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Allahabad High Court · body

2017 DIGILAW 1962 (ALL)

OM PRAKASH SINGH v. UNION OF INDIA

2017-08-24

A.P.SAHI, RAJIV LOCHAN MEHROTRA

body2017
JUDGMENT By the Court.—Heard Sri A.B. Singh, learned counsel for the petitioner and Sri Manoj Kumar Singh, learned counsel for the respondents. 2. This writ petition has been filed assailing the order of the Central Administrative Tribunal dated 14th July, 2009 as well as the order of the Commanding Officer dated 17th December, 2008 and that of the Appellate Authority dated 27th April, 2009 whereby the Tribunal has dismissed the claim of the petitioner upholding the orders of the said authorities denying payment of salary to the petitioner for the period 29.9.2005 to 7.10.2008. 3. The petitioner is a store keeper with the Ordinance Depot of the Armed Forces at Allahabad Fort, Allahabad. Disciplinary proceedings were initiated against him and he was awarded the penalty of compulsory retirement. The order of compulsory retirement was assailed by the petitioner before the Central Administrative Tribunal, which was allowed partly setting aside the order of the disciplinary authority and of the appellate authority for considering afresh the enquiry report and passing of a suitable order thereon. A clear direction was issued that the petitioner shall stand reinstated without any back wages. 4. This order of the Tribunal dated 29.9.2005 was assailed by the respondents by filing Writ Petition No. 6230 of 2006 before this Court wherein an interim order was initially passed staying the operation of the order of the Tribunal but the writ petition after final hearing came to be dismissed on 7th May, 2008. The petitioner applied for implementation of the order of the Tribunal but the respondents fail to act thereupon as a result whereof the petitioner was compelled to file Contempt Application No. 95 of 2008 before the Central Administrative Tribunal. Notices were issued and thereafter the respondents were directed to comply with the order of the Tribunal clearly stating therein that the respondents should not be in any doubt for compliance of the order dated 29.9.2005 which shall be done within two months. The respondents thereafter proceeded to pass an order of reinstatement on 7th October, 2008 with a rider that the petitioner shall not be entitled to salary/back wages from the date of compulsory retirement from service to the date of reinstatement in service. 5. The respondents thereafter proceeded to pass an order of reinstatement on 7th October, 2008 with a rider that the petitioner shall not be entitled to salary/back wages from the date of compulsory retirement from service to the date of reinstatement in service. 5. This order was communicated to the petitioner after applications were filed by the petitioner praying for payment of salary for the said period from 29.9.2005 to 7.10.2008 which was rejected by the order dated 17th December, 2008 and an appeal preferred against the same was dismissed on 27th April, 2009. The rejection order mentions that since the petitioner had not performed his duty for the period for which he was claiming salary, therefore, neither the salary nor the allowances were payable to him. The appellate order went further to give an additional reason namely that since the order of the Tribunal that had been challenged before the High Court, had been stayed, and there was an interim order in operation, therefore, the petitioner was not entitled to salary for the said period as the matter was sub-judice before the High Court. This recital is contained in paragraph No. 10(i) of the appellate order, copy whereof is Annexure 10 to the writ petition. 6. We have considered the submissions raised by Sri A.B. Singh and we have gone through the counter-affidavit as also the submissions raised by Sri Manoj Kumar Singh, learned counsel for the respondents who has opposed the petition. The payment of salary as well as service conditions are governed by the Central Civil Services Classification Appeal Rules 1965. In the instant case on facts, it cannot be said the respondents that the petitioner had voluntarily not appeared for reporting on duty. The stand taken in the appellate order is that since there was stay order of the High Court and the matter was sub-judice, therefore, the period from 29.9.2005 till 7th October, 2008 shall be treated to be a period without any duties being performed by the petitioner and consequently, the petitioner is not entitled to any salary. 7. The stand taken in the appellate order is that since there was stay order of the High Court and the matter was sub-judice, therefore, the period from 29.9.2005 till 7th October, 2008 shall be treated to be a period without any duties being performed by the petitioner and consequently, the petitioner is not entitled to any salary. 7. We are unable to find this to be a plausible reason moreso because the recital contained in the order that the petitioner has made himself physically available for reinstatement in 2008 is a recital in desperation inasmuch as the petitioner was very much available and his original application had been allowed on 29.9.2005 by the Tribunal with a direction for reinstatement. The petitioner had never indicated that he was unwilling to perform his duties. There is nothing on record to indicate that the petitioner deliberately absented from duty during the period after his application was allowed by the Tribunal. It is thus evident that the respondents who themselves claim to have obtained an interim order of the High Court did not allow the petitioner to join his duties. It was the duty of the respondents to have passed an order forthwith but they chose to challenge it before the High Court, where they initially succeeded in getting an interim order which stood vacated and discharged as it merged with the final order of dismissal of the writ petition. This fine legal distinction of the interim order having evaporated, therefore has been misconstrued by the respondents and to treat the matter to be pending and sub-judice so as to deny salary to the petitioner for the entire period from 29th September, 2005 onwards is unjust and illegal. The impugned orders dated 17th December, 2008 as well as the order dated 27th of April, 2009 are therefore not sustainable and deserve to be quashed. 8. The unfortunate part is that when the said orders came to be challenged before the Central Administrative Tribunal, the Tribunal without giving any reasons by a single line order proceeded to observe that the Tribunal was firmly of the view that the orders impugned were in accordance with the provisions of rules and there was no error in them. The Tribunal dismissed the original application in limine without even discussing the aforesaid facts. It is this, which has compelled the petitioner to approach this Court. The Tribunal dismissed the original application in limine without even discussing the aforesaid facts. It is this, which has compelled the petitioner to approach this Court. We cannot in any way on any legal principle uphold the aforesaid view of the Tribunal which is equally unsustainable as the impugned orders. 9. Consequently, the writ petition is allowed. The order of the Tribunal dated 14th July, 2009, the orders dated 17th December, 2008 and 27th April, 2009 are quashed. We hold that the petitioner was unjustly prevented by the respondents from joining and performing his duties and therefore, no fault can attributed to the petitioner for his staking a claim of salary for the period 29.9.2005 to 7.10.2008. The recital contained in the communication of reinstatement dated 7th October, 2008 that he is not entitled to back wages from the date of compulsory retirement to the date of reinstatement has therefore to be modified. We accordingly do so and direct that petitioner shall be entitled to his salary with effect from the date of the judgment of the Tribunal dated 29.9.2005 onwards. The petitioner shall also be entitled to interest at the rate of 6% per annum on the amount which is due to the petitioner with effect from the date of the judgment of the Tribunal ie. 29.9.2005. 10. The entire dues be paid to the petitioner within one month from the date of production of certified copy of this order. 11. Accordingly the writ petition is allowed with costs.