AI Structured Summary
Not yet generated for this judgment
Judgment
Mohan Pyare, Member (A)
Heard Shri A.K. Srivastava, learned counsel for the applicant and Shri Manoj Kumar Sharma, learned counsel for the respondents.
Present Execution Application has been filed seeking the execution of this Tribunal’s order dated 23.05.2017 passed in O.A./375/2017. The operative portion of the judgement is as under:
“4. But in view of the limited prayer made by the applicant, we direct the respondent/Competent Authority to examine if the applicant is similarly situated to the applicants of O.A. No.1595/2011 and if so, similar relief as granted to them may be granted to the applicant herein. This exercise is to be completed within 2 months from the date of receipt of certified copy of this Order. With the above direction the O.A. is disposed of.”
Submission of learned counsel for the applicant is that the applicant was engaged as Mobile Booking Clerk on 15.01.1981 and the respondents had arbitrarily terminated his services from 01.04.1987 against which the applicant approached this Tribunal through O.A./261/1987 which was disposed of directing the respondents to reappoint the applicant on the post held by him and regularise and absorb him against a regular post after he had completed three years of service from the date of his initial engagement subject to him fulfilling all other requisite conditions. He argued that even after multiple litigations before different forums, the respondents have not provided proper seniority to the applicant with effect from 15.01.1981 which is the date of his initial appointment, the dated 15.04.1981 which is the date of grant of temporary status and the date 15.04.1984, the date of regularization as per the rules made by the Railway in compliance of order dated 30.04.2004, in O.A./558/2002, Nand Kishore and others vs. Union of India and others passed by the Principal Bench of this Tribunal which has been affirmed by the Hon’ble Delhi High Court and Hon’ble Apex Court. The applicant had approached this Tribunal through O.A./375/2017 which was disposed of with a direction upon the respondent/Competent Authority to examine if the applicant is similarly situated to the applicants of O.A. No.1595/2011 and if so, similar relief as granted to them may be granted to the applicant herein. However, O.A. No.1595 of 2011 decided by this Tribunal is itself based on the judgment and order dated 30.04.2004 passed by the CAT, Principal Bench, New Delhi in O.A. No.558/2002. The operative portion of the judgment of O.A. No.1595/2011 is as follows:- “In view of the above facts and legal position, the O.A. is disposed of with direction to the respondents to decide the pending representation dated 22.12.2010 (Annexure-A-10) of the applicants in terms of order dated 30.04.2004 passed by the C.A.T., Principal Bench in O.A. No.558 of 2002 and the observations made herein above within a period of two months from the date when the certified copy of the order is produced before them. If the applicants are found similarly situated, the same benefits may be extended to them. There is no order as to costs.
The operative portion of O.A. No. 558/2002 decided by the C.A.T., Principal Bench, New Delhi vide order dated 30.04.2004 is reproduced hereinbelow:-
“10. Having regard to the facts and circumstances of the case as discussed above, O.A. succeeds and is allowed. Annexure- A-1 dated 11.01.2001 is quashed and set aside. Respondents are directed to treat the applicants as regularized after completion of three years of continuous service from the dates of applicants’ initial appointment with consequential seniority”
Learned counsel for the applicant has submitted that the respondents have not executed the order of this Tribunal dated 23.05.2017 passed in O.A./375/2017 as they have not given any benefit of consequential seniority to the applicant because of which the applicant is not getting proper fixation of pay while all his juniors were drawing more basic pay than the applicant nor the respondents made correct entry in the service record/ book, leave record and accounts ledger.
Submission of learned counsel for the respondents is that Original Application No. 375/2017 (Hafeez Uddin Vs Union of India and others) has been preferred by the applicant for grant MACP claiming parity with and the benefit of decision dated 25.09.2016 with the applicant of Original Application No. 1595/2011 (Alok Kumar Srivastava and others and this Vs Union Of India and others) Hon'ble Tribunal disposed of the Original Application No. 375/2017 vide its order dated 23.05.2017. The applicant had preferred Contempt Petition No. 160/2017 in Original application. In compliance of order dated 23.05.2017 a detailed order has been passed by the department on 24.08.2017 and this Hon'ble Tribunal has been pleased to dismiss the contempt petition on 31.08.2021 against which applicant approached to Hon'ble High Court, Allahabad and Hon'ble High Court has remanded the case vide its order dated 23.09.2021. The aforesaid Contempt Petition No. 160/2017 has been again heard by this Hon'ble Tribunal on the merits and after considering the merits of the case, this Hon'ble Tribunal dismissed the contempt petition & discharged the notices vide its order and direction dated 01.11.2023. Original Application No. 269/2021 (Hafeez Uddin Vs Union of India and others) has been preferred before this Hon'ble Tribunal for correction in payment of arrears during the period when he was not in service. The aforesaid Original Application was disposed of on 06.04.2021 and in compliance of order and direction of this Hon'ble Tribunal a speaking order has already been passed on 23.06.2021. Original Application No. 292/2021 was filed for inclusion of leave in his leave account which was disposed of by this Hon'ble Tribunal at the admission stage vide its order dated 26.03.2021 and in compliance thereof the speaking order has already been passed on 23.06.2021. Original Application No. 302/2021 (Hafeez Uddin Vs State of U.P. and others) was preferred by the applicant for adding the 50% services treating him as casual labour for the purpose of pensionary benefit, which was disposed of at admission stage by this Hon'ble Tribunal on 26.03.2021 and in compliance thereof the speaking order has already been 23.06.2021. Original Application No. 993/2021 (Hafeez Uddin Vs Union of India and others) has been filed against the speaking order dated 23.06.2021 passed in compliance of order dated 06.04.2021 passed in Original Application No. 269/2021 which is still pending for disposal before this Hon'ble Tribunal. Original Application No.994/2021 (Hafeez Uddin Vs Union of India and others) has been preferred by the applicant against the Speaking order dated 23.06.2021 passed in compliance of order dated 26.03.2021 in Original Application No. 302/2021 which is still pending for disposal before this Hon'ble Tribunal. Original Application No. 1099/2021 has been preferred by the applicant for adding 50% services from his initial appointment the date of regularization for the purpose of retiral dues which is still pending for disposal before this Hon'ble Tribunal.
Learned counsel for the respondents submitted that the applicant was initially appointed as Mobile Booking Clerk on 15.01.1981 and further regularized on 15.01.1984 after completion of 3 years continuous service from the date of initial appointment in compliance of order dated 30.04.2004 passed by Principal Bench of this Hon'ble Tribunal in Original Application No. 558 of 2002, Nand Kishor and other Vs Union of India and others as a Special Case. As per Para 5 of Railway Board's Letter No. E (NG) II/2017/ECR/CL/4 dated 15.11.2019, only 50% of temporary status service would be counted for pensionary benefits after regularization of Casual Labour and that period prior to temporary status would not count for Pensionary benefits. The above guidelines are applicable for casual labourers but not for Mobile Booking Clerk who were regularized vide Hon'ble Tribunal's order dated 01.01.2018 as a special case. Volunteer/Mobile Booking Clerks were engaged on various Railways on certain rates of honorarium per hour or per day and subsequently for considered absorption against regular vacancies provided that they have the minimum qualifications required for direct recruits and have put in a minimum of 03 years service as Volunteer/Mobile Booking Clerks. Their regularization was in the nature of a special recruitment which was to be governed by the conditions prescribed in Railway Board's Letter No. E (NG) III-77/RC1/80 dated 21.04.1982 and 20.04.1985. Since the applicant's appointment was considered as a special recruitment as such the provision of temporary status is not applicable in his case which is given or applicable in the case of Casual Labour engaged in Railways. Para 5 of Railway Board's Letter No. E (NG) II/2017/ECR/CL/4 dated 15.11.2019 stipulates that, “Since DOP & PW, in their reply dated 13.08.2019, have suggested that DoPT's advice may also be taken in the matter. DOPT has also been requested by the Ministry vide Office Memorandum No. dated 20.09.2019 to confirm the interpretation of rules/guidelines that only 50% of temporary status service would be counted for pensionary benefits after regularization of Casual Labour and that period prior to temporary status would not count for Pensionary benefits. The above guidelines are applicable in the case of Casual Labour and not in the case of Mobile Booking Clerks.
Learned counsel for the respondents further argued that in compliance of order dated 30.03.1995 passed in Case No. P.W. 114 of 1990 and order dated 02.02.2008 passed in Civil Appeal No. 231 of 2000, the applicant was paid salary from 28.08.1981 of Rs. 260/- in Grade Rs. (260-430) till 01.02.2007 of Rs. 4600/-, total amounting to Rs. 1,24,710/- vide cheque No. 707782 dated 14.03.2008. Thereafter, Rs. 50,000/- + 50,000/- Total Rs. 1,00,000/- was paid to the applicant on 19.04.2008 through Kisan Vikas Patra. Thus, the applicant was paid total Rs. 2,24,710/- for the period 28.08.1981 to 01.02.2007. This fact is further clear from the certificate issued on 06.02.2009 by the Drawing and Disbursement Officer, office of Deputy Labour Commissioner, U.P., Allahabad. Thereafter, in compliance of order dated 23.05.2017 passed by this Hon'ble Tribunal in O.A. No. 330/00375 of 2017, the applicant has been given benefit of regularization from the date of grant of Temporary status to him i.e. 29.08.1991 which is recorded in his service book and accordingly his pay was fixed as Rs. 260/- Grade (260-430) w.e.f. 29.08.1984 and as Rs. 49000/- w.e.f. 01.07.2017 and difference of salary for the period from 29.08.1984 to 01.07.2017 amounting Rs. 3,23,301/- has also been paid applicant. Thus, a total of Rs. 5,48,011/- has already been paid including the difference of salary. Thus, now no compensation of any kind is payable to the applicant. The applicant was conferred temporary status from the date of completion of 120 days, i.e. 29.08.1981 as service recorded in his book, vide General Manager (P) Letter No. 797E/Regularisation/Ticket Checking/13 dated 26.07.2006 and in compliance of order dated 22.02.1989 passed in Case No. 261 of 1987, the applicant has been paid difference of salary from the date of conferment of temporary status i.e. 28.08.1991 till 01.02.2017 amounting to Rs. 2,24,710/-, but in pursuance of order dated 22.02.1989 the applicant has be given benefit of regularization from 16.01.1984 on completion of three years service from the date of initial on appointment on 15.01.1981. The applicant has been given payment amounting to Rs. 3,32,301/- for the period 28.09.1984 to 01.07.2017 and simultaneously the benefit of regularization w.e.f. 16.01.1984 has to be given to the applicant, but all the financial benefits have already been given to the applicant and no amount is due. That, it is also clarified that in 30.03.1995, the difference of salary amounting Rs. 2,24,710/- has already been paid to the applicant and salary of Rs. 1125/- has been paid to applicant according to his service book for the period 23.02.1990 to 31.01.1991, which is correct. The applicant has already been paid according to the order passed by Hon'ble Court as per rules. Services of the applicant have already been regularized w.e.f. 16.01.1984 and accordingly all benefits have already been given and no other benefits are due to him. As such this Hon'ble Tribunal’s order dated 23.05.2017 has already been complied by the respondents as in respect of those similarly situated to the applicants of O.A. No. 1595/2011.
We have considered the rival submissions of learned counsel for the parties and verified the documents on record.
While the applicant has alleged non-execution of the direction of this Tribunal in O.A./375/2017 dated 23.05.2017, the respondents have submitted detailed counter reply annexing all the documents which clearly exhibit the actions taken by the respondents in compliance with the directions of this Tribunal in various cases filed by the applicant in the matter. A contempt petition filed by the applicant i.e. C.P./160/2017 in O.A./375/2017 has also been closed vide order dated 01.11.2023 with the following observations:-
“11. Further, from perusal of the compliance affidavit, filed by the opposite party dated 17.04.2023, the opposite party narrated the detailed history of repeated litigation filed by the applicant and has submitted that applicant was initially appointed as Mobile Booking Clerk on 15.01.1981 and regularized w.e.f. 15.01.1984 after completion of three years continuous service from the date of his initial appointment in compliance of the order dated 30.04.2004 passed by C.A.T, Principal Bench, New Delhi in O.A. No.558/2002. The revised entry in the service book as enclosed by the respondents clearly shows that date of initial appointment of the applicant is 15.01.1981 and date of regularization is 15.01.1984. Therefore, it is very clear that order of this Tribunal passed in O.A. No.375/2017 dated 23.05.2017, giving the similar relief as that of applicant of O.A. No.1595/2011, has been fully complied with. However, in the written statement dated 20.09.2023, learned counsel for the applicant prayed that opposite party be directed to add 50 % services of the applicant from the date of initial appointment to date of regularization for pensionary benefits, to add in service Record/Book, the correct date of initial appointment and Leave Account w.e.f date of initial appointment and to inter all the relevant fact which were gained by the applicant such as judgments and orders passed in concerned to the applicant. On verification with the O.A. No.375/2017 against which this Contempt petition is filed, the applicant is claiming different relief in his written statement as discussed above, which is outside the scope of this contempt petition.
On the basis of the above, it is crystal clear that sufficient compliance has been made by the opposite party to comply with the order dated 23.05.2017 passed in O.A. No.375/2017. Hence, this contempt petition is liable to be dismissed and notices may be discharged. Thus, proceeding of the instant contempt petition, is closed and notices are discharged.
Resultantly, instant contempt petition stands dismissed.”
From the above, it is apparent that the matter of compliance has already been decided and this Tribunal has already observed that the applicant is claiming different relief in the contempt petition which is outside the scope of the same. In the present Execution Application which has been filed subsequently, the applicant has again made the claim of similar relief as made by him in the contempt petition. The order of this Tribunal in O.A./375/2017 is to grant the applicant similar relief as given to the applicants of O.A. No.1595/2011 if he is found to be similarly situated. The Counter reply filed by the respondents makes it amply clear that the applicant’s case has been assessed with respect to the applicants of O.A. No.1595/2011 which was based on the outcome in O.A./558/2002 decided by the Principal Bench of this Tribunal vide order dated 30.04.2014 and the benefits as per the applicability of the rules and regulations governing the case of the applicant to the extent he has been found similarly situated to the applicants of the aforesaid O.A., have been extended to him. The operative portion of the order in O.A. 558/2002 is again reproduced below:-
“10. Having regard to the facts and circumstances of the case as discussed above, O.A. succeeds and is allowed. Annexure- A-1 dated 11.01.2001 is quashed and set aside. Respondents are directed to treat the applicants as regularized after completion of three years of continuous service from the dates of applicants’ initial appointment with consequential seniority”
The applicant has been regularised on completion of three years from the date of his initial appointment (i.e. 15.01.1981) on 15.01.1984. Thus, the order in O.A./375/2017 has been fully complied with by the respondents. Any further intervention in the matter by this Tribunal is beyond the scope of this Execution Application and, accordingly, the same is dismissed since, in our considered opinion, no further action is required in the matter.
All the pending Misc. Applications also stand disposed of. No costs.