IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K. BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 16306 of 2004(S) -------------------------- ( OA.1380/1995 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH) PETITIONERS: --------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI. 2. THE GENERAL MANAGER, SOUTH WESTERN RAILWAY, HUBLI. 3. THE DIVISIONAL RAILWAY MANAGER, SOUTH WESTERN RAILWAY, MYSORE DIVISION, MYSORE. 4. THE CHIEF OPERATING MANAGER, SOUTH WESTERN RAILWAY, HEAD QUARTERS OFFICE, HUBLI. 5. THE DIVISIONAL OPERATING MANAGER, SOUTH WESTERN RAILWAY, MYSORE DIVISION, MYSORE. 6. THE DEPUTY CHIEF PERSONNEL OFFICER, SOUTH WESTERN RAILWAY, HEAD QUARTERS OFFICE, HUBLI. BY ADV. SRI.K.P.DANDAPANI RESPONDENT: -------------------- SRI.T.C.GOVINDASWAMY, S/O.LATE CHINNASWAMY, EX.STATION MASTER, HAVERI RAILWAY STATION, MYSORE DIVISION, ( Permanent address: THOPPUPARAMBIL HOUSE, MANNUTHY POST, THRISSUR DISTRICT, KERALA. ) BY ADV. SRI.S.RADHAKRISHNAN ADV. SMT.D.HEERA ADV. SRI.P. PARAMESWARAN NAIR, ASST.SOLICITOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16306 of 2004(S) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 : TRUE COPY OF ORDER OF THE C.A.T., ERNAKULAM BENCH IN O.A. 1380 OF 1995 DATED 11.02.2004. EXT.P2 : TRUE COPY OF ORDER OF THE C.A.T., ERNAKULAM BENCH IN O.A. 1380 OF 1995 DATED 09.07.1998. EXT.P3 : TRUE COPY OF JUDGMENT OF HON'BLE HIGH COURT OF KERALA IN O.P.NO. 9371 OF 1999 DATED 26.08.2003. /TRUE COPY/ P.A. TO JUDGE. K. BALAKRISHNAN NAIR & K.T. SANKARAN, JJ. ................................................................................... W.P.(C) No. 16306 OF 2004 ................................................................................... Dated this the 21st February, 2008 J U D G M E N T K. Balakrishnan Nair, J: The respondents in O.A.No. 1380 of 1995 are the writ petitioners. The applicant was a railway employee. He was dismissed from service . After availing the statutory remedies under the relevant rules, he approached the Central Administrative Tribunal, challenging the dismissal order. The said application was allowed by Ext. P2 order. The relevant portion of the order reads as follows: “76. Since for the detailed reasons discussed by us above, the said conclusion reached by the Appellate authority cannot be sustained as valid and legally tenable, the order rejecting the appeal by him at A17 is similarly set aside by us. 77. We further direct that the applicant should be reinstated with all benefits including back wages. 78. We would also like to make it clear that this order will not operate as a bar against the respondents holding a fresh departmental inquiry from the stage after issue of the memorandum of charges at Annexure A2 dated 2/26.5.86.” (Emphasis supplied). 2. The respondents in the O.A. challenged the said order before this court by filing O.P.No. 9341 of 1999. This Court vacated the direction to pay back wages to the employee and issued certain further directions. The relevant portion of the said judgment , a copy of which is produced as Ext.P3, reads as follows: W.P.(C) No. 16306 OF 2004 2 “However, it is submitted by the counsel for the petitioner that the petitioner was subsequently got enrolled as an advocate and therefore, payment of entire back wages will be harsh. The learned counsel for the first respondent submitted that if first respondent is allowed to take voluntary retirement he will be willing to forgo back wages. That is a matter to be discussed and settled between the parties. Therefore, the direction with regard to payment of back wages is vacated. Whether petitioner is entitled to back wages for this period, whether compensation can be ordered in lieu of reinstatement, etc are matters to be considered by the Tribunal. During the pendency of the proceedings before the Tribunal, the question regarding acceptance of voluntary retirement and payment of back wages can be considered and settled between the parties. Both parties can adduce evidence before the Tribunal. Due to the long pendency of the dispute, the Tribunal is free to pass orders regarding compensation and retirement benefits etc. in stead of back wages and reinstatement. Therefore, without interfering with the finding that disciplinary action was taken without complying with rules and natural justice, with regard to the relief that has to be moulded in view of the subsequent charges, the matter is remanded.” (Emphasis supplied). 3. In obedience to the said direction, the Tribunal reconsidered the matter and passed the present impugned order, Ext.P1 dated 11.02.2004. The relevant portion of the impugned order reads as follows: “In the result, in the conspectus of the facts and circumstances, we dispose of this application with the following declarations and directions: (a) As the order of removal from service of the applicant and the appellate order have been set aside we declare that the applicant should be deemed to have been reinstated in service with effect from the date of removal from service with continuity of service. (b) The respondents are directed to fix and revise the pay of W.P.(C) No. 16306 OF 2004 3 the applicant according to the Revised Pay Rules, 1997 treating that the applicant continued in service despite removal from service which has been set aside giving him fixation and fitment on par with his immediate junior. (c) The applicant shall be deemed to have retired voluntarily under Rule 1803 of the Indian Railway Establishment Code Vol.II with effect from this date and the respondents shall compute the pension, gratuity and other terminal benefits deeming that he continued in service despite the impugned orders till today and to make available to him the monetary benefits flowing therefrom within a period of three months from the date of receipt of a copy of this order.” 4. From the above, it is clear that the Tribunal had only ordered to treat the petitioner as having voluntarily retired from service from the date of order of the Tribunal and to grant him terminal benefits. The respondents in the O.A. have filed the present Writ Petition, challenging the direction to pay terminal benefits taking into account the period the respondent/applicant was out of service. He joined the service in 1973. He was removed from service in the year 1988. He was reinstated in 1993 and again in 1994, he was removed from service. As per the order of the Tribunal, he is to be treated as having retired from service voluntarily w.e.f. 11.02.2004, the date of order of the Tribunal. The Writ Petitioners pointed out that the respondent/applicant was all along practising as a lawyer while he was out of service, so the said period that he practised as a lawyer could not be counted for granting pensionary/terminal benefits. So the direction of the Tribunal to take into account the period the respondent/applicant practiced as a lawyer for the purpose of granting terminal benefits should be vacated, it is submitted. We heard the learned counsel for respondent/applicant also on the above point. W.P.(C) No. 16306 OF 2004 4 5. A dismissed employee need not wait outside starving till he is reinstated. He can engage himself in any business or profession. If he is gainfully employed and gets proper income, even if ultimately his termination is found to be illegal by the competent court, he cannot claim any back wages. In such cases, normally, the order of reinstatement would provide to treat the entire period he was out of service as service for all purposes, except for back wages. But Railways contend that if he is gainfully employed, the period he was out of service cannot be counted for pension. In service jurisprudence, whatever be the nature of the employment of a dismissed or terminated employee, the period he was out of service will be treated as service for all purposes including, for granting increment, promotion, computing terminal benefits etc., if the termination is found to be illegal. The said general principle cannot have any exception on the ground that the applicant had practiced as a lawyer. The submission made on behalf of the petitioners, relying on the provisions of Advocates' Act is devoid of any merit. The direction to count the service of the respondent/applicant while he was not working in Railways, as service for the purpose of terminal benefits does not suffer from any illegality or irregularity. This is, as mentioned earlier, a usual general order given in all cases in service/labour jurisdiction, where the termination is found to be illegal. In this case, we notice that the Tribunal has specifically ordered to reinstate the respondent/applicant with all service benefits and back wages. This court only interfered with the direction to grant back wages. In other words, counting the service for granting other service benefits to the respondent as per Ext. P2 has gained finality with the refusal of this court in Ext. P3 judgment to interfere with that part of the order of the Central Administrative Tribunal. Again this court also ordered the Central Administrative Tribunal to consider what are the benefits that can W.P.(C) No. 16306 OF 2004 5 be granted to the respondent. The various benefits can be granted to the respondent/applicant only if the period he practiced the profession of a lawyer is also reckoned. So it is implicit in the direction of this court that said period could be computed for granting terminal/pensionary benefits. Ext.P3 judgment of this Court has also become final. So in view of Exts.P2 and P3, the present contention that the period, the respondent/applicant spent in the profession of lawyering cannot be treated or reckoned for terminal benefits is manifestly untenable. Accordingly, we reject the same. In the result, the Writ Petition fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE. K.T. SANKARAN, JUDGE. lk