal is of considered view that if the relief is extended to legal rights of all kinds, 17 OA No. 199/2021 it might, instead of multiplying litigation, lead to its reduction. Needless to say that certainty and security with respect to ordinary legal rights are as important as in the case of proprietary rights. The purpose of Section 34 of the 1963 Act is to afford relief from uncertainty and insecurity with respect to rights.
12. Now, dealing with the term "Consequential benefit" in public law, in Om Pal Singh v. Disciplinary Authority and Ors., (2020) 3 SCC 103, a two Judge Bench of the Hon'ble Supreme Court again considered J.K. Synthetics (supra) and applied the same holding that consequential benefits and continuity of service as also grant of back wages is not a natural consequence of reinstatement. It was noticed in the above decision that the ratio of Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors., (2013) 105 SCC 324 was not brought to the judicial notice of the Tribunal.
18OA No. 199/2021
13. In Deepali Gundu Surwase v. Kranti Junior Adhyapak & Ors., (2013) 105 SCC 324, wherein the Supreme Court was dealing with a case where an employee of a school was terminated. The said termination was set aside by the School Tribunal and reinstatement with full back wages was directed. Upon challenge against the Tribunal's order, the quashing of termination was upheld by the High Court but the direction for back wages was set aside. The Supreme Court considered Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., (1979) 2 SCC 80, which observes that when termination is found to be invalid, award of full back wages is the normal rule. Though, the Supreme Court notes even in Hindustan Tin Works (supra) that there can be no straight jacket formula for awarding back wages.
14. The Court in Deepali Gundu (supra), further analyzed various other decisions on this 19 OA No. 199/2021 issue, including J.K. Synthetics (supra) and culled out the position of law as under:
―33. The propositions which can be culled out from the aforementioned judgments are:
i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors. XXX
iii) The cases in which the Labour Court/Industrial Tribunal exercises power Under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.
iv) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with 20 OA No. 199/2021 the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
v) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-
vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).
vi) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the 21 OA No. 199/2021 judgment is also against the very concept of reinstatement of an employee/ workman.‖
15. The decisions in J.K. Synthetics (supra) and Deepali Gundu (supra) were considered in two Division Bench decisions of the Hon'ble High Court of Delhi in Mahabir Prasad v. DTC, (2014) 144 DRJ 422 and Jagdish Chander v. DTC, 2020 LLR 754, wherein on the basis of the facts of the said case (Mahabir Prasad v. DTC case) reinstatement was directed by the Labour Commissioner, with continuity of service but without back wages. Thereafter, DTC reinstated the workman without any back wages and without any benefits of notional pay fixation, promotion, ACP, increments and withheld pension and terminal benefits also. Challenging this, the Workman claimed that since "continuity of service" was directed, he would be entitled to pension and other terminal benefits.
22OA No. 199/2021
16. In the case of Mahabir Prasad (supra), the Division Bench of the Hon'ble High Court observed as under:
―20. The above discussion reveals that there appeared to be no standard pattern of directing how a reinstated employee is to be given the benefit after reinstatement. In Deepali Gundu Surwase (supra), for the first time, the restitutionary principle underlying reinstatement and other benefits was spelt out and a semblance of uniformity was attempted. If that is to be kept in mind, what is apparent in this case is that the petitioner had to battle for over a decade and a half to secure justice. The Labour Court held that that the enquiry against him illegal; went into the material an found that the charge of misconduct was baseless. It consequently directed reinstatement without back wages. Whilst the denial of back wages is not in question, the Award directed continuity of service. If DTC's contention were to be accepted, the petitioner would stand doubly penalized for the delay in securing justice, plainly for no fault of his. The denial of 15 years' salary would result in his denial of pension, or at least a vastly diminished pension, gratuity and other terminal benefits. If these benefits are denied, the direction to grant continuity of service would be a hollow relief. Furthermore, to restore him in the pay scale at the stage of his termination would be to freeze him in a pay scale that is no longer existent, or at least unrecognizable. It is pertinent that a withholding of 2 increments for two years, with cumulative effect has been held to be a major penalty (imposable only after an enquiry) since the increments "would not be counted in his time-scale of pay" in perpetuity. In other words, the clock would be set back in terms of his earning a higher scale of pay, by two scales. See Kulwant Singh v.23 OA No. 199/2021
State of Punjab 1991 Supp (1) SCC 504. Keeping this in mind, if the petitioner were to be restored in the pay scale at the stage of his termination, it would amount to withholding several increments, and thus be equivalent to imposing a compounded major penalty. 21. Consequently, it is held that the direction to grant continuity meant that the petitioner had to be given notional increments for the duration he was out of employment, in the grade and the equivalent grade which replaced it later, till he reached the end of the pay scale. Since there is no direction to give consequential benefits, the petitioner cannot claim promotion as a matter of right; it would have to be in accordance with the rules. ACP benefits however, should be given. The notional pay fixation would also mean that he would be entitled to reckon the period between his removal and reinstatement as having been in employment for pension, gratuity, and contributions to provident fund etc. This Court directs the DTC to issue an order extending these benefits to the petitioner for the 15 year period between his dismissal in 1995 and his eventual reinstatement in 2011, within eight weeks from today. The writ petition is allowed in these terms; there shall be no order as to costs.‖
17. In the case of Jagdish Chander (supra), reinstatement was directed with full back wages. Upon challenge, the High Court in an LPA had modified this order to deny back wages, but DTC had agreed to not challenge reinstatement, to grant the benefit of continuity of service and to compute pension accordingly. 24 OA No. 199/2021 Thereafter, the Workman was not given ACP benefits and various other benefits. Since the Division Bench in LPA had recorded that it was upholding the award on the basis of DTC's assurance that continuity of service would be given, the Court directed the Workman's pay scale to be fixed by notionally granting him increments and benefits under the ACP scheme, held as under:-
―28. Therefore, what becomes clear from a perusal of the judgment in Mahabir Prasad (supra) is that reinstatement with continuity of service is the norm. While in Mahabir Prasad (supra) the Labour Court had ordered reinstatement with continuity but without back wages, in the present case the Labour Court ordered both reinstatement and full back wages. The DB of this Court modified the Award only to the extent of denying the Petitioner full back wages but acknowledged that the intent of the Award was to grant the Petitioner continuity of service. This is plain from the operative portion of the order of the DB partly allowing DTC's LPA. It explained the rationale for denial of full back wages as follows: ―In our considered opinion, when the corporation has agreed not to challenge the order of reinstatement, extend the benefit of continuity of service and compute the pension on the said factual backdrop. The CAT, in the impugned order, erred in denying the Petitioner the benefit of continuity in service upon reinstatement and in applying the law as explained in Mahabir Prasad (supra) that while this would not 25 OA No. 199/2021 entitle him to promotions, the Petitioner would upon reinstatement be entitled to the increments on the pay scale he was drawing at the time of termination of his services and further that for the purpose of gratuity and pension he would be treated as having been in service throughout.
30. The CAT erred in referring to the decision of the Supreme Court in S. Narsagoud (supra) which has been squarely dealt with and rejected by a subsequent decision of the Supreme Court in Deepali Gundu Surwase (supra). In fact, the CAT failed to take notice of the aforesaid judgments in spite of the Petitioner raising this specific point in his RA No. 39/2016. 31. For the aforementioned reasons, the impugned orders of the CAT are hereby set aside. The Respondent/DTC is directed to: i. Fix the Petitioner's pay scale by notionally granting him the increments and benefits under the ACP Scheme to which he now stands entitled.‖
18. In view of the above discussions, an analogy can be safely drawn that the term "Consequential benefit" in public law would be akin to "Consequential relief" in private law. Illustratively, the ―consequential benefits‖ with reference to Service Jurisprudence except for ‗retiral benefits' would mean and include:-
(i) Back Wages/arrears of pay
(ii) Increments
(iii) HRA and CCA
26
OA No. 199/2021
(iv) Notional Re-fixation of Pay upon reinstatement
(v) Festival Advance/Flood Advance
(vi) Productivity Linked Bonus/ Adhoc bonus variation in variable Dearness Allowance and/or any other admissible allowance as per Rule position.
(vii) Interest
(viii) ACP/MACP
(ix) Seniority
(x) Promotion
19. It is well settled law that ―the pension which is being paid to them is not a bounty and it is for the appellant to divert the resources from where the funds can be made available to fulfil the rights of the employees in protecting the vested rights accrued in their favour‖ as held in the decision by the Hon'ble Apex Court in Punjab State Cooperative Agricultural Development Bank Ltd v. Registrar, Cooperative decided on 11.01.2022. Hence, the grant of pension is a substantive and valuable right to an employee being a vested/accrued 27 OA No. 199/2021 right in his favour as distinct from ―consequential benefit‖.
20. In Om Prakash & Ors. v. Delhi Jal Board, 2015 XAD (Delhi) 448, the Hon'ble High Court while considering a case where reinstatement was directed with immediate effect and whether in such a case regularization ought to have been given to the workman. In such a case the Court held that ‗continuity of service' ought to be read into the relief of reinstatement and directed regularization in accordance with the policy of the Management and held as under :-
"18. In view of the aforesaid decisions, coupled with the fact that while granting the relief of reinstatement even the back wages were also granted. That being so, the mere fact that along with the relief of reinstatement the word "continuity of service"
has not been mentioned does not mean that the said relief was not granted. That being so, the mere fact that the word "with immediate effect" was mentioned in the award does not mean that the Court impliedly declined the relief of continuity of service." 28 OA No. 199/2021
21. In the present case, it is not disputed that full back wages have been awarded to the applicant and granted to him by the judgment of this Hon'ble Tribunal which has been modified to the extent that he shall not be entitled to ―Consequential benefits‖. It appears from the fact and circumstances of the present case that since order of full wages was not modified by the Hon'ble High Court, it would have never contemplated and intended of giving restrictive meaning so as to deny the retiral benefits ―pensionary benefits‖ and ―leave encashment‖.
22. In the case of Netram Sahu Versus State of Chhattisgarh, wherein the Apex court held that after regularization the entire period of service shall be counted for purpose of fixation of pensionary benefits.
23. Further reference has been made to the Judgment of Supreme Court in the case of Civil Appeal No. 3348 of 2015, Secretary, Minor 29 OA No. 199/2021 Irrigation Deptt. and RES Vs Narendra Kumar Tripathi, decided on 07.04.2015, wherein the Supreme Court has allowed all the benefits of ad- hoc services rendered for the purposes of reckoning his seniority and other consequential benefits.
24. In a recent Order passed by the Hon'ble Apex Court in case of Civil Appeal No. 4792 OF 2022 (@ out of SLP (Civil) No.18830/2021) Balo Devi Vs. State of H.P. & Ors decided on 18.07.2022 held as under:-
―The basic question raised in the instant matter is about the entitlement of the husband of the appellant and after his death, the entitlement of the appellant to pension.
2. The matter concerning the rights of a person who had rendered service on daily wage-basis in the State of Himachal Pradesh and whether such daily wage service could be counted for pension was considered by this Court in Civil Appeal No.6309 of 2017 (Arising out of SLP(C) No.34038 of 2012). The order passed by this Court on 08.03.2018 disposing of said matter may be extracted hereunder for facility:
"1. Heard learned counsel for the parties.30 OA No. 199/2021
2. The appellants represent class of Class-IV employees who were recruited initially as daily wagers such as Peon/Chowkidar/Sweeper/Farrash/Mal is/Rasoia etc. Their services, thereafter, were regularized pursuant to the decision of this Court in Mool Raj Upadhyaya Vs. State of H.P. and Ors. 1994 Supp(2) SCC 316 under a Scheme.Regularization was after 10 years of service.
3. It is undisputed that the post- regularization. An employee who had served for 10 years is entitled to pension for which work charge service is counted. Earlier, in terms of O.M. dated 14.05.1998, 50% of daily-wage service was also counted for pension after regularization but the rules have undergone change.
4. Since the appellants have not rendered the requisite 10 years of service they have been denied pension.
5. Even though strictly construing the Rules, the appellants may not be entitled to pension. However, reading the rules consistent with Articles 14, 38 and 39 of the Constitution of India and applying the doctrine of proportionate equality, we are of the view that they are entitled to weightage of service rendered as daily wagers towards regular service for the purpose of pension.
6. Accordingly, we direct that w.e.f 01.01.2018, the appellants or other similarly placed Class-IV employees will be entitled to pension if they have been duly regularized and have been completed total eligible service for more than 10 years. Daily wage service of 5 years will be treated equal to one year of regular service for 31 OA No. 199/2021 pension. If on that basis, their services are more than 8 years but less than 10 years, their service will be reckoned as ten years.
7. The appeal as well as special leave petitions are disposed of in above terms."
25. In present facts of the case, attention is drawn to Casual Labourers (Grant of Temporary Status and Regularisation) Scheme floated by Ministry of Personnel, Public Grievances and Pensions (Deptt. of Personnel and Training, the Scheme envisages,
1. This scheme shall be called "Casual Labourers (Grant of Temporary Status and Regularisation) Scheme of Government of India, 1993."
2. This Scheme will come into force w. e. f. 1.9.1993.
3. This scheme is applicable to casual labourers in employment of the Ministries/Departments of Government of India and their attached and subordinate offices, on the date of issue of these orders. But it shall not be applicable to casual workers in Railways, Department of Telecommunication and Department of Posts who already have their own schemes.
4. Temporary Status
(i) Temporary status would be conferred on all casual labourers who are in employment on the date of issue of this OM and who have rendered a continuous service of at least one year, which 32 OA No. 199/2021 means that they must have been engaged for a period of at least 240 days (206 days in the case of offices observing 5 days week).
(ii) Such conferment of temporary status would be without reference to the creation/availability of regular Group `D' posts.
(iii) Conferment of temporary status on a casual labourer would not involve any change in his duties and responsibilities. The engagement will be on daily rates of pay on need basis. He may be deployed anywhere within the recruitment unit/territorial circle on the basis of availability of work.
(iv) Such casual labourers who acquire temporary status will not, however, be brought on to the permanent establishment unless they are selected through regular selection process for Group `D' posts.
5. Temporary status would entitle the casual labourers to the following benefits:-
(v) 50% of the service rendered under temporary status would be counted for the purpose of retirement benefits after their regularisation.
26. It is not disputed that earlier OA No.1998/99 was allowed by this Tribunal on 02.11.2000. A Writ Petition filed by Union of India against the said decision was also dismissed in limine on 26.02.2001. Respondents did not comply the order passed by this Tribunal on 02.11.2000, which lead to 33 OA No. 199/2021 filing of Contempt Petition No.21/2001. The CP was dismissed with liberty to assail vide order dated 14.12.2001. Thereafter, the applicant preferred yet again another OA No.642/2002 which was allowed vide order dated 09.07.2002. The same was challenged by the respondents in Writ Petition No.7199/2002 titled Union of India vs. Bishambar Singh. The said Writ Petiiton was partly allowed by the Hon'ble High Court wherein the Hon'ble High Court directed as under:
―....we find it difficult to approve the other direction to pay him consequential benefits from the date three other candidates from the 1998 examination were appointed. This part of the direction is accordingly quashed and writ petition partly allowed.‖
27. Thereafter, the respondents issued an Office Order dated 10.12.2004 wherein in pursuance of order dated 09.07.2002 of this Tribunal at Principal Bench in OA No.642/2002 Bishambhar Singh v/s UO1 and others, and the Hon'ble High Court of Delhi Order dated 34 OA No. 199/2021 23.08.2004 in WP(C) 7199/2002, UOI v/s Bishambhar Singh, the applicant was selected for appointment in Postman Cadre in the scale of Rs.3050-75-3950-80-4590.‖
28. Thereafter, the applicant made a representation dated 24.08.2010 but the same was not decided by the respondents, therefore, he filed OA No.562/2012 before Allahabad Bench of this Tribunal. This Tribunal vide its order dated 27.04.2012 directed the respondent No.2 to decide the representation of the applicant. In compliance of the Tribunal's order, respondents passed order dated 17.08.2012 disposing of the applicant's representation dated 24.08.2010 and 07.10.2011.
29. Feeling aggrieved, applicant challenges the aforesaid order dated 17.08.2012 wherein the representation of the applicant has been disposed of. It is also highlighted that vide 35 OA No. 199/2021 DoP&PW OM dated 17.02.2020 on the subject ―Coverage under Central Civil Services (Pension) Rules, 1972, in place of National Pension System, of those Central Government employees whose selection for appointment was finalized before 01.01.2004 but who joined Government service on or after 01.01.2004.‖ Though strict extenso of the said OM shall not be applicable to the facts of the present case inasmuch as, applicant was already working in same category or the other, i.e. casual or otherwise with the respondents. The office order regarding his appointment came to be passed only on 10.12.2004 in compliance of the directions dated 09.07.2002 in the OA No.642/2002 and also directions passed by the Hon'ble High Court in Writ Petition decided on 23.08.2004.
Hence, an analogy can be safely drawn that in the light of the Circular and more particularly Clause-2 (iii) of OM, the applicant could not be appointed due to administrative constraints 36 OA No. 199/2021 including pending Court or CAT cases. Hence applicant is entitled to the reliefs sought for. Moreover, the fact cannot be ignored that the applicant was working as a casual labour since 1976.
Conclusion:
30. In view of the foregoing, this Tribunal is of the considered view that the applicant is entitled to pension and leave encashment.
Therefore, respondents are directed to compute the pension on the said factual backdrop as per Rule Position in the light of Balo Devi (supra). The service rendered by the applicant as a regular employee may first be computed. Thereafter, 50% of the service rendered under temporary status (casual labour) would be counted for the purpose of retirement benefits, i.e. pension. On adding both the components, as stated herein above, finding that the applicant has completed the length of service to a level of more than 30 37 OA No. 199/2021 years, this Original Application is allowed. It is directed that appropriate PPO order regarding his pension be issued with effect from the date of his superannuation. However, it is directed that the applicant would be entitled to pension w.e.f. 01.03.2013 (date of filing the present OA) and also leave encashment benefits as stated above. Appropriate PPO order be issued after necessary adjustments, if any. All the arrears in that behalf shall be calculated and paid to him within a period of three months from the date of receipt of certified copy of this order, failing which the applicant shall be entitled to interest at GPF rates till the date of actual payment. There shall be no order as to costs.
(Manish Garg) Member (J) /sd/