Allowed

Aswas S.S v. Union of India

Kerala HC3 Sept 2019OP (CAT)/44/2018

Case brief

AI extract

What is this about?

This writ petition addressed the status of a railway employee who completed a Diploma Course in Sports Coaching without prior NOC, permitted only through interim orders. The Court directed respondents to facilitate the certificate issuance, treated the course period as leave without allowance, and safeguarded service continuity while denying retrospective salary benefits.

What did the court decide?

Respondents directed to issue No Objection Certificate for the Diploma certificate; course period treated as Leave Without Allowance; service continuity maintained; case disposed with no costs.

Aswas S.S Vs Union of India — Pension and Retirement Benefits | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 03RD DAY OF SEPTEMBER 2019 / 12TH BHADRA, 1941

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OP (CAT).No.44 OF 2018(Z)

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AGAINST THE ORDER DATED 01-03-2018 IN O.A.NO.500/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH

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PETITIONER:

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ASWAS S.S., AGED 35 YEARS, S/O. SASIDHARAN K, DEPUTY CHIEF TICKET INSPECTOR, SOUTHERN RAILWAY, SHORNUR RESIDING AT REMYA BHAVAN, ELOOR EAST, UDYOGAMANDAL P.O, ERNAKULAM - 682 501.

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BY ADVS. SMT.SHAMEENA SALAHUDHEEN SMT.R.SHABANA

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RESPONDENTS:

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1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN, CHENNAI - 600 003.

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2 THE SECRETARY THE RAILWAY SPORTS PROMOTION BOARD, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE PARK TOWN, CHENNAI - 600003.

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3 THE SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD - 678 002.

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4 THE RAILWAY SPORTS PROMOTION BOARD, RAIL BOARD, MINISTRY OF RAILWAYS, NEW DELHI - 110 001, REPRESENTED BY ITS SECRETARY.

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OP(CAT).No.44 of 2018

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5 THE DIRECTOR SPORTS AUTHORITY OF INDIA, NETHAJI SUBHAS SOUTHERN CENTRE,

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BENGALURU - 560 056.

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6 THE DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD - 678 002.

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7 THE SENIOR DIVISIONAL COMMERCIAL MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION PALAKKAD - 678 002.

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R1 TO R4, R6 & R7 BY ADV.SMT.SUMATHY DANDAPANI(SR.) SRI.N.K.SUBRAMANIAN, SC, RAILWAYS R5 BY ADV. SRI.GOVIND BHARATHAN (SR.) SRI.S.K.MADHU, SC, SPORTS AUTHORITY OF INDIA

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 30-08-2019, THE

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COURT ON 03-09-2019 DELIVERED THE FOLLOWING:

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OP(CAT).No.44 of 2018

Judgment

Chitambaresh, J.

1.A detailed interim order was passed in this case on 8.3.2018 after

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hearing all parties and the same which is self explanatory is extracted below:

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“Heard Smt. Shameena Salahudheen, the learned

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counsel for the petitioner, Smt. Sumathi Dandapani, the learned senior counsel appearing for the Railways and the learned standing counsel appearing for the fifth respondent as well.

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This case was moved as an urgent 'today matter' on 05.03.2018. It was submitted by the learned counsel for the petitioner that the petitioner had almost completed the Diploma Course in Sports Coaching offered at the NIS Bangalore, under the fifth respondent, based on the interim orders passed by the Tribunal and it will be over by the first week of April and that examinations are already scheduled as given in Ext.P12. It is at this point of time that the O.A was

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OP(CAT).No.44 of 2018

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dismissed by the Tribunal as per Ext.P10 order, pursuant to which, Ext.P13 was passed by the fifth respondent, ousting the petitioner from the Course 2017-18, for non production of 'NOC' from the parent Department; within twenty four hours; which is sought to be interdicted.

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Mr. Govind Bharathan, the learned senior counsel, who entered appearance on behalf of the fifth respondent, on 05.03.2018 submitted that Ext.P13 had already been implemented and in such circumstance, we adjourned the matter to consider the materials on record. Today, the parties have been heard in detail with reference to the materials on record.

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The issue is with regard to granting of 'study leave' for joining the Diploma Course in the NIS Bangalore, for which application was submitted earlier for the Academic year 2016-17 directly, without routing through proper channel obtaining NOC of the Competent Authority; which was deprecated by the Railways. The challenge raised by the petitioner did not turn to be fruitful. O.A.No.496/2016 filed by the petitioner was

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disposed of as per Annexure A3 order dated 21.07.2016

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in the following terms :

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“Learned counsel for the applicant during argument prays for relief as provided in Annexure MA-1 dated 16.6.2016 wherein it has been stated that those who are not found eligible for sponsorship but are selected by NIS to undergo the course at their own cost shall be eligible for grant of study leave. This is not a new order but a clarificatory letter for the provision of study leave which already existed as a facility in the IREM Rules Appendix V Rule 1 to 5. The said rule of IREM already contains a provision for study leave for special courses provided the application for the same is submitted through proper channel. The competent authority as stated in para 10 is Senior Divisional Commercial Manager and the authority competent to sanction one year study leave is Divisional Railway Manager. Hence the applicant should submit application for sanction of study leave as per above IREM provision through the competent authority. While doing so, he should also tender an unconditional apology for bypassing the competent authority and the prescribed rules and attempting to gain entry into the study course by not following prescribed procedure. This entire exercise shall be completed within fifteen days of the applicant submitting such an application.”

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Pursuant to the above direction, the matter was considered but the application came to be rejected as per Annexure A5 dated 05.08.2016. It is seen from the proceedings that the petitioner moved the Tribunal by filing O.A.No.762/2016, also seeking for an interim order, which however was declined in turn leading to O.P. (CAT)No.270/2016. The said O.P. was disposed of as per Annexure A6 verdict dated 24.10.2016 observing that

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fresh application filed by way of Annexure A9 therein, also offering 'unconditional apology' in terms of Annexure A3 order passed by the Tribunal earlier for granting the study leave could be considered in terms of Annexure A7 (Annexure A2 herein). The matter was again considered by the competent authority of the Railways, who declined the relief for sanctioning the study leave from 14.07.2016 to 30.06.2017 vide Annexure A7 dated 21.12.2016. The claim in respect of the academic year 2016 - 17 presumably appears to have ended there.

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Coming to the subsequent year (2017-18), the petitioner preferred a fresh application as Annexure A8 dated 17.05.2017 through proper channel seeking for granting of study leave, pointing out that the last date fixed by the fifth respondent for receipt of application was on 31.05.2017. An advance copy was also forwarded to the 5^th respondent as per Annexure A9. Simultaneously, the petitioner moved the Tribunal by filing O.A. No.500/2017 for immediate interference. It

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was considering the sequence of events, that the Tribunal passed an interim order permitting the petitioner to join for the course for the academic year 2017 - 18, subject to the final orders to be passed in the O.A. However, on completion of the pleadings, the matter was finally heard, leading to Ext.P10 order passed by the Tribunal on 01.03.2018, whereby the O.A. came to be dismissed, vacating the interim order dated 23.06.2017 and making it clear that fifth respondent was free to disallow the applicant from continuing the studies. Within 24 hours, fifth respondent acted upon the same (even though certified copy of Ext.P10 issued only on 02.03.2018) and issued Ext.P13 on that day itself, i.e. on 02.03.2018 relieving the petitioner with immediate effect, for non production of NOC, which is under challenge in this Original Petition.

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In fact, the petitioner, who belongs to an 'OBC' was recruited in the sports quota at the age of 18 years. He wanted to join the Diploma Course in Sports Coaching at NIS, Bangalore, on the strength of Annexure

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OP(CAT).No.44 of 2018

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A2 order issued by the Railway Board. It will be

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worthwhile to extract the said order to see how the Railway is promoting the sports and how the authorities

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in the particular Division are giving effect to the same, as given below:

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“Railway Sports Promotion Board selects a limited number of sportspersons for NIS Diploma Course in different discipline from amongst the applications received from Zonal Railways. The sponsored sportspersons' fees and other charges for the course are paid by respective Railways and their period of Diploma course is treated as 'On Duty'.

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NIS diploma is technical course having a direct and close connection with the sphere of duty of the sportspersons/coaches in Indian Railways and is definite advantage to the Government from the point of view of public interest .

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In view of the above, it has now been decided that Indian Railways Sportspersons, who are not considered or not found eligible for sponsorship but are selected by NIS and undergo the NIS course at their own cost shall be eligible for grant of “Study Leave ”.

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Based on the interim order passed on 23.06.2017 permitting the petitioner to join for the course subject to the final orders in the O.A., the petitioner joined for the course and has completed 8 months which will come to an end by April 2018. The first question is whether he is to be sent out immediately

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OP(CAT).No.44 of 2018

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without permitting to complete the course at least at his own cost/expenses and if so, will it benefit the Railways or the fifth respondent in any manner? What can be the possible prejudice to be caused to the Railways, if it is permitted to be completed in terms of Annexure A2 order issued by the Railway Board? Is there any delinquency on the part of the petitioner and if so, can it not be permitted to be dealt with in appropriate terms? These are matters which require serious consideration; more so since sending out the petitioner at this stage will be of nobody's benefit; but for wasting the time and energy of all concerned. It is all the more so, when the petitioner is being sent out, not for possessing the requisite qualification to have got admission to the course.

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During the course of hearing, it was submitted by the learned counsel for the petitioner that the petitioner if not permitted to pursue the studies, granting the study leave (which naturally will result in payment of study leave allowance by the Railways), the

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OP(CAT).No.44 of 2018

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petitioner might be permitted to continue the course at his own cost without causing any loss to the Railways, in terms of Annexure A2. Considering the balance of convenience, pending final adjudication of the matter, we find it appropriate to permit the petitioner to complete the course and to participate in the examinations for the time being. The course of action to be pursued in respect of the period of absence and such other matters incidental thereto can be considered and the relief can be moulded at the time of final hearing.

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In the said circumstance, we admit this writ petition. Notice taken by the parties concerned. There will be an interim direction to the fifth respondent to readmit the petitioner to the course in question permitting him to continue the studies and grant a chance to participate in the examinations scheduled hereinafter including the practical examinations. If, for any reason it is not practicable to permit to participate in the examinations stated to be ongoing, he shall be allowed the next chance. The respondents are directed

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to complete the pleadings, if any.

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Post the matter for further consideration after

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three months.”

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2.It now transpires that the petitioner has successfully completed the Diploma Course in the N.I.S.Bangalore and has rejoined duty as Deputy Chief Ticket Inspector in the Southern Railway. The petitioner secured admission and could complete the Diploma Course on the basis of the interim orders successively passed by the Central Administrative Tribunal and this Court. It would be unjust to deny the petitioner a certificate for having completed the course successfully at this distance of time in the facts and circumstances obtaining. Suffice it to say that the competent amongst the respondents shall issue a No Objection Certificate to facilitate the petitioner to obtain the Diploma Certificate from the Institute.

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3.The fact remains that the petitioner joined the course without obtaining prior No Objection Certificate from the Southern Railway though he was recruited in the Western Railway under the

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OP(CAT).No.44 of 2018

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sports quota. The petitioner cannot therefore be granted study leave for the period spent for undergoing the Diploma Course entitling him for salary and other emoluments during that period. Interest of justice would be met by treating the said period as leave without allowances however safeguarding the continuity in service of the petitioner in the Southern Railway. We adopt this course in the peculiar circumstances of the case emerging from the successive interim orders and completion of the course and this shall not be treated as a precedent. Necessary follow up action shall be taken by the respondents within a period of two months from the date of receipt of a copy of this judgment. The impugned order is modified accordingly.

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The original petition is disposed of. No costs.

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Sd/V. CHITAMBARESH, JUDGE

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Sd/ASHOK MENON, JUDGE

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Sha/310819

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OP(CAT).No.44 of 2018

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY OF THE FILE OF THE CENTRAL TRIBUNAL, ERNAKULAM	O.A NO.500/2017 ON THE ADMINISTRATIVE BENCH.
EXHIBIT P2	A TRUE COPY OF THE APPLICANT PRODUCING ISSUED BY THE 5TH R JOINING OF THE COUR	M.A FILED BY THE THE COMMUNICATION ESPONDENT REGARDING THE SE.
EXHIBIT P3	A TRUE COPY OF THE 23.6.2017 IN O.A NO HONOURABLE CENTRAL ERNAKULAM.	INTERIM ORDER DATED .180/00500/2017 OF THE ADMINISTRATIVE TRIBUNAL,
EXHIBIT P4	A TRUE COPY OF THE RESPONDENT 1-4.	REPLY STATEMENT FILED BY
EXHIBIT P5	A TRUE COPY OF THE THE 5TH RESPONDENT.	REPLY STATEMENT FILED BY
EXHIBIT P6	A TRUE COPY OF THE APPLICANT.	REJOINDER FILED BY THE
EXHIBIT P7	A TRUE COPY OF THE STATEMENT FILED BY	ADDITIONAL REPLY RESPONDENT RAILWAYS.
EXHIBIT P8	A TRUE COPY OF THE FILED BY THE APPLIC	ADDITIONAL REJOINDER ANT.
EXHIBIT P9	A TRUE COPY OF THE STATEMENT FILED BY	ADDITIONAL REPLY RAILWAYS.
EXHIBIT P10	A TRUE COPY OF THE 2018 IN O.A NO.180/ HONOURABLE CENTRAL ERNAKULAM.	ORDER DATED 1ST MARCH 00500/2017 OF THE ADMINISTRATIVE TRIBUNAL,
EXHIBIT P11	A TRUE COPY OF THE THE COMMERCIAL MANA	CERTIFICATE ISSUED BY GER DATED 12.5.2016.
EXHIBIT P12	A TRUE COPY OF THE SEMESTER EXAMINATIO	TIME TABLE OF THE FINAL N DATED 22.2.2018.

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OP(CAT).No.44 of 2018

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EXHIBIT P13	A TRUE COPY OF THE ORDER NO. SAI/NSSC/ACAD/DC-11/ATH 2018 DATED 2.3.2018 RECEIVED BY THE PETITIONER ON 3.3.2018.
EXHIBIT P14	A TRUE COPY OF THE CHARGE MEMO ALONG WITH THE STATEMENT OF IMPUTATIONS ISSUED BY THE 7TH RESPONDENT.
EXHIBIT P15	A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DT.24.7.2018.
EXHIBIT P16	A TRUE COPY OF THE PENALTY ADVICE DATED 16.10.2018.
EXHIBIT P17	A TRUE COPY OF THE COMMUNICATION ISSUED BY THE OFFICER OF THE 5TH RESPONDENT.
EXHIBIT P18	A TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER FOR NOC.
EXHIBIT P19	A TRUE COPY OF THE ORDER NO.V/P.483/MECH/BILLS/VOL.I DATED 6.7.2018 GRANTING STUDY LEAVE TO ONE ARUNJITH S.

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RESPONDENTS' EXHIBITS:

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EXHIBIT R3(A)	TRUE COPY OF LETTER DATED 27.06.2016.
EXHIBIT R3(B)	TRUE COPY OF LETTER DATED 13.07.2016.

Aswas S.S v. Union of India

Case brief

What is this about?

What did the court decide?

Aswas S.S v. Union of India

Case brief

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