The Divisional Railway Manager ... vs Sri Vinod Kumar Bajpai And Another
2019 Latest Caselaw 5467 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 18							   Reserved
 
										A.F.R.
 
Case :- WRIT - C No. - 22067 of 2011
 

 
Petitioner :- The Divisional Railway Manager N.R. Alld.
 
Respondent :- Sri Vinod Kumar Bajpai And Another
 
Counsel for Petitioner :- A.K. Gaur,Rajesh Gupta,Vimlesh Kumar Rai
 
Counsel for Respondent :- Rajesh Chandra Gupta, Anand Srivastava, Babu Nandan Singh, D.C. Dwivedi, Mayank Kr Gupta, Ranjeet Asthana,S.C.
 

 
Hon'ble J.J. Munir,J.

1. This petition under Article 226 of the Constitution has been brought by the Divisional Railway Manager, Northern Railway, Allahabad assailing an award dated 11.01.2011 of the Central Government Industrial Tribunal - cum - Labour Court, Kanpur in Industrial Dispute no.41 of 2003. The award has been published in due course by the Central Government and become enforceable under the provisions of the Industrial Disputes Act, 1947.

2. The proceedings giving rise to the industrial dispute commenced on a reference made by the Central Government vide notification dated 28.11.2003, under Section 10 of the Industrial Disputes Act, which was made in the following terms:

Whether the action of Assistant Operating Manager (M) Northern Railway Allahabad in denying the promotion to Sri V K Bajpai at the post of switchman and terminating his service vide order dated 18.07.2000, is justified? If not to what relief the workman is entitle4d (sic entitled) to

3. By the award dated 11.01.2011 last mentioned, the aforesaid reference has been answered in favour of the workman and against the employer holding that the entire action of the employers, as referred to in the impugned award, is illegal and void ab initio. The workman has been held entitled to reinstatement in the services of the Northern Railways. He was further held entitled to all back-wages, seniority and all consequential benefits attached to the post, in the same manner as if he had never been removed from service.

4. Heard Sri Vimlesh Kumar Rai, learned counsel for the petitioner and Sri B.N. Singh assisted by Sri Babu Nandan Singh, learned counsel appearing for respondent no.1.

5. The first respondent, Vinod Kumar Bajpai, who is hereinafter referred to as the ''workman', was appointed in the establishment of the petitioner, Northern Railway, on the post of Porter w.e.f. 08.06.1984. He was appointed at Kanpur and was posted at Panki on the said date. In the year 1986, he appeared in a selection examination held by the Railways for the post of switchman. He was selected in the said examination and, in consequence, appointed as a switchman in the Grade of Rs.1200 - 2040/- in the Allahabad Division of Northern Railways, under the administrative control of the petitioner. He was posted to Bhaupur Railway Station as a switchman on 20.06.1986. While manning the said post, there was derailment of one bogie of the 8 Down Passenger Train at the Bhaupur Railway Station on 12.10.1987. In consequence, the workman was subjected to disciplinary proceedings, that led to his being found guilty of negligence. He was reverted to the post of Porter, for a period of three years w.e.f. 25.02.1988. It is asserted by the petitioner that while working on the post of porter, the workman held lien on the post of switchman, wherefrom he had been reverted to the post of porter for three years alone, in consequence of the punishment awarded. The workman wanted to sit the selection examination for the post of a ticket collector, but he was found ineligible as the substantive post on which he held lien, that is to say, a switchman was higher in grade and pay scale to that of a ticket collector, disentitling him to be appointed to the said post. The workman, therefore, surrendered the post of switchman, whereon he held lien. The surrendered post was accepted by the competent authority of the Employers, vide some memo or order dated 13.05.1991, a copy whereof has not been placed on record, but figures in the order of the Central Administrative Tribunal, dated 03.05.2001 passed in Original Application no.1077 of 1995, filed by the workman, to which allusion would shortly be made in the course of judgment.

6. Thereafter, it appears that the workman approached the Employers to appoint him to the post of a ticket collector, to which he had been selected in accordance with the Rules. The appointment was refused. The workman represented the matter before the Employers, which led to no result.

7. At this stage, the workman approached the Central Administrative Tribunal by way of Original Application no.1077 of 1995, seeking a direction to the Employers to appoint him to the post of a ticket collector in the Northern Railways, and to accord him seniority with other similarly situate ticket collectors, who had joined after passing the examination, also passed by the workman. A claim to salary as a ticket collector was also made by the workman in the relief claimed before the Tribunal.

8. The Employers contested the workman's case before the Central Administrative Tribunal in the Original Application, above referred, on ground that at the time of his selection, he held the post of a switchman, and a switchman was not eligible to appear in the qualifying examination for the post of a ticket collector. The workman's candidature was accepted because in his application he described his current post as that of a porter, and a porter was eligible to sit the selection examination for the post of a ticket collector. It appears that what was missed out in accepting the workman's candidature was the fact that his substantive post was that of a switchman, and not a porter. He was serving as a porter for three years on account of an order of reversion with a lien on the post of switchman, to which he would go back at the end of the three year term of punishment. The Tribunal held that only those candidates holding a post lower than a ticket collector were eligible to sit the aforesaid selection examination. The post of switchman is higher in grade than that of a ticket collector, with a higher scale of pay. The workman described himself as a porter, an employee with valid candidature to sit the examination for the post of a ticket collector, though he was a switchman reverted temporarily for a limited period, in consequence of the order of the disciplinary authority. The Central Administrative Tribunal held that the workman's substantive post was that of a switchman and he was not eligible to be selected as a ticket collector. The Central Administrative Tribunal noticed the workman's contention urged vehemently that at no point of time, did he conceal any relevant facts, and that the workman was allowed to appear in the selection examination for a ticket collector's post by the competent authority, cognizant of the fact that his substantive post was that of a switchman. He was also sent to training on being selected in the examination held held for that post; he also completed training for the post of a ticket collector. The Central Administrative Tribunal noticed the workman's contention also, that his candidature could not be cancelled on a technical ground.

9. The Central Administrative Tribunal held that they were not in agreement with the workman's contention, inasmuch as, there could be no estoppel against law, and that includes the statutory rules framed by the Railway Board as to eligibility. This Court supposes that by statutory rules as aforesaid, the Central Administrative Tribunal was referring to eligibility Rules for the post of a ticket collector. The Tribunal unequivocally denied relief to the workman to issue a direction to the Employers to appoint him as a ticket collector. The Central Administrative Tribunal found the workman's case to be based somewhat on a legitimate expectation as he had surrendered the post of a switchman, which was accepted by the Employers. This surrender was made and accepted on the supposition that the workman had been selected for the post of a ticket collector. In those circumstances, the Central Administrative Tribunal while not accepting a case of legitimate expectation for the workman to be appointed to the post of a ticket collector, held that the workman could not be denied both his rights, that is to say, to be appointed a ticket collector on an accepted surrender of his post of switchman by the Employers, and at the same time, deprived of his higher post of switchman, in consequence of the surrender of that post. The Tribunal recorded this part of the finding, in the following words:

"But at the same time we cannot ignore the fact that under legitimate expectation, the applicant surrendered the post of switchman and it is clear from the bare perusal of Annexure A-5 that his surrender was accepted because of his having been empanelled as Ticket Collector and it will not be in the interest of justice to kick the applicant from both sides, first by disqualifying from being a candidate for the post of Ticket Collector and at the same time to take away his genuinely earned promotion from the post of porter to the post of Switchman because he surrendered, no doubt unconditionally, but obviously under compelling circumstances to make him eligible to be posted as Ticket Collector."

10. With that much said, the Tribunal still desisted from issuing any positive direction to restore the workman to his surrendered higher post, but granted limited relief to him to approach the Employers with a representation seeking restoration of the post of switchman, that had been surrendered. The representation was directed to be considered sympathetically within three months.

11. It appears that even before original application no. 1077 of 1995 came to be decided by the Central Administrative Tribunal vide order dated 03.05.2001, the workman who was serving as a porter was chargesheeted again, on occasion for unauthorized absence from 07.08.1999 to 10.01.2000, without sanctioned leave and without information. He was served with a charge sheet dated 01.12.1999. It is urged by the employer that the workman disappeared on 07.08.1999 when asked to go to Allahabad for some work relating to stores, which he refused, and then absented. He subsequently reappeared on 11.01.2000 along with a duty application with some kind of a certification that is described by an abbreviation of no popular usage called "PMC", with regard to the illness of his wife. It is again said in the written statement, put in before the Labour Court that workman appeared to join duty on 11.01.2000, in the office of "CYM/GMC." This Court is also not familiar with those abbreviations but would think these refer to some office or officer of the employers, where the workman was supposed to report.

12. This Court is bemused to find in the writ petition that the charge sheet served upon the petitioner was one that could entail a major penalty, and describing it that way, would not raise an eyebrow. But, the employers have described the charge sheet issued by them to the workman for a major penalty with reference to some abbreviation of their own coinage as "SF-5", in paragraphs nos. 12 and 13 of the writ petition. The employers ought know better that abbreviations used by them in their establishment are not any part of the corpus juris, or a work of standard usage that this Court would be acquainted with. Such departmentally popular abbreviations are of no facility to the Court in understanding the parties' case and must be avoided, unless there is some issue about them directly involved. The said charge sheet dated 01.12.1999 was served upon the workman on 11.01.2000, when he appeared to join duties; and, it is common ground that he did not file his reply.

13. It is the employers stand before the Labour Court that the said charge sheet dated 01.12.1999 could not be served at the workman's home, during the period of 01.12.1999 to 11.01.2000, due to administrative reasons. An Inquiry Officer was appointed on 31.12.1999, that is say, much before the charge sheet was served upon the workman on 11.01.2000. The workman appeared before the Inquiry Officer on receipt of information about the date of inquiry, vide letter dated 02.02.2000 . Before the Inquiry Officer, the workman is claimed by the Employers to have submitted an application to the effect that he did not need any defence assistant, and would defend himself in person. The Employer have also annexed a copy of an application dated 02.02.2000, purportedly submitted by the workman to Inquiry Officer, forsaking his right to be defended by a defence assistant, and taking upon himself that responsibility. It is also claimed by the employer that during the course of inquiry one, Jai Singh, a clerk "CYM/GMC" was examined as the employer's witness, who was also cross-examined in his presence. It is claimed by the employers that the workman was afforded full opportunity to have his say.

14. The manner in which the inquiry was conducted by the Inquiry Officer, according to the workman, was in gross violation of principles of natural justice. His participation in the inquiry was nominal and formal. Jai Singh, the Clerk who was examined on behalf of the establishment was hardly permitted to be examined or cross-examined by the workman. It is even said by the workman in his written statement filed before the Tribunal that during the course of inquiry that was held on three days, he was asked to sit outside the Room (where the inquiry proceedings were venued), and lateron, he was called in to sign papers. In this regard, the relevant averments of the workman in his written statement, filed before the Tribunal are set out in paragraphs 11 and 12, which are extracted below (in Hindi vernacular):

"11) यह कि प्रतिवादी रेल प्रशासन द्वारा आनन-फानन में जांच अधिकारी नियुक्त कर दिया गया, जिनकी नियुक्ति के पहले प्रारम्भिक जांच भी नहीं की गयी व जांच अधिकारी महोदय ने जांच की कार्यवाही मात्र तीन तिथियों 02-02-2000, 03-02-2000, व 4-2-2000 में पूर्ण कर दी। जांच अधिकारी महोदय द्वारा प्रार्थी के बयान प्रथम बार ही कराये गये, जबकि उसके द्वारा संबंधित अभिलेखों की मांग की गयी थी, लेकिन नही दिया गया और न ही किसी बचाव सहायक को ही लाने की अनुमति दी गयी, जांच के समय आरोप कर्ता की तरफ से सी०वाई०यम० आफिस के क्लर्क श्री जय सिंह ही आये थे तथा उनसे प्रार्थी द्वारा पूछे गये प्रश्न का उत्तर भी पूरा नही दिया गया, जांच के समय जांच कार्यवाही भी नहीं दी जाती थी।

12) यह कि जांच अधिकारी महोदय द्वारा जांच के समय प्रार्थी को कमरे से बाहर बैठाये रखा जाता था तथा बाद में बुलाकर हस्ताक्षर करवा दिया जाता था।"

15. In the writ petition filed before this Court, denial of opportunity in the sense of restriction from participation in proceedings is again a case that is pleaded by the workman in paragraph 40 of the counter filed here, where rebutting the allegations in paragraph 21 of the writ petition asserting a case of full opportunity of hearing being afforded to the workman, the workman has asserted as follows, in paragraph 40 of the counter affidavit:

"40. That the contents of para 21 of the writ petition as stated are denied in to to. It is absolutely false to allege that the workman was through out present before the enquiry. As a matter of fact the whole enquiry was conducted behind the back of the workman and the workman was simply asked to sign the proceeding of the enquiry after close of the proceedings, therefore, it is not in the notice of the workman as to what has been recorded in the enquiry by the enquiry officer and what statement has been adduced by the witness of the prosecution."

16. The specific averments in paragraph 40 of the counter affidavit about the manner in which the workman was kept away from proceedings of the inquiry are responded to in paragraph 14 of the rejoinder affidavit, filed on behalf of the Employers, where it is averred:

"14. That the contents of paragraph no. 37 to 40 of the counter affidavit are not admitted and are denied. In reply the contents of paragraph no. 18 to 21 of the writ petition are reiterated as correct."

17. The Tribunal in dealing with the reference took cognizance of the fact that the reference was in two parts. The first part was whether the action of the Employers in denying promotion to the workman to the post of a switchman is justified? The second part of the reference is whether the action of the Employers in terminating the workman's services vide order dated 18.07.2000 is justified? This splitting up of the reference into two parts has been done by the Tribunal for the sake of convenience, because the reference in the terms made, relates to two causes of action, one regarding promotion and the other regarding termination. The reference was compositely made for reason that the question of the workman's termination would somehow or rather be inextricably connected to the question of his promotion to the post of a switchman, as mentioned in the order of reference. This is so because in case the workman were held entitled to promotion at the end of the period of his reversion to the lower post of a porter, the day when the charge sheet dated 01.12.1999 was issued to him, he would already have been promoted back to the post of a switchman on 03.04.1992. The consequence of this, in the reasoning of the Tribunal, would be that on the date of issue of the charge sheet, the workman would stand promoted back to his substantive post of a switchman. Going by the Grade attached to the post of switchman, the workman would not be within the jurisdiction of the Assistant Operation Manager (M) as his Disciplinary Authority. A different and higher authority of the Employers would then be the workman's Disciplinary Authority, rendering the workman's termination bad in law, and one made by an authority of the Employer, who was not legally competent to pass that order. The Tribunal has clearly held the workman entitled to promotion to the post of switchman at the end of period of his reversion on 03.04.1992, and therefore, answered the first part of the reference in terms that the Management were wrong in not permitting the workman to join back the post of switchman, at the proper time in the year 1992. On the basis of the aforesaid finding, the second part of the reference has been answered in favour of the workman, on reasoning that the order of termination was passed by an incompetent officer of the Employers, as the workman has been found entitled to be promoted back to the post of a switchman, way back in the year 1992. The Tribunal has recorded findings, relating to the aforesaid two parts of the reference, in the following words:

"12. Considering the facts I have to deal with the first part firstly. This is an admitted fact that the workman Sri Vinod Kumar Bajpai was reverted from the post of switchman awarding him a punishment of three years and he was to be promoted again on 25.02.91. Opposite party has clearly stated in their pleadings that the expiry of three years the workman has submitted his refusal for the post of switchman and after expiry of further one year refusal period of his posting orders for the post of switchman grade 1200-1040 (RPS) were issued vide notice dted 03.04.92. Here lies the cause of action. When once the notice for the promotion was issued then it was the duty of the management to see that the notice has been served upon the workman claimant and he should have been promoted. It is a fact that promotion is substantive right of the workman and It is the duty of the management to promote the workers at the proper time so that the harmony may be maintained in the industrial relations and workers should not be frustrated. From the facts it appears that the management has not followed the provisions in not promoting the workman at the proper time vide notice dted 03.04.92. Claimant has specifically stated on oath in his statement as w.w.1 that even after expiry of the period he was not promoted. He also stated that he has sent the refusal considering the fact that he has qualified for the post of Ticket Collector Post and he will be promoted for that post. But this was also not done by the management. Management has not adduced any evidence in support of his pleadings. Even if on the fact of, pleadings are considered even then the management has not shown why the claimant was not promoted vide their notice dated 3.4.92, when no other punishment was awarded to him. Therefore, the management has failed in their action in not promoting the workman at the proper time in the year 1992.

13. This part of the reference is decided in favor of the claimant.

14. Now this is the contention of the claimant that if he had been promoted and would have been at the post of switchman then his termination could not have been passed by Assistant Operating Manager. I am also of the view that if the first part of the reference is in favor of the claimant then subsequent reference cannot be decided against the claimant because if foundation is not proper then subsequent structure cannot stand. It is not possible to say like this that the workman should have been promoted in the year 1992 and consequently to say that the inquiry proceedings are bona-fide. Both the things will amount to contradiction. Once a right has accrued to the workman and that too long before then he should have been deemed to be promoted in the year 1992."

18. The Tribunal in accordance with the entitlement of the workman to promotion, held the workman deemed promoted to the post of a switchman in the year 1992, answering the first part of the reference. And, as already said regarding second part, apart from the consequential incompetence of the Disciplinary Authority to initiate and conclude disciplinary proceedings against the workman, who would be deemed to be a switchman in accordance with the award of the Tribunal, the Tribunal also held that the inquiry proceedings have not been held fairly and properly. The concluding findings of the Tribunal are in the following terms:

"15. Therefore, considering all these things it has to be answered that the inquiry proceedings were not held fairly and properly and termination order too was not passed by a competent person. Management has not adduced any oral evidence in support of their pleadings though they have filed the inquiry proceedings. It was for the management to prove why the management did not promote the workman in the year 1992 at the post of switchman. I feel they have failed to prove this fact. Accordingly it is held that the workman stands to be deemed to be promoted at the post of Switchman in the year 1992, therefore, charge sheet if any at subsequent date given to the workman at the post of porter in the year 1999 cannot be allowed to stand in the eye of law."

19. The Tribunal, accordingly, granted relief to the workman, answering both parts of the reference in his favour, in the following terms:

"17. Therefore, second part of the reference order is also decided in favour of the workman. Accordingly it is held that the whole action of the management as referred to in the schedule of reference order, is held to be illegal and abinitiio void and the workman is held to be entitled to be reinstated in the service of the railway management. He is also held to be entitled to entire back wages, seniority and all consequential benefits attached with the post on the premises as if he had never been removed from the service of the management."

20. The submission of Sri Vimlesh Kumar Rai, learned counsel appearing for the Employers is that so far as the first part of the reference is concerned, that is to say, the issue about promotion of the workman, back to the post of a switchman wherefrom he was reverted for a period of three years, could not have been examined or gone into by the Tribunal, inasmuch as, the said issue was considered, may be incidentally, by the Central Administrative Tribunal on the workman's Original Application no.1077 of 1995, decided by the Allahabad Bench of that Tribunal on 3rd May, 2001. The said Application before the Central Administrative Tribunal had been filed by the workman seeking relief to the effect that the respondents be directed to appoint the workman as a ticket collector in the Northern Railway on the basis of the Selection Examination that he has passed, and all of which has been described in detail hereinbefore. In the course of that judgment, according to Sri Vimlesh Kumar Rai, the Central Administrative Tribunal held that the workman had a legitimate expectation to be promoted to the post of a switchman, and for the purpose, permitted him to make a representation to the Employers, attended with a direction to decide that representation within a specified period. Sri Rai submits that the Central Administrative Tribunal held that when the workman applied for the post of ticket collector, he held lien on the superior post of a switchman, wherefrom he was reverted to the post of a porter in consequence of disciplinary proceedings for a time bound period of three years, that made him ineligible for the post of a ticket collector. The subsequent surrender of the post of switchman by the workman in order to maintain his candidature, the Central Administrative Tribunal did not accept as validation of his candidature, on the date that he sat the Ticket Collector's Examination. Learned counsel for the Employers submits that this would show that the Central Administrative Tribunal has decided this question of surrender of his post of switchman to the Railways, may be under a mistaken impression of the law that it would entitle him to maintain his candidature for the Ticket Collector's post. It is quite another matter that the Central Administrative Tribunal has found this deprivation of both opportunities, that is to say, of being appointed a ticket collector and being denied his promotion post, already held, to be rather unfair to the workman.

21. In the submission of Sri Vimlesh Kumar Rai, learned counsel for the Employer, the directions issued to consider the workman's case for promotion which could not be done on account of the supervening disciplinary proceedings, works as a res judicata between the workman and the Employers, so far as his non-promotion to his original post of switchman is concerned. According to the learned counsel for the Employers, the said finding operates as res judicata on the generic principle of finality to findings of a competent Tribunal relating to the same issue between the same parties, that directly and substantially arise in a subsequent and another proceeding. Sri B.N. Singh, learned counsel appearing for the workman disputes this submission and says that the issue of non-promotion of the workman back to his original post of a switchman, wherefrom he was reverted, was not the subject matter of decision by the Central Administrative Tribunal. It was about the workman's right to be considered for appointment to the post of a ticket collector, based on a selection in the examination held by the Employers for the purpose, where the Central Administrative Tribunal only decided the question of the workman's eligibility. The judgment of the Central Administrative Tribunal, thus, cannot, in principle, operate as res judicata about the right of the workman to be promoted back to the post of a switchman, so as to bar its decision by the Tribunal through the impugned award, where that issue is directly and substantially involved, on the reference made.

22. This Court has carefully considered the rival submission of parties about the aforesaid issue. The Court has also perused the judgment of the Central Administrative Tribunal, Allahabad Bench, Allahabad rendered in Original Application no.1077 of 1995, and the relevant findings recorded by the Tribunal in the impugned award. For one, this question of res judicata, applicable on principle, as it is argued by Sri Rai before this Court, does not seem to have been urged before the Tribunal. This plea is raised for the first time before this Court. Though res judicata is not attracted to the proceedings in hand with reference to the judgment of the Central Administrative Tribunal, if one were to go by the strict requirements of Section 11 CPC, but this Court is conscious of the fact that what is sought to be urged by Sri Rai is not that res judicata is attracted stricto sensu. It is application of the principle of finality to an issue that has earlier engaged the attention of a Tribunal of competent jurisdiction, that Sri Rai wishes to call in aid. This Court does not think that any principle of finality or the principles underlying the doctrine of res judicata would be attracted to the present case so far as the rights of the workman to promotion involved here is concerned. A reading of the judgment in the Original Application decided by the Central Administrative Tribunal shows, that the workman's right to promotion on the post of a switchman was never in issue that was gone into, or decided by that Tribunal. Rather, the Central Administrative Tribunal held the workman ineligible for appointment to the post of a ticket collector as in view of the aforesaid Tribunal, the workman held lien on the higher post of a switchman at the time when he applied for the Ticket Collector's post. He was eligible by virtue of his then temporary status as a porter, but that was for a limited period of time, being a total period of three years from 25.02.1988 to 25.02.1992, during which he was reverted to the post of porter, as a measure of punishment awarded to him in disciplinary proceedings. The Central Administrative Tribunal, therefore, went a bit out of way to direct a consideration of the workman's claim to promotion back to his post of a switchman, because it appeared to the Central Administrative Tribunal to be rather unfair that the workman should be deprived of both benefits, that is to say, appointment consequent upon selection to the post of a ticket collector on one hand, and the loss of his right to go back to his post of a switchman that he surrendered under the perceived legitimate expectation that he would be considered for appointment as a ticket collector, once his substantive post became that of a porter, in consequence of the surrender. In those circumstances, the Central Administrative Tribunal acknowledged the fact that the workman had surrendered his post of switchman, and retained that of a porter, entitling him to a consideration by the Employers of his claim for promotion back to the post of switchman. It cannot be inferred that the Central Administrative Tribunal decided the validity of surrender of his post of switchman by the workman. That was only an incidental remark to support a benevolent direction made in the Original Application by the Central Administrative Tribunal. Thus, the contention of the learned counsel for the Employers about the first part of the reference, as to validity of the action of the Employers in denying promotion to the workman to the post of a switchman, is not in any manner barred by any principle of finality or some kind of a res judicata, even by analogy, based on the decision of the Central Administrative Tribunal, dated 03.05.2001 in Original Application no.1077 of 1995. The said contention is, therefore, untenable and is rejected.

23. Now, so far as the first part of the reference is concerned, this Court may say at once that it is in agreement with the conclusions of the Tribunal, though for very different reasons, and still more differently expressed. The workman had been promoted on a substantive basis to the post of a switchman. He was reverted to the post of a porter in consequence of disciplinary proceedings, for a period of three years w.e.f. 25.02.1988. The workman held lien on switchman's post all through. It was just that he was on a servitude to work as a porter, in consequence of the punishment awarded in disciplinary proceedings. It is not that the workman was finally and for all times to come, reduced in rank to a porter. If it were so, there was no difficulty in accepting his candidature for appointment as a ticket collector. He was rightly denied that benefit because in fact the workman was never substantively reverted to the post of a porter, but merely asked as a measure of punishment to work on that post, for a limited period of three years, while his lien remained on the post of a switchman, to which he had been substantvely promoted earlier. In the nature of things, the workman would stand restored to all the incidents of his substantive post of a switchman w.e.f. 25.02.1992, that is to say, the time when the period of servitude to work on the post of a porter would come to an end. If that happened on 25.02.1992, it would be no promotion.

24. Here, the Employers, may be in consequence of some private suggestion of a higher officer, or a more formal advice, which can only be now the subject matter of a guess, led the workman to a situation where he surrendered his substantive post of a switchman, accepting the lower post of a porter, in order to maintain his candidature for appointment as a ticket collector. It is quite another matter that his candidature was still not accepted; and, rightly so, as the workman was not a porter.

25. In this context, a question of cardinal importance that would arise is whether a workman promoted to a higher post on a substantive basis can opt to accept a lower post, through a mechanism which the Employers have called ''surrender' of the higher post, substantively held by him. This Court does not think so. The reason is that the mode of appointment to a substantive post is always a matter to be governed by service rules, or fundamental principles that have generally come to be accepted in the context of appointments and promotion to posts under the Government, or other statutory Bodies. A person can be appointed to a post through direct recruitment. Under the Rules if it is a post to which direct recruitment can be made, it can be made after following the procedure for selection to such a post. Likewise, a post to which a person can be appointed by way of promotion, may be filled up by promotion of a suitable candidate from the feeding cadre, in accordance with Rules applicable. Once appointed by way of direct recruitment or promotion, the person holds the post with a lien on it. Lien in the context of holding a post under the Government has been explained by the Supreme Court in Ramlal Khurana v. State of Punjab, (1989) 4 SCC 99, where in paragraph 8 of the report, their Lordships have held thus:

"8. The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no government servant can have simultaneously two liens against two posts in two different cadres. It is a well-accepted principle of service jurisprudence."

26. It follows, therefore, from the nature of the workman's permanent appointment to the substantive post of a switchman to which he had been promoted in accordance with law, that he held lien over it. It is in the essence of an appointment, either direct or by way of promotion, that the holder of the post cannot contract himself out of that appointment with his Employer, even for the purpose of accepting a lower post. There is nothing in the Service Rules brought to the notice of this Court that enables the Employers virtually to permit the workman into accepting a lower post ex contractu, whatever the perceived advantage or consideration in the workman's mind. The workman could have been reverted permanently or demoted to the post of a porter in consequence of disciplinary proceedings, or otherwise, if permissible under the statutory Service Rules, all to be done in accordance with law. It certainly could not have been done through a contract, styled by the Employers as a ''surrender' of the higher post held by the workman, to which he had been promoted in accordance with law.

27. In the considered opinion of this Court, therefore, the status of the workman on and after 25.02.2019 was that of a switchman, and all that can be said is that the surrender of the higher post made by the workman and accepted by the Employers, is completely de hors the law to which no consequence can be attached. The status of the workman, therefore, on and after 25.02.1992 would be that of a switchman; and, given the fact that on a common perception, shared by the Employers and workman that he had surrendered his higher post of a switchman for a porter, all duties discharged by him thereafter as a porter, would just constitute a porter's work done by the workman voluntarily, while holding the higher post of a switchman. It would also be a logical consequence of this construction of the workman's rights that he would be entitled to emoluments and other benefits attached to the post of a switchman, irrespective of whatever job or work was assigned to him by the Employers.

28. This Court has noticed that though the Central Government Industrial Tribunal - cum - Labour Court, Kanpur in its judgment has proceeded on the basis that the workman was promoted to the post of switchman from a porter in the year 1986, the workman in paragraphs 1 and 2 of his written statement dated 18.03.2009 filed before the Tribunal has taken a specific case that he was appointed as a porter with the Employers on 08.06.1984. It is further specifically pleaded that in the year 1986, he sat a selection examination held by the Employers for the post of switchman. He was successful in the said examination and was appointed to the said post in the Pay Scale Rs.1200 - 2040/-. He was posted at Bhaupur Railway Station, falling under the Allahabad Division of the Employers. The aforesaid stand of the workman seems to show that he did not sit some departmental promotion examination, in consequence of which he was promoted from the post of a porter to a switchman. Rather, it suggests that working on the post of a porter, he sat for a direct recruitment selection test for the post of a switchman, to which he was selected and appointed. At the hearing of this petition as in the proceeding before the Tribunal, the entire case of the workman has been taken to be one of promotion from the post of a porter to a switchman, and then reversion for three years. This appears to be the result of some factual misconception about the matter whether the workman was selected through direct recruitment on the post of a switchman while working as a porter, or he was promoted to the post of a switchman from that of a porter, through some departmental promotion examination. This Court thinks that this issue ought to have been examined and determined on facts threadbare, but looking to the way the case of the workman has proceeded, and under the circumstances, it would now not make much difference. It is, therefore, being left at that. However, it must be remarked that in case the workman was selected through direct recruitment to the post of a switchman while working as a porter, he could never have been reverted to the post of a porter, in consequence of the earlier disciplinary proceedings against him for a period of three years. This is so because the law is clear on the point that an employee cannot be reverted to a post lower in rank than one to which he is initially appointed. A direct recruit to the post of a switchman could not have been reverted to a porter's post, once he was directly selected and appointed to it, merely because he had sometimes served as a porter before he was directly selected for the higher post of switchman, and appointed to it.

29. In this view of the matter, the conclusion of the Tribunal expressed in the words that "Therefore, the management has failed in their action in not promoting the workman at the proper time in the year 1992", is in effect the right conclusion, which in proper terms ought to be that the workman automatically stood restored to his substantively held post of a switchman w.e.f. 25.02.1992, at the end of the period of his reversion to serve on the lower post of porter. Once after 25.02.1992, the workman stood restored with all its incidents to the post of a switchman, and the surrender of his post has not been found to be lawful, disciplinary proceedings initiated against him by Assistant Operating Manager (M), in the Employers' establishment, would not be the proceedings initiated by a competent disciplinary authority, inasmuch as, it has not been disputed by the Employers that the said authority would not be the competent disciplinary authority vis-a-vis a switchman. This is a finding of the Tribunal also with which this Court concurs. The result would be that all disciplinary proceedings taken against the workman, being initiated by a disciplinary authority not competent under the law, and concluded under his orders, the order of removal from service dated 18.07.2000 as well as its affirmation in appeal, would all be of no consequence and illegal. This is what has been held by the Tribunal, though for reasons expressed differently. To add to it, there are some emergent equities in the matter which show that the workman was reinstated in service, in compliance with the interim order of this Court dated 18.04.2011, with 50% back-wages, for the period between removal from service and reinstatement. The workman has since retired from service on attaining age of superannuation in the year 2017, a fact brought to the notice of this Court by Sri B.N. Singh, learned counsel for the workman, and not disputed by Sri Rai, learned counsel appearing for the Employers. This Court thinks that on the position of law, the facts found and equities arising between parties, the impugned award, in so far as it answers the reference in favour of the workman, does not qualify for interference by this Court in the exercise of its jurisdiction under Article 226 of the Constitution.

30. There is still one aspect which has been canvassed by the learned counsel for the Employers. This relates to the entitlement to full back-wages during the period of time that the workman was out of employment. He submits that the Tribunal has committed a manifest error of law in awarding full back-wages to the workman. He submits that it is for the workman to prove that during the period of his deprivation from employment, he was not gainfully employed in order to entitle him to back-wages. In support of the said contention of his, learned counsel for the Employers has placed reliance upon the decision of the Supreme Court in J.K. Synthetics Ltd. v. K.P. Agrawal, (2007) 2 SCC 433. He has invited the Court's attention to paragraphs 15, 16, 17, 18, 19 & 20 of the report:

"15. But the manner in which "back wages" is viewed, has undergone a significant change in the last two decades. They are no longer considered to be an automatic or natural consequence of reinstatement. We may refer to the latest of a series of decisions on this question. In U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] , this Court followingAllahabad Jal Sansthan v. Daya Shankar Rai [(2005) 5 SCC 124 : 2005 SCC (L&S) 631] and Kendriya Vidyalaya Sangathan v. S.C. Sharma [(2005) 2 SCC 363 : 2005 SCC (L&S) 270] held as follows: (Uday Narain Pandey case [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] , SCC p. 480d-g)

"A person is not entitled to get something only because it would be lawful to do so. If that principle is applied, the functions of an Industrial Court shall lose much of their significance.

Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result, but now, with the passage of time, a pragmatic view of the matter is being taken by the court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched. The changes brought about by the subsequent decisions of the Supreme Court, probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing, is evident.

No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed. Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act. While granting relief, application of mind on the part of the Industrial Court is imperative. Payment of full back wages cannot be the natural consequence."

In G.M., Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716] this Court observed: (SCC p. 596, para 8)

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year."

16. There has also been a noticeable shift in placing the burden of proof in regard to back wages. In Kendriya Vidyalaya Sangathan [(2005) 2 SCC 363 : 2005 SCC (L&S) 270] this Court held: (SCC p. 366, para 16)

"When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the instant case, the respondent had neither pleaded nor placed any material in that regard."

In U.P. State Brassware Corpn. Ltd. [(2006) 1 SCC 479 : 2006 SCC (L&S) 250] this Court observed: (SCC p. 495, para 61)

"61. It is not in dispute that the respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."

17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud [(2003) 2 SCC 212 : 2003 SCC (L&S) 161], A.P. SRTC v. Abdul Kareem [(2005) 6 SCC 36 : 2005 SCC (L&S) 790] and Rajasthan SRTC v. Shyam Bihari Lal Gupta [(2005) 7 SCC 406 : 2006 SCC (L&S) 67].

18. Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716] andUday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250]. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.

19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.

20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination."

31. He has further placed reliance upon a decision of the Supreme Court in Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486, where in paragraphs 8, 9 12 & 13 of the report, it has been held:

"8. Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11-A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration.

9. For the purpose of grant of back wages, one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Some of the other relevant factors in this behalf have been noticed by this Court in Haryana Roadways v. Rudhan Singh [(2005) 5 SCC 591 : 2005 SCC (L&S) 716], stating: (SCC p. 596, para 8)

"8. There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily wage employment though it may be for 240 days in a calendar year."

(See also St. Michael's Teacher's Training Institute v. V.N. Karpaga Mary [(2008) 7 SCC 388 : (2008) 6 Scale 621].)

12. In the instant case, the Industrial Court failed and/or neglected to take the aforementioned factors into consideration. The High Court also fell into the same error. In fact the Industrial Court has placed the burden of proof on the management to show that the workman was not gainfully employed after his termination of service.

13. This Court in a large number of cases noticed the paradigm shift in the matter of burden of proof as regards gainful employment on the part of the employer holding that having regard to the provisions contained in Section 106 of the Evidence Act, the burden would be on the workman. The burden, however, is a negative one. If only the same is discharged by the workman, the onus of proof would shift on to the employer to show that the employee concerned was in fact gainfully employed. In Surinder Kumar [(2006) 5 SCC 173 : 2006 SCC (L&S) 967] , this Court held: (SCC p. 177, paras 12-14)

"12. The Labour Court and the High Court also proceeded wrongly on the premise that the burden of proof to establish non-completion of 240 days of work within a period of twelve months preceding the termination, was on the management. The burden was on the workman. (See U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey [(2006) 1 SCC 479 : 2006 SCC (L&S) 250 : JT (2005) 10 SC 344] and State of M.P. v. Arjunlal Rajak [(2006) 2 SCC 711 : 2006 SCC (L&S) 429].)

13. Equally well settled is the principle that the burden of proof, having regard to the principles analogous to Section 106 of the Evidence Act that he was not gainfully employed, was on the workman. (See RBI v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)

14. It is also a trite law that only because some documents have not been produced by the management, an adverse inference would not be drawn against the management. (See S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609].)" "

32. Reliance is further placed to the same end upon the decisions of a Division Bench of this Court in Syed Vakil Ahmad vs. State of U.P. and another, 2010 (125) FLR 49; another in U.P.S.E.B. vs. Sri Brahm Singh, 2006 (110) FLR 97, which is again a decision of this Court; the decision of this Court in U.P.S.R.T.C. vs. State of U.P. and another, 2007 (114) FLR 169; and the decision in U.P.S.R.T.C. vs. State of U.P. and another, 2008 (119) FLR 489.

33. From a perusal of the aforesaid decisions and after hearing the learned counsel for both parties, the following principles emerge that are to be adhered to in the matter of award of back-wages in the case of an order of dismissal, removal, termination or even retrenchment, being set aside by a Labour Court:

(i) merely because termination, dismissal or removal from service or even retrenchment is found to be illegal, grant of 100% back-wages is not a matter of course, or a natural consequences of reinstatement;

(ii) in order to establish his claim to grant of his back-wages, the workman would have to discharge his burden to prove that during period of his disengagement, he has not been gainfully employed. Where the petitioner has not worked for a single day, he will not be entitled to arrears of salary on the principle of ''No work no pay';

(iii) the burden is not upon the Employers to show that the employee has not been gainfully employed. That burden is upon the workman;

(iv) the Labour Court has to record a finding after discussing evidence that during the period of his disengagement, the workman actually was not employed;

(v) an order for award of back-wages should not be passed in a mechanical fashion but a host of a factors such the method and nature of appointment have to be considered.

34. It is submitted by learned counsel for the petitioner, Sri Rai, that there is no discussion by the Tribunal, with reference to evidence on record, that the workman was not gainfully employed during the entire period of time, between his removal from service and the date when the impugned award directed his reinstatement. There is also hardly anything said by the workman in his written statement or before this Court that he has not been gainfully employed during the period that he was out of job. In this connection, attention of the Court was drawn to paragraphs 43, 44 & 45 of the counter affidavit filed before this Court, where it is mostly said that the impugned proceedings being illegal and void ab initio, the direction of the Tribunal to award entire back-wages is sound in law and unexceptionable.

35. Learned counsel for the workman on the other hand has emphasized that in addition to the fact that the disciplinary proceedings have been held without authority of law, that entitles the workman to full back-wages, the tenure of the workman was permanent in nature. He was employed against a regular and permanent post. As such, to keep the workman out of employment on the basis of proceedings initiated by an authority not competent to do so, entitles the workman to full back-wages.

36. The Court has given a thoughtful consideration to the matter. No doubt, it is true that the workman has been removed from service in consequence of action initiated by an authority in the establishment of the Employers, who under the Rules, did not have jurisdiction to initiate disciplinary proceedings or conclude the same, culminating in the impugned order of removal, yet it is equally true that the workman has not said by as much as by a whisper that he was not gainfully employed during the period that he was out of job. At the same time, the workman is one appointed against a permanent post and has been illegally deprived of his employment. Under the circumstances, this Court is of opinion that the impugned award passed by the Tribunal deserves to be modified about the direction to pay back-wages to the extent that back-wages between the two termini, that is removal from service and the date of the impugned award, would be payable at 50% of the entire outstanding. Since the said amount stands invested with some Nationalized Bank in compliance with the direction of this Court, the workman would be entitled to payment of the aforesaid 50% of back-wages together with interest that the money has earned while invested with a Nationalized Bank in terms of the interim order of this Court. The said amount constituting 50% of the back-wages, together with accretion by way of interest, shall be disbursed to the workman within one month of a certified copy of this judgment being filed before the Tribunal. The impugned award is modified to the above extent; in relation to all other directions made in the said award, it is upheld.

37. The writ petition is allowed in part in terms of the aforesaid orders. Costs shall be easy.

Order Date :- 8.7.2019

Anoop/ Deepak