This writ petition challenged the dismissal of an application for leave encashment. The court held that leave is not earned during non-service and is distinct from pensionary benefits. It also dismissed the petition based on res judicata due to an identical prior action.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
D.B. Civil Writ Petition No.12314/2012
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
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: ORDER :
SHRI SHYAM LAL Vs. C.A.T. & ORS.
D.B. Civil Writ Petition No.12314 of 2012 under Articles 226 & 227 of the Constitution of India against the order dated 19.09.2012 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original Application No.33/2012.
Date of Order
::: February 07th , 2014
Hon'ble Mr. Justice Dinesh Maheshwari Hon'ble Mr. Justice Banwari Lal Sharma
Mr. N.K. Khandelwal, for the petitioner, Mr. V.K. Vyas, for the respondents.
By the Court: [Per Hon'ble Sharma,J. ],
The petitioner has filed this writ petition against the order dated 19.09.2012 passed by the Central Administrative Tribunal, Jodhpur Bench, Jodhpur whereby the Original Application filed by him was dismissed being devoid of any merit.
The facts giving rise to this petition are that the petitioner was initially appointed as a cleaner on 21.07.1963. Thereafter, he was appointed as fireman grade- “A” w.e.f. 10.03.1964. He was dismissed from service on 05.02.19981 on account of his participation in the Loco Running Staff strike.
The petitioner and other similarly placed persons challenged the dismissal before the Central Administrative Tribunal at its different Benches. Finally, their cases were decided by the
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Hon'ble Supreme Court of India in its judgment dated 05.08.1993Union of India & Others Vs. R. Reduppa & Ors.
In pursuant of the judgment of Hon'ble Supreme Court dated 05.08.1993, the respondent fixed the pay of the petitioner allowing all increments during the period between their dismissal from service and re-instatement. The petitioner was re-instated in service subsequently, on a clarification received from the Railway Board re-fixed the pay of the petitioner without allowing increments for the period from the date of his dismissal and reinstatement and payment was made to him. Thereafter petitioner submitted number of representations for compliance of the judgment of the Hon'ble Supreme Court but of no consequence. Hence he filed his original application before the Central Administrative Tribunal, Jodhpur which was dismissed on the ground of delay and also on merit by observing that retiral benefits can be given only when the employee is on duty.
Dissatisfied from the order dated 07.12.1998 of learned Tribunal, petitioner preferred D.B. Civil Writ petition No. 183/1999 (Shyam Lal Vs. Central Administrative Tribunal & Ors.) which was decided by the co-ordinate Division Bench of this court vide order dated 25.09.2007. While allowing the Writ Petition, the judgment of Central Administrative Tribunal as well as the order re-fixing the pay of petitioner as also directing recovery of excess payment from the petitioner were set aside and respondents were directed to revise the pension of the petitioner as per pay fixation made prior to the clarification of the Railway Board, within a period of 3 months from the date of supply of certified copy by the petitioner.
The petitioner thereafter made representations before the respondents for leave encashment but no action was taken on the said representations. Therefore, the petitioner again preferred an
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original application before the learned Central Administrative Tribunal, Jodhpur Bench, Jodhpur which was registered as OA No. 333/Jodhpur/2012 and prayed as follows:-
“To direct the respondent to allow him the LAP which was earned by him during the intervening period between the date of dismissal and the date of re-instatement i.e. w.e.f. 05.02.1981 to 22.02.1993.”
The aforesaid OA was dismissed by the learned Tribunal vide impugned order dated 19.09.2012. Hence this writ petition.
Heard learned counsel for the petitioner Sh. N. K. Khandelwal and learned counsel for the respondents Sh. V. K. Vyas and perused the impugned order dated 19.09.2012 and available record.
Shri N.K. Khandelwal, learned counsel appearing on behalf of the petitioner, has submitted that the petitioner has a full right to get the weightage of the earned leave as per the Rule 524(1) of the Indian Railway Establishment Code Vol.I (Edition) 1985. This rule provides that leave on average pay shall be credited to the leave account of a railway servant @ 2 ½ days for each completed calendar month of service which he likely to render in a half year in which he is appointed and the leave encashment is also a part of pensionary or retiral benefit and is paid after retirement. The Hon'ble Supreme Court has ordered for the “Notional Continuity” with regard to the intervening period (between the date of dismissal and the date of reinstatement), therefore, the petitioner is entitled for leave encashment, for which the learned CAT has wrongly dismissed his OA.
Per contra, the learned counsel for the respondents has submitted that the Hon'ble Supreme Court has ordered to treat only the intervening period between the date of dismissal and date
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of re-instatement on notional basis and there cannot be any justification to claim LAP for aforesaid period.
Since the petitioner has already filed DB Civil Writ Petition No.183/1999 on the same cause of action before the Coordinate Bench of this Court, wherein the Coordinate Bench of this court did not order for LAP and the parties in the said writ petition were also the same and neither the petitioner claimed the present relief nor the court ordered for the same and that order has attained finality, therefore, as per the provisions of Section 11 and Order 2 Rule 2 CPC, the petitioner cannot claim relief prayed for in this second writ petition.
On merits, there is no dispute in the facts that petitioner was dismissed from service on 05.02.1981 along with many others as the Loco running staff went on Nation-wide strike and it is also not disputed that later on, the petitioner was re-instated in service in compliance of Supreme Court Judgment dated 05.08.1993 in the case of Union of India & Ors. Vs. R. Reduppa & Ors. The Hon'ble Apex Court vide its judgment dated 05.08.1993, ordered as under:-
“ However, what is apparent is that the order of dismissal against the employees has not been sustained in the courts. Although Jodhpur Bench has not examined the matter on merits and the CAT Chandigarh has dismissed the claim petitions on bare technicality, yet there can be no doubt that the Government whether in 1990 or in 1991 or in 1992 has been considering the matter, and efforts had been to grant relief to these employees. What should be done then which may do justice to both the parties? Overall picture is that there are five types of employees, one, whose claim petition before tribunal has been allowed and they have been directed to be re-instated; second, whose claim petitions had been allowed to a limited extent, namely, the appellate and revising authority had been directed to re-examine their cases; third, those who have retired during pendency of the claim petitions; fourth, where the claim petitions have been dismissed because the
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appeals filed had already been dismissed; and fifth; those who did not approach the Court and the Government has taken a decision to re-employ them. We are not concerned with last category. But the rationale behind this decision of the Government is to atone the injustice done to these employees. It has not been found by any tribunal that the order passed against the respondents was in any manner justified. In other words, the exercise of power was arbitrary. If this be so as is apparent then there can be no justification for denying the benefit to employees. Technical arguments apart once this Court is satisfied that the participants in the strike were unjustly treated the Court is not only competent but has an obligation to act in a manner which may be just and fair. Keeping this light we issue following directions:
All the appeals and petitions are disposed accordingly. Since the employees are being directed to be paid compensation there shall be no order as to costs .”
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As per the above judgment, the Hon'ble Supreme Court did not direct the respondents to pay the back wages for the said period and it was also observed that the appellant and others were not entitled to any promotional benefit but only notional continuity from the date of termination till the date of restoration for purposes of calculation of pensionery benefits. Therefore, it is clear that Hon'ble Apex Court did not restore all the benefits, the appellant and others would have otherwise been entitled to, if any were performing their duties. Further, as per Rule 524(1) of the Indian Railway Estabilshment Code Vol.I (Edition), 1985, leave of average pay is to be credited in the leave account of a railway servant @ 2½ days for each completed month of service. Admittedly, the petitioner remained out of service from 05.02.1981 to 22.02.1993, therefore, no leave was earned during this period. It is true that the leave encashment is part of pensionary benefit but leaves are not the part of pensionary benefit. When the petitioner did not earn leave during the said period then no case is made out for leave encashment for the said period. Learned Tribunal has also considered these facts and has rightly dismissed the OA of the petitioner which does not require any intereference.
As discussed above facts and circumstances, we do not find any merit in this petition and accordingly the same is dismissed.
[Banwari Lal Sharma], J. [Dinesh Maheshwari], J.
Ramesh
3 issues framed by the court
Whether the petitioner is entitled to leave allowed pay (LAP) for the period between dismissal and reinstatement despite not rendering service.
Whether res judicata prevents the petitioner from claiming the same relief sought in a previous writ petition before the High Court.
Whether the statutory interpretation of 'pensionary benefits' includes leave encashment earned during a period of notional continuity.
Colour shows how this judgement treated each authority
Union of India & Ors. Vs. R. Reduppa & Ors.Relied on¶34
Union of India & Ors. Vs. R. Reduppa & Ors.
Section 11 and Order 2 Rule 2 CPCRelied on¶33
3 provisions across 2 enactments
Shyam Lal
Central Administrative Tribunal & Ors.
Dinesh Maheshwari
Banwari Lal Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
