Central Administrative Tribunal - Hyderabad
Fathe Mohamad vs M/O Railways on 7 June, 2024
OA.No.021/138/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
OA.No.021/138/2020
ORDER RESERVED ON : 15.03.2024
ORDER PRONOUNCED ON : 07.06.2024
CORAM:
HON'BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER
Fathe Mohamad, s/o Sri Yousuf,
Aged 64 years, Retd. Track Maintainer,
Group'C' Employee, South Central Railway,
Hyderabad Division, H.No.9/51, Toopran (P.O.)-
502 334, Medak Dist, TS. ...Applicant
(By Advocate Mr.S.Srinivasa rao)
Vs.
1. Union of India, rep., by the
General Manager, South Central Railway,
Rail Nilayam, Secunderabad-500 025, TS.
2. The Senior Divisional Personnel Officer,
South Central Railway, Hyderabad Division,
Hyderabad Bhavan, Secunderabad-500 025, TS.
3. The Senior Section Engineer (P),
O/o the Assistant Divisional Engineer,
South Central Railway, Hyderabad Division,
Nizamabad, TS. ....Respondents
(By Advocate Mr.G.Raghunath, Sr.PC for CG)
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OA.No.021/138/2020
ORDER
PER HON‟BLE MRS. SHALINI MISRA, ADMINISTRATIVE MEMBER The applicant has filed this OA seeking the following relief:
"a) To call for the records pertaining to suspension, revision and revocation of the applicant from the 2nd and 3rd respondents for adjudicating the issue of wages for the suspension period;
b) To set aside the order of the 2nd respondent as it violates the provisions of the Rules/Railway Board Circulars and to issue appropriate order or direction to pay the wages for the period of suspension within a reasonable period;
c) Direct the 2nd respondent to consider all the consequential benefits including monetary benefits arising out of setting aside of the impugned order within a reasonable period; and
d) Direct the 2nd respondent to pay interest at the rate of 10% on the withheld wages and consequential benefits in the interest of justice.
and pass such other order or orders as this Tribunal may deem fit and proper in the circumstances of the case."
2. The brief facts of the case, according to the applicant, are that he joined as CMR Gang Man in the Engineering Department of South Central Railway, Hyderabad Division, on 04.12.1985 and progressed up to Track Maintainer and retired voluntarily on 29.02.2016 from the 3rd respondent‟s office.
3. The applicant has submitted that he was arrested on the charges of suspected involvement in a murder case by the Medchal Police Station on 30.06.2008 and released on bail on 19.09.2008, and after completing the prosecution of the criminal case, he was acquitted on 26.11.2013. As he was detained in Police custody for more than 48 hours, the 3rd respondent kept him under suspension from 30.06.2008 to P a g e | 2 of 14 OA.No.021/138/2020 12.02.2011. During the suspension period, he was affected with Paralysis and was under treatment with Balaji Hospital, Kompally. After becoming fit, he submitted an appeal on 11.02.2011 stating that he is fit to join his duties. His appeal was considered and the respondent- authorities have revoked his suspension from 12.02.2008 with a direction to attend a special medical examination. On completion of medical examination, the authorities allowed him to join duty from 23.02.2011.
4. The applicant has further submitted that the authorities have not paid him any subsistence allowance during the period of suspension and after joining the duty, the suspension period was not regularized inspite of submitting number of representations since 2014. However, the authorities issued a rejection order to the representation preferred in "2017-Pension Adalat", after his retirement in the year 2016, on the advice of Pensioners‟ Association stating that his suspension period was not covered by the Leave/Medical Leave Rules and hence, the wages could not be paid for the period under suspension.
5. The applicant has therefore contended that the action of the respondents in denying him wages without considering the relevant provisions of the Railway Board Circulars, is discriminatory and illegal, and hence he approached this Tribunal seeking the relief to issue an appropriate order or direction to the 2nd respondent to regularize the P a g e | 3 of 14 OA.No.021/138/2020 suspension period after taking into consideration the extant Railway Board Circulars and arrange to pay wages and all consequential benefits including monetary benefits within a reasons period in the interest of justice.
6. The respondents have filed a reply statement. They have submitted that the applicant Sri Fathe Mohammad, s/o Yousuf, Gate Keeper, working under SE/P Way/NZB was suspended (deemed suspension) on 30.06.2008 following his arrest by Police for suspected involvement in a murder case under Medchal Police Station. He was released on bail on 19.09.2008 and he had not reported back to Railway for duty after his release on bail. On 11.02.2011, he had approached ADEN/NZB, requesting to take him on duty claiming that he was under
treatment in a private hospital for one month from 07.10.2008 to
07.11.2008 and that he was advised bed rest from 07.11.2008 to 11.02.2011. After his reporting back to duty, his suspension was revoked on 12.02.2011 and he was taken back to duty. He was acquitted of the charges, vide orders dated 27.11.2013 in Sessions Case No.218/2010 by the XIII Addl. District Sessions Judge, Ranga Reddy District, L B Nagar, Hyderabad. The employee has continued in service and opted for voluntary retirement under LARSGESS for providing job to his son. His request was accepted and he retired voluntarily from service w.e.f. 29.02.2016. After his voluntary retirement from service, settlements to the tune of Rs.7.33 lakhs have also been P a g e | 4 of 14 OA.No.021/138/2020 arranged to him. Based on his acquittal from the Court, the applicant has approached Sr.DEN/Co-ord/HYB, requesting for arranging payment for the period of suspension from 30.06.2008 to 12.02.2011. His request was examined. The applicant, who was arrested on criminal charges on 19.06.2008, was released on bail on 19.09.2008. He had not reported for duties or brought to the notice of the administration of his release on bail. Non-reporting of his release on bail to the administration and remaining absent on his own, could not entitle him for wages. Keeping all these factors the competent authority had examined his request and decided that he is not entitled for wages.
7. The respondents have further submitted that as per the extant instructions under Railway Servants (Discipline & Appeal) Rules 1968 and Master Circular No.64 on "Suspension", a Railway servant shall be deemed to have been placed under suspension by an order of the competent authority with effect from the date of his detention, if he is detained in custody whether on a criminal charge or otherwise, for a period exceeding 48 hours. It shall be the duty of the Government servant, who may be arrested for any reason irrespective of the period of detention, to intimate the period of detention to his official superiors promptly even though he might have subsequently been released on bail. On receipt of the information from the person concerned or from ay other source, the departmental authorities should decide whether the facts and circumstances leading to the arrest of the person call for his P a g e | 5 of 14 OA.No.021/138/2020 suspension. Failure on the part of the Railway servant to inform his official superiors will be regarded as suppression of material information and render him liable to disciplinary action on this ground alone apart from the action that may be called for on the outcome of the Police case against him. A Railway servant under suspension or deemed to have been placed under suspension shall be entitled for payment of subsistence allowance at an amount equal to the leave salary which the Railway servant would have drawn if he had been on leave on half average pay or on half pay and in addition dearness allowance, if admissible. However, no payment of subsistence allowance shall be made unless the railway servant furnishes a certificate that he is not engaged in any other employment business, profession or vocation.
8. The respondents have further submitted that the Headquarters of a suspended Railway servant normally be assumed to be his last place of duty and cannot leave the station without prior permission. The applicant herein, who was arrested on criminal charges on 19.06.2008 was released on bail on 19.09.2008. He had not reported for duties or brought to the notice of administration his release on bail. Non-reporting of his release on bail to the administration and remaining absent on his own could not entitled him for wages. Keeping all these facts, the competent authority has examined his request and decided that he is not entitled for wages.
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9. The respondents have further submitted that the applicant had represented to the administration for payment of wages during the period from 30.06.2008 to 12.02.2011 i.e., the period he was under
deemed suspension. His representation was examined by the competent authority and the applicant was informed that no wages could be paid to him for the period since he was released on bail on 19.09.2008 and neither reported to duty or following Railway Medical Rules and did not report to duty until 11.02.2011 (2 years 5 months).
Without information from the applicant, the Railways were not aware about the whereabouts of the applicant. As soon as the applicant reported to duty on 11.02.2011, his suspension was immediately revoked on 12.02.2011 and he was taken back to duty. In fact, after his acquittal from Court, he was also permitted to utilize the benefit of LARSGESS Scheme and take voluntary retirement to seek employment for his son. His settlements to the tune of Rs.7.33 lakhs have also been arranged to him. Taking into account the lapse on the part of the applicant to stay back from duty on his own till 11.02.2011, without following the rules of Railways, the competent authority decided that the payment is not tenable in his case. The applicant also represented the matter during Pension Adalat 2017. It was again replied to him that his request was not tenable due to the reasons stated above.
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10. The respondents have further submitted that the Railway Board issued RBE 12/2015, dated 18.02.2015, wherein Para 4 of the Circular reads as under:
4. "Rules 5(6) and 5(7) of RS (D&A) Rules, 1968, deals with the review of suspension cases. The provision of review within ninety days is applicable to all types of suspension. However, in cases of continued detention, the review becomes a mere formality with no consequences as a Railway servant in such a situation has to be continued to be kept under deemed suspension.
Therefore, in all such suspension is not necessary in such cases during this period."
The respondents have, therefore, contended that the applicant has wilfully not submitted the requisite information and in the absence of the said information, the question of review of suspension orders is not possible and does not arise. As such, as per the existing guidelines of the Railway Board, the suspension will be deemed to have been continued. In view of the above, the applicant has failed to make out a case for grant of relief, as claimed in the OA and the order passed by the respondents is just and proper. As such the OA is liable to dismissed in toto.
11. The applicant has filed a rejoinder to the reply statement filed by the respondents. He has submitted that the respondents have not constituted any Review Committee within 90 days of suspension. The date of suspension is being 30.06.2008 and in the absence of review, the suspension order was expired on 29.09.2008. In support of his P a g e | 8 of 14 OA.No.021/138/2020 submissions, he had relied on the judgment of the Hon‟ble Supreme Court in Union of India & Others v. Dipak Mali (AIR 2010 SC 336/2010 (2) SCC 222), wherein it has been held as under:
"11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondent's case, is not very convincing. Section 19(4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted. In this case, what is important is that by operation of Sub-rule (6) of Rule 10 of the 1965 Rules, the order of suspension would not survive after the period of 90 days unless it was Union Of India & Ors vs Dipak Mali on 15 December, 2009 Indian Kanoon -
http://indiankanoon.org/doc/648495/ 3 extended after review. Since admittedly the review had not been conducted within 90 days from the date of suspension, it became invalid after 90 days, since neither was there any review nor extension within the said period of 90 days. Subsequent review and extension, in our view, could not revive the order which had already become invalid after the expiry of 90 days from the date of suspension."
12. The applicant has denied the contention of the respondents that his whereabouts are not known. He had suffered paralysis immediately after release on bail on 19.09.2008 and joined in a private hospital in Secunderabad and was under treatment from 07.10.2008 to 07.11.2008 as in-Patient and after getting discharged from the hospital, he returned back to his residence.
13. The applicant has also denied the contention of the respondents that he had not intimated about his release on bail and stated that it is mandatory on the part of the Police that whenever a Railway servant was taken into custody, the fact should invariably intimated to the P a g e | 9 of 14 OA.No.021/138/2020 Divisional Railway Manager. Accordingly the information was passed on to the office by the Police and basing on that information only he was placed under suspension (deemed). The release information was also mandatory to intimate to the office by the Police only and hence he had no role to play in these circumstances.
14. The applicant has further submitted that he was arrested and released within 90 days of the incident i.e., detention in custody is from 30.06.2008 to 19.09.2008 (2 months and 20 days). Hence, if the authorities constituted a review committee within 90 days, he would have deputed his son/wife to bring all these matters on record of the review committee. As no review committee was constituted, these matters were not come to light.
15. The applicant has further submitted that he was not sanctioned any subsistence allowance for the entire period and after getting well, I have approached the office of the respondents enquiring about his subsistence allowance. He was informed by the office staff to submit an application along with all particulars so that he may be taken back to duty and the Pay/Subsistence Allowance would be considered along with suspension revoke order. Accordingly, he submitted his application along with Private Medical Certificate, which was considered immediately and his suspension was revoked and he was sent for medical examination. After getting fit certificate, he was permitted to join P a g e | 10 of 14 OA.No.021/138/2020 the duty. But, while revoking the suspension, the authorities were supposed to decide the suspension period and payment of subsistence allowance/pay for the period, which was not decided or intimated to him.
16. The applicant has further submitted that as per the provisios of FR 54(a) and (b), which clearly states that the fact of suspension and treatment of suspension period should invariably be decided and the decision should be recorded in the Service Register of the employee concerned, failing which, the period should be treated as qualifying service. In his case, the suspension period was not decided, and no mention of this fact was recorded in his Service Register. The applicant has, therefore, prayed this Tribunal to allow the OA as prayed for .
17. The respondents have filed an additional reply affidavit.
18. Heard Mr.S.Srinivasa Rao, learned counsel for the Applicant and Mr.G.Raghunath, learned Senior Panel Counsel for the Respondents, and perused the pleadings on record.
19. The applicant while working as Gangman was arrested by the Police as a suspect in a murder case on 30.06.2008 and released on bail on 19.09.2008, but he neither informed any authorities nor reported on duty till 11.02.2011. Authorities, after due process, permitted him to join duty on 23.03.2011. Thus, his suspension continued from P a g e | 11 of 14 OA.No.021/138/2020 30.06.2008 to 12.02.2008. Respondents though revoked the suspension, but did not regularize the period.
20. The applicant has violated the rules as stipulated in the Master Circular No.64, wherein the employee if detained in custody, shall inform the period of detention to his official superiors promptly even though he might have subsequently been released on bail. Failure on the part of the employee to inform his superiors will be regarded as suppression of material information and render him liable for a disciplinary action on this ground alone.
21. The Headquarters of the applicant was the last place of duty and he was not supposed to leave the station without proper permission. His not reporting on 19.09.2008, when he was released on bail, to his reporting station is a serious offence. The period from 19.09.2008 till 23.02.2011, is nothing but absconding from duty; an unauthorised absence. Respondents are right in not paying the wages for this period, which is two (2) years and five (5) months, on the principle of „no work no pay‟. In fact, the respondents should have initiated a disciplinary case against the applicant rather the benefit of the LARSGESS scheme was extended to him on his voluntary retirement.
22. The contention of the applicant that his suspension was not reviewed by the competent authority as stipulated under Rules is not P a g e | 12 of 14 OA.No.021/138/2020 correct, since his deemed suspension was on a criminal case, and as per Rule 5 (6) and 5(7) of RS (D&A) Rules, 1968 of RBE 12/2015, dated 18.02.2015, the review in cases of continued detention becomes a mere formality with no consequences as the employee has to be continued under suspension. Further, Rule 10 (6) &(7) of CCS (CCA) Rules, 1965 says, „...Provided that no such review of suspension shall be necessary in the case of deemed suspension, if the Government servant continues to be under detention at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later‟.
23. Since the applicant did not inform the authorities about his release on bail on 19.09.2008, it must have been the understanding of the respondents that the applicant is still behind the bar. The non-sharing of the correct facts about his release on the bail by the applicant is pure mischief. His submission of few medical papers from private hospitals do not certify that the applicant was totally incapable of communicating. As per these medical papers, he got sick (Paralysis) on 07.10.2008, while released on bail on 19.09.2008, not clear „why‟ the applicant did not report to his office during these twenty (20) days. In MA.No.967/2019 in OA.SR.No.2464/2019, the applicant claims to have got the paralysis on 2009 and if this is correct, where was he from P a g e | 13 of 14 OA.No.021/138/2020 19.09.2008 till 2009, though the private hospital has given certificate from 07.10.2008 to 07.11.2008. This proves the fact that the applicant wilfully is not telling the truth even to the Court. It needs to be taken cognizance in long term perspective. The reasons of the failure of respondents in conducting proper enquiry to establish the truth is not understood. The order of the Assistant Personnel Officer (E), Divisional Office, Personnel Branch, Hyderabad Division, Secunderabad, dated 12.12.2017 is legally correct and as per rules only.
24. With these observations, I do not find any merit in the OA. The OA is, therefore, dismissed being devoid of merit. There shall be no order as to costs.
( SHALINI MISRA ) ADMINISTRATIVE MEMBER Dsn.
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