Full Text
HIGH COURT OF DELHI
JUDGMENT
SMT SHAIL KUMARI ..... Petitioner
For the Petitioner : Mr. K. P. Toms, Advocate
For the Respondents : Mr. Sushil Raaja, Sr. Panel Counsel with Mr. Amit Acharya, GP for UOI
1. The petitioner in the present writ petition seeks the following reliefs:- “a) Allow the present writ petition. The Respondents may be directed to revise the pension and pay its arrears in terms of the judgment and order passed by the Hon'b1e High court of Delhi at New Delhi on 07.02.2008 in writ petition civil No.566/2000 titled as “AlI India Sharamik & Coach Attendant Association and other Vs. Union of India & Ors. And also order passed on 04.01.2012 in Contempt case No. 311/2009 in the aforesaid writ Petition (C) NO. 566/2000 directing the Respondent to pay all the benefits in respect of Shri Shiv Kumar Mishra (since deceased) to the Petitioner who is the widow of Late Shri Shiv Kumar Mishra and is entitled for the same as she is the beneficiary of the pension. b) Pass any other order or orders as be considered necessary to pass in interest of justice.”
2. Mr. K.P. Toms, learned counsel for the petitioner submits that the husband of the petitioner had joined the respondent Railways as Parcel Porter on 12.10.1957. In the year 1978, the husband of the petitioner was promoted as Coach Attendant and continued in services in such capacity when he retired/superannuated on 31.05.1997 as a Coach Attendant. While the things remained as such, from the year 1960 the posts belonging to the category of Coach Attendant, Passenger Attendant, Passenger Attendant (AC Coach), Air Condition Coach Attendant and Air Condition Passenger Attendant stood abolished and they were all re-designated as Passenger Attendant, Grade-I in pay scale of Rs.110-180/-.
3. It is also the case of the petitioner that the respondents had neither redesignated such employees nor did the Railways grant them the pay scale of Rs.110-180/-. Some of those employees who were aggrieved by the fact that they were being still addressed as Coach Attendants and treated as Group D employees in the pay scale of Rs.75-89/-, filed a petition bearing W.P.(C) 566/2000 titled All India Shramik and Coach Association and Others vs. Union of India and Others. This Court vide the judgement dated 07.02.2008, had allowed the writ petition.
4. Since the respondents were not implementing the said judgment, the said association had filed a contempt petition bearing Contempt Case NO. 399/2009, on which the learned Single Judge of this Court vide interim order dated 04.01.2012 held that the aforesaid judgment of the learned Division Bench was a judgment in rem and as such the respondents could not have implemented only qua the petitioners who had approached the Court.
5. Learned Single Judge also observed that the respondent by way of such non implementation, was forcing every employee to approach the Court for similar reliefs which was not in accordance with the laid down principles of the Supreme Court in such cases. It is the case of the petitioner that despite such clear observations, the orders were not implemented fully.
6. Mr. Toms while referring to various paragraphs in the order passed by the learned Single Judge in the contempt petition submitted that the petitioner too would be entitled to the same relief since it was extended to employees who were in service and entitled from the year 1960 when the petitioner himself was very much in service w.e.f. the year 1957. He further submits that the said judgment being a judgment in rem automatically ought to have been implemented qua the husband of the petitioner too.
7. The case of the petitioner also is that after the implementation was carried out by the respondents in various periods of time, the late husband of the petitioner had made numerous representations to the respondents seeking implementation of the said order in his favour too commencing from the representation dated 06.01.2015, 05.08.2015, 12.09.2017 and 18.06.2019.
8. According to learned counsel for the petitioner, there was no response to these representations by the respondent/department. Unfortunately on 27.08.2019, the husband of the petitioner had left for his heavenly abode. Subsequent thereto by a representation dated 16.12.2019, the petitioner being one of the legal heirs of the late husband had again filed a representation seeking the same reliefs. This too was not responded to constraining the petitioner to file the present writ petition.
9. Mr. Toms, learned counsel for the petitioner submits that the petitioner who is the widow of the late employee is aged about 80 years and is a rustic lady, living in a village in District Rai Bareilly in the State of Uttar Pradesh and not being well versed with the nuances of law and her legal rights, did not approach this Court in time.
9. That apart, Mr. Toms submits that the petitioner has placed on record the relevant documents indicating the petitioner is still receiving family pension in respect of her late husband’s service with the respondent department.
10. In view of the above, learned counsel submits that there is no reason why the petitioner has been discriminated against insofar the benefits which would have enured to the late husband if the relief granted by the learned Division Bench of this Court in judgment dated 07.02.2008 was implemented by the department in respect of similarly situated employees.
11. Per contra, Mr. Sushil Raja, learned SPC appearing on behalf of the respondent submits by referring to the short counter affidavit filed on behalf of the Union of India through Secretary, Ministry of Railways submits that the order dated 07.02.2008 passed in W.P.(C) 566/2008 by the learned Division Bench of this Court was implemented in favour of 59 employees out of 65 employees who were part of the aforesaid writ petition. So far as the remaining six petitioner in that writ petition are concerned, the said benefit were not extended to them due to nonavailability of records or their whereabouts.
12. In the present case, learned SPC submits that the writ petition filed by the petitioner suffers from inordinate delay and latches. In that, though the husband of the petitioner superannuated on 31.05.1997, the petitioner had submitted the representation only on 06.01.2015 and the present writ petition was filed only on 11.05.2022. He submits that it is trite that such inordinate delay cannot be condoned and the litigant who is sleeping over his/her rights cannot be permitted to seek discretionary relief from the Court under Article 226 of the Constitution. On that basis he seeks dismissal of the present writ petition.
13. The other limb of the argument of learned counsel is that though the respondents have extended benefits of the order dated 07.02.2008 to 19 other employees who were not part of W.P.(C) 566/2000, however since the records of the petitioner’s husband were destroyed based on the instructions contained in the departmental circular vide printed Sl. No.1666, Circular no.831-E/218-I (EIV) dated 16.07.1982, no such relief could be granted to the petitioner for lack of records. He submits that the 19 employees were granted benefit since their records were available. Learned counsel submits that the records of the late husband of the petitioner is more than 26 years old and as per the policy of preservation of record, the service records are preserved upto 15 years only from the date of retirement. On that basis, learned counsel submits that records not being available no relief can be granted to the petitioner at this stage. Learned counsel seeks dismissal of the present petition.
14. This Court has considered the arguments of the learned counsel for the petitioner as also the respondent and perused the records as available.
15. At the outset, it appears relevant to first deal with the argument addressed on behalf of the respondent.
16. So far as the objection in respect of inordinate delay and latches in filing the present petition is concerned, it must be appreciated that the late husband of the petitioner had superannuated on 31.05.1997 as a Coach Attendant. It would also be relevant to note that from the year 1960 the post belonging to the category of Coach Attendant, Passenger Attendant, Passenger Attendant (AC Coach), Air Condition Coach Attendant and Air Condition Passenger Attendant stood abolished and they were all redesignated as Passenger Attendant Grade-I in the pay scale of Rs.110- Rs.180/-.
17. Being aggrieved of the non-grant of such scale, nor re-designation by the respondents, the Employees’ Association filed an application bearing OA No.2732/1997 before the Central Administrative Tribunal which was dismissed by the said Tribunal. Challenging the same a petition bearing W.P.(C) 566/2000 captioned All India Shramik and Coach Attendants Association and Others vs. Union of India and Others was filed before this Court. By the judgment dated 07.02.2008, the learned Division Bench reversed the judgment of the learned Tribunal and allowed the writ petition making the following observations:-
The said judgment was not implemented by the respondents constraining the petitioners therein to file a contempt petition bearing Cont.Cas (C) 311/2009 captioned All India Shramik and Coach Attendants Association and Others vs. SS Khurana and Others. By the order dated 04.01.2012 the learned Single Judge had held that the judgment dated 07.02.2008 was a judgment in rem and has to be applied to all the members of the Association as also to all the Coach Attendants who were similarly situated. It would be irrelevant to extract the observations and directions in order dated 04.01.2012 which are as under:-
13. The relief granted by the Division Bench pertained to all the petitioners, including petitioner No. 1 which is the Association of Coach Attendants of the Indian Railways, who had been wrongly treated as Group-D employees. When relief was granted to petitioner No. 1 Association, it obviously meant that the relief was granted to all its members and also to all Coach Attendants who were similarly situated. It is also clear from paras 4 to 6 of the respondent applicant for extension of time moved before the Division Bench, that it also understood the judgment of the Division Bench to mean that it would apply to all such Coach Attendants who were entitled to be classified as Attendants Grade-
I. That is why they specifically stated that the Railway Board would have to sit and decide the issue as it would have effect on all India basis and all divisions across the Board. They also stated that it would effect even those who have already retired. Pertinently, the individuals who were before the Division Bench namely the petitioners No.2 to 7 had not retired by then.
14. It appears that: the respondent is granting the benefit of the judgment of the Division Bench and the Supreme Court only to those who are individually' filing their respective petitions before the CAT. Therefore, the respondents are forcing individuals to approach the concerned Court/Tribunal, expend money and only then they are being granted the benefit. The respondents are not denying and have no basis to deny the said relief to those who may not have individually preferred their own Original Applications. In this process the respondent is only, meaninglessly, multiplying litigation. Such action and conduct of the respondents is highly depricable.
15. In view of the aforesaid discussion. I direct the respondents to ensure complete compliance of the judgment of the Division Bench in W.P.(C.) No. 566/2000 dated 07.02.2008 by extending the benefit of the said judgment to all the Coach Attendants who though were entitled to be classified and designated as Passenger Attendants Grade-1 in the pay scale of Rs.110-180 since 1960 were not so designated and who were continued to be treated as Group-D employees in the pay scale of Rs.75-
89. The respondents should file the status report in this within four weeks.
16. On the next date, the Court shall also consider whether the implementation claimed by the respondents in respect of the petitioners No.2 to 7 has been correctly done or not. (emphasis supplied) Reading both, the judgment dated 7/2/2008 of the learned Division Bench as also the order dated 04.01.2012 in conjunction, it cannot be doubted that the benefits granted by the learned Division Bench in the judgment dated 07.02.2008 was to be applied in the case of the late husband of the petitioner too. This is so because admittedly the husband of the petitioner was a Coach Attendant in service of the respondent since 1957 till the year 1997 when he admittedly superannuated.
18. The non grant of benefits to the late husband of the petitioner resulted in the husband of the petitioner submitting innumerable representations to the respondent vide the communications dated 06.01.2015, 05.08.2015, 12.09.2017 and 18.06.2019. Unfortunately the husband of the petitioner left for his heavenly abode on 27.08.2019. Even subsequent thereto, the petitioner being one of the legal heirs had filed a representation yet again on 16.12.2019. Unfortunately, the said representation remained unresponded to by respondents.
19. From the letter dated 24.02.2012 it appears that the respondents had decided to comply with the order dated 04.01.2012 passed in the contempt petition. But then again, selectively and only for those employees whose records were available as stated by the counsel for the respondents.
20. Keeping in mind the overall factual situation and the reluctance of the respondents in implementing the judgment dated 07.02.2008 coupled with the fact that the Association had raised the grievance in the year 1997 before the learned Tribunal read in conjunction with the superannuation of the late husband of the petitioner on 31.05.1997, this Court is of the considered opinion that the petition is not barred by delay and laches. Yet another reason for such consideration is that undoubtedly the late husband of the petitioner was a Coach Attendant who would become entitled to the benefits of the order dated 07.02.2008 as found applicable to the employees in terms of the order dated 04.01.2012 in the contempt petition, and as such, the non implementation of such benefits by the respondents cannot be justified. Thus, the objection regarding petition being barred by delay and laches is rejected.
21. The other contention regarding non availability of the service records of the late husband being the reason for non implementation of the order dated 07.08.2008 is concerned, the same is noted only to be rejected. The petitioner has placed on record documents indicating receipt of family pension in her favour giving all the details of the pensioner who was the former employee of the respondent. There is no dispute that the petitioner has been and continues to receive the family pension till date from the respondents. In such circumstances, it is unpalatable to even countenance an argument based on non availability of records pertaining to the late husband and the same is rejected. It is apparent that once a judgment was passed in W.P.(C) 566/2000, the same being in rem, it was an obligation of the respondent to disburse similar benefits to all the employees falling within the categories stipulated therein. It does not behove the respondent to delay disbursal of such benefits, much less wait for the petitioner or her husband to submit innumerable representation finally constraining the petitioner to file the present writ petition for it to act on such representations.
22. In that view of the matter, this Court is of the considered opinion that neither the present writ petition is barred by delay and laches and nor can the respondent deny such benefits on the lame excuse of non availability of the service records of the late husband of the petitioner.
23. Consequently, as an upshot of the aforesaid analysis the writ petition is allowed by directing the respondent to revise the pension and pay all the arrears in terms of the judgment passed by the learned Division bench of this Court 07.02.2008 in All India Shramik and Coach Attendants Association and Others vs. Union of India and Others and order dated 04.01.2012 in Cont. Cas(C) 311/2009 to the petitioner who is the wife of late Dinesh Kumar Mishra with interest @6% per annum within eight weeks from today. Writ petition along with the pending applications disposed of in above terms without order as to costs.
TUSHAR RAO GEDELA, J APRIL 16, 2024