- (1.) The present review petition under Order 47 Rule 1 and 2 Code of Civil Procedure ('CPC' - for short) has been filed seeking review of the order dated 12.2.2007, passed by a Division Bench of this Court. Heard learned counsel for the parties.
(2.) The petitioner was appointed as a Beldar on work-charge basis on 30.04.1971 in the Engineering Department, UT, Chandigarh. His services were regularized vide letter dated 16.11.1976 (Annexure P-1). He was promoted to the post of Meter Reader vide letter dated 02.11.1989 (Annexure P-2) along with other department employees namely Nirmal Singh and Paras Ram. He submitted his joining report for the post of Meter Reader on 03.11.1989. Thereafter, the services of the petitioner and two other aforesaid employees namely Nirmal Singh and Paras Ram were terminated vide letter dated 07.11.1989 (Annexure P-3). It was observed that the petitioner and the aforesaid other employees were not within the prescribed age limit provided by the Recruitment Rules. They were in fact over age. According to the petitioner, he was holding regular post of Beldar prior to his promotion as Meter Reader. The Department did not issue any posting orders to him after passing of the order dated 07.11.1989 (Annexure P-3) terminating his services as Meter Reader. The petitioner along with another employee namely Nirmal Singh filed OA No. 1156-PB of 1989 before the Central Administrative Tribunal, Chandigarh ('Tribunal' for short) assailing the order dated 07.11.1989 (Annexure P-3). The grievances of Nirmal Singh were redressed by the department during the pendency of the OA. The grievance of the other employee i.e. Paras Ram was also redressed by the department who had also been promoted to the post of Meter Reader. However, the petitioner was not granted any relief by the department. The OA filed by the petitioner was allowed by the Tribunal on 22.10.1996 (Annexure P4) and the order dated 07.11.1989 (Annexure P3) terminating his services as Meter Reader was quashed. It was observed that the petitioner would be deemed to have been in service as if the impugned order had not been passed. The petitioner, however, was not allowed to join his duties on the post of Meter Reader or Beldar for a considerable time after passing of the order dated 22.10.1996 (Annexure P4) by the Tribunal. Ultimately, he was allowed to join his duties on the post of Meter Reader vide order dated 21.01.1997 (Annexure P-5) by transferring him to the Municipal Corporation Chandigarh. In this manner he remained out of job for the period from 07.11.1989 to 20.01.1997. The Department Authorities, before the petitioner had joined his duties, filed Review Application No. 53 of 1997. before the learned Tribunal seeking review of the judgment dated 22.10.1996 (Annexure P-4) passed by it whereby the termination of the petitioner as Meter Reader was quashed. The petitioner after joining the Municipal Corporation on 21.01.1997 (Annexure P-5) has since retired from service on 31.03.2001 on attaining the age of superannuation. The review application filed by the Department before the learned Tribunal was decided vide order dated 10.03.1998 (Annexure P-6) and the earlier order dated 22.10.1996 (Annexure P-4) passed by the Tribunal was re-called. It was inter alia observed that a reading of the order dated 22.10.1996 (Annexure P-4) showed that an assumption was made that the services of the petitioner as a regular Beldar were terminated by order dated 07.11.1989 (Annexure P-3) and the said order had been passed without issuing a show cause notice. In fact the said order dated 07.11.1989 (Annexure P-3) was passed on re-examination of the case and it was found that the petitioner and Nirmal Singh (whose services were also terminated along with the petitioner) did not have the prescribed age limit for appointment as Meter Reader. Therefore, the services of the petitioner were terminated as his appointment as Meter Reader had been made inadvertently. It was also observed that the reading of the order dated 22.10.1996 (Annexure P-4) proceeded on the ground that pre- decisional hearing was not given to the petitioner and principles of natural justice had been infringed. In the said circumstances, it was observed that the petitioner would be deemed to have been in service as if the impugned order had not been passed. The petitioner it was observed was not holding the post of Meter Reader as being regularly appointed or as a permanent employee. Besides, he did not join back on the post of Beldar. Besides, it was noticed that certain facts had been withheld by the petitioner. The Tribunal observed that it was inclined to pass an order on this aspect but it had been informed by way of rejoinder filed by the petitioner that the respondents had taken a wrong view of the recruitment Rules regarding age. In fact for the post of Meter Reader, 50% recruitment was to be made by direct recruitment and 50% through departmental candidates. Besides, it was noticed that the respondents through the review application pleaded that they be given opportunity to proceed by giving a show cause notice to the petitioner and after receiving his reply, consider his case afresh. The stand of the respondents that the order dated 22.10.1996 (Annexure P-4) earlier passed by the Tribunal would justify the misdemeanour of the petitioner, who knowingfully well regarding withdrawal of the order of his appointment as Meter Reader, had kept the Bench in the dark inasmuch as he did not place on record the order dated 07.11.1989 (Annexure P-3) in terms of which on re-examination of the case, it was found that the petitioner and the other two employees namely Nirmal Singh and Paras Ram did not have the prescribed age limit. It was also stated that the order dated 22.10.1996 (Annexure P-4) passed by the tribunal would have the effect of granting pay-scale to the petitioner for the last 7 to 8 years, whereas he had himself chosen not to work on the post of Beldar which was his substantive post. The Tribunal found themselves in agreement with the contentions as raised. It was of the opinion that the order of termination of his services as Meter Reader, in the given circumstances, though it was temporary post and was not a termination order of a permanent post having been proceeded on a wrong assumption has to be withdrawn. It was held that the order of termination of services of the petitioner as Meter Reader cannot be held to be void ab initio as an order of appointment de hors the recruitment rules can always be withdrawn as it would amount to an illegality/mistake only. It was held by the Hon'ble members of the learned Tribunal that they were inclined to adjudicate on the order of termination also but since the applicants in the review application had themselves pleaded that the petitioner was working on the post of Meter Reader under the orders that were sought to be reviewed, they be given liberty to issue show cause notice to him before a decision was taken. The review application was disposed of by re-calling the earlier order dated 22.10.1996 (Annexure P-4) with the following directions : "(a) That order passed by this bench dated 22.10.1996 is hereby recalled and set aside by allowing the R.A. to that extent. (b) That, since respondents have themselves prayed for permission to issue a show cause notice to the applicant, they may do so within a period of two months from the receipt of copy of this order and take a final decision regarding termination of services of the applicant-Gurdev Singh from the post of Meter Reader after giving him time of filing a reply/representation to such show cause notice. The earlier order of termination of his services, in these circumstances, is deemed to have been withdrawn w.ef. 21.1.1997, the date on which he was taken back on the post of Meter Reader by the applicants in the R.A., who may pass fresh order under the relevant rules." In terms of the above the respondent-department was liable to issue a show cause notice and take a final decision regarding termination of the services of the petitioner, after giving him time to file a reply/representation to such show cause notice. Besides, the order of termination of services of the petitioner was deemed to have been withdrawn with effect from 21.01.1997 and the department was to pass a fresh order. It is admitted position that the respondents have not taken any action as per the decision of the Hon'ble Tribunal in consequence to its above order dated 10.03.1998 (Annexure P-6). The petitioner in this regard submitted a detailed representation dated 10.02.1999 (Annexure P-7) by highlighting the factual position of his case. It was submitted in the said representation that the position with regard to age had not been correctly considered. Besides, after issuance of order dated 07.11.1989 (Annexure P-3) vide which his services as Meter Reader were terminated, he remained on leave upto 09.04.1992 and reported for duty on 10.04.1992 along with Medical Certificate and other relevant documents. Despite repeated requests, it was alleged that he was not taken back as Beldar even and was allowed to join duty as Meter Reader w.e.f. 21.01.1997. He, therefore, claims full benefits for the period he was forced to remain out of service. A request was also made to decide the fate of his service for the period from 08.11.1989 to 27.01.1997. Thereafter, the Department vide memo dated 01.11.1999 (Annexure P-8) from the Chief Engineer, Union Territory, Chandigarh to the Superintending Engineer, Project PH Circle, Chandigarh on the representation of the petitioner and after scrutiny of all the relevant records and the judgment of the Tribunal as also the comments offered by the Executive Engineer, Public Health Division No. 7, Chandigarh recorded that it has been decided to drop the process of issuing the show cause notice to the petitioner at this belated stage as the petitioner was working under the control of Municipal Corporation, Chandigarh. Accordingly, the Superintending Engineer, Project PH Circle, Chandigarh was requested to regularise the period in dispute by sanctioning the leave of kind due so as to regularise the matter. A copy was also forwarded on 11.11.1999 to Executive Engineer, Project PH Division No. 7, Chandigarh for information and necessary action with respect to his Memo No. 792 dated 14.06.1999. He was requested to comply with the orders of the higher authority and submit compliance report to the office of Chief Engineer, Union Territory, Chandigarh within two days. The Executive Engineer, Project PH Division No. 7, Chandigarh addressed memo dated 17.11.1999 (Annexure P-9) to the Executive Engineer, PH, Division No. 3, Chandigarh. A copy of the memo dated 01.11.1999 (Annexure P-8) of the Chief Engineer was forwarded for taking further necessary action in the matter. It was mentioned that the petitioner had remained in service under the Executive Engineer, Project PH Division No. 5 which had merged with the PH Division No. 3 after formation of Municipal Corporation. There being inaction on the part of the respondents with regard to the claim made by the petitioner, he made another representation dated 01.06.2001 (Annexure P-10) i.e. after his retirement. It was inter alia prayed that salary prescribed for the post of Meter Reader for the period from 07.11.1989 to 20.01.1997 i.e. the period he was compelled to remain out of job be paid to him. Thereafter, the petitioner filed a CWP No. 12621 of 2001 in this Court seeking directions for the release of retiral benefits after fixing his pay in accordance with office order dated 21.01.1997 (Annexure P-5) and to finalise his pension case immediately. This Court vide order dated 23.08.2001 directed the respondents to decide the representation of the petitioner within a period of 2 months. It is thereafter the impugned order dated 26.12.2001 (Annexure P-11) was passed. It may be noticed that in the representation dated 01.06.2001 (Annexure P-10) the petitioner had also prayed for releasing the retiral benefits after fixing his pay in pursuance of Office Order No. 5 dated 21.01.1997 issued by Superintending Engineer, Project PH Circle, Chandigarh and to count the work charge period of his service from 30.04.1971 to 15.11.1976 towards regular service. Besides, as already noticed for the grant of pay scale of the post of Meter Reader for the period from 3.11.1989 to 2.2.1997. In terms of the impugned order dated 26.12.2001 (Annexure P-11), it was observed that the petitioner was in service since 24.11.1976 but he had never raised a claim for the period of work charge service rendered by him from 30.04.1971 to 15.11.1976 for the purpose of pensionary benefits during his service. He had raised the issue for the first time after his retirement. As regards the period of service from 07.11.1989 to 20.01.1997 which is now primarily in dispute, it was merely observed that the services of the petitioner had already been transferred to the Municipal Corporation, Chandigarh to be on the rolls of the said Corporation. Due to the said reason, the copy of the order passed in the review application i.e. the order dated 10.03.1998 (Annexure P- 6) had not been received in time. The office of Chief Engineer, UT, Chandigarh had vide letter dated 01.11.1999 (Annexure P-8) decided to drop the process of issuing the show cause notice to the petitioner and decided to treat the period of absence from duty of the petitioner as leave of the kind due and the said order had been complied with. The order dated 26.12.2001 (Annexure P-11) was challenged by way of CWP No. 10672 of 2002. By an order dated 06.10.2003 (Annexure P-12) the writ petition was allowed and the impugned order dated 26.12.2001 (Annexure P-11) was quashed. The primary challenge in the writ petition i.e. CWP No. 10672 of 2002 filed by the petitioner was as regards the work charge period of his service from 30.04.1971 to 15.11.1976 being not counted for the purpose of retiral benefits and pension. This Court in terms of the aforesaid order dated 06.10.2003 (Annexure P-12) held that the aforesaid work charge period of service of the petitioner was liable to be counted for the purpose of retiral benefits and consequential release the retiral benefits after taking into account the said period. The matter regarding the period of service from 07.11.1989 to 20.01.1997 which he remained out of job was not adverted to. In fact it was not even liable to be adverted to as the office of Chief Engineer, UT, Chandigarh in its order dated 26.12.2001 (Annexure P-11) had itself observed that vide letter dated 01.11.1999 (Annexure P-8) had decided to drop the process of showing the show cause notice to the petitioner and decided to treat the period of absence from duty as leave of the kind due and the said order had been complied with. The petitioner thereafter made a representation.dated 23.10.2003 (Annexure P-13) with the request to make compliance of the directions issued by this Court on 06.10.2003 (Annexure P- 12). The petitioner also filed a contempt petition as the respondents failed to comply with the directions passed by this Court on 06.10.2003. It was stated that respondent No. 2 had released an amount of Rs. 49,600/- through cheque as gratuity of the petitioner without counting the work charge service period of the petitioner. Difference of leave encashment was also paid by the respondents to the petitioner during the pendency of the pending petition. The petition was disposed of on 12.04.2005. However, the respondents had not counted the period of service of the petitioner from 07.11.1989 to 20.01.1997 in fixing his pension at Rs. 2100/- per month. The petitioner is getting pension of Rs. 2400/- per month with effect from February 2005, whereas he is entitled to pension to the extent of Rs. 5000/- per month in case the period of his service from November 1989 to January 1997 is counted.
(3.) The petitioner also filed review application No. 476 of 2003 in CWP No. 10672 of 2002 seeking review of the judgment dated 06.10.2003 (Annexure P-12) to incorporate the relief of consequential benefits along with full back-wages for the period from 07.11.1989 to 20.01.1997 as the petitioner was compelled to remain out of job. It was submitted by the petitioner that this relief was also claimed in his writ petition. The respondent No. 3 filed reply to the review application and took the stand that if any averment made in the writ petition was not contended at the time of arguments, the same would be deemed to have not been pressed by the petitioner and therefore, he cannot re-agitate the matter in a review application. The review application was dismissed by the Division Bench of this Court vide order dated 13.05.2005 (Annexure P-14) with the observation that no review is permissible on this ground. However, the petitioner was given liberty to seek relief by way of a separate writ petition. When the present writ petition i.e. CWP No. 11785 of 2005 was disposed of by this Court vide order dated 12.02.2007, the order of the Tribunal dated 10.03.1998 (Annexure P-6) was noticed as regards the fact that the petitioner after his services as Meter Reader had been terminated on 07.11.1989 (Annexure P-3) did not make any effort to rejoin his duty. However, the subsequent directions of the order dated 10.03.1998 (Annexure P-6) of the Tribunal that since the respondents had themselves prayed for permission to issue show cause notice to the petitioner, they may do so within a period of two months from the receipt of copy of the order dated 10.03.1998 and take a final decision regarding termination of services of the petitioner from the post of Meter Reader after giving him time to file reply/representation to such show cause notice; were not noticed. Admittedly no show cause notice was issued to the petitioner after passing of the order by the Tribunal on 10.03.1998 (Annexure P-6) and the petitioner continued in service till he retired from service on 31.03.2001. Thereafter, he submitted a representation and also filed writ petition in this Court. It may also be noticed that vide letter dated 01.11.1999 (Annexure P-8), the respondents had decided to drop the process of issuing show cause notice in consequence of the directions dated 10.03.1998 (Annexure P-6) of the learned Tribunal. Besides, even while considering the representation of the petitioner vide order dated 26.12.2001 (Annexure P-11) it was recorded that the office of Chief Engineer, UT, Chandigarh had vide letter dated 01.11.1999 (Annexure P8) decided to drop the process of issuing the show cause notice to the petitioner and to treat the period of absence from duty as leave of the kind due. The said order it is further recorded had been complied with.;