Calcutta High Court (Appellete Side)
Tarak Nath Khan vs The Union Of India & Ors on 14 March, 2016
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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14.03.2016
ssd.
WP 2572 (W) of 2016 Tarak Nath Khan Vs. The Union of India & Ors.
Mr Debasish Kundu ... For the petitioner Mr Swapan Banerjee ... For the Railways The grievance of the petitioner is that though the order of punishment was reduced from dismissal to reduction in rank in appeal and the appellate punishment was reduced from demotion to reduction in the scale of pay for one year, it will be evident that the operative part of the order in revision is ex facie contrary to the finding on the two counts of charge rendered in the relevant order of November 28, 2013.
The petitioner is unquestionably right. Two charges were framed against the petitioner. The revising authority considered the findings rendered by the appellate authority on both counts and concluded as follows:
"The Appellate authority has indeed taken note of the strange act of the petitioner in throwing away part of the money on seeing the HQ team, and this has been cited for proving his guilt. In my opinion this though a 2 questionable act cannot by itself prove his guilt. The other charge No.(2) also has not been established in the DAR enquiry."
There is no dispute that only two charges were levelled against the petitioner. There cannot be any second view that the revising authority found that the first charge remained unproven and the second charge was not established. Thus, both charges brought against the petitioner failed. In such circumstances, the revising authority had no jurisdiction to order any form of punishment against the petitioner; as punishment follows from a proven charge and there can no punishment when all the charges are found to have failed or not proven or established.
This clear error on the part of the revising authority in passing the operative part of its order dated November 28, 2013 was not challenged by the petitioner within any reasonable time of such order being passed or a copy thereof being received by the petitioner. Indeed, the petitioner served out the entire duration of punishment in terms of such order and only appears to have made a representation against the order before the employer.
Since the order in revision could not have been revisited by the domestic authorities, it was for the petitioner to 3 challenge the same before an appropriate court of law. Instead of the petitioner challenging the operative part of the revisional order, the petitioner suffered the punishment and only made a representation to the employer that the matter had to be looked into afresh or reviewed.
When it was open to the petitioner to challenge the order or suffer the consequences thereunder and the petitioner consciously opted for the latter course and the period of punishment has been served out, the petitioner has no further cause of action in respect thereof, at least as far as the punishment is concerned. However, it appears from a subsequent order of the employer dated October 5, 2014 that the period of the petitioner's removal from service (from August 18, 2012 to February 25, 2013) was directed to be treated as dies non and the period of the petitioner's suspension from February 6, 2012 till July 2, 2012 was treated as the period of suspension. Since the petitioner was reinstated in service and the adverse finding rendered against the petitioner by the appellate forum was undone in revision, it would be in the fitness of things if the period of the petitioner's removal from service is treated as a further period of suspension and not as dies non.
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Accordingly, WP 2572 (W) of 2016 is allowed by not interfering with the order of November 28, 2013 passed by the revisional authority, but by modifying the same by directing that the period of the petitioner's removal from service (August 18, 2012 to February 25, 2013, both days inclusive) should be regarded as a period of suspension which will be counted towards the petitioner's service for the purpose of assessing the petitioner's retiral benefits and further promotional opportunities, but which will entitle the petitioner only to the subsistence allowance in accordance with the rules for such period and not the full pay therefor.
There will be no order as to costs.
(Sanjib Banerjee, J.)