Yadram vs UOI and Others

This writ petition has been filed by the petitioner-Yadram challenging the order dated 21.12.2006 passed by the Central Administrative Tribunal, which has while partly allowing the Original Application filed by the petitioner directed the respondent-railways to regularise the period of his absence from duty from 6.9.2004 till he joined pursuant to the impugned judgement by grant of leave, which may be admissible to him as per Rules.

Facts of the case are that petitioner was appointed as a Diesel Assistant (Driver) on 3.3.2001 and his first place of posting was at Nandurbar, Bombay Division of Western Railways. Since, he was declared medically unfit on account of heart disease, he was given alternative appointment vide order dated 23.5.2002 as Sr. T.N.C. at Bombay Central in the scale of Rs. 4000-6000 (RPS) with effect from 19.5.2002. Thereafter, he was selected and promoted as T.N.C. in the pay scale of Rs. 5000-8000 (RPS). As a result of re-organization of Railway Zones, petitioner submitted his option for transfer from Western Railway, Mumbai Division to New Railway Zone-North Western Railway, Jaipur, which was considered and approved by the competent authorities of the two Railway Zones and he was relieved by CTNL-Bombay Central to report to Divisional Railway Manager (E), Bombay Central as HNTC in the scale of Rs. 5000-8000 (RPC) from Mumbai Division, Western Railway to North Western Railway, Jaipur vide order dated 3.9.2004 and petitioner was relieved by the Sr. D.O.M., Bombay Central on 3.9.2004 to carry out the transfer as HNTC from Western Railway to North Western Railway, Jaipur vide order dated 3.9.2004. He joined to the Dy. Chief Personnel Officer, North Western Railway, Jaipur on 6.9.2004, but no order was given to him regarding his place of posting and he was informed that he was kept in waiting and necessary posting order will be given shortly. But neither he was given posting order, nor salary was paid to him from the month of September to November, 2004. Petitioner was advised that he can join North Western Railway on the basis of his own request of transfer in recruitment grade and bottom seniority as per existing rules. He refused to accept the bottom seniority, hence he was returned back to his parent Division. Petitioner thereafter filed Original Application before the Central Administrative Tribunal. The learned Tribunal has come to the view that the respondent No. 2 has acted not only contrary to the order issued by the Railway Board from time to time, but also contrary to the Memorandum of Understanding (MOU) signed by the two divisions of railways and has imposed a cost of Rs. 10,000, however, has left the matter to be decided by the respondents. Hence this writ petition.

Shri Sharat Sethi, learned counsel for the petitioner has argued that once the Tribunal has come to the conclusion that injustice has been caused to the petitioner, it should have directed to remove the injustice, instead of leaving the matter to the discretion of the railway board. This amounts to failure to exercise the jurisdiction vested in it. It is admitted position that the petitioner had exercised his option for his transfer to new Zonal Railway and his name was also approved by the competent authority of the new railway zone. Petitioner cannot be penalised for any lacuna in the procedure adopted by the respondents and any change in that from time to time. The action of the respondents in treating the petitioner differently amounts to hostile discrimination and arbitrariness, thus violative of Article 14 and 16 of the Constitution of India. It is argued that petitioner was relieved by his parent railway i.e. Western Railway after the alleged cut off date and thereafter he reported for duty in the North Western Railway immediately thereafter as per Rules. The action of the respondents in refusing him to allow duties only because he reported after the cut off date, cannot be justified. This cut off date was illusory in the present case and cannot be binding, particularly when petitioner exercised the option within the prescribed time and his option was approved by the competent authority.

Shri Sharat Sethi, learned counsel for the petitioner has argued that the Tribunal itself has given definite finding that the respondent No. 2 has acted not only contrary to the orders issued by the Railway Board, but also to the MOU signed by the General Managers of the North Western Railway, Jaipur and Western Railway, Mumbai. The Tribunal has found justification in the grievance of the petitioner, therefore, it has also imposed heavy cost of Rs. 10,000 on the respondents and directed that the petitioner shall now report on duty to respondent No. 2 latest by 1.1.2007 and upon his doing so, the status quo ante as was existing prior to relieving and transfer of the petitioner, shall be maintained. When the transfer of the petitioner was approved before the cut off date and if the petitioner was not relieved by the Western Railway, Bombay Division in time, there is no fault on the part of the petitioner and he cannot be deprived of his salary.

Learned counsel for the petitioner has argued that petitioner should have been paid salary for the entire intervening period from September, 2004 till he rejoins based on the LPC issued by the Western Railway (Annexure-A4). The Tribunal has erred in law in refusing to pay back wages on the principle of ''no work no pay''. Petitioner throughout was willing to work, but he was not permitted to join, therefore, he cannot be blamed for the same. Learned counsel in support of his arguments relied on the judgement of Supreme Court in Shiv Nandan Mahto Vs. State of Bihar and Others, .

Shri Shailesh Prakash Sharma, learned counsel for respondent Nos. 1 and 3 has opposed the writ petition and argued that petitioner was working as Head TNC in the Mumbai division Western railway in the pay scale of Rs. 5000-8000. As per the letter dated 6.12.1996, options were invited from the railways employees who were interested to go on transfer to the new Railway Zone, North Western Railway, Jaipur. Petitioner was thereby asked to join at new railway zone upto 30.4.2004 as per directions issued by the General Manager (E), Western Railways in the letter dated 20.4.2004, but the appellant did not report on duty before that date. Petitioner has reported on duty on 6.9.2004, whereas as per the Memorandum of Understanding (MOI), joining was allowed to the transferred employee upto 30.4.2004. Since the name of the petitioner was included in the MOU, he ought to have reported on duty upto 30.4.2004. Petitioner reported almost five months thereafter after closure of the cadre of the North Western Railway, Jaipur. He was not rightly allowed to join. He was advised that he could join on the basis of his own request of transfer and in that view of the matter, he would be entitled to only bottom seniority of the post.

Smt. Archana Mantri, learned counsel for the respondent No. 2 opposed the writ petition and submitted that the Tribunal vide judgement dated 21.12.2006 directed the railway board to consider the case of the petitioner keeping in view the facts and circumstances and pass appropriate order for his transfer to North Western Railway as a special case by relaxing the date for physical transfer of the petitioner. The railway board after examining the matter decided not to allow the transfer of the petitioner from Western Railway to North Western Railway vide letter dated 6.7.2007. The North Western Railway vide letter dated 12.3.2004 received on 18.3.2004 in the office of respondent No. 2, submitted a list of 23 staff of Western Railway, who have opted for joining North Western Railway and in whose favour acceptance has been sent, but the petitioner''s name was not appearing in that list. The names were scheduled to be sent before 5.11.2003 as per the Railway Board order dated 30.10.2003 in the form of Memorandum of Understanding (MOU). Petitioner submitted his joining in the North Western Railway, Jaipur on 6.9.2004, but he was not allowed to join contending that he had not reported by 30.4.2004 as per the instructions of the Railway Board and MOU signed between the Western Railway and the North Western Railway. He was advised that he can join the duty in North Western Railway on the basis of his own request of transfer in recruitment grade with bottom seniority, but he refused. He thereafter returned back to his parent department vide letter dated 1.10.2004, but thereafter he did not join and filed the Original Application.

We have given our thoughtful consideration to the rival submissions and perused the impugned order and other material placed on record.

The Tribunal in the impugned order has reproduced the Memorandum of Understanding signed by the two Zonal Railways and observed that staff whose options were accepted had to join new railway zone upto 31.10.2003 and staff whose names were included in the MOU were allowed to join upto 30.4.2004. The respondent No. 1 could not allow petitioner to join at North Western Railway, Jaipur on the basis of relieving order passed by respondent No. 2 in September, 2004. The Tribunal thus categorically held that the respondent No. 2 could not relieve the petitioner and his relieving was contrary to the instructions issued by the Western Railway and the aforesaid MOU signed by two railway divisions. The Tribunal held that RBE No. 229/01 dated 21.11.2001 does not apply to this case as it deals with procedure for preventing fraudulent transfer and is not applicable where transfer of the staff, who exercised option for transfer to the new zonal railway, who are governed by separate sets of orders/rules. The respondent No. 2 being one of the parties of the MOU, it was not permissible for him to make further reference to respondent No. 1. The Tribunal therefore held that respondent No. 2 has acted contrary to the orders issued by railway board and was responsible for all this, but also held that petitioner also cannot be absolved completely. He was aware that physical transfer has to be effected latest by 30.4.2004 and the petitioner himself taken the copy of the letter dated 27.4.2004, which letter was presented by the petitioner in the office of respondent No. 2 on 29.4.2004. The Tribunal therefore while directing period of absence to be regularised, awarded him a cost of Rs. 10,000.

On a pointed query by this Court, the petitioner could not justify as to why he did not go back to the Western Railway, Bombay Division to rejoin and why he did not seek appropriate/specific direction at that stage and initially file the Original Application, he could not give any satisfactory answer. He could not justify his working anywhere all this time. Therefore, the decision of the Tribunal to treat the period of his absence dies non on the principle of ''no work no pay'' and directing regularisation of the aforesaid period by grant of leave of any kind, which may be due in his account, as per the Rules and further directing that such period shall not be treated as break in service, appears to be just and correct decision in the circumstances of the case. The cited judgement of Shiv Nandan Mahto, supra is distinguishable because therein the respondent-State was found on fault and petitioner was not at all found in fault in any manner and, therefore, the direction for payment of salary with interest @ 9% per annum was issued. The aforesaid fact situation is not obtaining in the present case.

The impugned judgement dated 21.12.2006 does not suffer from any legal error apparent on the face of record so as to warrant interference by this court.

We do not find any merit in this writ petition, which is accordingly dismissed.