Uma Shankar vs Northern Railway And Ors

Raj Vir Sharma, J

This Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed by the applicant, a retired Railway servant, on 25.4.2013, seeking the following reliefs:

"a) It is most respectfully prayed that the impugned order vide which the period from 03.08.1995 to 04.5.1996 has been declared as no work, no pay and non qualifying be set aside.

b) The Respondent be directed to consider the said period from 03.08.1996 (sic) to 04.05.1996 as qualifying for the purposes of pensionary, gratuity benefits, medical card and complimentary railway pass etc."

1.1 In MA No.61 of 2014 filed by the applicant seeking condonation of delay in the filing of the O.A. it has been asserted by the applicant that the decision in the disciplinary proceedings initiated against him vide charge memo dated 9.2.1996 was communicated to him only in April 2012, and that after his retirement he had not been keeping good health. Therefore, the delay in the filing of O.A. on 25.4.2013 should be condoned.

The respondents have filed a counter reply resisting the O.A. as being barred by limitation and as being devoid of merit.

No rejoinder reply has been filed by the applicant refuting the stand taken by the respondents in counter reply.

We have carefully perused the pleadings of the parties and have heard Shri G.D. Bhandari, learned counsel appearing for the applicant, and Shri A.K.Srivastava, learned counsel appearing for the respondents.

Brief facts of the case, which are relevant for the purpose of deciding the controversy and are not disputed by either side, are that the applicant was engaged by the respondent-Railways to work as a Casual Labour Khalasi. Subsequently, the applicant was conferred Temporary Status, and after his having qualified the screening test, he was appointed to the post of Khalasi in the Signal and Telecommunication Department of the Northern Railway.

5.1 A major penalty charge memo dated 3.11.1993 was issued by the Disciplinary Authority (DA) initiating departmental proceeding against the applicant on the charge of unauthorized occupation of the Railway quarters. The Inquiry Officer (IO) submitted report finding the charge as proved against the applicant. The DA, vide order dated 15.5.1996, imposed upon applicant the punishment of removal from service with immediate effect. The Appellate Authority (AA) rejected the applicant‟s appeal and upheld the order passed by the DA. The applicant filed ID No.188/97 before the CGLC questioning the DA‟s order dated 15.5.1996 (ibid) as well as the order passed by the AA. In ID No.188/97, the CGLC gave an award in favour of the applicant. In compliance of the CGLC‟s award, the respondent-Railway reinstated the applicant in service on 23.4.2002 and paid him back wages from 15.5.1996 preceding the date of reinstatement in service.

5.2 During pendency of the enquiry in the disciplinary proceedings initiated vide charge memo dated 3.11.1993 (ibid), another major penalty charge memo dated 9.2.1996 was also issued by the DA initiating disciplinary proceedings against the applicant on the charge of unauthorized absence for the period from 3.8.1995 to 14.5.1996. As in the earlier disciplinary proceeding initiated vide charge memo dated 3.11.1993(ibid), the punishment of „removal from service‟ was already imposed upon the applicant, vide order dated 15.5.1996(ibid), the DA closed/dropped the charge memo dated 9.2.1996(ibid) and decided to treat the period of his unauthorized absence from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟, which is the subject-matter of the present proceeding before the Tribunal.

5.3 The applicant retired from Railway service on attaining the age of superannuation on 30.9.2009. The respondent-Railway determined the applicant‟s qualifying service as 15 years, 11 months and 14 days at the time of his retirement, after excluding the LWP for a period of 3 years, 8 months, and 9 days. Accordingly, the retirement benefits, as admissible under the Rules, were granted to the applicant.

5.4 While so, the applicant, vide his application dated 2.4.2012, sought information under the RTI Act regarding the aforesaid disciplinary proceedings and the orders passed by the authorities therein. With reference to the applicant‟s application dated 2.4.2012(ibid), respondent no.2 provided the required information, vide letter dated 25.4.2012 (Annexure A/1). Thereafter, the applicant, vide representation dated 15.6.2012 (Annexure A/2), questioned the order passed by the DA dropping/closing the disciplinary proceeding initiated vide charge memo dated 9.2.1996 (ibid) and treating the period of his unauthorized absence from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟, and requested respondent no.2 to supply him a copy of the said order. There being no response, the applicant also sent a legal notice dated 25.10.2012 (Annexure A/3) calling upon respondent no.1 to direct respondent no.2 to dispose of his representation dated 15.6.2012 (ibid) within one month from the date of receipt of notice and to release the gratuity, railway medical card, complementary railway pass, promotion and ACP Scheme benefit and other retirement benefits accordingly. Thereafter, the present O.A. was filed by him on 25.4.2013 seeking the reliefs as aforesaid.

In the above context, it has been contended by Mr.G.D.Bhandari, learned counsel appearing for the applicant, that the purported order has been passed by the concerned authority treating the period of his unauthorized absence from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟ without affording him an opportunity of hearing, and that copy of the said order has not yet been communicated to him. Therefore, the said order is bad, illegal and unsustainable in the eyes of law, and the Railway authorities ought to have taken into account the said period of service of the applicant as qualifying for the purposes of pension, gratuity, medical card, complimentary railway pass, etc.

On the other hand, it has been contended by Mr.A.K.Srivastava, learned counsel appearing for the respondents that in view of the DA‟s order dated 15.5.1996 (ibid) passed in the disciplinary proceeding initiated vide charge memo dated 11.3.1993(ibid), whereby the applicant was removed from service with effect from 15.5.1996, the disciplinary proceeding initiated against the applicant vide charge memo dated 9.2.1996 was closed and the period of his unauthorized absence from 3.8.1995 to 4.5.1996 was treated as „no work no pay and non-qualifying‟ by the DA. Though he was fully aware of the said decision of the competent authority, the applicant did not question the same at the relevant point of time. After five years of his reinstatement in service on the basis of the award passed by the CGLC, the applicant made an application in the year 2007 seeking information under the RTI Act as to the progress in the disciplinary proceeding initiated vide charge memo dated 9.2.1996. Accordingly, respondent no.2, vide communication dated 10.1.2008, informed the applicant about the said decision of the competent authority. Though the communication dated 10.1.2008 was received by the applicant on 14.1.2008 and the applicant retired from service on attaining the age of superannuation on 30.9.2009, yet the applicant only for the first time made a representation dated 15.6.2012, i.e, after about 16 years from the date of decision, and after more than 4 years from the date of receipt of the communication dated 10.1.2008, questioning the said decision of the competent authority treating his unauthorized absence from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟. Thereafter, he approached the Tribunal in the present O.A. filed on 25.4.2013. It is, thus, submitted by Mr.A.K.Srivastava that the claim of the applicant is hit by the doctrine of delay and laches, and the O.A. is liable to be dismissed. It has also been submitted by Mr.A.K.Srivastava that on the facts and in the circumstances of the case, the impugned decision of the competent authority can by no stretch of imagination be said to be perverse or arbitrary, and hence, there is no scope for interference.

After considering the pleadings of the parties, and upon hearing the learned counsel appearing for the parties, we have no hesitation in holding that the claim of the applicant is clearly hit by the doctrine of delay and laches. The cause of action, if any, arose when in view of the order dated 15.5.1996 passed by the DA imposing upon applicant the penalty of removal from service in the disciplinary proceedings initiated vide charge memo dated 3.11.1993, the DA decided to drop the disciplinary proceeding initiated vide charge memo dated 9.2.1996 and to treat the unauthorized period of absence of the applicant from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟. Even if it is assumed for a moment that no such decision was communicated to the applicant at the relevant point of time, it can be said that the cause of action, if any, arose on 14.1.2008 when the applicant received the communication dated 10.1.2008 from the concerned authority of the Railway regarding the said decision of the competent authority. If at all the applicant had any grievance against the said decision of the competent authority, he ought to have agitated the matter by making a representation to the competent authority in the year 1996/1997 when the concerned authority took the decision, and in the event of his grievance not being redressed at the hands of the competent authority, he would have approached the appropriate judicial forum in accordance with law.

Similarly, when the communication dated 10.1.2008 was received by him on 14.1.2008, the applicant ought to have also approached the competent authority, and in the event of his grievance not being redressed at the hands of the said authority, the applicant ought to have approached the judicial forum in accordance with law. Instead of doing either of the above, the applicant raised the said issue after 16 years from the date of the impugned decision and after more than four years from the date of communication of the decision of the competent authority. We are not satisfied with the explanation given by the applicant for the delay in raising the claim either before the competent authority or before this Tribunal. As has rightly been contended by Mr.A.K.Srivastava, learned counsel appearing for the respondents, on the facts and in the circumstances of the case, the decision of the competent authority dropping/closing the disciplinary proceedings initiated against the applicant vide charge memo dated 9.2.1996 and treating the period of his unauthorized absence from 3.8.1995 to 14.5.1996 as „no work no pay and non-qualifying‟ cannot be said to be perverse or arbitrary.

In the light of our above discussions, MA No.61 of 2014 is dismissed, and the O.A. is dismissed as being hit by the doctrine of delay and laches and as being devoid of any merit. No costs.