Central Administrative Tribunal - Delhi
Smt.Usha Chaturvedi vs Union Of India Through on 22 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO.1938/2009 MA NO.1862/2010 NEW DELHI THIS THE 22nd DAY OF FEBRUARY, 2011 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Smt.Usha Chaturvedi Widow of Late Shri N.N. Chaturvedi Retd. Asst. Commercial Superintendent, Eastern Railway, 91, Chander Nagar, Dehradoon-248001 Applicant (By Advocate: Ms. Rachna Joshi Issar) VERSUS 1. Union of India through The Secretary, Ministry of Railway, Rail Bhawan, New Delhi. 2. Deputy Director, Estt. (GR) Railway Board, New Delhi Respondents (By Advocate: Shri Shailendra Tiwary) : O R D E R : DR. RAMESH CHANDRA PANDA, MEMBER (A) :
Smt. Usha Chaturvedi, the Applicant herein, is the widow of late Shri N.N. Chaturvedi who was working as Assistant Commercial Superintendent (in short ACS) and retired from the said post. She has approached this Tribunal with the following prayers:-
A. Direct the Respondents to fix the pay and other emoluments including pension of the deceased employee, taking into the pay scale and post held by him on the appointed dated i.e. 30.12.1985 was to be protected as required by:
a) Provisions (Section 10 etc.) of Futwah-Islampur Light Railway Line (Nationalization) Act, 1985, an act of Parliament, read with Railway Boards instructions dated 15.1.1986 and 8.4.1986.
b) Decision dated 28.9.1989 passed by C.A.T., Patna Bench in OA No.107/88 (which has attained finality) wherein the Honble Bench held that the Railway Board does not have the authority to fix the terms of employment contrary to the statutory provisions of Futwah-Islampur Light Railway Line (Nationalization) Act, 1985.
B. Pass an order directing/commanding the Respondents to extend all the accumulated benefits of H.R.A./C.C.A., bonus, encashment of leave, kept back amount of provident fund accrued to the deceased employee since the date of take over and also to release the amounts towards such benefits to the Applicant at the earliest.
C. Quash the order dated 10.6.1997 and letter dated 7.2.2008 and declare them as non est illegal and direct the Respondents to treat the deceased employee equivalent to the post, grade and pay-scale which he was legally entitled to on the appointed day and grant the consequential relief and benefits due till his retirement; and D. Pass any other relief which the Honble Tribunal may deem fit and proper to meet the ends of justice.
2. We heard Ms.Rachna Joshi Issar learned counsel for the Applicant and Shri Shailendra Tiwary, the learned counsel for Respondents. Shri Tiwary raised preliminary objection of limitation, as the cause of action in the present case arose on 30.12.1985. Thus, we intend to consider this preliminary objection of limitation in the first instance.
3. We may refer to the factual matrix, which are relevant for consideration and determination of the above controversy. Late Shri Chaturvedi (in short deceased employee) was working in the post of Traffic Inspector in Futwah in the Islampur Light Railway Company (in short Private Railway Company) in 1953. The Central Government took over the said Railway Company by an Act of Parliament (Futwah- Islampur Line (Nationalisation) Act, 1985) (in short Nationalisation Act) in the year 1985 (w.e.f. 30.12.1985). The deceased employee, at that time, joined the Eastern railways of the Central Government on absorption basis due to the Nationalization Act, 1985. The Section 10(1) of the said Act provided that every person who had been, immediately before the appointed day, employed in any of the undertaking of the said company would, on and from appointed day i.e. 30.12.85, become an employee of the Central Government with the same rights and privileges as to pension, gratuity and other matters as would have been admissible to him if there had been no such vesting and, would continue to do so unless and until his employment under the Central Government was duly terminated or until remuneration and other conditions of service were duly altered by the Central Government.
4. The deceased employee underwent appropriate training while working in the Private Railways company and was promoted to the rank of Deputy Traffic Superintendent in the year 1980 and, subsequently promoted to the post of Traffic Superintendent-I in the year 1982. As the deceased employee was working as Traffic Superintendent with the Private Railway Company drawing a pay of `1600/- in the pay scale of `1600-50-1800, he was entitled to protection of his pay as on 30.12.1985 and should have been absorbed in the equivalent pay scale of `1500-2000 in the Indian Railways, as the said pay scale was admissible to the Traffic Superintendents in the Eastern Railway.
5. The deceased employee was absorbed in the Eastern Railway on 30.12.1985 and was posted as ACS in Danapur Division of Eastern Railway. It is the case of the Applicant that his pay was fixed in an arbitrary manner in the pay scale of `650-1200 in the Eastern Railway w.e.f. 30.12.1985. It is further the case of the Applicant that the deceased employee was discriminated as his other colleagues were given appropriate protection of the pay and the pay scale. The deceased employee met the General Manager, Eastern Railway on 22.8.1987 narrating the entire details of his record and the injustice meted out to him contrary to the statutory provisions of the Nationalization Act. He was informed that similar grievances of many other similarly placed employees were already under their consideration and they would look into his grievances and redress the anomaly as early as possible. In the meantime, the deceased employee again visited the General Manager, Eastern Railway for expediting the fixation of his pay and was advised to wait for the outcome of the OA No.107/1988 as the similar issue was agitated by the similarly placed employees in the said OA before the Patna Bench of this Tribunal. He was also advised that the judgment in rem would cover his case and, therefore, he should wait for the outcome of the OA. It is further stated that the said OA was decided vide order dated 28.9.1989 wherein the Patna Bench of this Tribunal held the same as follows:-
In view of the clear statutory provision in the Act conferring upon the erstwhile company employee the right to hold office or service under the Central Government with the same rights and privileges as would have been admissible to them if there had been no such vesting, the Railway Board does not have the authority to conduct the screening so as to find out their suitability for the rights and privileges guaranteed to them by the statute. No doubt, there is an enabling provision in sub-section (1) of section 10 of the Act conferring power upon the Central Government to duly alter their remuneration and other conditions of service. What has been done by the Respondents is not sought to be supported under the aforesaid provision nor can it be so done.
6. It is stated by the Counsel for the Applicant that as the Respondents did not agitate against the above order in the higher judicial fora, the said order of the Patna Bench of this Tribunal attained finality. However, it is argued that in spite of the several reminders submitted by the deceased employee, the Respondents denied him, his legitimate and rightful fixation of his pay as required under Section 10 (1) of the Nationalization Act 1985. It is the case of the Applicant that the decision of the Tribunal in the said OA clearly directed the authorities that Railway Board did not have the authority to fix the terms of employment contrary to the statutory provisions of the Nationalization Act, 1985. Therefore, the Applicant submitted one more representation to the Chief Personnel Officer, Eastern Railway, Calcutta on 26.9.1989 seeking redressal of his grievance as per the decision of the Patna Bench. The said representation remained unattended to by the Respondents. The deceased employee retired from service in 1989 and, thereafter, he continued to give his representations dated 12.9.1991, 17.9.1991, 09.10.1991, 21.12.1993 and 18.02.1994. However, on 30.3.1994, the Respondents sent the application/representation dated 18.2.1994 to the General Manager, Eastern Railway, Calcutta seeking para-wise comments in order to process the representation of the deceased employee. However, since he did not received any response, he wrote a letter to Minister of State for Railways on 20.7.1996 requesting his intervention as the injustice meted out to him had been continuing. It is the case of the Applicant that the deceased employee was also agitating to get benefits under the Nationalization Act and more specifically financial benefits like bonus, house rent allowance and leave encashment which were not extended to him. Even the provident fund amount was kept back and was not released to the Applicant despite representations and reminders. In the meantime, vide letter dated 10.6.1997 (page 70) the Deputy Director, Estt. (G.R.) Railway Board replied him stating that his representation was considered but was not agreed to. The said order is termed by the counsel for the Applicant as non-speaking and non-reasoned one. The deceased employee passed away on 13.10.2007. The Applicant, the widow of the deceased employee, sought certain information under Right to Information Act,2005 She was replied vide letter dated 07.2.2008. The Applicant was given the following information (page 71):
Right to information Act-2005 Eastern Railway No.E.800/GAZ/1713 Kolkata. Dt. 07.02.2008.
Smt.Usha Chaturvedi, W/o late N.N.chaturvedi, 91, Charder Nagar, Dehradun (Uttarakhand) Sub: Information sought under RTI act -2005 Reg: Your letter dated nil.
.
Reference above. The information as sought for under your letter mentioned above is given below in juxtaposition:-
1) In terms of Boards letter No.E(G)85TR-4/6 dt. 15.1.86, the screening committee was constituted and with the recommendation of the screening committee Shri N.N.Chaturvedi, Traffic Supdt. of Ex.Futwan Islampur Light Railway was proposed to be absorbed in Commercial Department as Asstt. Commercial Officer in scale of Rs.650-1200/- (RS) by General Manager vide his letter No.E.890/F.I.Rly/LSTC dt. 10.3.86 and the recommendation was sent along with service particulars and pay particulars of Shri Chaturvedi for Boards approval. Rly. Board vide their letter No.86E(GR)1/16/8 dated 20.5.87 issued order for absorption of Shri Chaturvedi in Gr. B . Subsequently, Shri Chaturvedi as ACS(II)/DNR was issued on 10.8.87 ad he took over the charge of the post on 25.8.87(AN).
2&3) His pay was fixed at Rs.650/- w.e.f. 30.12.1985 in scale of Rs.650-1200/-(RS) and Rs.2000/- in scale Rs.2000-3500/-(RP) w.e.f. 1.1.86 on proforma basis and actual benefit was allowed w.e.f. 25.8.87(AN) i.e. the date from which he took overl the charge of the post of ACS/DNR. This was also brought to the notice of Railway Board. Boards decision was communicated to Late Shri N.N.Chaturvedi. A Xerox copy of Boards letter dated 10.6.97 is further enclosed as ready reference.
DA: As refd. To ( V. Jain ) Dy.CPO(NG)-cum-APIO For Chief Personnel Officer. The above referred letter has an enclosure of the earlier letter dated 10.6.1997 (page 72) sent to the deceased employee, which reads as follows:
The representation of Shri N.N.Chaturvedi, Retired A.C.S./Danapur, Eastern Ralway have been considered in this office in consultation with associate finance of Railway Board but has not been agreed to. Since Shri Chaturvedi has been absorbed in Group B cadre in scale Rs.650-1200(RS) as on 3012.85,there is no possibility at this stage to protect his pay as drawn in the company Railway.
7. Seeking justice from the Respondents the Applicant sought some more information under RTI having not received any response, she approached this Tribunal in the present OA.
8. We advert to the principal issue i.e. the preliminary objection of limitation raised by Shri Shailendra Tiwary, learned counsel for the Respondents. He contended that the Railway Board already considered his representation and passed speaking and reasoned order as far back as on 10.6.1997. The deceased employee did not challenge the said order during his life time and passed away on 13.10.2007, and the Applicant has approached the Tribunal in the year 2009 after about 12 years. Therefore, he submits that the present Original Application is time barred and should be dismissed on this ground alone.
9. Shri Tiwary relied on the judgment of Honble Supreme Court in the matter of Parma Sivam & Others Versus Union of India & Others [(2003) 12 SCC 270] to say that since the anomaly in pay and in the pay scale of petitioners in the said case arose as early as on 12.1.1976, the petitioners should have raised objections regarding the same at that point of time. Further, even after retirement they did not take any step till 1995. Therefore, Honble Supreme Court upholding the views of this Tribunal rightly decided that the matter was barred by limitation and rejected the claim on the ground of limitation.
10. He further relied on the judgment of Honble Supreme Court in the matter of State of Orissa Versus Chandra Sekhar Mishra [(2002) 10 SCC 583], where services of the Respondent were terminated with effect from 31.1.1978 and Respondent did not approach the Tribunal within the period of limitation the Honble Supreme Court held that the Tribunal erred in entertaining the said claim after the limitation period.
11. Mrs. Rachna Joshi Issar, learned Counsel appearing on behalf of the Applicant highlighting the background of the case contended that the statutory provision mandated by the Nationalization Act would be a continued cause of action. The present case being dependent on such provisions, the law of limitation would not be applicable.
12. Further, learned counsel for the Applicant submits that the OA is well within the time of limitation for seeking the remedy before the Tribunal as the Respondents furnished the details only in the year 2008 when the Applicant sought information under RTI Act. Moreover, she contends that the pay fixation as per the binding statutory provisions being a continuous process and as the grievance is persisting the OA should not be dismissed on the ground of limitation. She submits that it was wrong to state that the pay fixation claim was filed after the gap of 12 years. On the other hand, the deceased employee had been raising this issue right from the date of his absorption in the Indian Railways. She submits that the deceased employee retired in 1989 but after considerably period of time i.e 8 years, on 10.6.1997 the order was passed by the Respondents which was in contravention of clear statutory provisions. She contended that the ratio of Honble Supreme Court in the matter of Parma Sivam (supra) and Chandra Sekhar Mishra (supra) would not be applicable to the present case. She urges that delay should be condoned and case should be considered on its merits. Denial of the pay to the deceased employee and consequently the family pension to the present Applicant are continuous cause of action for which the delay, if any, should be condoned.
13. The Applicant filed this OA on 1.7.2009. Admittedly, the deceased employee was absorbed in Eastern Railways on 30.12.1985 which is the date of his absorption and the cause of action arose for the first time on that day. The period taken in this context is about 23 years. He represented to the Respondent in service and after retirement in 1989, and received a reply in 1997 rejecting his request. But in respect of the delay in filing the OA by the widow of the deceased employee, it is apt to mention that the deceased employee was absorbed in the Indian Railways on the basis of the provisions of the Nationalization Act 1985 with effect from 30.12.1985. His pay was fixed subsequently and ultimately retired from his service in the year 1989. His many representations given to the Respondents, having been considered an order was issued in 1997. The OA filed before this Tribunal on 01.7.2009 indicates clearly that even from the date of said order of 1997 there has been avoidable and inordinate delay of about 12 years.
14. As per Section 19 of the Administrative Tribunals Act 1985, a person aggrieved by any order pertaining to any matter within the jurisdiction of this Tribunal should make an application to the Tribunal for redressal of his grievances. As per the limitation prescribed in the Section 21 of the said Act, the Tribunal has been mandated not to admit an application in case where a final order such as mentioned in Clause(a) of Sub Section 2 of Section 20 has been made in connection with the grievances unless the application is made within one year from the date on which such final order has been made. In the present case, the final order was passed in the year 1997 and the OA was filed in 2009 clearly after a period of 12 years. If we take the case of representations filed by the Applicant before the Competent Authority of Indian Railways, the delay would go beyond 20 years. The delay can be condoned under Section 21 (3) provided the Applicant satisfies this Tribunal that she has sufficient case not making application within a prescribed period under the Act.
15. The main ground taken to over come the delay is about the intimation received by the Applicant under RTI in the year 2008. The reply of the Respondents given in the year 2008 has a letter of 10.6.1997. Such information received under RTI does not extend the period to file the OA.
16. Another ground was about the frequent representation given by the Applicant right up to the year 2008. It is trite law that the frequent representation does not extend the period to file an Original Application before this Tribunal. The learned Counsel for the Applicant took the stand that pay and pension fixation being continuous cause of action, law of limitation would not apply for the present case. We find from the pleadings that these issues were decided by the Respondents as far back as in the year 1997. There is no convincing ground on behalf of the Applicant to come to the Tribunal after lapse of 12 years.
17. Honourable Supreme Court considered the law of limitation in the matters of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation [2010-5-SCC-459] and observed as follows:
"law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582."[Emphasis added]
18. In the light of the above ratio, we find that the Applicant had not offered any reasonably acceptable explanation for the long delay of more than 12 years in filing of this OA. We wonder how she was justified in condoning the delay. There is no application for condonation of delay, nor the grounds raised by the Applicant in the OA and the contentions raised during the hearing are convincing.
19. In view of the above facts and circumstances of the case and well settled position in law on the matters of limitation, we are of the considered opinion that the OA is hit by limitation and barred by delay and latches. Therefore, we are not going into the merits of the case. Thus, the OA is dismissed on the ground of limitation alone. There is no order as to costs.
(DR. RAMESH CHANDRA PANDA) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) /jk/