Central Administrative Tribunal - Hyderabad
G.V. Perumal vs The General Manager, South Central ... on 17 July, 2003
Equivalent citations: 2004(3)SLJ17(CAT)
ORDER
K.R. Prasada Rao, J. (Vice Chairman)
1. The applicant filed the present O. A. seeking for setting aside the portion of the impugned order passed by the 2nd respondent dated 12.7.2001 to the effect that the period of suspension is treated as suspension only is illegal, arbitrary and unconstitutional, and to direct the respondents to treat the period of suspension as period spent on duty for all purposes with all attendant and other consequential benefits, and consequently to direct the respondents to pay the pay and allowances for the period of suspension from 3.5.1993 to 17.5.1996 with interest at the rate of 24% per annum and to direct the 1st respondent to recover the same from the concerned authorities responsible for the same and award cost of the application.
2. The applicant, while working as Station Master at Ghatnandur Railway Station, was placed under suspension on 3.5.1993, copy of which is produced as Annexure. A-1, by the 3rd respondent and a charge memo dated 18.6.1993 was issued by the 3rd respondent, who is the Disciplinary Authority, containing 13 articles of charge. The order of suspension was subsequently revoked on 17.5.1996 as per the copy of the order, which is Annexure A-2. After conducting the inquiry on holding that the charges are proved against the applicant, the Disciplinary Authority, who is the 3rd respondent, imposed the penalty of reduction of grade from grade Rs. 1600-2660/- to Rs. 1200-2040/- and refixed the pay of the applicant at Rs. 1200/- for a period of three years with loss of seniority and treated the period of suspension of the applicant as 'dies won', vide orders passed on 30.5.1997. The appeal filed by the applicant before the Appellate Authority was dismissed on 19.1.1998 confirming the said punishment. Aggrieved by the same, the applicant approached this Tribunal by filing O.A. No. 186 of 1998. The said O.A. came to be allowed on 12.3.1999 and the order of the Appellate Authority dated 19.1.1998 was set aside and the Appellate Authority was directed to consider the appeal and pass a fresh reasoned speaking order after giving personal hearing to the applicant. Subsequently, on 31.7.2000, the Appellate Authority again dismissed the appeal confirming the punishment imposed by the Disciplinary Authority. The applicant challenged the same by filing O.A. No. 1713 of 2000. The applicant raised among other grounds a contention that there is no provision in the rule to treat the period of suspension as dies non and as per F.R. 54-B, the period of suspension of the applicant should be treated as the period spent on duty because there was no justification in keeping the applicant under suspension and the applicant was reinstated on 17.5.1996 after completion of the inquiry. The applicant also submitted that the inquiry was delayed due to administrative reasons and the delay was not directly attributable to him. The subsistence allowance was increased to 55% on completion of three months of suspension and afterwards the same was increased to 75% since the applicant was not responsible for the delay. The said O.A. came to be disposed of by this Tribunal by Order dated 9.2.2001 and the applicant was asked to submit a revision application to the revisional authority and the revisional authority was directed to consider the revision application in accordance with the rules and to take note of the observations made by this Tribunal during the course of the order. Accordingly, on 23.2.2001, the applicant submitted a revision application and on 12.7.2001, the 2nd respondent passed the impugned order, as revisional authority, setting aside the disciplinary proceedings and the punishment imposed and ordered de novo disciplinary proceedings from the stage of issue of fresh charge memorandum duly including one Sri. K. Alexander as one of the listed witnesses under Annexure. IV. However, since the applicant was imposed with penalty of removal from service for his unauthorised absence from duty from 31.7.1997 onwards in a different proceeding dated 7.9.1999 and accordingly he was removed from service with effect from 7.9.1999, the revisional authority observed that no effect will be given to these orders passed on the revision petition submitted by the applicant in compliance with the directions issued by this Tribunal except treating the period of suspension as suspension only. The applicant challenged the impugned order in the present O.A. in so far as it relates to treating the period of suspension as suspension only and sought for the above reliefs.
3. The respondents filed their reply statement contending that the applicant was proceeded against under Railway Service (Disciplinary and Appeal) Rules for his refusal to issue tickets on 1.5.1993 and 2.5.1993 and failure to remit Railway cash and for causing inconvenience to the passengers etc.,. He was consequently placed under suspension with effect from 3.5.1993 by order dated 3.5.1993. The applicant was also issued with a charge memo dated 18.6.1993 with 13 articles of charge. A detailed inquiry was conducted in which the applicant had participated. The Inquiry Officer submitted his report on 4.4.1996 finding the charges proved. On conclusion of the inquiry, the suspension of the applicant was revoked by order dated 17.5.1996. The Disciplinary Authority on consideration of the inquiry report and the explanation of the applicant, issued penalty order dated 30.5.1997 and the same was confirmed by the Appellate Authority by order dated 19.1.1998. The applicant filed O.A. No. 186 of 1998 challenging the said order passed by the Appellate Authority. In pursuance of the directions given by this Tribunal, the Appellate Authority re-considered the matter and passed order dated 31.7.2000 confirming the penalty awarded to the applicant. The applicant filed O.A. No. 1713 of 2000 assailing the orders of the Appellate Authority. This Tribunal passed an Order dated 9.2.2001 directing the applicant to submit a revision petition. The revisional authority considered the revision petition in detail and passed the impugned order dated 12.7.2001 setting aside the punishment imposed by the Disciplinary Authority, which was confirmed by the Appellate Authority and directed de novo disciplinary proceedings while noting that the charges are serious in nature and the applicant was rightly placed under suspension and issued major penalty charge memo. In terms of Rule 1343 of I.R.B.C. Volume-II, more particularly Sub-clause 4 read with Sub-clauses 6 and 7, the question of treating the entire period as duty comes into question in cases where no further proceedings are ordered by the Competent Authority. The revisional authority has taken note of the subsequent event viz., the removal of the applicant from service by way of punishment imposed in another disciplinary proceedings and ordered that the period of suspension shall be treated as suspension only. The respondents therefore submitted that the said order passed by the revisional authority is in accordance with the rules and the facts and circumstances of the case. The respondents therefore prayed for dismissal of this O.A.
4. We have heard the arguments advanced by the applicant, who appeared in person, and the learned standing Counsel Mr. N.R. Devaraj for the respondents.
5. It is seen from the impugned order that the revisional authority has not only set aside the punishment imposed by the 3rd respondent as Disciplinary Authority and the orders of the Appellate Authority confirming the same and also set aside the entire disciplinary proceedings and ordered for a de novo disciplinary proceedings from the stage of issue of fresh charge memo duly including one Sri K. Alexander as one of the listed witnesses under Annexure IV. There is also a direction in the impugned order that the applicant must be furnished with listed documents along with the charge memo. However, the revisional authority further felt that as things stand, no effect can be given to the said orders passed on the revision petition submitted by the applicant since the applicant stands removed by virtue of the punishment imposed in a separate departmental proceeding on the charge of unauthorised absence from duties from 31.7.1997 by order dated 7.9.1999. But the revisional authority passed an order in the operative portion of the impugned order that the period of suspension is to be treated as suspension only.
6. The applicant has vehemently contended that the above said portion of the order of the revisional authority is clearly sustainable since the rules do not permit treating the suspension period as suspension only when once order of punishment imposed is set aside. It is further pointed out by the applicant that the Department of Personnel and Training, vide their letter No. 11012/15/85-Estt(A), dated 3.12.1985, copy of which is produced as Annexure. A-4 along with this O.A., decided that where departmental proceedings against a suspended employee for the imposition of a major penalty finally ends with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR. 54-B. The said decision has been communicated by the Railway Board, vide R.B.E. No. 57/86 and No. E(D&A) 86 RG 6-19, dated 7.4.1986. It is pointed out by the applicant that since in the instant case the punishment imposed has been set aside by the revisional authority, the revisional authority should have ordered for treating the period of suspension as the period spent on duty for all purposes.
7. But, as rightly pointed out by the learned standing Counsel for the respondents, in terms of Rule 1343 of I.R.E.C. Volume-II, more particularly the provisions of Sub-clause 4 read with Sub-clauses 6 and 7, the question of treating the entire period of suspension as on duty comes into question in cases where no further proceedings are ordered by the Competent Authority. Rule 1343 of IREC (FR, 54) reads as hereunder:
"1343. (F.R. 54)--(1) When a Railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific.
(a) regarding the pay and allowances to be paid to the Railway servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-instatement is of Opinion that the Railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Railway servant shall, subject to the provisions of Sub-rule (6), be paid the full 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:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Railway servant had been delayed due to reasons directly attributable to the Railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Railway servant shall, subject to the provisions of Sub-rule (7), be paid for the period of such delay only such amount of such pay and allowances as it may determine.
(3) In a case falling under Sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) 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 (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Railway service shall, subject to the provisions of Sub-rules (6) and (7), be paid such amount 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 in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice:
Provided that any payment under this sub-rule to a Railway servant (other than a Rail way servant who is governed by the provisions of the Payment of Wages Act, 1936 (4 of 1936), shall be restricted to a period of three years immediately preceding the date on which orders for re-instatement of such Railway servant are passed by the Appellate Authority or Reviewing Authority or immediately preceding the date of retirement on supperannuation of such Railway servant, as the case be.
(Rly Board's letter No. F(E)III 68 SPN/3, dt. 16.10.74).
(5) In a case falling under Sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the Competent Authority specifically directs that it shall be so treated for any specific purpose; provided that if the Railway servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Railway servant.
Note.--The order of the Competent Authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of:
(a) extraordinary leave in excess of three months in the case of temporary Railway servant; and
(b) leave of any kind in excess of five years in the case of permanent Railway servant.
(6) The payment of allowances under Sub-rule (2) or Sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso of Sub-rule (2) or under the Sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53).
(8) Any payment made under this rule to a Railway 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 removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Railway servant."
8. It is seen from the above provisions of Sub-clause (4) that only in cases where no further inquiry is proposed to be held after setting aside the order of dismissal, removal or compulsory retirement from service, the Competent Authority has to decide as to whether the period of suspension is to be treated as the period spent on duty or not. It is no doubt true that Rule 1343 (F.R. 54) governs the case of the Railway servant, who has been dismissed, removed or compulsorily retired from service and who is ordered to be reinstated as a result of appeal or revision. In the instant case, the punishment imposed by the Disciplinary Authority in respect of the applicant being reduction of grade from grade Rs. 1600-2660/- to Rs. 1200-2040/- and fixed his pay at Rs. 1200/-for a period of three years, the above provisions of Rule 1343 are not applicable to him.
Rule 1345 governs the case of the applicant, which is reproduced as under:--
"1345. (1) When a Railway servant who has been suspended is reinstated (or would have been so reinstated but for his retirement (including premature retirement) while under suspension,) the authority competent to order reinstatement shall consider and make a specific order :
(a) regarding the pay and allowances to be paid to the Railway servant for the period of suspension ending with reinstatement or [the date of his retirement (including premature retirement),] as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 1343 where a Railway servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowances already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Railway servant shall, subject to the provisions of Sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Railway servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Railway servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under Sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes.
(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 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.
(6) Where suspension is revoked pending finalisation of the disciplinary or the Court proceedings, any order passed under Sub-rule (1) before the conclusion of the proceedings against the Railway servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in Sub-rule (1) who shall make an order according to the provisions of Sub-rule (3) or Sub-rule (5), as the case may be.
(7) In a case falling under Sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the Competent Authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Railway servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
Note.--The order of the Competent Authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of:
(a) extraordinary leave in excess of three months in the case of temporary Railway servant; and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Railway servant.
(8) The payment of allowances under Sub-rule (3) or Sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to Sub-rule (3) or under Sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342."
9. It is seen from the above provisions of Sub-clause (3) of Rule 1345 that only where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, he is entitled to treat the period of suspension as the period spent on duty and order for payment of full pay and allowances to which he would have been entitled, had he not been suspended. But in the instant case, since the revisional authority has ordered for de novo inquiry against the applicant, which is yet to be commenced, the Competent Authority is not entitled to record his finding at this stage as to whether the suspension of the applicant was wholly unjustified or was justified. Apart from this fact since the revisional authority found that the applicant stands removed in another departmental inquiry on the charge of his unauthorised absence from duty from 31.7.1997 with effect from 7.9.1999, he rightly observed that no effect can be given to the impugned order passed by him ordering for de novo inquiry. However, it is brought to our notice at the time of arguments that even the said order of removal has been set aside by this Tribunal and the matter is remitted to the Disciplinary Authority for passing a fresh order in the matter of imposing appropriate punishment and time has been taken by the said authority to pass fresh orders till 8.8.2003 by filing an M.A. for implementing the said order,
10. In the light of the said subsequent development, in our view, the revisional authority was not justified in holding in the present impugned order that the period of suspension is to be treated as suspension only. On the other hand the said authority must have deferred consideration of the said question till the final conclusion of the disciplinary proceedings pertaining to this case in which de novo inquiry has been ordered.
11. In this view of the matter, we find it necessary to set aside the said portion of the impugned order treating the period of suspension as suspension only and to direct the Competent Authority to decide the question as to how the period of suspension is to be treated only after the final conclusion of both the pending disciplinary proceedings pending against the applicant.
12. In the result, this O.A. is allowed in part setting aside the impugned order dated 12.7.2001 in so far as it relates to ordering for treating the period of suspension as suspension only. The Competent Authority shall decide the question as to whether the period of suspension is to be treated as the period spent on duty or not after the final conclusion of both the departmental proceedings pending against the applicant with reference to the provisions of Rule 1343 and Rule 1345 of IREC Volume-II. In the circumstances, we direct the parties to bear their respective costs.