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2009 DIGILAW 545 (CAL)

T. P. Singha v. UNION OF INDIA

2009-07-27

SOUMITRA PAL, TAPAN MUKHERJEE

body2009
Judgment : SOUMITRA PAL, J. (1) In the writ petition the petitioner has challenged the order dated 13th September, 2007 passed by the learned Central Administrative Tribunal in OA 28/AN/2007 (T.P. Singha v. Union of India and Ors.). (2) The writ petition was moved on 25th February, 2008 when directions were issued for filing of affidavits. Affidavits were filed and exchanged. The matter came up for hearing on 2nd April, 2008 when, by an order dated 2nd April, 2008, the Division Bench declined to interfere with the order dated 13th September, 2007 passed by the learned Tribunal. The only relief that was granted to the petitioner was by directing the "authorities to relax the interest amount paid by the petitioner to the tune of Rs. 13,221/-on the GPF" and "to refund the said interest amount of Rs. 13,221/- already paid by the petitioner of such GPF. "Thereafter, an application was filed by the petitioner for reviewing the order dated 2nd April, 2008 which was disposed of by the Division Bench by passing a judgment, the relevant portion of which is as under :- "The order impugned dated 2.4.2008 so far as confirming the order of the learned Tribunal by a single line order, "we do not find any reason to interfere with the order so passed by the learned Tribunal", on the issue of claim of salary, allowances and other monetary benefits for the intervening period w.e.f. 1.11.2003 till the date of reinstatement in service, is set aside and quashed and the writ application is placed on file for adjudication of the said point only as to whether on the facts and circumstances of the case and in terms of the grounds and prayer b of the writ application, the same could be allowed or not. The review application accordingly succeeds." (3) The short point which to be decided is whether the petitioner is entitled to the back wages from 1 st November, 2003 till the date of reinstatement that is the period during which he did not perform duty. (4) In order to deal with the issue, it is appropriate to refer briefly to the facts along with the dates which are of significance. From the facts it appears that the petitioner had applied before the Director of Health Services, Andaman and Nicobar Administration, Port Blair for voluntary retirement from 1st November, 2003. (4) In order to deal with the issue, it is appropriate to refer briefly to the facts along with the dates which are of significance. From the facts it appears that the petitioner had applied before the Director of Health Services, Andaman and Nicobar Administration, Port Blair for voluntary retirement from 1st November, 2003. On 8th October, 2003, the Director issued an order accepting the retirement of the petitioner which was served on the petitioner on 29th October, 2003. In between on 15th October, 2003, the petitioner issued a letter to the Director withdrawing his notice of voluntary retirement and for treating him on duty as he was already in duty. On 30th October, 2003, by telegram a request was made by the petitioner before the authorities for immediate consideration of the application for withdrawal of the application for premature retirement. On 31st October, 2003,. the Director rejected his application for withdrawal of voluntary retirement. Subsequently, representations were made. Thereafter, an order dated 15th September, 2004 was passed upholding the decision of retirement but allowing weightage. Being aggrieved, the petitioner on 25th November, 2005 moved an application having OA 120/AN/2005. The learned Tribunal disposed of the said application by an order dated 24th November, 2006 setting aside the order dated 31 st October, 2003, the relevant portion of which is extracted hereunder :- "Thus the appointing authority has acted arbitrarily and without application of mind and, we, therefore, have no option but to set aside the order dated 31.10.03. We, therefore, direct the appointing authority to pass a reasoned order as to why the notice of withdrawal did not merit approval. The respondents, in their reply, have alleged that the applicant has already received the GPF accumulation standing to his credit and the saving proceeds under UTGEIS. While passing the order reconsidering the applicants prayer for withdrawal notice, they are given liberty to take those facts into account in passing further orders." (5) In compliance thereof on 16th January, 2007, the Director of Health Services passed an order upholding the decision already taken to retire the petitioner voluntarily with effect from 1st November, 2003. Aggrieved, the petitioner moved the application having O.A. No. 28/AN/2007 (T.P. Singha v. Union of India and Ors) praying as under :- (A). Aggrieved, the petitioner moved the application having O.A. No. 28/AN/2007 (T.P. Singha v. Union of India and Ors) praying as under :- (A). An order be passed setting aside the impugned order No. 157 dated 16.01.2007 issued by the Director of Health Services, AandN Administration, Port Blair (Annexure A-11 to the Original Application) being completely perverse as also violative of the solemn direction of the Honble Tribunal in O.A. No. 120/AN/2005 (Annexure A-10 to the Original Application) as well as against the settled principle in law with further direction upon the respondent authorities to treat the applicant to have validly withdrawn his proposal for voluntary retirement with effect from 1.11.2003 treating the applicant to be in service till the date of his superannuation i.e. 31.12.2017 making good to the applicant all monitory benefits by treating him to have continuously worked till date including all arrears of salary and other emoluments subject to adjustment other retirement benefits already paid to the applicant in the meantime setting aside the impugned order No. 3331 dated 8.10.2003(Annexure A-3 to the Original Application)." (6) On 13th September, 2009 the Tribunal disposed of the application by passing an order, the relevant portion of which is as under:- "Accordingly, the acceptance order dated 8.10.03 read with modified order dated 15.9.04 are hereby set aside. The applicant be reinstated in service w.e.f. 1.11.03. The intervening period i.e. from 1.11.03 till his rejoining, will be treated only as continuous service without any benefit and he will not get any salary or other emoluments for that period. His reinstatement will be subject to refund of the PF and other amounts received by him to the Govt. A/c with rate of interest in which he had received the same in case of G.P.F. and rate of interest prevalent then in case of others. The OA is disposed of accordingly." (Emphasis supplied) Thus the order accepting voluntary retirement passed on 8th October, 2003 and the modified order dated 15th September, 2004 were set aside. Direction was issued for reinstatement on certain conditions. (7) Now in order to deal with the issue, it is appropriate to examine the facts. The OA is disposed of accordingly." (Emphasis supplied) Thus the order accepting voluntary retirement passed on 8th October, 2003 and the modified order dated 15th September, 2004 were set aside. Direction was issued for reinstatement on certain conditions. (7) Now in order to deal with the issue, it is appropriate to examine the facts. It is to be noted after the authority on 31st October, 2003 had rejected his application for withdrawal of the application for voluntary retirement, the petitioner instead of challenging the order had withdrawn his Provident Fund on 12th December, 2003 and Group Insurance on 17th December, 2003. However, pension could not be finalized due to non submission of bank account. Thus it is evident the petitioner had acted on the basis of the order of rejection dated 31st October, 2003. Thereafter, he had challenged the order on 25st November, 2005 by filing the O.A. No. 120/AN/2005 before the Tribunal which was disposed of by order dated 24th November, 2006 as already noted. In compliance of the order passed by the Tribunal, the authority had passed the order on 16th January, 2007 which was the subject matter of challenge the OA 28/AN/2007 which was disposed of by order dated 13th September, 2007 by quashing the order of acceptance of voluntary retirement and directing reinstatement subject to the fulfillment of certain conditions by the petitioner. Therefore, refund of the amount was condition precedent for reinstatement. Pursuant to the order of the Tribunal, the petitioner on 14th February, 2008 refunded the amount. Thus he had also accepted the order dated 13th September, 2007 passed by the Tribunal. Thereafter the Administration too by order No. 1950 dated 25th May, 2008 reinstated him. It is to be noted that after he had refunded the amount, the petitioner had on 21st February, 2008 filed the instant writ petition challenging the order dated 13th September, 2007 passed by the Tribunal. Therefore, it is evident from facts, earlier after withdrawing the amount from provident fund and group insurance the petitioner had moved the Tribunal challenging the order dated 31st October, 2003 rejecting his application for withdrawal of voluntary retirement notice. Later he had filed the instant writ petition challenging the order dated 13th September, 2007 passed by the Tribunal after accepting the conditional order by refunding the amount. Later he had filed the instant writ petition challenging the order dated 13th September, 2007 passed by the Tribunal after accepting the conditional order by refunding the amount. (8) In our view, the prayer for payment of back wages has to be considered after appreciating the facts. The conduct of the employee has to be considered. There is no straight jacket formula that an order of reinstatement shall ipso facto call for passing an order for payment of back wages. Neither there is any hard and fast rule nor it is axiomatic. (9) Therefore, as seen, the facts and the conduct of the petitioner do not warrant for passing an order for payment of back wages from 1st November, 2003 till 21st May, 2008 the date of reinstatement, that is the period during which he did not perform his duty. The judgment of the Apex Court relied on by the petitioner in Rabindra Kumar Battick and Anr. v. State of Orissa and Ors. reported in (1998)8 SCC 769 is of no assistance since the petitioner was neither restrained nor there was wrongful refusal on the part of the respondents. So far as the law laid down by the Supreme Court in the judgments in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences Calcutta and Ors. reported in (1999)3 SCC 60 : 2000 WBLR (SC) 389 and Union of India v. Madhusudan Prasad reported in All India Services Law Journal 232 (SC) are concerned, those are distinguishable on facts as in the case in hand the question of stigma and violation of the principles of natural justice do not arise. Hence, in our view, the facts and the conduct of the petitioner do not call for an order for payment of back wages as reinstatement does not necessary imply payment of full or partial back wages as held by the Apex Court in U.P. SRTC v. Mitthu Singh reported in (2006)7 SCC 180 and State of Maharastra and Ors. v. Reshma Ramesh Meher and Anr. reported in (2008)8 SCC 664 . Therefore, for the reasons as aforesaid, the writ petition is dismissed. (10) There shall be no order as to costs.