Allowed

The Union of India v. Manik Lal Chakraborty

Gauhati HC6 May 2022WP(C)/7936/2017

Case brief

AI extract

What is this about?

The Gauhati High Court held that a railway employee is not entitled to arrears of pay and pension for the period between the promotion order and actual assumption of the higher post. Applying the 'no work, no pay' principle, the Court quashed the Tribunal's award granting retrospective benefits from 2006.

What did the court decide?

The Tribunal Award directing retrospective benefits from 01/01/2006 was quashed; respondent entitled to benefits only from 01/06/2006.

The Union of India Vs Manik Lal Chakraborty — Pension and Retirement Benefits | Gauhati HC (2022)

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Page No.# 1/11

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GAHC010205602017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/7936/2017

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THE UNION OF INDIA

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REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON, GUWAHATI -11, FOR MANAGEMENT N.F. RAILWAY LUMDING DIVISION, NAGAON AS DESCRIBED IN REFERENCE CASE NO. 04 OF2015

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VERSUS

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MANIK LAL CHAKRABORTY

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EX. PS/II TO AM/BPB/N.F.RAILWAY RAILWAY KALIBARI COLONY P.O. BADARPUR ASSAM-788806.

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Advocate for the Petitioner : MSB DEVI

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Advocate for the Respondent : MR. U K DAS

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BEFORE

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HONOURABLE MR. JUSTICE K. SEMA

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JUDGMENT & ORDER (CAV)

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Date : 06-05-2022

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Heard Mr. G. Goswami, learned counsel for the petitioner and Mr. U.K. Das, learned legal Aid counsel for the respondent.

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2. This writ petition has been filed challenging the Award dated 07/06/2017 passed by the learned Central Government Industrial Tribunal-cum- Labour Court Guwahati, Assam in the

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Reference Case No. 04/2015 by which the respondent/workman has been retrospectively extended the benefit of promotion in the higher scale of Rs. 6500/- to Rs. 10500/- w.e.f 01/01/2006 along with all consequential and pensionary benefits.

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3. The case in brief is that by the Office Order No. 041/05 (Stenographer) dated 13/12/2005 issued by the Northeast Frontier Railway, the respondent who was serving as Stenographer Gr-I in scale Rs. 5500-9000/- and empanelled for promotion to the post of Private Secretary-II (P.S/II) was appointed to officiate as PS.-II in the scale of Rs. 650010500/- and posted in the Office of the Additional Divisional Railway Manager (ADRM) Lumding. Prior to the issuance of the order dated 13/12/2005, the respondent was serving as Stenographer Gr-I under Area Manager (AM) Badarpur. The respondent however could not be released to join the promotional post as there was no replacement to relieve the respondent as Stenographer Gr-I at Badarpur. The N.F. Railway thereafter issued the Memorandum dated 29/05/2006 granting approval for temporary variation of one post of P.S-II from ADRM/LMG to AM/BPB for a period of 3(three) months w.e.f 01/06/2006 to 31/08/2006 and the respondent was appointed to officiate as P.S-II and posted against the variated post under AM/BPB. The respondent’s appeal to the Railway authorities to grant him the benefits of promotion w.e.f. 13/12/2005 was rejected by the Office of the General Manager (P) Maligaon, N.F Railway by issuing the letter dated 18/07/2006 on the ground that retrospective promotional benefits cannot be given. The respondent retired from service on superannuation on 31/08/2006. After a considerable lapse of time a conciliation was held between the Railway authorities and the respondent in the presence of the Assistant Labour Commissioner (Central) on 16/03/2015 which however ended in failure. The dispute was thereafter referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Guwahati, Assam in respect of the matter specified in the schedule as under;

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SCHEDULE

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“Whether retrospective promotional benefit to Shri Manik Lal Chakraborty Ex.PS/II to AM/BPB/N.F Railway, should be considered by the General Manager (P), N.F Railway, Maligaon, Guwahati-781011 or not? Is he entitled to any compensation for the delay in effecting his promotion”?

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4. The respondent/workman appeared in person before the CGIT-cum-Labour Court,

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Guwahati and recorded his statement. His claim was that though he was entitled to get the financial benefit of promotion to P.S-II from 13/12/2005 he was given the benefit only from 01/06/2006. The Management of Railway despite the service of notice by the CGIT-cumLabour Court remained absence and therefore the reference proceeded ex-parte against the Management.

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5. The learned CGIT-cum-Labour Court, Guwahati thereafter passed the Award dated 07/06/2017 directing that the respondent be given the effect of his promotion in the higher scale of Rs. 6500-Rs. 10500/- from 01/01/2006 retrospectively and further that the respondent’s pay scale shall stands revised in the higher scale of Rs. 6500-Rs. 10500/- w.e.f. 01/01/2006 with all consequential and pensionary benefit retrospectively.

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6. Being aggrieved the Union of India has filed the instant writ petition challenging the legality and validity of the Award dated 07/06/2017 passed in Reference Case No. 4/2015 by the learned CGIT-cum-Labour Court, Guwahati, Assam. 7. Mr. U.K Das, learned counsel appears on behalf of the respondent as a Legal Aid counsel and submits that in spite of his efforts he has not been able to contact the respondent and therefore, no affidavit-in-opposition has been filed on behalf of the said respondent. The learned counsel however submits that the writ petition can be disposed in the light of the order passed by this Court on 15/07/2021 by which the case has been admitted for hearing observing that since the legality and validity of the award have to be examined, the same can be done on the basis of the materials available before the Court.

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8. Mr. G. Goswami, learned counsel for the petitioner firstly assails the award on the ground of delay and laches. He submits that there is a lapse of more than 10 years from the date i.e. 13/12/2005 the respondent allegedly became entitled to the promotional benefit and the registration of the Reference Case No. 4/2015 and there is no explanation for the delay. In support of this contention, the learned counsel has referred to the case of Prabhakar -versus- Joint Director, Sericulture Department & Another , reported in (2015) 15

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SCC 1 more particularly paragraph-38, 39, 41 & 42.3 to drive home the point that even when there is no limitation prescribe by any statute relating to certain proceeding, in such cases the Court’s have coined the doctrine of laches and delays as well as the doctrine of acquiescence and non suited the litigant who approach the court belatedly without any justifiable explanation for bringing action after unreasonable delay. Secondly, the learned counsel

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submits that the claim of the respondent for granting the retrospective benefit of promotion w.e.f. 13/12/2005 has already been rejected by the N.F Railway authorities way back on 18/07/2006 and therefore, the issue could not have been re-agitated before the learned Tribunal. Thirdly, it is submitted that the Reference Case No. 4/2015 was decided ex-parte without notice to the Railway administration and therefore bad in law. The learned counsel then refers to the letter dated 29/07/1997 (Annexure-5) issued by the General Manager (P), Maligaon, Guwahati, N.F Railway in which the instructions contained in the letter dated 11/07/1997 which provides guidelines for relieving the promotees to the higher post in the N.F Railway has been incorporated. The learned counsel submits that the guidelines has been adhered to while relieving the respondent to the promotional post of P.S-II and therefore, no wrong has been committed by the petitioner authorities. It is further submitted that the Award dated 07/06/2017 passed by the learned CGIT-cum-Labour Court, Guwahati extending retrospective promotional benefits on the post in which the petitioner has never served is against the law.

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9. The learned counsel for the respondent on the other hand, submits that there is no legal infirmity in the Award dated 07/06/2017 passed by the learned CGIT-cum-Labour Court, Guwahati, Assam. The learned counsel has taken this Court to the Office Order No. 041/05 (Stenographer) dated 13/12/2005 where it has been unequivocally stated that the Stenographer Gr-I who are empanelled for promotion to the post of P.S-II are now appointed to officiate as P.S-II in the scale Rs. 6500-10500/- against the existing vacancy and posted in places as mentioned. The learned counsel submits that the wordings of the order leaves no room to doubt that the respondent have been promoted to officiate the promotional post of P.S-II and therefore, the respondent is entitled to the benefits of the promotional post w.e.f. 13/12/2005 and the respondent cannot be faulted with, if no reliever has been found to replace the respondent as Stenographer Gr-I at Badarpur. The learned counsel for the respondent also submits that the grounds taken by the petitioner to assail the Award dated 13/12/2005 should not be allowed as the petitioner has deliberately failed to contest the reference case in spite of receiving the notice from the learned Tribunal.

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10. A perusal of the order dated 07/06/2017 passed by the learned CGIT-cum-Labour Court, Guwahati, Assam as well as the LCR reveals that the notice served on the petitioner by the learned Tribunal in the reference case was received by the Office of the Divisional Railway

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Manager, N.F Railway Lumding on 13/10/2015, the petitioner however failed to appear before the Tribunal and due to which the learned Tribunal issued the order dated 05/04/2017 to proceed ex-parte against the Railway Management. Therefore, the challenge made to the award on the ground of delay and laches and on the ground that the claim for retrospective benefit cannot be re-agitated as it has been rejected by the Railway authorities on 18/07/2006 cannot be sustained. All such grounds could have been adjudicated in the reference case had the railways diligently prosecuted the case pursuant to the receipt of the notice issued by the Tribunal.

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11. The only pertinent question for consideration of this Court in the instant case is whether the respondent is entitled for retrospective promotional benefits w.e.f 13/12/2005 i.e. the date on which the order was issued appointing the respondent to officiate in the higher post of P.S-II or whether the respondent is eligible to enjoy the benefits attached to P.S-II only w.e.f 01/06/2006 i.e. the date on which approval was accorded for temporary variation of one post of P.S-II from ADRM/LMG to AM/BPB and the respondent appointed to officiate the variated post under AM/BPB in the scale of Rs. 6500-10500/-. In other words, whether the respondent is entitled to the promotional benefits from the date of the promotion order or from the date from which he was actually appointed to the higher post to discharge the duties and responsibilities attached to the post. This issue was also the subject matter of conciliation between the disputing parties.

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12. The learned CGIT-cum-Labour Court, Guwahati, Assam had inter-alia observed that the respondent rightly deserved to be promoted w.e.f. 13/12/2005 or at a reasonably closer date as P.S-II and had the respondent been released immediately he would have got the higher scale from the date of the order itself or from the date of joining the post. The learned CGIT-cum-Labour Court, Guwahati, Assam also observed that since the default for non release of the respondent from Badarpur is not attributed to the respondent, the respondent cannot be deprived of the promotional benefits from the date when the promotion order was issued. By making such observations, the learned CGIT-cum-Labour Court, Guwahati, Assam directed that the respondent be given the promotional benefits in the higher scale of Rs. 6500-10500/- retrospectively from 01/01/2006. It was also ordered that the pay scale of the respondent shall be revised in the higher scale of Rs. 6500-10500/- w.e.f. 01/01/2006 retrospectively for all consequential and pensionary benefits.

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13. In order to properly appreciate the case, the Office Order No. 041/2005 (Stenographer) dated 13/12/2005 and the Memorandum dated 29/05/2006 are reproduced as under;

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“NORTHEAST FRONTIER RAILWAY

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OFFICE ORDER No. 041/05 (STENOGRAPHER)

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The following Stenographer Gr-I in the scale Rs. 5500-9000/- who were empanelled for promotion to the post of P.S/II in the scale Rs. 6500-10500/- vide this Office Memorandum No. 041/05(Stenographer) endorsed under No. E/225/6/Pt.IX(Q) dated 30.11.2005/1.12.2005 are now appointed to officiate as P.S/II in scale of Rs. 6500-10500/- against the existing vacancy and posted in the places as mentioned against each. The above promotion will be effective subject to free from SPE/Vig/DAR Cases.

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Sl. No.	Name	Working under as Steno-I (5500- 9000/-	Posted under as P.S/II (6500-10500/-)
1.	-	-	-
2.	-	-	-
3.	-	-	-
4.	Shri. M.L Chakraborty	DRM(P)/LMG	ADRM/LMG
5.	-	-	-
6.	-	-	-
7.	-	-	-

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The above staff may exercise option for fixation of their pay from the date of next increment in their substantive scale within a period of one month from the date of issue of the orders.

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Railway Board vide their letter No. E(NG)1-95/PM-1/8 dated 23.08.1995 have instructed that staff on promotion shall be relieved within three months from the issue of the promotion order.

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A clear acknowledgment to the effect of the above order may be obtained and send the same to this Office for record. Date of which they joined in the concerned office may kindly be intimated. This issue with the approval of the competent authority.

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Sd/- Senior Personal Officer/RP For General Manager(P) MLG, Maligaon dt.13.12.2005”

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“ N.F RAILWAY MEMORANDUM

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CPO/A has accorded his approval for temporary variation of one post of P.S-II in scale Rs. 6500-10500/- from ADRM/LMG to AM/BPB’s Office for a period of 03(three) months w.e.f 01.06.06 to 31.08.06 on administrative interest. On completion of 03(three) months the post will automatically be restored back to its original place i.e. ADRM/LMG.

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Accordingly, Shri. M.L. Chakraborty, Steno-I in scale Rs. 55009000/- working under AM/BPB who was empanelled for promotion to the post of P.S-II (6500-10500/-) and posted as P.S-II under ADRM/LMG vide this Office Order No.041/05 (Stenographer) circulated under No. E/255/6 Pt.-IX(Q) dated 13.12.05 is hereby appointed to officiate as P.S-II in scale Rs. 6500-10500/- and posted against the above variated post under AM/BPB.

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This issues with the approval of CPO/A.

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Sd/- (R. Narzary) SPO/RP For General Manager (P) MLG, Dated 29.05.06”

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14. A conjoint reading of the Office Order dated 13/12/2005 and the Memorandum dated 29/05/2006 reveals that although the office order was issued appointing the respondent to officiate the higher post of P.S-II in scale Rs. 6500-10500/- against existing vacancy the respondent was not immediately relieved from the post of Stenographer Gr-I at Badarpur so as to enable the respondent to join the higher post. It was only consequent to the issuance of the memorandum dated 29/05/2006 approving temporary variation of one post of P.S-II from the Office of the Additional Divisional Railway Manager (ADRM), Lumding to the Office of the Area Manager (AM), Badarpur for 3(three) months w.e.f 01/06/2006 to 31/08/2006 that the respondent was appointed as P.S-II under the Area Manager, Badarpur w.e.f. 01/06/2006. The petitioner retired from service on 31/08/2006. The respondent was therefore appointed in the higher post of P.S-II only from 01/06/2006 and commenced discharging the duties and function attached to the post only with effect from the date of the actual appointment.

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15. The question which therefore arises for the consideration of this Court is whether the respondent is retrospectively entitled to the payment of emoluments of the higher post of P.SII w.e.f. 01/01/2006 to 31/05/2006, a post in which the respondent has never served during the said period, or the respondent is entitled to the promotional benefits only w.e.f. 01/01/2006 i.e. the date on which the respondent actually assumed office of P.S-II. The admitted position is that the respondent has never worked in the post of P.S-II between 13/12/2005 to 31/05/2006. This Court is therefore of the considered opinion that the respondent is not eligible to the payment of emoluments/benefits of the higher post of P.S-II during the said period but is entitled to receive the promotional benefits only w.e.f.

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01/06/2006 which is the date on which the respondent assumed charge of the post of P.S-II and began discharging the duties and responsibilities attached to the post. The principle of No work No pay in the particular facts and circumstances can be applied to the case in hand when the respondent was never relieved to work in the promotional post of P.S-II prior to 01/06/2006.

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16. It is also relevant to refer to the instruction circulated by the Railway authorities in the letter dated 29/07/1997 providing guidelines for relieving the promotees to the next post. The instruction stipulates that whenever the employees are not relieve within 3(three) months of the issue of the promotion orders such cases must be put up to the DRM or the Head of the Office and the controlling officer held responsible for not relieving the staff concerned. The learned counsel for the petitioner submits that in terms of the instruction issued by the Railway authorities, the controlling officer of the respondent i.e. Area Manager (AM), Badarpur, N.F Railway keeping the interest of the respondent brought the matter to the notice of the Addl. Divisional Railway Manager (ADRM), Lumding who thereafter wrote the letter dated 24/04/2006 to the General Manager (P), Maligaon agreeing to the proposal for temporary variation of the post of P.S-II from Lumding to AM, Badarpur for a period of 6(six) months, consequent to which the General Manager (P), Maligaon, N.F Railway issued the memorandum dated 29/05/2006 variating one post of P.S-II from ADRM, Lumding to AM, Badarpur for 3(three) months w.e.f. 01/06/2006 to 31/08/2006 and allowed the respondent to join the variated post of P.S-II at AM, Badarpur w.e.f. 01/06/2006. The learned counsel for the petitioner submits that all these steps were taken by the authorities to enable the respondent to avail the benefits in the promotional post and only because some delay has been occasioned that by itself cannot be a ground to grant retrospective promotional benefits to the respondent from 13/12/2005 and/or from 01/01/2006. This Court is inclined to accept the submission of the learned counsel for the petitioner that some delay in carrying out the instruction of relieving the promotee by itself will not confer a right to the respondent to claim the promotional benefits from a retrospective date as the respondent had never worked in the post during that relevant point of time. A reading of the letter dated 29/07/1997 containing the instruction nowhere speaks of extending the promotional benefits from a retrospective date in the event delay is occasioned in carrying out the instruction nor it is the case of the respondent that the instructions were flouted while relieving the respondent in

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the promoted post. The respondent only case is that he is entitled to the promotional benefits from the date of the order of promotion or w.e.f. 01/01/2006 as ordered by the Tribunal. 17. In the case of the Union of India & Another -versus- Tarsem Lal & Others , reported in (2006) 10 SCC 145 , involving the Railway authorities and its employees, the issue before the Court was whether the respondent/employees was entitled to the revised/enhanced pay from the date the respondent was actually promoted (i.e. August 2001) or with effect from the date the respondent had been given promotion on proforma basis (i.e. 09.09.1997). The Railway authorities had denied the arrears to the respondent w.e.f. 09.09.1997 on the ground that the respondent had not worked on the promotional post during the said period and as such, the respondent was not entitled to the revised pay from 09.09.1997. Before the Tribunal the Union of India placed reliance on para-228 of the Indian Railway Establishment Manual (IREM) Vol.-I dealing with employees who have lost promotion on account of administrative error where inter-alia it provided that in such cases the pay should be fixed on proforma basis and the enhanced pay was to be allowed from the date of actual promotion and no arrears on this account were to be paid for the past period as the employee did not actually performed the duties and responsibilities of the higher post. The Tribunal relying on the decision in the case of Harbans Singh -versus- State of Punjab, reported in 1995 Supp (3) SCC 471 held that the stand taken by the Union was unsustainable. The order passed by the Tribunal was assailed before the High Court but the writ petition was dismissed by the High Court relying on the judgment in Harbans Singh case. The matter thereafter came up before the Hon’ble Supreme Court. The Apex Court by placing reliance in the case of Virender Kumar, General Manager, Northern Railways, New Delhi -versus- Avinash Chandra Chadha & Others, reported in (1990) 3 SCC 472 in which it was held that on the principle of “No work No pay” the respondents therein will not be entitled to the higher salary as they have not actually worked in that post, set aside the order passed by the Tribunal and the High Court by observing that both the Tribunal and the High Court were not justified in granting relief to the respondents. The Hon’ble Supreme Court further observed that reliance in Harbans Singh case was uncalled for.

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18. This Court deems it relevant to reproduce the paragraph-15 & 16 in Virender Kumar’s case (supra) which was relied in Tarsem Lal’s case (supra).

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“ 15………………………………. Time and again, the rule has been

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criticised on account of the absurd result to which it leads, viz., the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges. We are informed across the Bar that this is the situation even with respect to some of the respondents herein………………………………There is, therefore, neither equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect. It is for this reason that we are of the view that the decisions of this Court such as in P.S. Mahal v. Union of India1 directing the payment of higher emoluments with retrospective effect on account of the deemed promotions of earlier dates will not be applicable to the facts of the present case and have to be distinguished.

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16………………………………………………………………………………… …………………………………... The respondents have not actually worked in the said posts and, therefore, on the principle of "no work no pay" they will not be entitled to the higher salary. Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit.”

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The decision of the Hon’ble Supreme Court recited above binds this Court.

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19. After hearing the learned counsels for the parties and on perusal of the records and in the light of the law laid down by the Hon’ble Supreme Court, this Court is of the view that the respondent/workman is not entitled to the emoluments/promotional benefits of the higher post of P.S-II in scale Rs. 6500-10500/- with retrospective effect from 01/01/2006 to 31/05/2006 as the respondent during this period have actually never worked in the post of P.S-II. The respondent shall be entitled to the promotional benefits in the higher post of P.S-II in scale Rs. 6500-10500/- along with consequential and pensionary benefits etc. only w.e.f. 01/06/2006 as ordered in the Memorandum dated 29/05/2006 issued by the N.F Railway as it was only w.e.f. 01/06/2006 that the respondent was actually appointed in the higher post of P.S-II and began discharging the duties and responsibilities attached to the said post. The Award dated 06/07/2017 passed in Reference Case No. 04/2015 by the learned CGIT-cumLabour Court, Guwahati, Assam directing that the respondent be given the effect of his promotion in the higher scale of Rs. 6500-10500/- retrospectively w.e.f. 01/01/2006 with consequential and pensionary benefits is quashed and set aside.

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Writ petition allowed . No cost.

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Send back the LCR forthwith.

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JUDGE

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Comparing Assistant

The Union of India v. Manik Lal Chakraborty

Case brief

What is this about?

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The Union of India v. Manik Lal Chakraborty

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