Union of India and Others vs C.H. Venkat Rao and Another

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 31st July, 2008 (Annexure P/8) passed by the Central Administrative Tribunal, Bench at Jabalpur, in Circuit Sitting at Bilaspur, in O.A. No. 679/2007.

Shri Sinha, Learned Counsel appearing for the petitioners submit that the impugned order is contrary to the relief sought by the respondent in the original application, being O.A. No. 679/2007. The petitioners-authorities passed an order on 28.11.2003/13.01.2004 whereby, the punishment order of removal of the respondent No. 1 from service was modified to that of the compulsory retirement. It was clearly ordered that the intervening period from 09.11.1993 to the date of compulsory retirement shall be treated as "no work, no pay" and shall not qualify for pensionary benefits. The said order was never questioned and the same has attained finality. The respondent-employee has filed the above stated original application seeking relief of a direction to the petitioners (respondent therein) for re-fixation of original minimum pension to Rs. 2150/- under Vth Pay Commission Pay Scales w.e.f. 24.01.1997, with arrears and all consequential benefits, including commutation value on difference of amount of Rs. 860/- ( - ) Rs. 510/- i.e. Rs. 350/- .

Shri Sinha further contends that the learned Tribunal, without considering the relief sought for by the respondent-employee, had examined the order dated 28.11.2003/13.01.2004 (Annexure P/2) which was not the subject matter of the original application and held that the respondent-employee would be entitled to arrears of pension from 01.10.2007 as the said application was preferred only on 20.09.2007. It is further contended that the Tribunal has exceeded its jurisdiction and examined the validity of the order dated 28.11.2003/13.01.2004 (Annexure P/2). Thus, the impugned order is bad in law, unjust and illegal.

On the other hand, Shri Rao, Learned Counsel appearing for the respondent-employee submits that indisputably, the order dated 28.11.2003/13.01.2004 (Annexure P/2) was not under challenge. The respondent has not challenged the communication dated 08/29.08.2006 (Annexure R/4), specifically, however, the relief sought for in the original application was based on the said order.

Having considered the rival submissions of Learned Counsel for the parties and on perusal of the pleadings and documents appended thereto, it is evident that the respondent-employee had preferred a representation for payment of pension in terms of the Vth Central Pay Scale Commission. Thereafter, the respondent-employee filed an original application being O.A. No. 408/2006 (Ch. Venkat Rao v. Union of India & Others). In the said original application, the respondent-employee sought for the relief of granting proper pension in terms of the Vth Central Pay Commission. The application was disposed of by order dated 29.06.2006 (Annexure P/4) wherein the respondent-employer (petitioner herein) were directed to consider and decide the claim of the respondent-employee (applicant therein) within three months from the date of receipt of a copy of the order dated 29.06.2006. It was stated in the order that the order dated 13.01.2004 had attained finality. The representation of the respondent-employee was decided by the Senior Divisional Finance Manager, South Eastern Central Railway, Bailaspur on 08/29.08.2006 (Annexure R/4). Needless to mention that the communication deciding the representation of the respondent-employee was not challenged and the same, it appears, became final.

Thereafter, the respondent-employee filed the present original application being O.A. No. 679/2007, without questioning the communication dated order dated 28.11.2003/13.01.2004 (Annexure P/2), seeking for the following reliefs:

8.1 That, the Hon''ble Tribunal be pleased to accept the application.

8.2 That, the Hon''ble Tribunal be pleased to decide the Applicant''s grievance and to the Respondents for refixation of Original Minimum Pension of the Applicant to Rs. 2150.00 under Vth Pay Commission Pay Scales w.e.f. 24.1.1997, with arrears and all consequential benefits, including Commutation value on Difference amount of Rs. 860.00 (-) Rs. 510.00 = Rs. 350.00

8.3 That, the Hon''ble Tribunal be pleased to pass any other Order of Orders deemed fit and proper and in the interest of justice.

The Tribunal passed the impugned order in the application i.e. O.A. No. 679/2007 without considering the refixation of minimum pension of the respondent-employee, as prayed in the original application, and the Tribunal has considered the order dated 28.11.2003/13.01.2004 (Annexure P/2). Thus, the Tribunal has gone beyond the pleadings without examining the relief sought for in the said application, but modified the order dated 28.11.2003/13.01.2004 (Annexure P/2) which was not the subject matter of the original application. The impugned order is contrary to the pleading and facts on record before the Tribunal in the instant application.

For the reason stated hereinabove, the impugned order dated 31.07.2008 (Annexure P/8) is quashed and as a consequence, the writ petition is allowed.

No order asto costs.