GIRISH CHANDRA NATH Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this O.A. the applicant makes a prayer for setting aside the orders dated 27.8.2009, 15.10.2009 and 10.5.2010 vide which the pay of the applicant was wrongly fixed and the statement of fixation dated 15.12.2010 and the order dated 9.10.2012 vide which his suspension period was regularized as suspension and the period of his absence was regularized as Leave Without Pay (LWP). The brief facts narrated in this case are that the applicant is working as Assistant Station Master, N.F. Railway. He was removed from service vide penalty order dated 18.2.2003. Against the said penalty order, the applicant preferred an appeal dated 21.4.2003 before the Appellate Authority. However, the Appellate Authority vide order dated 29.7.2003 rejected his appeal. The applicant preferred a further appeal on 1.9.2003 which was also rejected vide order dated 8.2.2005. Assailing the aforesaid orders dated 18.2.2003, 20.7.2003 and 8.2.2005, the applicant approached this Tribunal by filing O.A. No. 248/2005. The Tribunal vide order dated 2.3.2007 set aside and quashed the aforesaid orders issued by the respondents and remitted back the matter to the Disciplinary Authority for imposing a lesser punishment i.e. of withholding of three increments with no promotion for another five years without any back wages. It is stated that, in compliance with the order of the Tribunal dated 2.3.2007, the respondents reinstated the applicant in service vide order dated 8.5.2007 and posted him as Assistant Station Master, Manu, Tripura in the scale of pay of Rs. 4500 -7000/ -. The applicant thereafter, made representation on 8.2.2009 before the authority with a request to treat the period of absence due to removal from service as on duty for all purposes and further requested the authority to review the fixation of pay etc. The applicant stated that vide order dated 27.8.2009 the pay fixation of the applicant was done by the department in compliance with the order of the Tribunal dated 2.3.2007. Subsequently, the said order dated 27.8.2009 was modified vide order dated 15.10.2009 and was further modified vide order dated 10.5.2010 by treating the period of suspension of the applicant, from 12.12.2001 to 17.2.2003 i.e., 433 days as suspension and LWP for 1148 days i.e., from 18.2.2003 to 16.5.2007. Consequently, the three increments have been withheld from the year 2007 and making the revised pay effective from 1.7.2010 instead of 1.1.2006. The applicant further stated that the statement of fixation of his pay was published on 15.12.2010 showing the fixation in the revised scale of Rs. 5,200 - 20,000/ - + 2,800/ - (Grade Pay) and its effective date as 1.7.2010 after withholding of annual increments for 3 years and period of suspension/LWP etc. According to the applicant such a fixation was highly arbitrary, wrong and contrary to law and was not in conformity with the directions given in the Tribunal's judgment dated 2.3.2007 passed in O.A. No. 248/2005.

(2.) MR . S. Dutta, learned Counsel appeared on behalf of the applicant and submitted that this Tribunal vide order dated 2.3.2007 passed in O.A. No. 248/2005 set aside the removal order as well as the appellate order and remitted back the matter to the Disciplinary Authority and directed the respondents to impose a lesser punishment i.e. withholding of three increments with no promotion for another five years without any back wages. According to the learned Counsel in view of the aforesaid judgment and order of the Tribunal the applicant ought to have been reinstated at least w.e.f. 18.2.2003 i.e., the date of his removal from service instead of 17.5.2007. According to the learned Counsel the fixation of pay of the applicant ought to have been made on 18.2.2003 with subsequent fitments every year and benefit of fixation on revised pay ought to have been given effect from 1.1.2006 and not from 1.7.2010, which according to the learned Counsel is erroneous and not in conformity with the judgment and order of the Tribunal. The learned Counsel further submitted that the order dated 2.3.2007 passed by the Tribunal in O.A. No. 248/2005 is liable to be effected from the date of imposition of penalty of removal from service issued vide order dated 18.2.2003 by modification of the order dated 8.5.2007. In support of his contention, Mr. S. Dutta, learned Counsel for the applicant relied upon the decision of the Apex Court in : (1997) 6 SCC 159 : 1998 (1) SLJ 173 SC, Punjab Dairy Development Corporation Ltd. And another v. Kala Singh and Others and the decision of the Himachal Pradesh High Court in L.S. Thakur v. Punjab National Bank, C.W.P. 1591 of 2007 decided on 5.4.2011 and submitted that the effective date ought to have related back to the date on which the order of removal was passed. The learned Counsel submitted that fixation of pay of the applicant was not done in correct manner by the respondents.

(3.) WE have heard the learned Counsel for the parties, perused the pleadings thereon and material placed before us and decisions relied upon. The applicant was removed from service vide penalty order dated 18.2.2003. The Appellate Authority vide order dated 8.2.2005 rejected the appeal preferred by the applicant. The applicant approached this Tribunal against the aforesaid orders by filing O.A. No. 248/2005. This Tribunal vide order dated 2.3.2007 set aside and quashed the penalty order dated 18.2.2003, imposed upon the applicant and Appellate Order dated 8.2.2005 and remitted back the matter to the Disciplinary Authority for imposing a lesser punishment i.e. withholding of three increments with no promotion for five years without any back wages. In compliance with the order passed by this Tribunal, the respondents authority vide order dated 26.7.2007 reinstated the applicant and subsequently, fixed his pay by withholding three increments with no promotion for another five years, which was made effective from 17.5.2007.