Jangali vs Union Of India & Ors.

Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-

Brief facts of this case as narrated in the O.A. are that the applicant was initially appointed on the post of Gangman on dated 04.10.1985 and has worked at different places in the Northern Railway and lastly while the applicant was appointed at Panipat, due to some personal problem he could not appear on duty, therefore he represented his case to the Higher Authorities of the Northern Railway with the prayer that he may be given duty. Since he was not given duty and his representation was rejected by the Authorities, against the said rejection the applicant filed an Appeal on dated 14.05.1995, which was not decided, as such, the applicant filed an Original Application before this Tribunal, i.e. Original Application No. 1333 of 1995 (Jangali Vs. Union of India and others), which was decided vide order dated 07.03.1996 directing the Appellate Authority to decide and dispose of the Appeal within three weeks. Pursuant to the direction of this Tribunal, the applicant himself presented before the Authorities Concerned for personal hearing, but the personal hearing could not be taken place. Thereafter the applicant represented his case before Authorities Concerned by way of the representation dated 28.11.1998, but no order was passed, as such the applicant again approached before this Tribunal by way of Original Application No. 1372 of 2000 (Jangali Vs. Union of India and others) in which the Tribunal on dated 07.10.2000 disposed of the Original Application with direction to the respondent (Divisional Superintendent Engineer (I), Northern Railway, New Delhi) to consider and decide the representation of the applicant within one month from the date of supply of the copy of the order by a reasoned order. The Authority Concerned decided the matter on dated 09.03.2002 in pursuance of the order dated 07.12.2000 passed in Original Application No. 1372 of 2000 (Jangali Vs. Union of India and others) by which the applicant was directed to first join the duty after which his case would be considered on merit. It is submitted that in pursuance of the order dated 09.03.2002, the applicant joined on 03.05.2002. Thereafter, vide an order dated 22.05.2009, he was transferred from Karnalpur Kshetra to D.R.M. Office Allahabad and since then he is working at Allahabad under the control and supervision of the respondents. At the time of retirement of the applicant, lastly he was posted at Railway Station Unchdeeh, Sirsa, Maja, Allahabad in Gang No. 14. The applicant is aggrieved with the fact that till the date the payment of back wages has neither been considered nor it is paid by the respondents.

Learned counsel for the applicant submitted that the applicant visited the Office of the respondents several times and requested for consideration and release of his back wages but no order has been passed towards the payment of back wages. He states that in the order dated 09.03.2002 there was assurance that firstly the applicant should join his duties thereafter consideration will be made towards the payment of back wages, but the respondents have violated the order dated 09.03.2002 and have not paid the back wages to him till the date. It is further submitted that after a long time since the respondents have not complied with the order of this Tribunal, the applicant has filed Contempt Application bearing no. 330/150 of 2018 on dated 21.08.2018 in which the notices have been issued to the respondents and so many dates have been fixed for compliance of the said order and during the period the respondents have filed the affidavit of compliance on dated 04.04.2019 stating therein that the respondent have decided the representation of the applicant as per law by reasoned and speaking order on dated 12.02.2019. It is further alleged that illegally the liability was passed on to Divisional Superintendent Engineer (DSE-I) Northern Railway, Delhi Circle, New Delhi mentioning therein that all the things and grievances of the applicant can be considered by DSE-I. He argued that this illegal disposal of the representation of the applicant resulted in the Contempt Application being dismissed on 16.05.2019. It is submitted that the authority concerned has not taken any concrete action/decision on the representation/application of applicant except passing on the liability to the DSE-I, Northern Railways, New Delhi. Learned counsel for the applicant stated that after dismissal of the said contempt application, the applicant has represented his case by way of detailed representation/application dated 13.08.2019, before the Divisional Superintendent Engineer (DSE-I) Northern Railway, New Delhi, as directed in compliance of affidavit filed in the said contempt application, but till the date neither the DSE-I, Northern Railway, New Delhi has intimated to the applicant about further proceedings of the matter nor decided/considered the representation/application of the applicant dated 13.08.2019.

Referring to the facts disclosed in the counter affidavit, learned counsel for the respondents submitted that the applicant was a habitual absconder from duty. He was absent from duty for a period of 1927 days from 03.03.1989 to June 1994. On account of unauthorized absence from duty for a long period he was issued SF-5 in October 1994 by ADEN-PNP and he was removed from Railway Service on 29.3.1995. Against the order of removal the applicant filed Original Application No. 1333 of 1995, which was decided finally vide order dated 07.03.1996 with direction to respondents to decide the pending appeal of the applicant. The respondents authority had considered the appeal of the applicant and reduced the penalty to Withholding of Increment Permanently (WIP) for 3 years vide office letter No. 478-M/12/3/PMD/95 dt. 09.04.1996. He was posted at SFDE duty AEI/PNP letter No. 3-16, 23.04.1996, where he performed duty only for 167 days i.e. 25.04.1996 to 21.10.1996. Even this was not a continuing duty. Since 21.10.96 the applicant has been unauthorizedly absconding again and has been issued SF-5. Even after publication of notice in News Paper (Rastriya Sahara, Dt. 06.01.2000, the applicant has not turned up for duty). Thereafter the applicant filed another Original Application No. 1372 of 2000 before the Central Administrative Tribunal, Allahabad Bench, which was disposed of vide order dated 7.12.2000 with direction to the respondents to decide the representation of the applicant dated 28.11.1998. In compliance with the order dated 7.12.2000 passed by this Hon'ble Tribunal, the respondents authority has decided the representation of the applicant and permitted him to join his duty vide order dated 9.03.2002. Thereafter he has been taken back on duty under ADEN Karnal on dated 03.04.2002 as per aforesaid order. He has not performed duty till 02.04.2002 as mentioned in the O.A. itself. He has been already denied back wages for the period during which he did not perform any duty by Sr. DEN/I/DLI vide letter no. 478W- I/Staff matter/PNP/W-1 dated 09.03.2002. The applicant had been transferred from Delhi division (Northern Railway) on 21.05.2009 to Allahabad division, NCR. He retired from Railway service on 31.01.2018. The applicant has been paid all wages for the period during which he has performed duty in Delhi division and nothing is pending. In respect of back wages the applicant filed Original Application No. 1253 of 2017 before the Central Administrative Tribunal, Allahabad Bench, the same was finally disposed of vide order dated 3.11.2017. The applicant filed Contempt Petition before the Central Administrative Tribunal, Allahabad for compliance of order dated 3.11.2017. In the Contempt Petition the railway administration filed an affidavit of compliance whereby it fully complied with the order dated 3.11.2017 of this Tribunal. The Tribunal after perusal of the affidavit of compliance filed in Contempt Petition dismissed the contempt petition and discharged the notices. After finalization of the dispute involved in the Original Application the applicant again and again filed the original application before this Tribunal and wasted the precious time of this Tribunal. Thus, it was argued that the Original Application filed by the applicant is liable to be dismissed.

I have considered the averments made by learned counsel for the parties and perused the entire documents on record.

The applicant herein has challenged in the order dated 10.02.2021 whereby the respondents have denied payment of backwages to the applicant for the period of unauthorized absence between 21.04.1996 and 19.03.2002. The applicant had previously been issued SF-5 for unauthorised absence in October 1994 by ADEN-PNP and he was removed from Railway Service on 29.3.1995. After the appeal made by the applicant, the punishment of removal was converted to WIP for three years. The applicant has been litigating for a long time against the respondents. He had earlier filed O.A./1333/1995 which was disposed of on 07.03.1996 with a direction to decide the pending appeal of the applicant. Thereafter, the applicant had filed O.A./1372/2000 which was disposed of with a direction to decide the pending representation of the applicant dated 28.11.1998. The respondents had also passed an order dated 09.03.2002 (Annexure no-4 of the O.A.) which shows that the applicant had been unauthorisedly absent from duty on various occasions ever since his appointment. This fact can also be verified from the service record of the applicant annexed in the counter reply as CR-2. In view of the past record of the applicant with respect to his long and frequent spells of unauthorised absence from duty, the applicant was directed to join the duty after which his case for back wages was said to be considered on merit. The applicant thereafter joined and was transferred from Karnalpur Kshetra to D.R.M. Office Allahabad. The applicant also kept representing for grant of back wages. He also filed O.A./1253/2017 before this Tribunal which was decided on 03.11.2017 with a direction to decide the representation of the applicant in compliance with which the respondents passed an order dated 12.02.2019 stating that the applicant’s case for back wages had already been decided vide order dated 15.03.2002. The respondents have repeatedly held that the applicant has been unauthorisedly absent for the period in question and, therefore, the back wages have been denied to him. The Contempt Petition filed alleging the non-compliance of the order dated 03.11.2017 was also closed on the basis of the order dated 12.02.2019 passed by the respondents. Aggrieved, the applicant again approached this Tribunal through O.A./732/2020 which was again decided on 11.12.2020 with a direction to decide the representations of the applicant dated 13.08.2019/22.10.2019 after which the impugned order dated 10.02.2021 has been passed by the respondents wherein the applicant has been asked to supply a court order for grant of back wages, if any, and it has also been firmly decided that since the applicant has not worked during the said period of unauthorised absence, he is not entitled for any back wages.

In Ram Ashrey Singh and Anrs Vs. Ram Bux Singh (2003) LLR 415 SC, the Hon’ble Supreme Court held that grant of back wages is not automatic entitlement. It had held that the same is discretionary depending upon the facts and circumstances of each case. Further in the case of M.P. State Electricity Board Vs. Jerina Bee (2003) LLR 848 SC, it was held that when termination of workman is set-aside the award of back wages is not a natural consequence. Hon'ble Supreme Court while dealing with the subject in the matter of Airport Authority of India and Others Vs. Shambhu Nath Das reported as 2008 III-LLJ-353 SC has held that there was no justification whatsoever to grant any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. This is not a case where any court of law has held that the applicant has been wrongfully denied work for a particular period, where, after reinstatement he would be entitled to the back wages. In this case, the applicant himself has remained unauthorizedly absent. Even on a previous occasion he was removed from service for his unauthorised absence but later, on appeal, his punishment was converted to WIP for three years. The applicant has been litigating the issue numerous times on the ground that the respondents themselves have said in the order dated 09.03.2002 that the case of back wages of the applicant would be decided on merit after he joins the services. The applicant, being dissatisfied with the decision of the respondents to the effect of ‘no work no pay’, has challenged the matter with the averment that as per their own statement the respondents have refused to decide the case of payment of back wages to the applicant. This is not an acceptable averment. The applicant cannot claim that the matter of back wages has not been decided by the respondents just because the decision of the respondents is not in his favour. Taking into account the facts and circumstances of the case, the respondents are well within their rights to take a decision on whether the applicant should be paid any back wages for the period of unauthorised absence or not. It is up to the respondent department to adjust the period of absence of the applicant taking into account the availability of leave due and the period of absence. Thus, this Tribunal does not find any infirmity in the impugned order and the relief sought by the applicant in the O.A. is not liable to be allowed.

Accordingly, the O.A. stands dismissed. All associated M.A.s also stand disposed of. No order as to costs.