High Court Kerala High Court

The Union Of India vs Sri.T.C.Govindaswamy on 21 February, 2008

Kerala High Court
The Union Of India vs Sri.T.C.Govindaswamy on 21 February, 2008
       

  

  

 
 
  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:

W.P.(C) No. 16306    OF  2004


                                                      2


       "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

W.P.(C) No. 16306 OF 2004

3

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.

W.P.(C) No. 16306 OF 2004

4

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

5

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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