Union of India v. Brij Mohan

Brief facts of the case are that the respondent joined the Rail Coach Factory, Kapurthala as Apprentice Chargeman in July, 1987 and on completion of the training period he was posted as Chargeman 'B' in July,

1989. On 7.7.1992, the petitioner- railway administration considered the claim of the eligible persons for promotion to the post of Chargeman 'A' and respondent was over-looked for promotion. The respondent challenged the action of the petitioner-railway administration in not promoting him to the post of Chargeman 'A' by filing OA No. 757/Pb/94 before the Tribunal. The Tribunal vide its order dated 24.9.2001 dismissed the Original Application. The respondent then approached this Court by filing CWP No. 4072-CAT CWP No. 15435-CAT of 2009 2 of 2002 which was disposed of by a Division Bench of this Court on

17.5.2006. The operative part of the order reads thus : “ In the facts and circumstances noticed above, we are satisfied, that the consideration at the hands of the respondents, details of which have been extracted hereinabove, deserves to be set aside. The same is accordingly set aside. The competent authority shall re-examine the claim of the petitioner for promotion to the post of Chargeman 'A' with effect from the same date, as it was earlier considered and rejected, based on the performance of the petitioner, depicted in his three annual confidential reports, and also, in terms of Rule 214, extracted above. The aforesaid exercise be completed within a three months from the date of receipt of a certified copy of this order. In case, the claim of the petitioner is eventually granted on reconsideration, he shall also be allowed all consequential benefits flowing therefrom.” Pursuant to the above directions, the petitioner -railways administration considered the case of the respondent and promoted him as J.E. (I) w.e.f. 8.8.1992 i.e. the date persons junior to h0ims so promoted. The respondent represented to the petitioner-railway administration on

14.8.2006 for complying with the directions in letter and spirit issued by the Division Bench of this Court. The respondent- applicant asked for grant of all consequential benefits viz. seniority, pay fixation, arrears of pay by calculating the difference from JE II to JE 1, retrospectively from 8.8.1992 and also claimed promotion as Section Engineer w.e.f. 10.8.1993 when his juniors were so promoted alongwith consequential benefits of pay fixation, CWP No. 15435-CAT of 2009 3 seniority etc. from the date of that promotion as well. The respondent was granted promotion to the post of Section Engineer vide order dated 1.9.2006 w.e.f. 10.8.1993. The respondent made another representation on

25.9.2006 and opted for fixation of pay under FR 22 in the higher grades and also made a request for payment of arrears on account of difference of pay and allowances with effect from the due dates. The petitioner-railway administration on 24.10.2006 passed an order fixing the pay of the respondent as JE 1 w.e.f. 8.8.1992 and as SE/Shell w.e.f. 10.8.1993 but in the column relating to fixation of his pay as JE 1, it was mentioned that this would be a proforma promotion and in column no.3 the respondents mentioned 28.10.1993 as the actual date of promotion of the applicant as JE

1. Similarly, in column re-fixing his pay as SE/Shell, the respondents mentioned 10.8.1993 as the date of proforma promotion and 1.11.2003 as the date of actual promotion. The Original application was disposed of by the Tribunal by passing a detailed order with the following directions: “ In order to satisfy our judicial conscience, we have once again gone through the operative part of the order which unequivocally says: “ In case, the claim of the petitioner is eventually granted on consideration , he shall also be allowed all consequential benefits flowing therefrom.” To our mind, the direction to allow the consequential benefits was made subject to the only condition “in case the claim of the petitioner is eventually granted”, as, otherwise, there is no other condition or rider in the direction given with regard to grant of all consequential benefits to the applicant. It cannot be denied by the respondents that the condition precedent for grant of CWP No. 15435-CAT of 2009 4 consequential benefits to the applicant stands satisfied. As per directions of this Court, respondents have considered the case of the applicant from the same date from which it was earlier considered and rejected i.e. on the basis of performance of the applicant, as depicted in his three annual confidential reports and in terms of Rule 214. In these circumstances, to our mind, the respondents were under an obligation to allow all the consequential benefits to the applicant i.e. even in monetary terms as if he was promoted in the normal course from the due date, without any reservation. Reliance is placed on a decision of the Apex Court in the case titled The Commissioner, Karnataka Housing Board v. C. Muddaiah JR 2007(10 SC 609 in which it was held that once a direction is issued by a competent court, it has to be observed and implemented without any reservation. Thus, we are of the view that the directions of the High Court have not been complied fully and completely by the respondents, whereas, they were under an obligation to obey and implement the directions without any reservation.” It is further pertinent to mention that the Tribunal rejected the stand of the petitioner- railway administration holding that the applicant- respondent was not given promotion of Chargeman 'A' (JE 1) and S.E. w.e.f. 8.8.1992 and 10.8.1993 respectively through a conscious decision. His ACRs of the preceding three years were taken into account. Therefore there is no administrative error. Accordingly the applicant- respondent was forced to approach the Tribunal and then the High Court which resulted into issuance CWP No. 15435-CAT of 2009 5 of directions for fresh consideration of his case. The Tribunal has observed that the proforma promotion given to the applicant- respondent without payment of salary is not complete compliance with the directions issued by a Division Bench of this Court and that the principle of 'no work no pay' or the provisions of para 228 of the Indian Railways Employees Manual, Vol. 1 (for brevity 'the Manual') could not be applied because para 228 of the Manual would apply in case of an employee who is over-looked for promotion for the higher grade on account of administrative error. There being no administrative error for non grant of promotion to the applicant- respondent his case was not covered by para 228 of the Manual. Moreover, para 228 of the Manual was never pleaded before the Division Bench of this Court when the judgement was rendered. The Tribunal has also noticed that in similar three cases, the petitioner- railway administration has given the benefit of payment of arrears. In that regard they have noted the observations made by the Finance Wing of the Railway while recommending the case of the applicant- respondent which are as under: “ It is pertinent to mention that three cases had already been decided by the CAT/Chandigrh and the judgements in these cases were implemented with fixation of pay from retrospective effect and difference of payment in the form of due arrears had also been paid by RCF administration as mentioned at PP6 of the noting dated 28.8.2006. It is very specifically pointed out that out of these three cases, one case titled Sudesh Pal, Darshan Singh and Umesh Kumar Sharma v. UOI (OA 140/Pb of 1997) was decided on 8.10.2002 by the CAT Chandigarh. CWP No. 15435-CAT of 2009 6 The said judgement in the case of Sh. Sudesh Pal was implemented in toto by RCF Administration and pay fixation was done vide letter dated 12.8.2003 for payment of arrears as SSE/ Shell vide s.No.29. Sh. Umesh Kumar Emp. 452480 applicant in the said case was also promoted as SSE w.e.f.

14.9.1999 and his pay fixation was done on 12.8.2003 alongwith arrears of pay vide letter No. 95- E/RCF/Sup/Mech/Court cases/Pt II dated 12.8.2003 issued by SPO/RCF. The arrears of pay vide letter No. 95- E/RCF/Sup/Mech/Court cases/ Pt II dated 12.8.2003 issued by SPO/RCF. The arrears of pay of both the employees with retrospective effect were paid in the month of September, 2003 by RCF Administration. From the above position it is well evident that order for fixation of pay and arrears of pay were issued on 12.8.2003 after issuance of Railway Boards letter dated 2.7.2003. because para 228 of IREM Vol. 1 and Railway Board's letter dated 2.7.2003 was not applicable on any of the said cases that is why judgements have been implemented in true spirit even after receipt of above Rly. Bd's letter dated

2.7.2003. In the light of above the case of Sh. Brij Mohan SE/Shell is quite similar and rather on better footing as the judgement in this petition has been passed by the High Court of Punjab and Haryana, Chandigarh. In case of non implementation of the judgement of High Court in toto it will lead to willful contempt of Court. Denying arrears of pay i.e. Difference of salary to Sh. Brij Mohan would be per se CWP No. 15435-CAT of 2009 7 discriminatory.” It was on the aforesaid basis that the Tribunal allowed the application of the applicant- respondent and issued directions to grant all consequential benefits in the form of arrears on account of difference of pay and allowances for the period 8.8.1992 to 9.8.1993 with regard to promotion granted to the applicant- respondent to the post of Chargeman “A” (J.E. I) and 10.8.1993 to the date of issuance of order dated 24.10.2006 for promotion to the post of Sectional Officer. Having heard the learned counsel for the parties, we are of the considered view that no exception is provided to interfere with the view taken by the Tribunal. Once a Division Bench of this Court has directed the payment of all consequential benefits then there was no room for the petitioner to take shelter of para 228 of the Manual especially when the rule does not apply to the facts and circumstances of the present case. The instant petition is ill advised and in our opinion is a frivolous piece of litigation. The petitioner railway could have easily avoided the filing of such a petition. Accordingly the writ petition is dismissed and we saddle the petitioner with costs of Rs. 10,000/- which may be paid to the applicant- respondent by way of cheque /draft. (M.M.Kumar) Judge (Jitendra Chauhan) Judge

10.2.2010