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2019 DIGILAW 176 (GAU)

UNION OF INDIA v. ROHINI KALITA

2019-02-07

A.K.GOSWAMI, A.S.BOPANNA

body2019
JUDGMENT : A. S. BOPANNA, J. 1. Heard Ms. U. Chakraborty, learned Special Standing Counsel, N.F. Railways for the petitioners. Also heard Mr. S.N. Tamuli and Ms. A. Begum, learned counsel for the respondent. 2. The petitioners herein who are the respondents in O.A. No.040/00425/2015 are before this Court in this petition assailing the order dated 9.6.2017 passed by the Central Administrative Tribunal (for short 'CAT'). 3. The respondent herein, who is the wife of deceased employee late Anil Kalita, who was working as a Loco Pilot in the petitioner Railways was before the CAT seeking that she be granted the family pension at the revised rate by counting the service of her deceased husband as continuous till the date of his death on 2.2.2009 and by counting the last pay of her husband as per the revised rate as provided by the 6th Central Pay Commission. In that light, she has sought for a direction that the arrears of the family pension due and admissible be paid to her. 4. The petitioners herein having noted to the said prayer had opposed the same. The CAT on analyzing the rival contentions arrived at the conclusion that the prayer as made by the respondent before it is liable to be granted and, accordingly, appropriate direction has been issued to the petitioners herein. In addition, the CAT has also directed that the respondent would remain eligible for consideration under the compassionate appointment rules. The petitioners, therefore, claiming to be aggrieved is before this Court in this petition. 5. Learned Special Standing Counsel for the petitioners while assailing the order passed by the CAT would seek to contend that in a circumstance where the husband of the applicant before the CAT was issued a compulsory retirement order dated 10.11.2004 and even though the revisional authority had through the order dated 17.04.2008 modified the order of compulsory retirement to one of reducing to the lowest grade of Assistant Loco Pilot (ALP) and, in that circumstance, when the husband of the applicant had failed to receive the order of the revisional authority and when it was deemed to be served on 24.04.2008, but he failed to join the duty in the lower grade, the service thereafter cannot be considered as continuous. According to the learned counsel for the petitioners, when the husband of the respondent herein had failed to receive the order dated 24.04.2008 and had not reported to duty in the lower grade to which punishment has been modified, the order of compulsory retirement would revive and, for all purposes, the service would get terminated on 10.11.2004. In that view, it is contended that the 6th Pay Commission which has come into effect from 1.1.2006 i.e. subsequent to the date of compulsory retirement on 10.11.2004 would not be admissible to the case of the deceased husband of the respondent and the CAT was not justified in its conclusion. It is further contended that in such circumstance, when the death of the husband of the respondent has occurred on 2.2.2009, a direction to consider for compassionate appointment also is without any basis. In that light, it is contended that the order of the CAT is liable to be set aside. 6. Learned counsel for the respondent herein apart from seeking to sustain the order passed by the CAT, in justification of such contention has submitted that when the husband of the respondent was not satisfied with the order passed by the appellate authority in the appeal against the order passed by the disciplinary authority on 10.11.2004, compulsorily retiring him from service, he had filed a revision petition as provided under the regulation. He contends that in a circumstance when the revisional authority has taken into consideration all aspects and passed the order dated 17.4.2008, setting aside the order of compulsory retirement and modifying the punishment to reducing to the lower grade of ALP, the order dated 10.11.2004, passed by the disciplinary authority would stand merged in the order dated 17.4.2008 passed by the revisional authority. In that light, it is contended that when the order dated 10.11.2004 of compulsory retirement does not remain in existence thereafter, the petitioners herein could not have in any event relied upon such order. He contends that not only due to such position the conclusion as reached by the CAT is justified, but the order dated 17.4.2008, in fact, has not been served on the husband of the respondent. He contends that not only due to such position the conclusion as reached by the CAT is justified, but the order dated 17.4.2008, in fact, has not been served on the husband of the respondent. In that light, it is contended that in any event when the order dated 17.4.2008 remains in force, the benefit of the same would accrue to the respondent in the absence of her husband who expired subsequent to the order dated 17.04.2008. In that light, he contends that the order of the CAT does not call for any interference. 7. In the background of the contentions as put forth by the learned counsel for the parties, a perusal of the writ petition papers, more particularly, the order passed by the CAT would indicate that the CAT has referred to all these aspects of the matter. Though the order of the CAT is exhaustive, the matter lies in a narrow campus. 8. To understand the effect of the order dated 10.11.2004 and the subsequent order dated 17.4.2008, the issue would also be with regard to the entitlement of the benefit to the respondent even if for a moment it is assumed that the order dated 17.04.2008 was served on the husband of the respondent and he had not reported to duty in the lower grade of ALP. In that background, at the outset, the position would be that when the order of compulsory retirement passed by the disciplinary authority was upheld by the appellate authority through the order dated 5.5.2005 and when the said orders were assailed before the revisional authority, the consideration as made by the revisional authority would be relevant. In that circumstance, when the revisional authority, based on the consideration made therein has through the order dated 17.4.2008 set aside the order of compulsory retirement, finding the same to be disproportionate to the charge proved and, in that light, has reduced the penalty to reduction to the lowest grade of ALP, the order dated 10.11.2004 would stand merged in the order dated 17.4.2008. Therefore, what would remain in force in substitution to the order dated 10.11.2004 passed by the disciplinary authority at the first instance would be the order of reduction to the lowest grade of ALP. Therefore, what would remain in force in substitution to the order dated 10.11.2004 passed by the disciplinary authority at the first instance would be the order of reduction to the lowest grade of ALP. In such situation, even if the order dated 17.04.2008 was not served, the order dated 10.11.2004 would not remain in force to the effect of compulsory retirement as has been originally ordered, but it would be an order of reduction to lower grade while being in service. If that be the position, the next aspect would be the nature of consideration with regard to the service of the order and/or the effect of the husband of the respondent late Anil Kalita in not having reported to duty in the lower post. 9. Insofar as the service of the said order, it is the stand of the petitioners herein that despite efforts being made for service of the order, the husband of the respondent had initially refused and, thereafter, though there is material to indicate that the service has been affected, he has not chosen to report for duty. Such contention on behalf of the petitioners is seriously disputed by the learned counsel for the respondents by contending that even as per the document that had been relied upon to contend that the service of the order had been effected, the very memorandum dated 17.4.2008 would indicate that the service was sought to be affected on the husband of the respondent through SE/Loco/RPAN and, in such circumstance, when by the earlier order, the husband of the respondent had been compulsorily retired and relieved, attempting to serve through the higher officer at that point itself will be improper. Though the learned counsel for the petitioners seeks to rely on the letter dated 22.04.2008 to indicate that the APO/I/RNY has reported about the service being effected, in a circumstance where the husband of the respondent is not presently alive, these disputed aspects relating to the service on the person of the husband of the respondent, no doubt, in any event cannot be decided in a writ petition of the present nature. In any event, at this point, there is no undisputed material before the Court to indicate service. In any event, at this point, there is no undisputed material before the Court to indicate service. Be that as it may, even if it is assumed that an attempt was made to serve the order on the husband of the respondent on 22.04.2008 or 24.04.2008 and even if the late husband of the respondent had, thereafter, not reported to duty, the effect of the order dated 17.04.2008 modifying the order dated 10.11.2004 is not taken away. If at all the non-acceptance of the service of the order on late husband of the respondent was to be taken note by the employer, the same ought to have been by initiating an appropriate proceeding or making such orders so as to nullify the same. In that circumstance, when the order dated 17.04.2008 was in force, and during the subsistence of the same since the late husband of the respondent has expired on 2.2.2009, insofar as the benefits that would accrue to him to the extent of pension or salary fixation as on the date of his death on 2.2.2009 assuming him to be in service, would be admissible. In the instant facts, since it is noticed that the order dated 10.11.2004 of compulsorily retiring the late husband of the respondent was modified to that of reduction to the lowest grade of ALP, the fixation of pay in the lowest grade of ALP, in any event, was to be made as per the benefits available under the 6th Central Pay Commission as it had come into force on 1.1.2006, after modification of the order dated 10.11.2004. In that view of the matter, when the CAT has taken into consideration these aspects of the matter and has held that the respondent herein is entitled to the fixation of pension by taking into consideration the salary that would have been payable to her late husband as on 2.2.2009 as per the 6th Central Pay Commission, such direction would be justified. 10. Though we have arrived at such conclusion, we are of the opinion that the CAT, however, was not justified in holding that the respondent herein would also be entitled for compassionate appointment if found eligible as per the Rules. 10. Though we have arrived at such conclusion, we are of the opinion that the CAT, however, was not justified in holding that the respondent herein would also be entitled for compassionate appointment if found eligible as per the Rules. To that extent, since we have noted the fact that the late husband of the respondent had not physically rejoined, the death on 2.2.2009 would not enure to the benefit of the respondent for seeking such compassionate appointment. Hence, the direction to that effect by the CAT through the order impugned cannot be sustained. In all other respects, the order passed by the CAT is upheld. 11. The petition is, accordingly, disposed of.