Smt. Hemlata vs Union Of India & Ors.

This O.A. has been filed by the applicant under section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-

During the pendency of this OA, the original applicant - Basant Lal- passed away and thereafter his widow has been substituted in his place by way of a substitution application.

Brief facts of the case are that the father of original, late Sri Daya Shankar Shukla, was working as a Driver (Group-C) in Northern Railway, Allahabad. He died in harness on 10.03.1982. The original applicant, whose date of birth is 01.07.1959, was appointed on compassionate ground in the year 1982 on the post of Fireman in Northern Railway. He was posted at Chunar, Allahabad Division, now under North Central Railway. The original applicant discharged his duties sincerely and to the satisfaction of the Railway authorities. On 19.12.1990, the Loco Foreman, Northern Railway, Chunar nominated the original applicant for training at Ludhiana (Punjab). During the training, a quarrel took place between the original applicant and some other staff members and the original applicant was threatened with serious consequences. On the advice of his senior officers, he left Ludhiana and returned home. Thereafter, the original applicant fell ill and remained under treatment for a long period. After being declared fit for duty by the doctor, he went to join his duty, but he was not permitted to join and was asked to come later. The original applicant claims that he remained in contact with the higher Railway authorities and made several requests for permitting him to join duty and for payment of his dues. However, he was neither permitted to join duty nor paid salary or other service benefits. The original applicant attained the age of superannuation on 30.06.2019 without being permitted to resume his duties. He thereafter submitted representations to the concerned authorities for payment of salary and release of all consequential service and retiral benefits but representation of the applicant has not been decided as yet, thus, original applicant filed present original application for payment of his dues and grant of the service and retiral benefits admissible to him in accordance with law.

Per contra, the respondents have denied the contentions of applicant by filing counter affidavit. It is stated in the counter affidavit that the original applicant has filed only the office letter dated 19.12.1990 regarding his nomination for ATS/ALD training. He has filed no document to show that he was actually sent to Ludhiana, attended the training, returned from Ludhiana, or was issued any ORS pass. The concerned LF/NR/CAR office remained in existence till 1999, but the original applicant has not produced any record to show that he approached the said office or any competent authority for joining duty. The original applicant remained absent from duty from 1990 and approached the Tribunal only in 2021, after about 31 years. The alleged representations do not establish that he requested the concerned officers to permit him to join duty. The respondents state that such prolonged unauthorized absence was liable to disciplinary action under the Railway Servants (Discipline and Appeal) Rules, 1968. However, no relevant old disciplinary record is now available. The respondents further submit that the original applicant did not approach the Railway authorities or the Tribunal for resumption of duty even before his superannuation on 30.06.2019. Therefore, the claim for salary and consequential service/retiral benefits is not supported by any reliable record and is highly belated. Thus, OA is liable to be dismissed.

The applicant has filed Rejoinder Affidavit to the Counter Affidavit as filed by the respondents refuting the contentions made by the respondents in their Counter Affidavit while reiterating the averments made in the O.A. Nothing new has been added.

I have heard Shri P.C Joshi, learned counsel for the applicant and Shri Pramod Kumar Rai, learned counsel for the respondents and perused the record.

Submission of learned counsel for the applicant is that the original applicant was appointed on compassionate ground in 1982 and was a permanent Railway employee. His nomination for training vide letter dated 19.12.1990 is not disputed. It is submitted that after the training, the applicant fell ill and after being declared fit, he tried to resume duty but was not permitted to join. It is further submitted that there is no order on record showing that the applicant was dismissed, removed or terminated from service. The respondents cannot presume that he was removed merely because the old disciplinary record is not available. Learned counsel for the applicant submitted that original applicant made representations to the Railway authorities for his service and retiral benefits and ultimately attained the age of superannuation on 30.06.2019. Since no decision was taken on his representations, he approached this Tribunal. It is submitted that the applicant cannot be deprived of his pensionary and other retiral benefits without determining his service status in accordance with law. The respondents may be directed to consider his claim and release the benefits legally admissible to him.

In rebuttal, learned counsel for the respondents submits that the original applicant has produced only the letter dated 19.12.1990 regarding his nomination for training. There is no document to show that he actually attended the training, returned from Ludhiana, or was prevented from joining duty thereafter. It is further submitted that the original applicant remained absent from 1990 and did not produce any application made to the concerned Railway officers for resumption of duty. He approached the Tribunal only in 2021, after about 31 years. Learned counsel for the respondents next submitted that the alleged representations mainly concerned pension, fund and other benefits and did not establish that the original applicant sought permission to resume duty. His prolonged unauthorized absence was liable to disciplinary action under the Railway rules. Thus, he submitted that the original applicant has failed to prove that he continued in service or the Railway administration prevented him from joining duty. His claim for salary and consequential retiral benefits is highly belated and unsupported by reliable record. The O.A. is therefore liable to be dismissed.

I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.

It is not in dispute that the original applicant was appointed in the Railway in the year 1982 on compassionate ground. Annexure A-1 is the office letter dated 19.12.1990, whereby the original applicant was nominated for ATS/ALD training at Ludhiana. Therefore, the fact that the original applicant was nominated and sent for training cannot be disputed by the respondents. The respondents have also not produced any material to show that the said nomination was cancelled or the applicant was not sent for training.

The respondents have mainly proceeded on the assumption that the original applicant remained absent from duty from 1990 and must have been removed from service. However, no order of dismissal, removal or termination of the original applicant has been placed on record. Mere absence of the old disciplinary record cannot establish that the applicant was removed from service in accordance with law.

It is also relevant to mention here that the original applicant had submitted a representation dated 12.02.1993. Thus, the contention of the respondents that the original applicant never approached the Railway authorities after 1990 cannot be accepted in its entirety. The said representation shows that the original applicant had approached the Railway administration regarding his joining and consequential benefits. The further submission of the respondents that the original service record is not available also cannot, by itself, go against the original applicant. The service record of a Railway employee is maintained and preserved by the Railway administration. The original applicant, being an employee, cannot be expected to produce records which are required to be maintained by the respondents themselves. If the respondents contend that the original applicant's service was terminated or disciplinary proceedings were taken against him, the relevant order and service record ought to have been produced before the Tribunal.

At the same time, the original applicant cannot automatically be granted salary for the entire period from 1990 to 2019 merely on the basis of his assertion. His entitlement to salary and other service benefits for the period of absence has to be determined in accordance with the applicable rules and on the basis of the available service record.

In the facts and circumstances of the case, it would be appropriate to direct the respondents to verify the complete service record of the original applicant. If the original record is not available, the respondents shall make an effort to reconstruct the relevant service particulars from the available official records.

Accordingly, Original Application is disposed of with the direction to the respondents to examine and decide the claim of the substituted applicant for pension, GPF, Group Insurance, leave encashment and other retiral benefits, after determining his actual service status in accordance with the applicable rules. A reasoned and speaking order shall be passed within a period of three months from the date of receipt of a certified copy of this order. It is made clear that the consequential benefits including the salary etc. for the period during which the original applicant did not perform duty shall not be made to the applicant. The respondents shall communicate the decision to the substituted applicant within the aforesaid period. There shall be no order as to costs. All associated MAs stand disposed of.