IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16306 of 2004(S)
1. THE UNION OF INDIA, REP. BY THE
... Petitioner
2. THE GENERAL MANAGER,
3. THE DIVISIONAL RAILWAY MANAGER,
4. THE CHIEF OPERATING MANAGER,
5. THE DIVISIONAL OPERATING MANAGER,
6. THE DEPUTY CHIEF PERSONNEL OFFICER,
Vs
1. SRI.T.C.GOVINDASWAMY, S/O.LATE
... Respondent
For Petitioner :SRI.K.P.DANDAPANI
For Respondent :SRI.S.RADHAKRISHNAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :21/02/2008
O R D E R
K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ.
...................................................................................
W.P.(C) No. 16306 OF 2004
...................................................................................
Dated this the 21st February, 2008
J U D G M E N T
K. Balakrishnan Nair, J:
The respondents in O.A.No. 1380 of 1995 are the writ petitioners. The applicant
was a railway employee. He was dismissed from service . After availing the statutory
remedies under the relevant rules, he approached the Central Administrative Tribunal,
challenging the dismissal order. The said application was allowed by Ext. P2 order.
The relevant portion of the order reads as follows:
“76. Since for the detailed reasons discussed by us above, the said
conclusion reached by the Appellate authority cannot be sustained as
valid and legally tenable, the order rejecting the appeal by him at A17
is similarly set aside by us.
77. We further direct that the applicant should be reinstated with all
benefits including back wages.
78. We would also like to make it clear that this order will not operate
as a bar against the respondents holding a fresh departmental inquiry
from the stage after issue of the memorandum of charges at Annexure
A2 dated 2/26.5.86.” (Emphasis supplied).
2. The respondents in the O.A. challenged the said order before this court by
filing O.P.No. 9341 of 1999. This Court vacated the direction to pay back wages to the
employee and issued certain further directions. The relevant portion of the said
judgment , a copy of which is produced as Ext.P3, reads as follows:
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"However, it is submitted by the counsel for the petitioner that the
petitioner was subsequently got enrolled as an advocate and
therefore, payment of entire back wages will be harsh. The learned
counsel for the first respondent submitted that if first respondent is
allowed to take voluntary retirement he will be willing to forgo back
wages. That is a matter to be discussed and settled between the
parties. Therefore, the direction with regard to payment of back wages
is vacated. Whether petitioner is entitled to back wages for this
period, whether compensation can be ordered in lieu of reinstatement,
etc are matters to be considered by the Tribunal. During the pendency
of the proceedings before the Tribunal, the question regarding
acceptance of voluntary retirement and payment of back wages can be
considered and settled between the parties. Both parties can adduce
evidence before the Tribunal. Due to the long pendency of the dispute,
the Tribunal is free to pass orders regarding compensation and
retirement benefits etc. in stead of back wages and reinstatement.
Therefore, without interfering with the finding that disciplinary action
was taken without complying with rules and natural justice, with regard
to the relief that has to be moulded in view of the subsequent charges,
the matter is remanded.” (Emphasis supplied).
3. In obedience to the said direction, the Tribunal reconsidered the matter and
passed the present impugned order, Ext.P1 dated 11.02.2004. The relevant portion of
the impugned order reads as follows:
“In the result, in the conspectus of the facts and circumstances, we
dispose of this application with the following declarations and
directions:
(a) As the order of removal from service of the applicant and
the appellate order have been set aside we declare that the applicant
should be deemed to have been reinstated in service with effect from
the date of removal from service with continuity of service.
(b) The respondents are directed to fix and revise the pay of
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the applicant according to the Revised Pay Rules, 1997 treating that
the applicant continued in service despite removal from service which
has been set aside giving him fixation and fitment on par with his
immediate junior.
(c) The applicant shall be deemed to have retired voluntarily under
Rule 1803 of the Indian Railway Establishment Code Vol.II with effect
from this date and the respondents shall compute the pension, gratuity
and other terminal benefits deeming that he continued in service
despite the impugned orders till today and to make available to him the
monetary benefits flowing therefrom within a period of three months
from the date of receipt of a copy of this order.”
4. From the above, it is clear that the Tribunal had only ordered to treat the
petitioner as having voluntarily retired from service from the date of order of the
Tribunal and to grant him terminal benefits. The respondents in the O.A. have filed the
present Writ Petition, challenging the direction to pay terminal benefits taking into
account the period the respondent/applicant was out of service. He joined the service in
1973. He was removed from service in the year 1988. He was reinstated in 1993 and
again in 1994, he was removed from service. As per the order of the Tribunal, he is to
be treated as having retired from service voluntarily w.e.f. 11.02.2004, the date of
order of the Tribunal. The Writ Petitioners pointed out that the respondent/applicant
was all along practising as a lawyer while he was out of service, so the said period that
he practised as a lawyer could not be counted for granting pensionary/terminal
benefits. So the direction of the Tribunal to take into account the period the
respondent/applicant practiced as a lawyer for the purpose of granting terminal
benefits should be vacated, it is submitted. We heard the learned counsel for
respondent/applicant also on the above point.
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5. A dismissed employee need not wait outside starving till he is reinstated. He
can engage himself in any business or profession. If he is gainfully employed and
gets proper income, even if ultimately his termination is found to be illegal by the
competent court, he cannot claim any back wages. In such cases, normally, the order
of reinstatement would provide to treat the entire period he was out of service as
service for all purposes, except for back wages. But Railways contend that if he is
gainfully employed, the period he was out of service cannot be counted for pension. In
service jurisprudence, whatever be the nature of the employment of a dismissed or
terminated employee, the period he was out of service will be treated as service for
all purposes including, for granting increment, promotion, computing terminal benefits
etc., if the termination is found to be illegal. The said general principle cannot have
any exception on the ground that the applicant had practiced as a lawyer. The
submission made on behalf of the petitioners, relying on the provisions of Advocates’
Act is devoid of any merit. The direction to count the service of the
respondent/applicant while he was not working in Railways, as service for the purpose
of terminal benefits does not suffer from any illegality or irregularity. This is, as
mentioned earlier, a usual general order given in all cases in service/labour jurisdiction,
where the termination is found to be illegal. In this case, we notice that the Tribunal has
specifically ordered to reinstate the respondent/applicant with all service benefits and
back wages. This court only interfered with the direction to grant back wages. In other
words, counting the service for granting other service benefits to the respondent as per
Ext. P2 has gained finality with the refusal of this court in Ext. P3 judgment to interfere
with that part of the order of the Central Administrative Tribunal. Again this court also
ordered the Central Administrative Tribunal to consider what are the benefits that can
W.P.(C) No. 16306 OF 2004
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be granted to the respondent. The various benefits can be granted to the
respondent/applicant only if the period he practiced the profession of a lawyer is also
reckoned. So it is implicit in the direction of this court that said period could be
computed for granting terminal/pensionary benefits. Ext.P3 judgment of this Court has
also become final. So in view of Exts.P2 and P3, the present contention that the
period, the respondent/applicant spent in the profession of lawyering cannot be treated
or reckoned for terminal benefits is manifestly untenable. Accordingly, we reject the
same.
In the result, the Writ Petition fails and it is dismissed.
K. BALAKRISHNAN NAIR,
JUDGE.
K.T. SANKARAN,
JUDGE.
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