Rajasthan High Court - Jaipur
Union Of India & Ors vs Shri Hari Prasad Dadhich & Anr on 28 April, 2017
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 4681 / 2004
1. Union of India through Secretary to the Govt. Of India,
Department of Posts, Ministry of Communication Dak Bhawan,
New Delhi- 110001.
2. Chief Post Master General, Rajasthan Circle, Jaipur- 302007
3. Director Postal Services, Jaipur Region, Jaipur- 302007
4. Senior Superintendent of Post Offices, Jaipur City Postal
Division, Jaipur 303006.
----Petitioners
Versus
1. Shri Hari Prasad Dadhich Son of Late Shri Bhoormal Dadhich
aged about 55 years, resident of 62 Muktanand Nagar, Tonk Road,
Jaipur. Presently working as Postal Assistant, Jaipur G.P.O. Jaipur.
2. The Central Administrative Tribunal, Jaipur Bench, Jaipur.
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. R.D. Rastogi, Addl. Solicitor General with Mr. Ashish Kumar & C.S. Sinha For Respondent(s) : Mr. Mukesh Agrawal _____________________________________________________ HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Judgment Reserved on 26/04/2017 Pronounced on __/04/2017 (Per Sanjeev Prakash Sharma,J.)
1. Heard learned counsel for the parties.
2. Facts relevant for disposal of the writ petition are that the respondent was holding the post of Assistant Treasurer with the petitioners. He was suspended on 25/02/1994. After conducting departmental proceedings, he was served with penalty of (2 of 8) [CW-4681/2004] compulsory retirement vide order dated 17/04/1995. The appellate authority finding that the disciplinary authority inflicted the punishment of compulsory retirement without any disagreement notice, set aside the order of compulsory retirement with direction for de-novo proceedings vide order dated 20/08/1996. After conducting enquiry afresh, the respondent was served with penalty of removal from service vide order dated 12/05/1997. The appeal was also rejected vide order dated 25/05/1998.
3. On a petition preferred by the respondents, vide order dated 24/07/2000, the punishment of removal from service was altered by reducing pay by one stage for one year without cumulative effect. In consequence thereof, the respondent was reinstated vide order dated 12/08/2000. A notice was served upon him by the petitioners to show cause as to why the period of deemed suspension and removal to reinstatement be not treated as not on duty and also restrict his pay and allowances for the said period. After considering the representation, the petitioners passed an order on 02/03/2001 under Rule 54(5) of the Fundamental Rules (FR) holding the period to be absence from duty for all purposes. However, in appeal, the Office of the Chief Post Master General, Rajasthan vide order dated 27/01/2003 observed that the respondent has remained under suspension from 25/02/1994 to 17/04/1995 and deemed suspension from 18/04/1995 to 12/05/1997. That apart, the respondent had also remained on duty during the period from 13/05/1997 to 11/08/2000 i.e. between the date of removal to the date of reinstatement. Under (3 of 8) [CW-4681/2004] the circumstances, considering the provisions of the Rules, the period of suspension from 25/02/1994 to 12/05/1997 was considered as period spent on duty for all purposes and full pay and allowances. While for the period from 13/05/1997 to 11/08/2000, as the respondent had not been fully exonerated in the departmental proceedings, as per FR 54(4), he was held to be not entitled for the whole of the amount for the said period and it was directed that the respondent shall be paid 60% of the pay and allowances for the period from removal to reinstatement.
4. The respondents challenged the same by filing OA No.125/2003 before the Central Administrative Tribunal, Jaipur Bench, Jaipur which came to be allowed vide order dated 31/05/2004 directing the respondents therein (petitioners herein) to treat the period from 12/05/1997 to 11/08/2000 as spent on duty for all purposes and the respondent was also held entitled for all consequential benefits. The petitioners have challenged the order of the Tribunal before this Court.
5. It is submitted by learned Additional Solicitor General, appearing for the petitioners that the respondent could not be granted the benefit of full pay and allowances in view of the fact that he was held guilty of certain charges and the punishment was altered. Thus, it is not a case where the respondent has been fully exonerated. Hence, the action of the petitioners cannot be held to be unjustified. It is submitted that the proceedings under Rule 54(4) of FR are independent of the disciplinary proceedings held earlier.
(4 of 8) [CW-4681/2004]
6. Per-contra, learned counsel for the respondent submits that once the petitioners had set aside the order of removal and had punished the respondent with reducing his pay by one stage without cumulative effect, he was entitled to receive entire amount for the intervening period and the same could not be reduced to 60% of the pay and allowances. It is submitted that reduction of pay by one stage amounted to stoppage one grade increment for one year only and while passing the order of 60% salary would also be amounting to reduction of salary for the intervening period and would go beyond the order of punishment.
7. Rule 54 of the FR deserves to be quoted as under:-
"F.R. 54 (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but fo4r his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government 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 reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government 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 Government 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, (5 of 8) [CW-4681/2004] submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence form 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 (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-rules (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, 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.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his 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 treated so for any specified purposes:
Provided that, if the Government servant so desires, such authority may direct that the period of absence from duty including that 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 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 Government servant: and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.
(6 of 8) [CW-4681/2004] (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 determine under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
(8) Any payment made under this rule to 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 removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. 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 Government servant."
8. Rule 54(A) of the FR also deserves to be quoted as under:-
"F.R. 54-A.(1) 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 regularized 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 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, removal 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 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 such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.
(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 (7 of 8) [CW-4681/2004] 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 tired 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 (30 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."
9. Thus from above, it is apparent that the action under Rule 54(4) or under Rule 54-A(2)(i) & (ii) of FR governed the field and the authority is required to take a decision relating to the period spent under suspension as well as for the period when the person was removed and later on reinstated and such an action is to be taken independent of whatever the decision may have been taken in the disciplinary proceedings. Admittedly, the respondent (Government Servant) was served with a penalty and was not fully exonerated and therefore, in view of this Court, his case would be governed under Rule 54-A(2)(i) & (ii) of FR.
10. Admittedly, the respondent was given a show cause notice and thereafter a decision has been taken to pay him such an amount not being whole of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired and in-stead of 100% pay and allowances, 60% has been directed to be released to him which according to us is in conformity with Rule 54-A(2)(i) of FR. Of-course, the (8 of 8) [CW-4681/2004] intervening period from the date of removal to reinstatement has to be treated as period spent on duty in terms of Rule 54-A(2)(ii) read with Rule 54(5) of FR.
11. In view of above, the order passed by the Tribunal is unsustainable and is accordingly set aside. The orders passed by the petitioners dated 02/03/2001 and 27/01/2003 are accordingly upheld.
12. The writ petition is accordingly allowed.
13. No costs.
(SANJEEV PRAKASH SHARMA)J. (PRADEEP NANDRAJOG),C.J. Raghu