C. Radhakrishnan v Union of India & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 26TH DAY OF AUGUST 2016/4TH BHADRA, 1938 WP(C).No. 11178 of 2009 (S) ---------------------------- AGAINST THE ORDER IN OA 63/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 19-11-2008 PETITIONER: ----------------- C.RADHAKRISHNAN, AGED 56 YEARS, S/O. LATE R.CHAMI, CHIEF TRAVELLING TICKET INSPECTOR GRADE II/SLEEPER, SOUTHERN RAILWAY, COIMBATORE, RESIDING AT "KRISHNA PRIYA",, SWATHY NAGAR, KALLEKULANGARA P.O., PALAKKAD-9. BY ADVS.SRI.T.C.GOVINDA SWAMY SRI.G.SHYAM RAJ RESPONDENT(S): - ----------------------1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. - 2. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. - 3. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SRI.C.S.DIAS,SC, RAILWAYS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.11178/09** ## **PETITIONER'S EXTS:** - EXT.P1: COPY OF ORDER IN OA No.63/2007 DT.19.11.2008 RENDERED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P2: COPY OF ORDER IN RA No.50/08 IN OA No.63/07 DT.23.12.08 RENDERED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P3: COPY OF OFFICE ORDER BEARING NO.J/TC.37/96 DT.31.12.96 ISSUED BY THE 2ND RESPONDENT. - EXT.P4: COPY OF ORDER BEARING NO.J/P.694/4/FNM/SRES/VOL.IV DT.7.7.06 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. - EXT.P5: COPY OF OA NO.63/07 (LESS ITS ANNEXURES) FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P6: COPY OF REVIEW APPLICATION No.50/08 DT.5.12.08 (LESS ITS ANNEXURES) FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - EXT.P7: COPY OF AFFIDAVIT OF THE COUNSEL WHO APPEARED BEFORE THE TRIBUNAL. ## **RESPONDENTS' EXT:** - EXT.R2(A): COPY OF MEMORANDUM NO.J/P 483/FIX/STEPPINGUP DATED 16.3.2009 ISSUED BY THE 2ND RESPONDENT. TRUE COPY P.S.TO JUDGE dsn ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. ## **W.P.(C)No.11178 of 2009** ......................................................................... **Dated this the 26[th] August, 2016** ## **JUDGMENT** ## **Anil K. Narendran, J.** Petitioner is the applicant in O.A.No.63 of 2007 on the file of the Central Administrative Tribunal, Ernakulam Bench. The said O.A. was filed seeking for an order to quash Annexure A8 and for a declaration that he is entitled to have the pay of Rs.350/- in the scale of Rs.330-560/- with effect from 16.12.1984, on par with his junior Shri K.R.Hariharan, as evidenced by Annexure A4 and admitted by the respondents in Annexure A8. The petitioner has also sought for an order directing the respondents to fix his initial pay as Ticket Collector with effect from 16.12.1984 at Rs.350/- in the scale of Rs.260400 with all consequential benefits. 2. Before the Tribunal, the reliefs sought for in the O.A. were opposed by the respondents by filing a reply statement. After considering the rival contentions, the Tribunal allowed the O.A. vide Ext.P1 order. Paragraph 8 of Ext.P1 order reads thus; W.P.(C)No.11178 of 2009 **2** “ **8.** For the reasons stated above, the O.A is allowed as follows; The impugned order dated 7.7.2006 is quashed in so far as it relates to the rejection of the applicant's request for re-fixation of his pay. The respondents are directed to re-fix the pay of the applicant in the pay scale of Rs.260-400 as on 14/16.12.1984 with reference to his presumptive substantive pay in the previous scale and extend notional consequential benefits without arrears of pay to the applicant within a period of three months from the date of receipt of copy of this order. No costs. “ 3. A reading of Ext.P1 order would show that during the course of arguments, the learned counsel for the applicant did not press for any arrears, but only for notional re-fixation. Accordingly, the Tribunal in Ext.P1 order has granted only notional re-fixation. Paragraph 5 of Ext.P1 order reads thus; “ **5.** We are in agreement with the finding of the Tribunal in the aforesaid O.A. The applicant is entitled to get his pay re-fixed on his substantive appointment as Ticket Collector with effect from 14/16.12.1984. However, he will not be entitled for arrears arising out of such re-fixation in view of the long period that has elapsed. The counsel for the applicant also did not press for arrears and wanted only notional re-fixation.” 4. Seeking review of Ext.P1 order to the extent the W.P.(C)No.11178 of 2009 **3** applicant is granted only notional re-fixation, R.A.No.50 of 2008 was filed before the Tribunal. After hearing both the sides, the Tribunal rejected the said Review Petition by Ext.P2 order. Feeling aggrieved of Exts.P1 and P2 orders of the Tribunal, to the extent the applicant was granted only notional re-fixation, he is before this Court in this writ petition. 5. We heard the arguments of the learned counsel for the petitioner/applicant and also the learned Standing Counsel for Southern Railway, representing the respondents. 6. The learned counsel for the petitioner/applicant would contend that, the petitioner is legally entitled for arrears of pay and allowances consequent to re-fixation of pay with effect from 16.12.1984 and as such the Tribunal went wrong limiting the relief only to notional re-fixation. 7. As discernible from Ext.P1 order, during the course of arguments the learned counsel for the applicant did not press for payment of any arrears, but only for notional re-fixation. In Ground B of the Writ Petition the applicant has asserted that, the finding of the Tribunal in Ext.P1 order that, his counsel did not W.P.(C)No.11178 of 2009 **4** press for arrears of pay but only for notional fixation is not correct and the submission of his counsel is only to the extent as stated in Ext.P7 affidavit of the said counsel produced along with this Writ Petition. Paragraphs 3 and 4 of Ext.P7 affidavit read thus; “ **3.** As the counsel who appeared before the Tribunal I had only submitted during the course of hearing, by referring to the decision of the Apex Court in Union of India v. Tarsem Singh (2008 (2) SCC (L&S) 765) that in case of recurring cause of action, High Courts can restrict consequential reliefs relating to the arrears upto a period of three years prior to the filing of the Writ Petition as found just and proper considering the facts of the case and that the applicant would be satisfied even if such an order is passed. **4.** In the circumstances, the observation in para.5 of the order of the Tribunal in O.A.No.63/07 that, “the counsel for the applicant did not press for arrears and wanted only notional re-fixation” does not reflect the correct position.” 8. However, a reading of Ext.P6 Review Application filed by the applicant before the Tribunal would show that, the applicant has no case before the Tribunal that, the observation made in Paragraph 5 of Ext.P1 order that, the counsel for the W.P.(C)No.11178 of 2009 **5** applicant did not press for arrears and wanted only notional refixation does not reflect the correct position. Instead, in Ground C of the Review Petition it was urged that, the law declared by the Apex Court in Union of India v. Tarsem Singh (2008 (2) SCC (L&S) 765) appears to have been inadvertently omitted to be noticed by the Tribunal in the matter of payment of arrears at least with effect from three years prior to the date of filing of the case, which is an error of law apparent on the face of records. The Tribunal, after considering the grounds raised in the Review Petition, came to the conclusion that the grounds raised by the applicant do not constitute error apparent on the face of the records. Accordingly, the Tribunal dismissed the Review Petition by Ext.P2 order dated 23.12.2008. 9. Having failed to challenge the finding of the Tribunal in Paragraph 5 of Ext.P1 order in the Review Application filed before the Tribunal, the applicant cannot seek interference of this Court under Article 226 and 227 of the Constitution of India. We find absolutely no grounds to interfere with Exts.P1 and P2 orders passed by the Tribunal. W.P.(C)No.11178 of 2009 **6** In the result, the Writ Petition fails and the same is dismissed. No order as to costs. Sd/- **P.R. RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** lk True copy P.S. to Judge