Bombay High Court
S.C. Chandwani vs Union Of India (Uoi) Through The ... on 23 April, 2004
Equivalent citations: (2004)106BOMLR647
Bench: F.I. Rebello, N.H. Patil
JUDGMENT
1. A few facts may be noted :
2. The petitioner was working as Appraiser at Bombay Customs, petitioner was served with a charge-sheet in the year 1974 pursuant to which an enquiry was held and punishment was imposed by way of reduction by two stages in the time scale of pay by order dated 3rd November, 1977. The petitioner preferred an appeal. It is the case of the petitioner that during the pendency of the appeal, the period of punishment expired in the year 1979. On 9.2.1984, the President of India issued a notice asking the petitioner to show cause why punishment earlier imposed should not be enhanced. The petitioner showed cause. However, inspite of showing cause, the Hon'ble President was pleased to enhance the punishment from reduction of two stages in pay scale, to remove by way of compulsory retirement by order dated 12th February, 1985.
3. The petitioner aggrieved, preferred a writ petition before this Court, On the Central Administrative Tribunal being constituted the petition was transferred and numbered as Transfer Application No. 245 of 1986. By order of 8.12,1992, the Tribunal held that in imposing the punishment, the view of the U.P.S.C. had not been taken prior to the imposition of punishment and consequentially violated the procedure In imposing punishment arid consequently set aside the order. It was also observed that it goes without saying (hat the petitioner would be entitled to consequential benefits which may be permissible under the law. The learned Tribunal also held that considering the passage of time, ends of justice would be met if, the respondents were directed not to initiate further proceedings against the petitioner by the President and that the appeal preferred by the petitioner should be dismissed. It may be pointed out that along with the petitioner one Shri Tukaram G. Harale had also been charge-sheeted for the same misconduct like the petitioner and similar punishment was also imposed. The Tribunal by the very same order allowed his application also.
It is the ease of the petitioner that as the respondents failed to comply with the order of the Tribunal, he was compelled to take out contempt petition. In the meantime, the respondents also had preferred S.L.P. before the Apex Court which was dismissed on 14.11.1994. The contempt petition taken out by the petitioner was disposed of earlier on 10th September, 1993 directing the respondents to comply with the order of the Tribunal within four weeks unless the stay was granted by the Apex Court. As inspite of the dismissal of the S.L.P., the petitioner had not been re-instated nor consequential benefits paid, the petitioner took out fresh Contempt Petition No. 173/93 which was disposed of by order dated 20,1.1995 with direction as contained therein. It is the case of the petitioner that between 19.2.1995 and 19.6.1995, a sum of Rs. 4,30,688/- was paid to him.
The petitioner further contends that the amount paid to him had not been properly calculated nor his pay properly fixed. He was in correspondence with the respondents demanding balance payment after proper fixation of his pay as well as fixation of pension as in the meantime, he was superannuated on 31.12.1993.
4. The petitioner's easels that on 17.11,1995, he received a memorandum calling upon him to show cause as to why the amount of pay and allowances for the period of his absence from 23.2.1985 to 14.10.1993 should not be restricted to an amount equal to the leave salary which he would have drawn if he had been on leave on half average pay and in addition, dearness allowance if available on basis of such leave salary. The petitioner represented against the memorandum by his letter of 2.12.1995, However, by order dated 3.2.1996, his representation was rejected and the following order was passed. The operative part of the said order reads as under :
Therefore 1 find no reasons in agreeing with the contention of Shri S, C. Chandwani that the Presidential Order was set aside on merits and hence pass the orders that the period of absence i.e. from 23.2.85 to 14.10.93 of Shri S.C. Chandwani Appraiser (Retd.) may be treated as on duty for all purposes. However, the amount of pay and allowances for the period of absence is restricted to an amount equal to the leave salary which he would have drawn if he had been on leave on half average pay and in addition, dearness allowance, if available on basis of such leave salary.
5. The petitioner aggrieved by the said order preferred an Original Application No. 882/96 before the Central Administrative Tribunal. That came to be disposed of by 9.10.1997. The learned Tribunal after perusing the order and the contention of the parties held that the termination was on technical grounds and not on merits as was urged on behalf of the petitioner. The learned Tribunal further held that what would be applicable would be F.R. 54A(2)(i) and not F.R. 54A(3) as was urged on behalf of the petitioner herein. Accordingly, the order of the authority was maintained. Aggrieved by the said order, the petitioner has preferred the present petition.
6. At the hearing of the petition on behalf of the petitioner, learned Counsel once again urges that the punishment of compulsory retirement was not set aside on the ground merely of technicalities but on merits and as such, what would be applicable would be F.R. 54A(3). The learned Counsel therefore, contends that he would be entitled to full pay and not half pay as ordered. My attention is also invited to the fact that in the show cause notice, the period between 1.12.1992 and 14.10.1993 which is the date of actual reinstatement is treated as a period of absence, whereas infact, the petitioner was entitled to be reinstated forthwith pursuant to the order of 1.12.1992 as there was no stay. The failure by the respondent to re-instate the petitioner forthwith from 1.12.1992 cannot be held against the petitioner. It is therefore, submitted that the period between 1,12.1992 and 14.10.1993 cannot be treated as absence as the petitioner was kept out of service on account of the acts of the respondents. The petitioner was not under suspension nor was the petitioner suffering any punishment which disentitled him to resume service. The petitioner therefore, contends that he should be treated as 'on duty from 1.12.1992 and be paid full wages and allowances and consequential benefits for the said period.
On the other hand on behalf of the respondents, their learned Counsel contends that order of the Tribunal does not suffer from any error apparent on the face of the record. It is pointed out that the termination was on account of failure to comply with procedural requirements as set under Article 311(2) of the Constitution of India and if so read, the order of the Tribunal setting aside the punishment of compulsory retirement was not on merits but on procedural failure. Once that be the case, what would be attracted would be F.R. 54A(2). The Tribunal was therefore, right in applying the said provision. It is therefore, contended that the order does not suffer from any illegality and ought not to be interfered with.
7. An additional fact which has come on record is that after filing of the petition by the petitioner, the other charge-sheeted employee viz. P. G. Harale who was similarly placed like the petitioner in so far as the period between termination and re-instatement, an order came to be issued on 21.2.2002. By the said order, the competent authority held that in terms of F.R. 54A, the period of suspension from 11.6.1982 to the date of his compulsory retirement on 22.8.1985 and further from the date of compulsory retirement from 22.8.1985 till the date of nominal suspension from 28.2.1992 shall be treated as on duty for all purposes and full pay and allowances including benefits are being paid. Based on this, on behalf of the petitioner, learned Counsel contends that like T. G. Harale as punishment of reduction in time scale in two stages was also imposed on the petitioner in respect of the same misconduct, both should be treated alike. The President in both cases had enhanced the punishment to compulsory retirement. Both of them challenged the said order. The Tribunal by a common judgment set aside the punishment of compulsory retirement and also directed that no further enquiry be held against both of them. It is therefore, submitted that the petitioner cannot be treated differently from Shri Harale who has been ordered to be paid full allowances whereas the petitioner has been ordered to be paid -only half wages and allowances.
In answer to that, on behalf of the respondent, their learned Counsel draws our attention to the affidavit filed by S.T. Shivsharan, Assistant Commissioner of Customs dated 20th February, 2004. In the said affidavit, it is set out that though an order was passed on 21.2.2002 granting full benefit to Shri Tukaram G, Harale, the department was helpless as the decision was taken by a relevant competent authority. The respondents have no remedy to appeal against that order. It is therefore, pointed out that merely because some order has been passed in favour of Shri Harale in respect of which the department had no remedy, the petitioner cannot be treated on the same footing. In other words, what is argued is that the order granting full pay and allowances ought not to have been passed in favour of Harale as punishment was not set aside on merits and therefore, the Writ Court should not issue a writ to perpetuate a wrong.
8. We have heard the learned Counsel and we propose to dispose of the contentions. We may firstly point out that the order of 3.2,1996 proceeds on the footing that after the judgment of 1.12.1992 setting aside the order of compulsory retirement and as the petitioner was reinstated only on 14.10.1993, that period should also be treated as on duty for all purposes. However, in so far as allowances and pay, he would only be entitled to only half the average pay and additional dearness allowance if he was on leave. In our opinion, that part of the order will have to be set aside. The Tribunal in its judgment dated 1.11.1992, in paragraph No, 13 observed and directed as under :
These petitions succeed in part. The order dated 12.2.1985 passed by the President enhancing the penalties imposed upon the petitioners are quashed. The order passed by the punishing authority in the cases of the two petitioners are kept intact. It goes without saying that the petitioners would be entitled to consequential benefits which may be permissible under the law.
It is thus, clear that the order of compulsory retirement was set aside. The effect would be that the petitioner would be deemed to be In service from 1.12.1992. The fact that the petitioner was reinstated in service only on 14.10.1993 cannot be held to the disadvantage of the petitioner as it was the respondents who failed to reinstate him and he was compelled to take out contempt petition. Therefore, the petitioner would be entitled to full wages for the period and allowances for the period 1.12.1992 to 14.10.1993 being on deemed duty. To that extent, the order of the Tribunal is set aside and the petitioner for the period 1.12.1992 to 14.10.1993 is entitled to full pay. allowances and all other consequential benefits.
9. We then come to the next part of the order i.e. the direction whereby though the petitioner has been treated to be 'on duty', it has been ordered that he would be entitled to an amount equal to the leave salary if he had been on leave and half the average pay and in addition, the dearness allowance if available, based on such leave salary. A perusal of F.R. 54A(3) makes it clear that the said F.R. would be attracted if the order of compulsory retirement is set aside by the Court on merits of the ease. We have examined the order of the. Tribunal and we find that the termination was not set aside on merits but was set aside on account of failure of procedural requirements. In other words, it attracts cl. 54A(2). The finding of the Tribunal therefore, that F.R. 54A(3) is not attracted cannot be faulted.
The question however still remains as to the amount of pay and allowances which the petitioner would be entitled to. For that purpose, we may gainfully reproduce F.R. 54A(2)(i) which reads as under :
F.R. 54A(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 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 servants 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.
From a reading of the said F.R. what is clear is that subject to the provision of Sub-rule (7) of Rule 54, the Government servant is entitled to be paid such amount, (not being the whole) of the pay and allowances to which he would have been entitled to had he been not compulsorily retired. There-Core, it is open to the competent authority to direct payment of such amount not being the whole of the pay. In other words, the competent authority can order payment of 100% of the pay and allowances. We may now refer to Sub-rule (7) of Rule 54 which reads as under :
The amount determined under the provision of Sub-rule (2) or under Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
In our case, F.R. 54(2) is not attracted. What would be attracted is F.R. 54(4) which reads as under :
In cases other than those covered by Sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held the Government servant shall, subject to the provisions of sub-rr. (5) and (7), 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 or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice 10 the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in the connection within such period (which in no ease shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
A reading of F.R. 54 would show that where the order of compulsory retirement is set aside for non-compliance of requirement of Clause (1) or Clause (2) of Article 311 of the Constitution of India and no further enquiry is proposed to be held, the Government servant, subject to the provisions of sub-rr. (5) and (7) be paid, such amount not being the whole of the pay and allowances to which he would have been entitled, had he not been compulsorily retired. In other words, it is clear that the Government servant would be entitled to be paid such amount not being the whole of the pay and allowances.
The last relevant F.R. is F.R. 53. F.R. 53 provides for payment of subsistence allowance when a Government servant is under suspension or deemed to have been placed under suspension. In such an event for the first period, a Government servant is entitled to draw subsistence allowance at a rate equal to the leave salary which the Government would be entitled to if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary. The F.R. further provides that after three months, it can be reviewed whereby the subsistence allowance maybe increased by suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first three months. In other words, additional 25% thus totalling 75%. A co-joint reading therefore of F.R. 53, 54(4) and 54A(3) would result in holding that a Government employee would be entitled to be paid not less than 75% but not more than the whole.
The learned Counsel for the respondents however contend that when a Government servant is suspended, he has to be paid at 50% and therefore, the order of the authority or of the Tribunal cannot be faulted. There is a fallacy in the argument advanced, which can be demonstrated by two illustrations. In the first case, let us take a case of Government servant who was never suspended but ultimately dismissed. In such a case, such employee if the argument of the learned Counsel for the respondent is to be considered, on the order of dismissal being set aside, would only be entitled to 50% of the leave pay and allowances.
We now take the second illustration. A Government employee may have been charge-sheeted for a serious misconduct which would involve dismissal from services. He is suspended. As the suspension is beyond the period of three months and for the enquiry is prolonged for no fault of his suspension allowance is increased to 75%. Thereafter the order of dismissal is set aside. If the argument of the learned Counsel for the respondent is accepted, to such a case, the delinquent employee would be entitled to 75% of the allowance. We find no rational for such a classification. The rule has to be constructed as a whole. On a construction of the F, Rs. together, the only proper inference that can be drawn and the rule construed is, that an employee in case where the order of dismissal or compulsory retirement or the like is set aside on account of the failure to comply with the requirements of Article 311 (1) or (2) would be entitled to the minimum of 75% of the pay and allowances but not the whole. The discretion therefore, in the authority would be to pay 75% and not the whole. The order therefore, of the authority and of the Tribunal in ordering payment of half average pay in addition to allowances clearly is illegal. The order of the Tribunal therefore, clearly suffers from an error apparent on the face of record and would be liable to set aside on that count. The consequence that will follow is to remand the matter back to the authority concerned. We are however dealing with a case where the proceedings itself were initiated some time in the year 1974. The order of the Tribunal itself is dated 1.12.1992. The petitioner has superannuated on 31.12.1993. In our opinion, this would be a fit case where in exercise of our extraordinary jurisdiction, this Court itself can consider the pay and allowances which could be payable on the facts on record. As noted earlier in the case of Harale, the competent authority has awarded full wages. From the perusal of the order, as set out earlier, such an order recalling could not have been based, considering what was attracted was F.R. 54(2). At any rate, Harale had been paid full pay and allowances.
10. Considering that and the totality of circumstances including the charges with which the petitioner was charged with, we think fit, that the order dated 3.2.1996 stands modified and instead of half average pay, the petitioner would be entitled to 85% of the average pay and in addition, dearness allowance if available on basis of such leave salary. This would be for the period from the date of compulsory retirement upto 30.11.1992. For the period 1.12.1992 to 14.10.1993, petitioner will be entitled to full pay along with allowances and other consequential benefits.
Rule made absolute accordingly.
There shall be no order as to costs.
Considering that a long period has elapsed, respondents are directed to make payment in terms of the judgment within a period of eight weeks from today.
All concerned to act on a copy of this order duly authenticated by the Court. Stenographer.