Central Administrative Tribunal - Mumbai
Sayed Dawood Ahmed vs Central Railway on 29 April, 2025
1 OA No.569/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI.
ORIGINAL APPLICATION No.569/2024
Date of Decision : 29th April, 2025
CORAM: Hon'ble Mr. Shri Krishna, Member (A)
Shri Sayed Dawood Ahmed,
Age 56 years, ex.Khalasi under
SSE(EM) GPR of Pune Division of
Central Railway, Pune - 411 001.
R/o House No.B/199, Lane No.08,
Near Ideal School, Gulam Ali Nagar,
Hadapsar, Pune 411 028 (Mah)
Mobile No.8796947264
ID [email protected] ... Applicant
(By Advocate Shri D.N. Karande)
VERSUS
1. Union of India through
The General Manger, Central Railway,
2nd Floor of General Manger's Office,
Mumbai CST - 400 001 (MS)
2. The Chief Personnel Officer,
Central Railway, Personnel Branch,
1st Floor of GM's Office, CSMT,
Mumbai - 400 001.
3. The Divisional Railway Manager,
Central Railway, Pune Division,
Pune - 411 001 (MS)
2 OA No.569/2024
4. The Sr. Divisional Personnel Officer,
Divisional Railway Manger's Office,
Central Railway, Pune - 411 001.
5. The Sr. Divisional Electrical Engineer,
Divisional Railway Manager's Office,
Central Railway, Pune - 411 001. ... Respondents
( By Advocate Ms. Sharanya Sinha )
ORAL ORDER
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"a. That this Hon'ble Tribunal may kindly be pleased to quash and set aside the impugned order dated 23.03.2022 (A-
1) and allow this OA with the directions to grant the claim of Un-paid Subsistence Allowance for the period from 17.12.2012 to 06.10.2019 (i.e till final decision is taken in the inquiry proceedings) in terms of this Hon'ble Tribunal's order dated 20.12.2021 in C.P. No.23/2021, by taking into consideration the relevant Rules 1344 (FR-54A) and 1345 (5) of the Indian Railway Estt. Code (IREC)(Vol.II).
b. That this Hon'ble Tribunal may kindly please further saddled the Heavy Cost on the respondents, as this is the Fifth Round of Litigation filed by the applicant to seek JUSTICE which is being denied to him by the respondents since the year 2012.
c. Any other order or relief that this Hon'ble Tribunal deem fit to be granted."
3 OA No.569/2024
2. This is the third round of litigation. Brief facts of the case are that the applicant was initially appointed as Khalasi and was subsequently promoted as Junior Clerk. He was posted to the office of Senior Sectional Engineer (Electrical/Maintenance), Ghorpuri, Pune on 30.08.2016. He was removed from the service by the Disciplinary Authority vide order dated 17.12.2012 which was confirmed by the Appellate Authority vide his order dated 04.02.2013 and by the Revisionary Authority vide order dated 17.07.2013. His mercy appeal was also rejected vide order dated 02.08.2016. Therefore, the applicant approached this Tribunal by way of filing OA No.685/2016 which was allowed by this Tribunal vide order dated 07.06.2019. This Tribunal was pleased to pass the following order:-
"5. Decision :-
The OA is allowed. The penalty order dated 17.12.2012 (Annex A-1) issued by the Disciplinary Authority, orders 4 OA No.569/2024 dated 04.02.2013, 17.07.2013 and 02.08.2016 issued by the Appellate Authority, the Revisionary Authority and the Authority who decided the Mercy Appeal, respectively, are set aside. The case is permitted back to the Disciplinary Authority i.e ADEE (G) PA Office of the DRM, Electrical Branch (Genl), Central Railway, Pune to get the inquiry into the charge-sheet served upon the applicant conducted afresh by providing him copies of the fact finding report which had noticed lapses on the part of the applicant and also a copy of the inquiry report submitted by the RPF/GIT and on the basis of such fresh inquiry to take appropriate decision.
This process should be completed in a period of four months from the date of receipt of certified copy of this order. Since the applicant was removed from service by the order of 17.12.2012 and thereafter has not been in service of the respondents, till decision is taken based on fresh inquiry to be conducted, the applicant may be treated under deemed suspension. However, for this period, the applicant will not be entitled for payment of any back wages. The parties to bear their own costs."
3. The applicant approached the respondents for reinstatement and for the subsistence allowance. However, since the respondents failed to comply/implement the above order, he again approached this Tribunal by filing Contempt Petition No.23/2021 in OA No.685/216 which was disposed of by this Tribunal vide order dated 20.12.2021 by passing the following order:- 5 OA No.569/2024
"10. Rule 1345(5) is relevant in the instant case which reads as under:-
"1345 (5) In cases other than those falling under sub-rules (2) and (3) the railway servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the railway servant for the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice."
11. In the present case, the applicant had been imposed a major penalty of removal from service without following the proper procedure for conducting the disciplinary proceedings. Consequently, on challenging the order of removal and the orders of the Appellate Authority, Revisionary Authority and the authority who decided his Mercy Appeal, vide OA No.685/2016 the penalty order and all subsequent orders were set aside and the case was remitted to the Disciplinary Authority to conduct the inquiry fresh. The respondents were also directed to treat the applicant under deemed suspension from the date 17.12.2012 till the final decision is taken in the inquiry. Though no specific directions were issued to the Competent Authority, however, it was his duty to have passed the relevant order in view of Rule 1344(FR 54A) read with Rule 1345(5) quoted above, in the circumstances of the case. He should have fixed the amount of subsistence allowance for the relevant period.
12. In these circumstances, the Respondents/Competent Authority is directed to conduct the relevant exercise in terms of Rules 1344 (F.R.54A) and 1345(5) and fix the amount of subsistence allowance to be paid to the Petitioner for the relevant period. This exercise be completed within a period of eight weeks and the benefits be disbursed to the Contempt Petitioner." 6 OA No.569/2024
4. Pursuant to the above order of the Tribunal, the respondent No.4 sent the impugned communication dated 23.03.2022 to respondent No.3 stating that 'The subsistence allowance for the period from 17.12.2012 to 06.10.2019, which is almost for the period of 07 years cannot be considered, as it will cause huge loss to Railways. Hence, the case may be appealed further to High Court."
5. The applicant is aggrieved by the above action of the respondents as he has not been paid subsistence allowance and, therefore, he has prayed for quashing of the impugned communication dated 23.03.2022 and to pay him subsistence allowances for the period from 17.12.2012 to 06.10.2019.
6. On notice, the respondents have filed their reply in which they have submitted that after setting aside the previous orders, de novo inquiry started on 07.10.2019. The Inquiry Officer submitted the report on 02.12.2020 in 7 OA No.569/2024 which all the charges levelled against the applicant are proved. Since the misconduct was grave in nature causing huge revenue loss to Railway, the applicant was not found fit to be retained in Railway service. Hence, the penalty of 'Removal from Service' was imposed which was confirmed and upheld by Appellate Authority and Revisionary Authority. The subsistence allowance was paid to the applicant from the date of start of fresh inquiry i.e. from 07.10.2019 to 04.01.2021 till finalization of the case. All the inquiry proceedings, disciplinary proceedings and payment of subsistence allowance are paid to the applicant as per the Tribunal's order dated 07.06.2019 and, therefore, the applicant is not entitled for payment of any back wages. 6.1 It has been submitted that there are huge revenue loss to Railways and, therefore, the payment of subsistence allowance from 17.12.2012 to 06.10.2019, which is almost for the period of 8 OA No.569/2024 07 years, cannot be considered. It has been further submitted that the respondents have challenged the order of the Tribunal dated 20.12.2021 before the Hon'ble High Court of Judicature at Bombay by way of a Writ Petition No.26026/2023 and the said Writ Petition is in the pre-admission stage.
7. In response to the reply of the respondents, the applicant has filed rejoinder in which it has been submitted that in Contempt Petition, the respondents were directed to treat the applicant under deemed suspension in terms of Rule 1343 (FR-54) of Indian Railway Establishment Code (IREC) V-II, which has been neglected by the respondents. It has been submitted that as far as removal from service in the subsequent proceedings is concerned, the applicant has challenged the same by filing OA No.405/2022. However, the respondents have neglected to grant the subsistence allowance to the applicant in 9 OA No.569/2024 terms of this Tribunal's orders from the period 17.12.2012 to till decision taken based on the fresh inquiry proceedings.
7.1 The applicant has placed reliance on the statutory rules contained in Rule 1343 (FR-54 A) and Rule 1344(5) of IREC (Vol.II) which is as under:
"Where the removal or compulsory retirement of a Railway Servant is set aside by the Court solely on the ground of non- compliance with the requirement of clause (2) of the Article of the Constitution and where he is not exonerated one merits, the Railway servant shall, subject to the provisions of sub-rule (7) of Rule 2044, be paid such amount (not being the whole) of the full pay and allowance to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which shall in no case exceed 60 days from the date on which notice is served) as may be specified in the notice."
[quoted from page 88 of the OA] 7.2 It has been submitted that statutory Rule 1342 of IREC-R-II, a Railway Servant under suspension or deemed to have been placed under suspension by an order of the competent authority 10 OA No.569/2024 shall be entitled to the payment of subsistence allowance. On the subject matter, the Hon'ble Apex Court have held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non- payment of subsistence allowance, the inquiry conducted against him, ex-parte, could be construed as denial of reasonable opportunity of defending himself. In view of this, attention of the respondents is invited to the Railway Board's extent order R.B. No.E(D&A) 86 RG6-2 dated 06.02.1986 wherein it is instructed to prompt payment of subsistence allowance should be made as per rules.
7.3 It has been submitted that as far as filing of the Writ Petition in the Hon'ble High Court is concerned, the said Writ Petition was filed in the month of November, 2022 and even after lapse of more than two years, it was neither brought to the notice of this Tribunal 11 OA No.569/2024 nor advised to the applicant. Moreover, the Hon'ble High Court has neither granted any stay nor passed any interim relief in favour of the respondents and, therefore, the order of the Tribunal needs to be complied.
7.4 It has been submitted that the Tribunal has given clearcut direction in the order of Contempt Petition No.23/2021 vide order dated 20.12.2021 that the respondents should fix the amount of subsistence allowance to be paid to the petitioner for the relevant period in terms of Rules 1344 (FR-54A) and 1345(5) and pay the same within a period of eight weeks and to disburse the same to the applicant.
8. The respondents in turn have filed the sur-rejoinder in which their earlier stand has been reiterated. It has been stated that from the contents of Rule 1343(FR-54A) and Rule 1344(5) of IREC (Vol.II)reproduced by the applicant, it is clear that "the competent authority may 12 OA No.569/2024 determine, after giving notice to the railway servant of the quantum proposed and after considering the representation if any submitted by the applicant." As such the competent authority, i.e. the respondents are of the view that 'payment of subsistence allowance from 17.12.2012 to 06.10.2019, which is almost for the period of 07 years will be further caused huge revenue loss to Railways as already the applicant has caused huge revenue loss to Railways by 'Misuse and misappropriation of Railway passes and PTOs', the charges which are provided in this case.
8.1 It has been further submitted that the de-novo Inquiry started on 07.10.2019 and the Applicant has been paid subsistence allowance from 07.10.2019 for attending enquiry, hence, the inability to attend the disciplinary proceedings on account of non-payment of subsistence allowance is not applicable for this case. The 13 OA No.569/2024 Applicant attended the enquiry and case finalized on 04.01.2021 and till finalization the subsistence allowance was paid to the Applicant. Hence, Railway Board's order R.B.No.E(D&A) 86 RG62 dated 06.02.1989 has been adhered to and there is no violation of said rule by the Respondents. The payment of subsistence allowance from 17.12.2012 to 06.10.2019 for the period of 07 years is not admissible to the applicant and the same was rightly decided by the competent authority. Moreover, this Tribunal has also held that the applicant is not entitled to back wages.
9. During the final arguments, both the counsels for the parties have advanced their arguments on the basis of pleadings and no new points were made.
10. Learned counsel for the applicant submitted that once the Tribunal has quashed the orders dated 17.12.2012, 04.02.2013, 17.07.2013 and 02.08.2016 which were passed by the 14 OA No.569/2024 Disciplinary Authority, Appellate Authority, Revisionary Authority and the authority who decided the mercy appeal, this impugned order becomes non est in the eyes of law and, therefore, the respondents were duty bound to first pass the formal order reinstating the applicant into the service and then issue order for deemed suspension for starting de novo enquiry. However, the respondents failed to pass any order reinstating the applicant in the service.
11. I have considered the submissions of learned counsels for both the sides and also perused the pleadings and documents filed on record.
12. The applicant was removed from the service by the Disciplinary Authority vide order dated 17.12.2012 which was confirmed by the Appellate Authority vide order dated 04.02.2013, the Revisionary Authority vide order dated 15 OA No.569/2024 17.07.2013 and the authority who decided the mercy appeal by order dated 02.08.2016. 12.1 It is not in dispute that all these orders were quashed and set aside by this Tribunal in OA No.685/2016 vide order dated 07.06.2019 and the case was remanded back for de novo enquiry. I find force in the argument of the learned counsel for the applicant that once the Tribunal has quashed the orders dated 17.12.2012, 04.02.2013, 17.07.2013 and 02.08.2016 which were passed by the Disciplinary Authority, Appellate Authority, Revisionary Authority and the authority who decided the mercy appeal, this impugned order becomes non est in the eyes of law and, therefore, the respondents were duty bound to first pass the formal order reinstating the applicant into the service and then issue order for deemed suspension for starting de novo enquiry. However, the respondents failed to pass any order reinstating the applicant in the 16 OA No.569/2024 service. It was also directed that till decision is taken based on fresh inquiry to be conducted, the applicant may be treated under deemed suspension. Thus, once the applicant is put under deemed suspension, he becomes entitled for subsistence allowance.
12.2. The aforesaid order of the Tribunal dated 07.06.2019 has not been challenged by the respondents department.
13. The applicant filed Contempt Petition. The order in the Contempt Petition was passed on 20.12.2021 in which it was directed that the respondents/competent authority to conduct the relevant exercise in terms of Rule 1344 (FR 54A) and 1345(5) and fix the amount of subsistence allowance to be paid to the applicant for the relevant period. The said order has been challenged before the Hon'ble High Court. However, the Hon'ble High Court has neither given any stay on the above order nor passed any 17 OA No.569/2024 interim order.
14. It is settled law that once the impugned orders by which the applicant is removed from the service are quashed and set aside and till no fresh orders of removal are passed, the applicant will be deemed to be the regular employee of the respondents department and will be entitled for subsistence allowance.
15. The subsistence allowance is paid to an employee in order to make him survive financially. If the subsistence allowance is not paid as per rules, his right to get himself defended in the inquiry proceedings gets adversely affected because of the financial constraints which amounts to denial of putting an affective defence and thus violates the principles of natural justice.
15.1 The discretion to the competent authority is only to fix the quantum of
subsistence allowance i.e. 50% or 75%. The rules 18 OA No.569/2024 do not permit the discretion to the competent authority not to grant the subsistence allowance at all during the period of deemed suspension. Therefore, the contention of the respondents that the competent authority in its discretion has decided not to grant the subsistence allowance for the period from 17.12.2012 to 06.10.2019 is not tenable in the eyes of law.
15.2 The reasons given by the respondents that granting subsistence allowance for the period from 17.12.2012 to 06.10.2019 which is almost for the period of 7 years as it will cause huge loss to the Railways is not enable in the eyes of law as it is not the quantum of amount of subsistence allowance which is important but the principles of natural justice and the compliance of rules on the subsistence allowance is important.
16. In this regard, Rule 1344 (FR 54A) and Rule 1345(5) of IREC are very clear. The same are 19 OA No.569/2024 extracted herein as under for sake of convenience:
"1344(F.R.54 A)Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub- rule (2) or (3) subject to the directions, if any, of the court.]
2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of article 311 of the Constitution, and where he is not exonerated on merits, ,the Government servant shall, subject to the provisions of sub-rule (7) of rule 1343(FR 54), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the court shall be regularised in accordance with the provisions contained in sub-rule (5) of rule 1343.20 OA No.569/2024
(3)If the dismissal, removal or compulsory retirement of a Government servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal, or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.
1345 (5) In cases other than those falling under sub-rules (2) and (3) the railway servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the railway savant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on 21 OA No.569/2024 which the notice has been served) as may be specified in the notice.
The plain reading of above rules makes it clear that when the removal order is set aside on the ground of non-compliance to the statutory rules, he will be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal.
17. The Hon'ble Supreme Court in the case of S.P. Viswanathan Vs. Union of India and Others, 1991 Supp (2) SCC 633 has held that the Petitioner, who was under
deemed suspension, is entitled to subsistence allowance and the respondents' railway authorities were directed to pay the subsistence allowance to the Petitioner.
18. Therefore, I am of the view that the impugned communication has been passed in violation of Rule 1344 (FR 54A) and 1345(5). It 22 OA No.569/2024 is also in violation of the specific directions given in the order of the Tribunal dated 20.12.2021 in CP No.23/2021 in OA No.685/2016 wherein there was clearcut direction which is reproduced as under:-
12. In these circumstances, the Respondents/Competent Authority is directed to conduct the relevant exercise in terms of Rules 1344 (F.R.54A) and 1345(5) and fix the amount of subsistence allowance to be paid to the Petitioner for the relevant period.
This exercise be completed within a period of eight weeks and the benefits be disbursed to the Contempt Petitioner."
19. In view of the above discussion, the following order is passed :
(i) The impugned communication dated 23.03.2022 is bad in law and, therefore, quashed and set aside.
(ii) The respondents are directed to pay the subsistence allowance to the applicant from 17.12.2012 to 06.10.2019 as per the prescribed rules for payment of subsistence allowance during deemed suspension.
(iii) The respondents are further directed 23 OA No.569/2024 to comply with the above order within a period of two months from the date of receipt of certified copy of this order.
20. The Original Application is allowed. Pending MAs, if any, stand closed. No order as to costs.
(Shri Krishna) Member (A) ma.
Digitally signed by Milan Jackson Alphanso
DN: C=IN, O=Personal, OID.2.5.4.65= Milan Jackson 0815a10efc18484c96f92d4cf96b158b, Phone= 30f7d919c844ed7f75e7bc56633df96108338768adae5582338f0d13 d4f0f1dc, PostalCode=401203, S=Maharashtra, SERIALNUMBER= 6b7c9269fe100118bd94c76380691e4802b189a40578bdd0fd757c8 b8babf6f4, CN=Milan Jackson Alphanso Alphanso Reason: I am the author of this document Location:
Date: 2025.05.05 14:37:46+05'30' Foxit PDF Reader Version: 2024.4.0