Gauhati High Court
Unknown vs Manik Lal Chakraborty on 6 May, 2022
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GAHC010205602017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7936/2017
THE UNION OF INDIA
REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON, GUWAHATI
-11, FOR MANAGEMENT N.F. RAILWAY LUMDING DIVISION, NAGAON AS
DESCRIBED IN REFERENCE CASE NO. 04 OF2015
VERSUS
MANIK LAL CHAKRABORTY
EX. PS/II TO AM/BPB/N.F.RAILWAY RAILWAY KALIBARI COLONY P.O.
BADARPUR ASSAM-788806.
Advocate for the Petitioner : MSB DEVI
Advocate for the Respondent : MR. U K DAS
BEFORE
HONOURABLE MR. JUSTICE K. SEMA
JUDGMENT & ORDER (CAV)
Date : 06-05-2022
Heard Mr. G. Goswami, learned counsel for the petitioner and Mr. U.K. Das,
learned legal Aid counsel for the respondent.
2. This writ petition has been filed challenging the Award dated 07/06/2017 passed by the
learned Central Government Industrial Tribunal-cum- Labour Court Guwahati, Assam in the
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Reference Case No. 04/2015 by which the respondent/workman has been retrospectively
extended the benefit of promotion in the higher scale of Rs. 6500/- to Rs. 10500/- w.e.f
01/01/2006 along with all consequential and pensionary benefits.
3. The case in brief is that by the Office Order No. 041/05 (Stenographer) dated
13/12/2005 issued by the Northeast Frontier Railway, the respondent who was serving as
Stenographer Gr-I in scale Rs. 5500-9000/- and empanelled for promotion to the post of
Private Secretary-II (P.S/II) was appointed to officiate as PS.-II in the scale of Rs. 6500-
10500/- and posted in the Office of the Additional Divisional Railway Manager (ADRM)
Lumding. Prior to the issuance of the order dated 13/12/2005, the respondent was serving as
Stenographer Gr-I under Area Manager (AM) Badarpur. The respondent however could not be
released to join the promotional post as there was no replacement to relieve the respondent
as Stenographer Gr-I at Badarpur. The N.F. Railway thereafter issued the Memorandum dated
29/05/2006 granting approval for temporary variation of one post of P.S-II from ADRM/LMG
to AM/BPB for a period of 3(three) months w.e.f 01/06/2006 to 31/08/2006 and the
respondent was appointed to officiate as P.S-II and posted against the variated post under
AM/BPB. The respondent's appeal to the Railway authorities to grant him the benefits of
promotion w.e.f. 13/12/2005 was rejected by the Office of the General Manager (P) Maligaon,
N.F Railway by issuing the letter dated 18/07/2006 on the ground that retrospective
promotional benefits cannot be given. The respondent retired from service on superannuation
on 31/08/2006. After a considerable lapse of time a conciliation was held between the
Railway authorities and the respondent in the presence of the Assistant Labour Commissioner
(Central) on 16/03/2015 which however ended in failure. The dispute was thereafter referred
for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Guwahati,
Assam in respect of the matter specified in the schedule as under;
SCHEDULE
"Whether retrospective promotional benefit to Shri Manik Lal
Chakraborty Ex.PS/II to AM/BPB/N.F Railway, should be considered by
the General Manager (P), N.F Railway, Maligaon, Guwahati-781011 or
not? Is he entitled to any compensation for the delay in effecting his
promotion"?
4. The respondent/workman appeared in person before the CGIT-cum-Labour Court,
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Guwahati and recorded his statement. His claim was that though he was entitled to get the
financial benefit of promotion to P.S-II from 13/12/2005 he was given the benefit only from
01/06/2006. The Management of Railway despite the service of notice by the CGIT-cum-
Labour Court remained absence and therefore the reference proceeded ex-parte against the
Management.
5. The learned CGIT-cum-Labour Court, Guwahati thereafter passed the Award dated
07/06/2017 directing that the respondent be given the effect of his promotion in the higher
scale of Rs. 6500-Rs. 10500/- from 01/01/2006 retrospectively and further that the
respondent's pay scale shall stands revised in the higher scale of Rs. 6500-Rs. 10500/- w.e.f.
01/01/2006 with all consequential and pensionary benefit retrospectively.
6. Being aggrieved the Union of India has filed the instant writ petition challenging the
legality and validity of the Award dated 07/06/2017 passed in Reference Case No. 4/2015 by
the learned CGIT-cum-Labour Court, Guwahati, Assam.
7. Mr. U.K Das, learned counsel appears on behalf of the respondent as a Legal Aid
counsel and submits that in spite of his efforts he has not been able to contact the
respondent and therefore, no affidavit-in-opposition has been filed on behalf of the said
respondent. The learned counsel however submits that the writ petition can be disposed in
the light of the order passed by this Court on 15/07/2021 by which the case has been
admitted for hearing observing that since the legality and validity of the award have to be
examined, the same can be done on the basis of the materials available before the Court .
8. Mr. G. Goswami, learned counsel for the petitioner firstly assails the award on the
ground of delay and laches. He submits that there is a lapse of more than 10 years from the
date i.e. 13/12/2005 the respondent allegedly became entitled to the promotional benefit and
the registration of the Reference Case No. 4/2015 and there is no explanation for the delay.
In support of this contention, the learned counsel has referred to the case of Prabhakar
-versus- Joint Director, Sericulture Department & Another, reported in (2015) 15
SCC 1 more particularly paragraph-38, 39, 41 & 42.3 to drive home the point that even when
there is no limitation prescribe by any statute relating to certain proceeding, in such cases the
Court's have coined the doctrine of laches and delays as well as the doctrine of acquiescence
and non suited the litigant who approach the court belatedly without any justifiable
explanation for bringing action after unreasonable delay. Secondly, the learned counsel
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submits that the claim of the respondent for granting the retrospective benefit of promotion
w.e.f. 13/12/2005 has already been rejected by the N.F Railway authorities way back on
18/07/2006 and therefore, the issue could not have been re-agitated before the learned
Tribunal. Thirdly, it is submitted that the Reference Case No. 4/2015 was decided ex-parte
without notice to the Railway administration and therefore bad in law. The learned counsel
then refers to the letter dated 29/07/1997 (Annexure-5) issued by the General Manager (P),
Maligaon, Guwahati, N.F Railway in which the instructions contained in the letter dated
11/07/1997 which provides guidelines for relieving the promotees to the higher post in the
N.F Railway has been incorporated. The learned counsel submits that the guidelines has been
adhered to while relieving the respondent to the promotional post of P.S-II and therefore, no
wrong has been committed by the petitioner authorities. It is further submitted that the
Award dated 07/06/2017 passed by the learned CGIT-cum-Labour Court, Guwahati extending
retrospective promotional benefits on the post in which the petitioner has never served is
against the law.
9. The learned counsel for the respondent on the other hand, submits that there is no
legal infirmity in the Award dated 07/06/2017 passed by the learned CGIT-cum-Labour Court,
Guwahati, Assam. The learned counsel has taken this Court to the Office Order No. 041/05
(Stenographer) dated 13/12/2005 where it has been unequivocally stated that the
Stenographer Gr-I who are empanelled for promotion to the post of P.S-II are now appointed
to officiate as P.S-II in the scale Rs. 6500-10500/- against the existing vacancy and posted in
places as mentioned. The learned counsel submits that the wordings of the order leaves no
room to doubt that the respondent have been promoted to officiate the promotional post of
P.S-II and therefore, the respondent is entitled to the benefits of the promotional post w.e.f.
13/12/2005 and the respondent cannot be faulted with, if no reliever has been found to
replace the respondent as Stenographer Gr-I at Badarpur. The learned counsel for the
respondent also submits that the grounds taken by the petitioner to assail the Award dated
13/12/2005 should not be allowed as the petitioner has deliberately failed to contest the
reference case in spite of receiving the notice from the learned Tribunal.
10. A perusal of the order dated 07/06/2017 passed by the learned CGIT-cum-Labour
Court, Guwahati, Assam as well as the LCR reveals that the notice served on the petitioner by
the learned Tribunal in the reference case was received by the Office of the Divisional Railway
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Manager, N.F Railway Lumding on 13/10/2015, the petitioner however failed to appear before
the Tribunal and due to which the learned Tribunal issued the order dated 05/04/2017 to
proceed ex-parte against the Railway Management. Therefore, the challenge made to the
award on the ground of delay and laches and on the ground that the claim for retrospective
benefit cannot be re-agitated as it has been rejected by the Railway authorities on
18/07/2006 cannot be sustained. All such grounds could have been adjudicated in the
reference case had the railways diligently prosecuted the case pursuant to the receipt of the
notice issued by the Tribunal.
11. The only pertinent question for consideration of this Court in the instant case is
whether the respondent is entitled for retrospective promotional benefits w.e.f 13/12/2005
i.e. the date on which the order was issued appointing the respondent to officiate in the
higher post of P.S-II or whether the respondent is eligible to enjoy the benefits attached to
P.S-II only w.e.f 01/06/2006 i.e. the date on which approval was accorded for temporary
variation of one post of P.S-II from ADRM/LMG to AM/BPB and the respondent appointed to
officiate the variated post under AM/BPB in the scale of Rs. 6500-10500/-. In other words,
whether the respondent is entitled to the promotional benefits from the date of the promotion
order or from the date from which he was actually appointed to the higher post to discharge
the duties and responsibilities attached to the post. This issue was also the subject matter of
conciliation between the disputing parties.
12. The learned CGIT-cum-Labour Court, Guwahati, Assam had inter-alia observed that
the respondent rightly deserved to be promoted w.e.f. 13/12/2005 or at a reasonably closer
date as P.S-II and had the respondent been released immediately he would have got the
higher scale from the date of the order itself or from the date of joining the post. The learned
CGIT-cum-Labour Court, Guwahati, Assam also observed that since the default for non
release of the respondent from Badarpur is not attributed to the respondent, the respondent
cannot be deprived of the promotional benefits from the date when the promotion order was
issued. By making such observations, the learned CGIT-cum-Labour Court, Guwahati, Assam
directed that the respondent be given the promotional benefits in the higher scale of Rs.
6500-10500/- retrospectively from 01/01/2006. It was also ordered that the pay scale of the
respondent shall be revised in the higher scale of Rs. 6500-10500/- w.e.f. 01/01/2006
retrospectively for all consequential and pensionary benefits.
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13. In order to properly appreciate the case, the Office Order No. 041/2005
(Stenographer) dated 13/12/2005 and the Memorandum dated 29/05/2006 are reproduced as
under;
"NORTHEAST FRONTIER RAILWAY
OFFICE ORDER No. 041/05 (STENOGRAPHER)
The following Stenographer Gr-I in the scale Rs. 5500-9000/- who were
empanelled for promotion to the post of P.S/II in the scale Rs. 6500-10500/- vide
this Office Memorandum No. 041/05(Stenographer) endorsed under No.
E/225/6/Pt.IX(Q) dated 30.11.2005/1.12.2005 are now appointed to officiate as
P.S/II in scale of Rs. 6500-10500/- against the existing vacancy and posted in
the places as mentioned against each. The above promotion will be effective
subject to free from SPE/Vig/DAR Cases.
Sl. Name Working under as Posted under as
No. Steno-I (5500- P.S/II (6500-10500/-)
9000/-
1. - - -
2. - - -
3. - - -
4. Shri. M.L Chakraborty DRM(P)/LMG ADRM/LMG
5. - - -
6. - - -
7. - - -
The above staff may exercise option for fixation of their pay from
the date of next increment in their substantive scale within a period of
one month from the date of issue of the orders.
Railway Board vide their letter No. E(NG)1-95/PM-1/8 dated
23.08.1995 have instructed that staff on promotion shall be relieved
within three months from the issue of the promotion order.
A clear acknowledgment to the effect of the above order may be
obtained and send the same to this Office for record. Date of which they
joined in the concerned office may kindly be intimated.
This issue with the approval of the competent authority.
Sd/- Senior Personal Officer/RP
For General Manager(P) MLG,
Maligaon dt.13.12.2005"
"N.F RAILWAY
MEMORANDUM
CPO/A has accorded his approval for temporary variation of
one post of P.S-II in scale Rs. 6500-10500/- from ADRM/LMG to
AM/BPB's Office for a period of 03(three) months w.e.f 01.06.06
to 31.08.06 on administrative interest. On completion of 03(three)
months the post will automatically be restored back to its original
place i.e. ADRM/LMG.
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Accordingly, Shri. M.L. Chakraborty, Steno-I in scale Rs. 5500-
9000/- working under AM/BPB who was empanelled for promotion to the
post of P.S-II (6500-10500/-) and posted as P.S-II under ADRM/LMG vide
this Office Order No.041/05 (Stenographer) circulated under No. E/255/6
Pt.-IX(Q) dated 13.12.05 is hereby appointed to officiate as P.S-II in scale
Rs. 6500-10500/- and posted against the above variated post under
AM/BPB.
This issues with the approval of CPO/A.
Sd/- (R. Narzary)
SPO/RP
For General Manager (P) MLG,
Dated 29.05.06"
14. A conjoint reading of the Office Order dated 13/12/2005 and the Memorandum
dated 29/05/2006 reveals that although the office order was issued appointing the
respondent to officiate the higher post of P.S-II in scale Rs. 6500-10500/- against existing
vacancy the respondent was not immediately relieved from the post of Stenographer Gr-I at
Badarpur so as to enable the respondent to join the higher post. It was only consequent to
the issuance of the memorandum dated 29/05/2006 approving temporary variation of one
post of P.S-II from the Office of the Additional Divisional Railway Manager (ADRM), Lumding
to the Office of the Area Manager (AM), Badarpur for 3(three) months w.e.f 01/06/2006 to
31/08/2006 that the respondent was appointed as P.S-II under the Area Manager, Badarpur
w.e.f. 01/06/2006. The petitioner retired from service on 31/08/2006. The respondent was
therefore appointed in the higher post of P.S-II only from 01/06/2006 and commenced
discharging the duties and function attached to the post only with effect from the date of the
actual appointment.
15. The question which therefore arises for the consideration of this Court is whether the
respondent is retrospectively entitled to the payment of emoluments of the higher post of P.S-
II w.e.f. 01/01/2006 to 31/05/2006, a post in which the respondent has never served during
the said period, or the respondent is entitled to the promotional benefits only w.e.f.
01/01/2006 i.e. the date on which the respondent actually assumed office of P.S-II. The
admitted position is that the respondent has never worked in the post of P.S-II between
13/12/2005 to 31/05/2006. This Court is therefore of the considered opinion that the
respondent is not eligible to the payment of emoluments/benefits of the higher post of P.S-II
during the said period but is entitled to receive the promotional benefits only w.e.f.
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01/06/2006 which is the date on which the respondent assumed charge of the post of P.S-II
and began discharging the duties and responsibilities attached to the post. The principle of
No work No pay in the particular facts and circumstances can be applied to the case in hand
when the respondent was never relieved to work in the promotional post of P.S-II prior to
01/06/2006.
16. It is also relevant to refer to the instruction circulated by the Railway authorities in the
letter dated 29/07/1997 providing guidelines for relieving the promotees to the next post. The
instruction stipulates that whenever the employees are not relieve within 3(three) months of
the issue of the promotion orders such cases must be put up to the DRM or the Head of the
Office and the controlling officer held responsible for not relieving the staff concerned. The
learned counsel for the petitioner submits that in terms of the instruction issued by the
Railway authorities, the controlling officer of the respondent i.e. Area Manager (AM),
Badarpur, N.F Railway keeping the interest of the respondent brought the matter to the notice
of the Addl. Divisional Railway Manager (ADRM), Lumding who thereafter wrote the letter
dated 24/04/2006 to the General Manager (P), Maligaon agreeing to the proposal for
temporary variation of the post of P.S-II from Lumding to AM, Badarpur for a period of 6(six)
months, consequent to which the General Manager (P), Maligaon, N.F Railway issued the
memorandum dated 29/05/2006 variating one post of P.S-II from ADRM, Lumding to AM,
Badarpur for 3(three) months w.e.f. 01/06/2006 to 31/08/2006 and allowed the respondent
to join the variated post of P.S-II at AM, Badarpur w.e.f. 01/06/2006. The learned counsel for
the petitioner submits that all these steps were taken by the authorities to enable the
respondent to avail the benefits in the promotional post and only because some delay has
been occasioned that by itself cannot be a ground to grant retrospective promotional benefits
to the respondent from 13/12/2005 and/or from 01/01/2006. This Court is inclined to accept
the submission of the learned counsel for the petitioner that some delay in carrying out the
instruction of relieving the promotee by itself will not confer a right to the respondent to claim
the promotional benefits from a retrospective date as the respondent had never worked in
the post during that relevant point of time. A reading of the letter dated 29/07/1997
containing the instruction nowhere speaks of extending the promotional benefits from a
retrospective date in the event delay is occasioned in carrying out the instruction nor it is the
case of the respondent that the instructions were flouted while relieving the respondent in
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the promoted post. The respondent only case is that he is entitled to the promotional benefits
from the date of the order of promotion or w.e.f. 01/01/2006 as ordered by the Tribunal.
17. In the case of the Union of India & Another -versus- Tarsem Lal & Others,
reported in (2006) 10 SCC 145, involving the Railway authorities and its employees, the
issue before the Court was whether the respondent/employees was entitled to the
revised/enhanced pay from the date the respondent was actually promoted (i.e. August 2001)
or with effect from the date the respondent had been given promotion on proforma basis (i.e.
09.09.1997). The Railway authorities had denied the arrears to the respondent w.e.f.
09.09.1997 on the ground that the respondent had not worked on the promotional post
during the said period and as such, the respondent was not entitled to the revised pay from
09.09.1997. Before the Tribunal the Union of India placed reliance on para-228 of the Indian
Railway Establishment Manual (IREM) Vol.-I dealing with employees who have lost promotion
on account of administrative error where inter-alia it provided that in such cases the pay
should be fixed on proforma basis and the enhanced pay was to be allowed from the date of
actual promotion and no arrears on this account were to be paid for the past period as the
employee did not actually performed the duties and responsibilities of the higher post. The
Tribunal relying on the decision in the case of Harbans Singh -versus- State of Punjab,
reported in 1995 Supp (3) SCC 471 held that the stand taken by the Union was
unsustainable. The order passed by the Tribunal was assailed before the High Court but the
writ petition was dismissed by the High Court relying on the judgment in Harbans Singh case.
The matter thereafter came up before the Hon'ble Supreme Court. The Apex Court by placing
reliance in the case of Virender Kumar, General Manager, Northern Railways, New Delhi
-versus- Avinash Chandra Chadha & Others, reported in (1990) 3 SCC 472 in which it was
held that on the principle of "No work No pay" the respondents therein will not be entitled to
the higher salary as they have not actually worked in that post, set aside the order passed by
the Tribunal and the High Court by observing that both the Tribunal and the High Court were
not justified in granting relief to the respondents. The Hon'ble Supreme Court further
observed that reliance in Harbans Singh case was uncalled for.
18. This Court deems it relevant to reproduce the paragraph-15 & 16 in Virender Kumar's
case (supra) which was relied in Tarsem Lal's case (supra).
"15..................................... Time and again, the rule has been
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criticised on account of the absurd result to which it leads, viz., the
deemed appointments have to be given to the concerned employees
even from the dates when they were not in service and probably when
they were still in their schools and colleges. We are informed across the
Bar that this is the situation even with respect to some of the
respondents herein....................................There is, therefore, neither
equity nor justice in favour of the respondents to award them
emoluments of the higher posts with retrospective effect. It is for this
reason that we are of the view that the decisions of this Court such as
in P.S. Mahal v. Union of India 1 directing the payment of higher
emoluments with retrospective effect on account of the deemed
promotions of earlier dates will not be applicable to the facts of the
present case and have to be distinguished.
16.............................................................................................
.......................................... The respondents have not actually
worked in the said posts and, therefore, on the principle of "no work no
pay" they will not be entitled to the higher salary. Hence, we give no
directions in this behalf and leave it to the appellant to give such relief as
they may deem fit."
The decision of the Hon'ble Supreme Court recited above binds this Court.
19. After hearing the learned counsels for the parties and on perusal of the records and
in the light of the law laid down by the Hon'ble Supreme Court, this Court is of the view that
the respondent/workman is not entitled to the emoluments/promotional benefits of the higher
post of P.S-II in scale Rs. 6500-10500/- with retrospective effect from 01/01/2006 to
31/05/2006 as the respondent during this period have actually never worked in the post of
P.S-II. The respondent shall be entitled to the promotional benefits in the higher post of P.S-II
in scale Rs. 6500-10500/- along with consequential and pensionary benefits etc. only w.e.f.
01/06/2006 as ordered in the Memorandum dated 29/05/2006 issued by the N.F Railway as it
was only w.e.f. 01/06/2006 that the respondent was actually appointed in the higher post of
P.S-II and began discharging the duties and responsibilities attached to the said post. The
Award dated 06/07/2017 passed in Reference Case No. 04/2015 by the learned CGIT-cum-
Labour Court, Guwahati, Assam directing that the respondent be given the effect of his
promotion in the higher scale of Rs. 6500-10500/- retrospectively w.e.f. 01/01/2006 with
consequential and pensionary benefits is quashed and set aside.
Writ petition allowed. No cost.
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Send back the LCR forthwith.
JUDGE
Comparing Assistant
