High Court · 2012

tive Tribunal, Guwahati, in O.A. No.33 of 2006. 2. We have heard learned Senior counsel, Mr. T.C. Khetri, assisted by learned counsel, Mr. G.P. Bhowmik for the petitioner and learned Standing Cou nsel, Mr. U.K. Nair for the respondents-N.F. Railway. 3. n stage itself, with the consent of learned counsel of both side. 4. The writ petition is taken up for final disposal at the admissio FACTS. Biswanath Banerjee, the predecessor of the present petitioner (h ereinafter referred to as ’petitioner’), was appointed on 22.07.1972, as Stenogr apher of N.F. Railway and, was posted under the Works Manager, N.F. Railway, Mec hanical Workshop, Dibrugarh. He was performing his duties with sincerity and dev otion and was promoted to the post of Confidential Stenographer and, was serving in the office of the DRM (Mechanical), N.F. Railway, Tinsukia, w.e.f. 08.08.198 0. He fell sick and went on leave w.e.f. 31.05.1988 to 02.06.1988 and was suppos ed to join on 03.06.1988, but he could not resume his duties and continued to re main on leave for his sickness. He applied for fitness certificate but the autho rized medical officer of the respondents did not grant him medical fitness certi ficate and, therefore, prevented him from resuming his duties. By a letter, date d, 18.11.1988(Annexure-B to the writ petition), the respondents asked him to rep ort to ADMO/MJN or DMO/TSK for medical examination. Thereafter, he received a ch arge sheet, dated 06.10.1989, proposing major penalty for his unauthorized absen ce from 18.06.1988. In response thereto, he submitted defence statement but the inquiry officer was appointed only on 28.09.1992. It is alleged by the petitione r that on 28.09.1992, a summary enquiry was held, which was not according to the rules applicable to the railway servants. But after the enquiry, no report was supplied to him and, therefore, he approached the Central Administrative Tribuna l(hereinafter referred to as the ’Tribunal’), Guwahati, by filing O.A. No.99 of 1994. The Tribunal by order dated 08.08.1995 dismissed the petition observing- (cid:28) & & & &in the peculiar situation where he is neither on duty nor his services are te rminated what the respondents should do or the applicant should do is a matter f or those parties to consider. (cid:29) The petitioner produced no copy of that judgment with the writ petition. 4.1 After the order, dated 08.08.1995, was passed, the respondents, by order, dated, 02.12.1996(Annexure-E to the writ petition), appointed a Board of Enquiry to hold a de novo enquiry against the petitioner on the basis of the allegation made against the petitioner. 4.2 The petitioner challenged the order, dated 02.12.1996, by filing O.A. No.60 of 1997, on 19.03.1997, before the Tribunal with a prayer to direct the respondents to allow him to resume the duties and to treat the period from 1 8.06.1988 as ’on duty’ along with other consequential benefits. In the meantime, the Board of Enquiry, constituted vide order, dated 02.12.1996, was cancelled b y a letter, dated, 01.07.1997, issued by DRM(P), Tinsukia, and further observed that before finalizing the disciplinary proceeding drawn against the petitioner, he should be given an opportunity of being heard regarding the unauthorized abs ence w.e.f. 09.07.1988 for violation of Rule 3(i)(ii)(iii) of Railway Service Co nduct Rules. 4.3 It is further stated that O.A. No.60 of 1997 was disposed of by judgment and order, dated 04.02.2002(Annexure-G to the writ petition), observing that the petitioner may submit representation to the competent authority of the respondents in regards to his absence from duties within a month from the date of receipt of a copy of that order and the respondents shall communicate by a sp eaking order in that regard to the petitioner. It was further stipulated in the order that the petitioner, if still feel aggrieved, he may agitate before the ap propriate authority. 4.4 Being aggrieved with the aforesaid order, the petitioner preferr ed WP(C) No.1166 of 2000 before this Court, challenging order, dated, 04.02.2000 , passed by the Tribunal, in O.A. No.60 of 1997, and this Court, by an order, da ted, 15.03.2000(Annexure-H to the writ petition), upheld the order of the Tribun al and directed the petitioner to make his representation before the Railway aut hority within a period of three weeks and further directed the respondents to co mplete the proceeding within a period of six weeks of submission of the represen tation by the petitioner. 4.5 It is submitted by the petitioner that pursuant to the order pas sed by this Court, dated 15.03.2000, the petitioner submitted representation on 17.04.2000 before the respondents authority, but the respondents authority dispo sed the representation by a non-speaking order, dated 12.06.2000, attributing al legation that the petitioner was not willing to abide by the lawful instructions of the competent authority and that he has violated different provisions of Rai lway Service Rules. Thereafter, on finalizing the disciplinary proceeding, the d isciplinary authority, by impugned order, dated, 12.06.2000(Annexure-I to the wr it petition), imposed on the petitioner the penalty of removal from service w.e. f. 12.06.2000. The petitioner, being aggrieved, preferred an appeal, on 01.08.2 4.6 000 before the DRM, N.F. Railway, Tinsukia, i.e., the appellate authority, and t he appellate authority, considering the prayer of the petitioner, by order, date d, 07.12.2000(Annexure-J to the writ petition), modified the order of punishment of removal to a punishment of reduction to the lowest stage of pay scale of the petitioner with adverse future effect. The relevant part of the order, dated 07 .12.2000, reads as follows: (cid:28)After personal hearing on 02.11.2000, DRM/TSK, the appellate authority, has pas sed the following Orders:- (cid:28)However, on ground of mercy I modified the punishment as reduction to t he lowest stage in his present pay scale with adverse future effect. his resumpt ion of duty is subject to his being found fit by the Medical authority of the ap propriate level and also the employee furnishing relevant records/certificates a bout his alleged illness/outside treatment to the satisfaction of the appropriat e authority. After this requirement is complied with the regularization of the e ntire period of absence (from 1988 to till date of resumption of duty) as due le ave can be considered. (cid:29) As such, you are hereby advised to report to this Office immediately wit h proper medical Certificates covering the period so as to consider you to direc t to the Rly. Medical authority for obtaining D.E.C. for resumption to duty. (cid:29) Being dissatisfied the petitioner submitted representation, date 4.7 d 16.01.2001, before the authority, seeking a speaking order/clarification of or der, dated, 07.12.2000 and, accordingly, the appellate authority passed order, d ated 22.01.2001(Annexure-K to the writ petition), and directed the petitioner th us: (cid:28) & & & & &As such, you are hereby advised to report to this office within 15(fifteen ) days from the date of receipt of this letter with proper medical Certificates covering the period so as to consider you to direct to the Railway Medical autho rity for obtaining D.F.C. for resumption to duty, failing which it will be presu med that you are not willing to report for duty and order of Penalty as passed b y the Disciplinary Authority will hold good. (cid:29) The petitioner still remained aggrieved and submitted a revision 4.8 al application on 08.03.2001 before the General Manager, N.F. Railway, Maligaon, but received no response.

4.9 Thereafter, the petitioner filed O.A. No.290 of 2002 before the Tribunal and, thereby, challenged the order passed by the appellate authority se eking the following relief(s): (cid:28)(i) Setting aside the order of the respondent no.2 the Appellate Authority issu ed under no. ES-B/334 dated 7.12.2000 and the order no.ES-B/334 dated 22.1.2001 and the order of removal from service dated 12.6.2000 passed by the respondent n o.3. (ii) To set aside and quash the major penalty charge sheet dated 06.10.1989 as i nvalid and void ab-initio. (iii) To direct the respondent to allow the applicant to resume duty without imp osing any condition. (iv) Directing the respondent to treat the period from 18.6.88 till resumption o f duty as on duty and to give him all consequential benefit the applicant is ent itled on the law and equity. (v) To pass any other order or orders as deem fit and proper by the Tribunal. (cid:29)

4.10 The Tribunal, after hearing both sides, by order dated 27.02.200 4(Annexure-L to the writ petition) disposed O.A. No.290 of 2002 with following o bservation: (cid:28)4. Having regard to the rival contentions, in the circumstances, the O.A is dis posed of with a direction to the applicant to produce all his relevant medical c ertificates from 1988 to till the filing of O.A.99/1994. The same shall be consi dered by the respondents and a decision would be taken by them within one month from the filing of the certificates. Thereafter the applicant would be allowed t o resume duties and the intervening period would be decided as per our observati ons made above. No costs. (cid:29)

4.11 Thereafter, pursuant to above order, the petitioner submitted re presentation with all medical documents, on 18.03.2004, and, by an order, dated 25.05.2004(Annexure-M to the writ petition), the respondents allowed the petitio ner to resume his duties and, accordingly, the petitioner resumed his duties on 26.05.2004. 4.12 The petitioner made prayer for back wages and for regularization of his service from 31.05.1988 to the date of resumption of duties i.e. 26.05.2 004, contending that from 31.05.1988 to 20.04.1999, he could not resume duties o n medical ground and that from 21.04.1994 to 12.06.2000, because of removal from service due to disciplinary proceeding and that from 13.06.2000 to resumption o f duty, i.e., 26.05.2004, spent for reinstatement in duty. The prayer of the petitioner, since, was not considered, he appr oached the Tribunal, by filing O.A. No.33 of 2006, and the Tribunal disposed the petition by impugned order dated 25.02.2008(Annexure-N to the writ petition), o bserving thus: (cid:28)I have considered the arguments and submissions made by the learned cou nsels appearing for both the parties and have gone through the records placed be fore me. In O.A.99/1994 this Tribunal passed the order (08.08.1995) holding that (cid:28)Neither in limitation nor on merits any relief can be granted on the frame of this application, which does not disclose any cause of action or a grievance whi ch can be redressed under the law. In the peculiar situation where he is neither on duty, nor his services were terminated what the respondents should do or the applicant should do is a matter for those parties to consider (cid:29) and while dispos ing of the application for the reliefs (cid:28) to regularize the period of absence fro m 03.06.1988 onwards till his resumption of duty treating the period on leave (cid:29) a s sought for by the Applicant was rejected. The arguments of the learned counsel for the Applicant regarding the principle of (cid:28)no work no pay (cid:29) has to be seen in the light of the facts of the case. Had the Respondents at any stage refused to give him work he would have been entitled to the back wages for the period of h is absence under the principle of no work no pay but in the instant case Applica nt willfully remained on unauthorized absence which ultimately resulted in his d ismissal and(on appeal) reinstatement in lowest scale of pay in the grade. There fore, the principle of (cid:28)no work no pay (cid:29) does not entitle him for any back wages. The applicant’s prayer for the relief (cid:28)directing the respondents to pay all arr ears of salary and allowances from 18.06.1988 till 26.05.2004 by giving effect o f his due increments, revision of pay scale and benefit under Assured Career pro gression(ACP) Scheme (cid:29) in the light of the above discussion and citations is devo id of any merit and does not merit consideration. It is for the Respondents to t reat his unauthorized absence according to the rules and regulations of the Depa rtment. 6. Accordingly this O.A. being devoid of any merit is dismissed and a cost of Rs .1000/- is also levied on the Applicant for filing the futile litigation. (cid:29) The above order, dated 25.02.2008, is under challenge in this wr

5. it petition. Learned counsel, Mr, Khetri, appearing for the petitioner has su 6. bmitted that the petitioner was all along willing and ready to join his duty for which he made numerous representations to the respondents but the respondents d id not allow him to join duty and, thereby, restrained him from performing his d uties for which the petitioner cannot be held responsible and, therefore, he is entitled to get all his service benefits including back wages. In support of his contention, learned counsel relied on a case law, reported in (1998) 9 SCC 559( J.N. Srivastava v. Union of India & Ors.), and referring to that decision, learn ed counsel, Mr. Khetri emphasized that the observation of the Tribunal on the pr inciple of (cid:28)no work no pay (cid:29) cannot be applied in the case of the petitioner, sin ce the petitioner was prevented by the action and/or inaction of the respondents from performing his duties and, therefore, he cannot be deprived of his service benefits. In contrast, learned counsel, Mr. Nair has submitted that the pe 7. titioner was unauthorizedly absent from duties for fifteen years eleven months s even days and, even after he was asked by the respondents on repeated occasions to resume his duty and for regularizing his absence by producing appropriate med ical documents, the petitioner paid no heed to the letters and, thereby, had giv en goodbye to the official norms and ethics and violated the provisions of the c onduct rules. He deliberately disobeyed the direction of the superior authority and, on flimsy ground, approached the Tribunal as well as this Court, which is e vident from the orders passed, as refereed by the petitioner in the writ petitio n. He was removed from the service on valid ground of unauthorized absence. Pure ly on compassionate ground and showing mercy, he was reinstated with adverse eff ect and, since, he was found guilty of misconduct, he cannot claim the back wage s or other service benefit. 8. Admittedly, the petitioner filed O.A. No.33 of 2006, before the Tribunal seeking back wages and other service benefits, which has been dismissed by the Tribunal, with cost by order dated 25.02.2008. The said order has been c hallenged in this writ petition. Order of the Disciplinary Authority dated 12.06.2000 (Annexure-I ) and Appellate Authority dated 07.12.2000(Annexure-J), inflicting punishment fo r unauthorized absence, was challenged before Tribunal by filing O.A. No.290 of 2002, which has been disposed by Tribunal by order dated 27.02.2004, and the Tri bunal did not interfere with the order of punishment passed by the Appellate Aut hority. The order of punishment, therefore, stands good, since not challenged be fore any other superior forum. In the circumstances, this Court is only required to see the leg ality and propriety of the impugned order dated 25.02.2008, passed by the Tribun al in the given facts and circumstances of the case and whether the petitioner i s entitled to back wages and other service benefits for the period for which he was found guilty of unauthorized absence. The Supreme Court in the case of A.P. SRTC & Anr. v. B.S. David 9. Paul reported in (2006) 2 SCC 282, referring to several other previous judgments , A.P. SRTC v. Abdul Kareem reported in (2005) 6 SCC 36, Rajasthan SRTC v. Shyam Bihari Lal Gupta reported in (2005) 7 SCC 406, State Bank of India v. Ram Chand ra Dubey reported in (2001) 1 SCC 73, State of U.P. v. Brijpal Singh reported in (2005) 8 SCC 58, has held that back wages cannot be a natural consequence of re instatement. We may gainfully refer here paragraph 8 of the judgment, which read s thus: (cid:28)8. The principle of law on point is no more res integra. This Court in A.P. SRT C v. S. Narsagoud : (2003) 2 SCC 212 succinctly crystallised the principle of la w in para 9 of the judgment on SCC p.215: (cid:28)9. We find merit in the submission so made. There is a difference between an or der of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessa rily flow from reinstatement or accompanied by a specific direction that the emp loyee shall be entitled to the benefit of the increments earned during the perio d of absence. In our opinion, the employee after having been held guilty of unau thorised absence from duty cannot claim the benefit of increments notionally ear ned during the period of unauthorised absence in the absence of a specific direc tion in that regard and merely because he has been directed to be reinstated wit h the benefit of continuity in service. (cid:29) In the case of Kanailal Bera v. Union of India reported in (2007 ) 11 SCC 517, the Supreme Court, in the given facts and circumstances of that ca se, has held that it is now trite law that back wages cannot be directed to be g ranted automatically. Several factors are required to be taken into consideratio n therefor. We may now turn to the facts and circumstances of the present ca se. Order passed by the disciplinary authority, dated 12.06.2000, makes it clear that on repeated occasions, by writing letters, the petitioner was asked to res ume his duties but the petitioner failed to comply the order and, on the contrar y, approached the Tribunal again and again on this or that ground. The allegatio n that the petitioner was not allowed to join his duties, by not providing him t he medical fitness certificate, cannot be solely attributed to the respondents. The petitioner fell ill and went on leave for the period from 31.05.1988 to 02.0 6.1988 and, thereafter, he was unauthorized absence from duties, which is eviden t from the materials on record, and, therefore, while the petitioner remained on unauthorized absence, at his peril, and the reason for such unauthorized absenc e attributable to him, he cannot claim the benefits of back wages and other serv ice benefits as well. The case law referred by learned counsel, Mr. Khetri, is i n respect of a person, who applied for voluntary retirement but had withdrawn th e application before the intended date, which was not allowed and, thereby preve nting him in performing his job and, in that case, the Supreme Court was pleased to allow the wages to the petitioner. The case of the present petitioner is com pletely different in the sense that he was unuthorizedly absent and was found gu ilty of the offence of such unauthorized absence and, so, the ratio of that deci sion cannot be applied in case of the petitioner. The petitioner was found guilty of misconduct for unauthorized a bsence and the finding of such guilt stands good. He has joined his duties on 26 .05.2004, accepting the order of disciplinary authority/appellate authority, whi ch has not been interfered by the Tribunal. Therefore, the period of absence, fo r which he was held guilty of misconduct, he cannot be rewarded with wages and o ther service benefits. In the factual background of the case, we find no justification for taking a different view than that what has been taken by the Tribunal in res pect to back wages and other service benefits of the deceased petitioner. The pr inciple, ’no work no pay’, in the facts and circumstances of the case, where the petitioner did not perform his duties, for the reason attributable to him, for which he has been found guilty of misconduct and that guilty finding stands good , we find no justification in the writ petition of the petitioner to direct the respondents for payment of back wages of the period for which he was not on duty . The judgment and order of the Tribunal suffers from no infirmity and deserves no interference. 10. rdingly, stands dismissed but in the circumstances without cost. The writ petition is, therefore, found devoid of merit and, acco