Karnataka High Court
Shri Chandram J.M. S/O Shri Jettappa vs The Union Of India (Uoi) Rep. By Its ... on 7 September, 2007
Equivalent citations: 2008(3)KARLJ303, 2008 LAB. I. C. (NOC) 83 (KAR.) = 2007 (6) AIR KAR R 441, 2007 (6) AIR KAR R 441
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
Page 1822
1. Writ petitioner is serving in the Border Security Force, a Paramilitary Force created under the Border Security Force Act, [Act No. 47] of 1968 [for short 'the Act'].
2. It appears he is a constable in the Force and while he was serving at Bangalore the petitioner had been proceeded against by the Summary Security Force Court [for short 'SSFC'] for unauthorised absence and for committing acts not only unbecoming of the Member of the Force, but also for bringing disrepute to the Force which is an offence in terms of Section 40 of the Act
3. Such action had been taken as a follow up on the complaint lodged by one Mrs. Manjula. The SSFC found the petitioner guilty of offence under Section 40 of the Act and inflicted the punishment of dismissal from service.
4. The petitioner though had questioned this order by filing a writ petition before this Court was relegated to avail alternative remedy of appeal available to the petitioner under Section 117 of the Act.
5. The appeal of the petitioner was a success, in the sense, the appellate authority while reduced the punishment to one of three months rigorous imprisonment in the Force custody and further directed that the interregnum period between the date of dismissal from service and rejoining duties by the petitioner should be regularized as per rules.
6. The operative portion of the appellate order dated 28.5.2005 [copy at Annexure-D] reads as under:
Therefore, I commute the sentence to three months RI in Force custody. The interregnum period between dismissed from the service and re-joining duties by the petitioner shall be regularized as per rules.
7. Thereafter followed two communications to the petitioner one dated 20.10.2005 [copy at Annexure-E] from the Office of Mr. Chacko George, ADIO & Commandant, STC BSF Bangalore and the other dated, Page 1823 2.12.2005 (copy at Annexure-F] from the very office and signed by the very Officer but which was to some extent a modification of the earlier order.
8. In the first of these two communications, it had been indicated that as a consequence of the petitioner's reinstatement into service in terms of the order passed by the appellate authority and the punishment of three months rigorous imprisonment, the date of earning of increment had been shifted from 10.10.2000 to 9.1.2001 and that the period between 7.12.1999 to 7.3.2000 when the petitioner is treated to be serving the punishment of rigorous imprisonment was treated as not qualifying for all other purposes other than pension but it shall not constitute a break in service. The writ petitioner was also apprised that he was being given notional increments for five years during the period 9.1.2001 to 9.1.2005 and his basic which was at Rs. 3,425/- before the order of dismissal in the pay scale of Rs. 3,050-75-3950-80-4590/- was given periodic notional increments and was fixed at Rs. 3,800/- with effect from 27.9.2005. It was also indicated that the petitioner is not entitled to arrears of pay and allowances or annual increments and this will be subject to final orders to be passed by the competent authority regarding status of interim period between 7.12.1999 to 27.9.2005.
9. However, this order came to be modified by the subsequent communication indicating that there was no question of petitioner being given any notional increments; that his pay was re-fixed at Rs. 3,425/- in the pay scale of Rs. 3,050-75-3950-80-4590/- with effect from 27.9.2005, the next date of increment being on 2.8.2006, based on the last increment which the petitioner had earned to reach the basic pay of Rs. 3,425/- being on 10.10.1999. It was also ordered that any over payment made on the basis of the earlier order dated 20.10.2005 will be adjusted accordingly.
10. It is aggrieved by these two orders, the present writ petition is filed, inter alia, contending that these orders are without the authority of law, without jurisdiction, being orders passed by a subordinate official; that it is virtually at variance with the order passed by the appellate authority; that it is in contravention of the service regulations governing the terms and conditions of services of the petitioner; that it is contrary to the provisions of the Act and Rules; that these orders are also in violation of principles of natural justice as they have been passed even without affording an opportunity of hearing to the petitioner and more so the orders being detrimental to the interest of the petitioner in denying not only the back wages and the pay for the period between the years 1999 to 2005 but also in denying the petitioner even the benefit of notional increment for this period.
11. It is for getting over these orders, the present writ petition is filed on the premise that the petitioner had represented against these orders to the higher authorities in terms of his representation dated 3.4.2006, but Page 1824 there being no response to the same, issue of a writ in the nature of mandamus is sought for to compel the respondents to consider the representation of the petitioner.
12. Respondents were issued with notices by this Court and the respondents have entered appearance through standing counsel Sri. Yateesh Kumar.
13. Respondents have filed a detailed statement of objections in which it is averred, inter alia, that the action on the part of the respondents in issuing both Annexures - E & F is fully justified; that it is in consonance with the provisions of the Act and the Rules; that it is also in keeping with the service rules and regulations which governs the services of persons like the petitioner etc.
14. I have heard Col. Bhupinder Singh, learned Counsel for the petitioner and Sri. Yateesh Kumar, learned standing counsel appearing for the respondents.
15. Col. Bhupinder Singh, learned Counsel for the petitioner has raised several legal grounds and has urged many legal contentions to demonstrate that the orders passed by the respondent No. 3 both at Annexures - E & F are not valid in law; that they are beyond his jurisdiction and virtually amounts to rewriting of a punishment imposed on the petitioner by a lower officer in rank; that when the appellate authority - Director General of the Force had awarded the lower punishment of three months rigorous imprisonment in Force Custody and had directed regularisation of services of the petitioner as per rules, it is not open to the respondent No. 3 to inflict a further punishment of denial of pay and wages for the period between 7.12.1999 and 27.9.2005; that the order indicating that the petitioner does not earn any increment for this period in terms of Annexure-F is further aggravation of the illegal order passed earlier on 20.10.2005.
16. In this regard, learned Counsel for the petitioner has drawn my attention to the punishment imposable on a Member of the Force by the SSFC and has drawn specific attention to Clause (k) of Sub-section (1) of Section 48 of the Act and submits that when the appellate authority had not inflicted this punishment on the petitioner, it is not open to the respondent No. 3 in the guise of implementing the order of the appellate authority to pass a further order of punishment on the petitioner.
17. Section 48 of the Act reads as under:
48. Punishments awardable by Security Force Courts -
(1) Punishments may be inflicted in respect of offences committed by persons subject to this Act and convicted by Security Force Courts according to the scale following, that is to say, -
[a] death;
[b] imprisonment which may be for the term of life or any other lesser term but excluding imprisonment for a term not exceeding three months in Force custody;
Page 1825 [c] dismissal from the service;
[d] imprisonment for a term not exceeding three months in Force custody;
[e] reduction to the ranks or to a lower rank or grade or place in the list of their rank in the case of an under-officer;
[f] forfeiture of seniority of rank and forfeiture of all or any part of the service for the purpose of promotion;
[g] forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose;
[h] fine, in respect of civil offences;
[i] severe reprimand or reprimand except in the case of persons below the rank of an under-officer;
[j] forfeiture of pay and allowances for a period not exceeding three months for an offence commuted on active duty;
[k] forfeiture in the case of person sentenced to dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such dismissal;
[l] stoppage of pay and allowances until any proved loss or damage occasioned by the offence for which he is convicted is made good.
(2) Each of the punishments specified in Sub-section (1) shall be deemed to be inferior in degree to every punishment preceding it in the above scale.
18. What is submitted is that under the different clauses in Sub-section (1) of Section 48, while dismissal of service is one type of punishment, imprisonment in Force custody is another type of punishment and forfeiture in the case of persons sentenced to dismissal from the service in terms of Clause (k) in Sub-section (1) of Section 48 of the Act is yet another punishment; that when the appellate authority reduced the punishment of order of dismissal as provided under Clause (c) to one of imprisonment as provided in Clause (d), it was not open to the respondent No. 3 to add on the punishment contemplated under Clause (k) in Sub-section (1) of Section 48 and to read that punishment into the order of the appellate authority.
19. It is also urged that punishing the petitioner twice for the same offence, in the sense that, not only putting him in three months rigorous imprisonment in Force custody but also denying him pay and wages for the period of five years and also of earning of increments for this period amounts to inflicting punishment twice for the same offence violative of the principle of double jeopardy which is incorporated in Article-22 of the Constitution of India.
20. It is also contended that the effect of orders at Annexures-E & F being one to deny pay and allowances to the petitioner could never have been done without affording an opportunity of hearing to the petitioner and orders being in violation of the principles of natural justice, deserve to be quashed straight away and the matter remanded for proper fixation or Page 1826 proper regularisation or for the purpose of considering the representation of the petitioner by the appropriate or competent authority.
21. Further submission of Col. Bhupinder Singh, learned Counsel for the petitioner is that when once the appellate authority had set aside the punishment of dismissal from service and had reduced that to one of rigorous imprisonment for three months in Force custody, the petitioner on being reinstated into the Force should normally receive wages for the period between the date of dismissal and reinstatement and that is the settled law in service conditions and in this regard has placed reliance on the observations of the Supreme Court at paragraph-22 in the case of 'Pyare Lal Sharma v. Managing Director, Jammu and Kashmir Industries Ltd., and Ors. which reads as under:
22. When the termination order is set aside by the courts normally the servant becomes entitled to backwages and other consequential benefits. This case has a chequered history. From 1976 onwards there has been continuous litigation and mistrust between the parties. The facts which we have narrated above go to show that Sharma has equally contributed to this unfortunate situation. In view of the facts and circumstances of this case we order that sixty per cent of the back-wages be paid to Sharma Money already received by Sharma under orders of this Court or the High Court shall be adjusted and the balance paid to him. If the money already paid to Sharma is more than what we have ordered, then there shall be no recovery from him.
22. In support of the submission for claiming back wages and to urge that denial is illegal, learned Counsel for the petitioner has also placed reliance on the decision of the Supreme Court in the case of 'K.C. Joshi v. Union of India and Ors. reported in AIR 1988 SC 1046 wherein the Supreme Court had occasion to indicate the payment of lumpsum amount in lieu of back wages was same as paying back wages and it is payment assessable under the head 'Income from Salaries' etc.,.
23. In support of the submission that settled principles in service parlance should necessarily be obliged to persons serving in the Border Security Force also, Col. Bhupinder Singh, learned Counsel for the petitioner has placed reliance on the observations of the Supreme Court in the case of 'Sheel Kr. Roy v. Secretary, Ministry of Defence and Ors. reported in Judgment dated 18.5.2007 as contained in paragraph-21 of the Judgment reads as under:
Page 1827
21. On their 3own showing, the respondents accepted that during his entire service career, the appellant remained a mental patient and had been undergoing his treatment in one hospital or the other. It was, therefore, obligatory on the part of the Commanding Officer to take into consideration the said fact for the purpose of arriving at a finding of his guilt on the charges of misconduct as also for fixing the quantum of punishment It is in that limited sense, assignment of some reasons in a case of this nature must be held to be necessary. It is now a well settled legal principle which has firmly accepted throughout the world that a person merely by joining Armed Forces does not cease to be a citizen or be deprived of his human or constitutional right. This aspect of the matter has been considered by a Division Bench of the Delhi High Court in Nirmal Lakra v. Union of India and Ors. Reported in 2003 (1) SLJ 151.
[emphasis supplied]
24. Col. Bhupinder Singh, with his rich experience while in service, his familiarity with the Army Rules and Regulations and Service Conditions and with considerable legal acumen has presented the case of the petitioner in a very impressive manner and has urged that the petition should be allowed and necessary relief accorded to the petitioner.
25. On behalf of the respondents, Sri Yateesh Kumar, learned standing counsel for the respondents has submitted that the action on the part of the respondent No. 3 in giving effect to the order passed by the respondent No. 2 - appellate authority is fully in consonance with law, relevant rules and regulations and is not at all at variance with the order passed by the appellate authority as contended by learned Counsel for the petitioner.
26. Submission is that it is only for effectuating the appellate order, these orders had come to be passed. It is also submitted that as it was realised that the earlier order dated 20.10.2005 at Annexure-E was not in conformity with the relevant rules and regulations governing service conditions, it was corrected by the subsequent order dated 2.12.2005; that the petitioner is neither denied any benefits which flew from the order of the appellate authority nor has he been inflicted with any additional punishment as is contended by learned Counsel for the petitioner.
27. Submission is that the order passed by the appellate authority is in place of the punishment imposed on the petitioner by the disciplinary authority; that the petitioner is not exonerated of the charge but the appellate authority taking into consideration the good record of the service of the petitioner had reduced the punishment to one of three months rigorous imprisonment in Force custody and also as part of the very order directed that the interregnum period between dismissal from service and rejoining duties by the petitioner shall be regularised as per rules; that the regularisation as per rules means to regularise the services of the petitioner Page 1828 during the interregnum as otherwise that will constitute a break in his service.
28. Learned standing counsel for the respondents submits that this has been done in accordance with Rule-54 of the Fundamental Rules which governs the situation; that so far as the payment of salary and other allowances to the petitioner is concerned, it is fully governed by Clause (a) of Sub-rule (1) of Rule-54 and this follows as a consequence of the order of the appellate authority directing regularisation of the period in accordance with the rule; that as the appellate authority had not indicated that the petitioner should be paid any pay or allowances for the period and as he has not earned the same, there is no question of payment of any salary for the period; that for the purpose of regularising services of the petitioner during the interregnum as otherwise it will amount to break in his service, the possibility was examined in the light of the provisions of Rule-25 of the Central Civil Services Pension Rules [for short 'Pension Rules'] and that the rules provides for treating the period as qualifying service in view of the order of the appellate authority for regularisation and for such regularisation the petitioner was given leave without pay as he had no leave to his credit for such duration and as the period has been treated as qualifying service, the petitioner qualifies only for the purpose of pension and gratuity admissible under the Pension rules and not for any other benefit.
29. Submission is that there is no order by the appellate authority for payment of any pay and allowances for the period; that the order is only for regularising the period as per rules; that as per the relevant rules, it has been regularised by providing extraordinary leave or leave without salary; that the petitioner does not earn any salary as he has not worked nor had convertible leave at his credit; that he has the benefit of only pension and gratuity in respect of this period and no other benefit etc.,.
30. 'Qualifying Service' as defined in Rule-3(q) of the Pension Rules reads as under:
3[q]. Qualifying Service means service rendered while on duty or otherwise which shall be taken into account for the purpose of pensions and gratuities admissible under these rules.
31. Rule-25 of the Pension Rules reads as under:
25. Counting of past service on reinstatement:
[1] A Government servant who is dismissed, removed or compulsorily retired from service, but is reinstated on appeal or review, is entitled to count his past service as qualifying service.
[2] The period of interruption in service between the date of dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement, and the period of suspension, if any, shall not count as qualifying service unless regularised as duty or leave by a specific order of the authority which passed the order of reinstatement.
Page 1829
32. With regard to earning of increments, learned standing counsel appearing for the respondents would bring to my notice the provisions of Rule-26(b)(ii) of the Fundamental Rules which reads as under:
26(b)(ii): All leave except extraordinary leave taken otherwise than on medical certificate and the period of deputation out of India shall count for increment in the time- scale applicable to a post in which a Government Servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India.
and submits that the petitioner does not earn any increment during the period when services have been regularised by providing him extra ordinary leave without pay or allowances.
33. The sum and substance of the submission on behalf of the respondents is that the order at Annexure-F is only in terms of the appellate order for the purpose of regularising services of the petitioner; that it is not either any separate order of additional punishment or one denying any benefit which the petitioner is otherwise entitled to in terms of any service conditions and therefore there is no merit in the writ petition; that there is no occasion to further consider his representation for claiming such benefits as made by the petitioner; that the writ petition is to be dismissed.
34. Petitioner is a Member of the Border Security Force which is a paramilitary force created under the Border Security Force Act, 1968. This Force was part of Central Police Act, 1949. It was given a separate identity as Border Security Force. It appears after the year 1965, it was sought to be given an independent status and that heralded the legislation of the Border Security Force Act, 1968. Members of this Force are governed by the provisions of this Act. The service conditions are as prescribed by the Central Government in terms of Section 6 of the Act. While tenure of service is during the pleasure of the President in terms of Section 9 of the Act, the Central Government may dismiss or remove from service any person subject to the Act in terms of Section 10 of the Act. Powers of dismissal, removal or reduction in rank are also conferred on the Director General and other Officers of the Force under Section 11 of the Act.
35. This apart, Chapter-III of the Act, particularly Sections 14 to 46 of the Act indicate various types of offences which are all offences triable by the SSFC as punishment are awarded by the SSFC. It can be noticed that several acts of misconduct of the Members of the Force while in service also constitute offences under the Act and the nature of punishments particularly under Section 48 except for punishments in terms of Section 48(1)(a) which is death and Section 48(1)(b) & (d) which are imprisonment for three months and above and upto three months respectively, all other punishments are in the nature of punishments inflicted on an employee even in a departmental enquiry in respect of misconduct of an employee.
36. In the present case, the petitioner who had been found guilty of one charge, namely, "an act prejudicial to good order and discipline of the Force" Page 1830 was sentenced to the punishment of dismissal by the SSPC. A petition to the respondent No. 2 - Director General of the Force under Section 117 of the Act has resulted in reduction of punishment from one of dismissal from service to one of three months rigorous imprisonment in Force custody. The very authority also indicated that the interregnum between the dates of dismissal from service and rejoining service shall be regularised as per rules. The language of the authority passing the orders under Section 117 of the Act is significant, in the sense that, the sentence of dismissal from service is reduced to three months rigorous imprisonment in Force custody. In terms of Section 48 of the Act, while dismissal from service is a higher punishment, imprisonment not exceeding for three months in Force custody is a lower punishment. It is precisely for this reason, learned Counsel for the petitioner has contended that when punishment under Section 48(1)(c) of the Act got reduced to punishment under Section 48(1)(d) of the Act, the Commanding Officer under whom the petitioner works has by way of orders under Annexures- E & F inflicted further punishment either under Section 48(1)(j) or under Section 48(1)(k) of the Act.
37. Submission proceeds on the premise that the petitioner on reinstatement in terms of the order of the Director General becomes entitled to past salary and allowances given in terms of the settled service law as a matter of rule and therefore denial amounts to a further infliction of punishment.
38. It is in support of this submission that the petitioner is entitled for back wages as a matter of course, Col. Bhupinder Singh, learned Counsel for the petitioner has placed reliance on the observations of the Supreme Court as contained in paragraph-22 of the Judgment in Pyarelal Sharma's case supra, read with the observations made in paragraph 21 of the Judgment of the Supreme Court in Sheel Kumar's supra.
39. Submission is when back wages is a matter of course for the period between the date on which dismissal order was passed and the date on which the appellate/higher authority directed reinstatement and when the authority directed reinstatement had not by itself denied any back wages to the petitioner; that the impugned orders under which such back wages has been denied to the petitioner amounts to inflicting additional punishment on the petitioner even in terms of the provisions of Section 48 of the Act and therefore such action should be construed as punishing the petitioner twice for the same offence, that too by incompetent lower authority which is clearly violative of Article 22 of the Constitution of India.
40. I find a clear distinction between the proceedings of a domestic enquiry in departmental action by the employer on an erring employee and the proceedings against a Member of the Force in respect of offences enumerated in Chapter-III of the Act. The offences are the offences under the Act by the Page 1831 Members of the Force and the accused person is tried by the Security Forces Courts which are categorised as three kinds of courts under Section 64 of the Act which reads as under:
64. Kinds of Security Force Courts -
For the purpose of this Act there shall be three kinds of Security Force Courts, that is to say -
[a] General Security Force Courts;
[b] Petty Security Force Courts; and [c] Summary Security Force Courts.
41. A separate procedure governs these courts under the provisions of the Act. In the present case, the petitioner who was tried by a Summary Security Force Court which in terms of Section 70 reads as under:
70. Summary Security Force Court -
[1] A Summary Security Force Court may be held by the Commandant of any unit of the Farce and he alone shall constitute the Court.
[2] The proceedings shall be attended throughout by two other persons who shall be officers or subordinate officers or one of either, and who shall not as such, be sworn or affirmed.
is summoned by the Commandant and he himself constitutes the court. A proceeding of this nature under a special enactment cannot be treated on par with a departmental enquiry proceeding conducted by the employer in a domestic enquiry against the erring employee.
42. While Section 49 enumerates various punishments that can be awarded by the Security Force Courts, Sections 49 and 50 which read as under:
49. Alternative punishments awardable by Security Force Courts - Subject to the provisions of this Act, a Security Force Court may, on convicting a person subject to this Act of any of the offences specified in Sections 14 to 45 [both inclusive] award either the particular punishment with which the offence is stated in the said sections to be punishable or, in lieu thereof any one of the punishments lower in the scale set out in Section 48 regard being had to the nature and degree of the offence.
50. Combination of punishments - A sentence of a Security Force Court may award in addition to, or without any one other punishment, the punishment specified in Clause (c) of Sub-section (1) of Section 48, and any one or more of the punishments specified in Clauses (e) to (l) [both inclusive] of that Sub-section.
further provide for not only awarding alternative punishments but also awarding combination of punishments as indicated in Section 50 of the Act. As noticed earlier, several punishments inflicted by the Security Force Courts are akin to punishments in a departmental proceedings by the employer against an erring employee. While the punishment of dismissal from service as it figures in Section 48(1)(c) of the Act is higher in scale to all other punishments enumerated under Clauses (d) to (l) of Page 1832 Sub-section (1) of Section 48 of the Act and punishment under Clause (d) of Section 48(1) which is imprisonment for a term not exceeding three months in Force custody is a lower punishment than dismissal from service, this punishment can be combined with any of the lesser punishments enumerated in Clauses (e) to (l) of Section 48(1) which is specifically enabled under Section 50 of the Act quoted above.
43. A careful reading of these provisions indicate that the respondent No. 2 - Director General of Border Security Force while exercising his power under Section 117 of the Act and as has been done in the instant case has reduced the punishment of dismissal to one of imprisonment for a term not exceeding three months in Force custody with the further direction that the petitioner's service in the interregnum between the date of order of dismissal and the date of his order should be regularised as per the relevant rules and as a consequence if the petitioner does not get any pay or allowances for this period, which can virtually amount to inflicting of any one or other punishments under Clauses (e) to (l) of Section 48(1), it is well within the competence of the respondent No. 2 -Director General who is exercising the statutory power under Section 117 of the Act.
44. This apart, in the present case, there is no setting aside of the order of dismissal, in the sense that, it is neither held illegal nor found wanting with any statutory requirement, but is only a case of reducing the sentence and the charge remains proved as against the petitioner. The authority in exercise of statutory power under Section 117 of the Act has reduced the sentence into a lower one as indicated in paragraph-11 of the order.
45. The observation of the Supreme Court as contained in paragraph-22 of Pyarelal Sharma's case supra which is in the context of service jurisprudence is an observation in a situation when an order of dismissal is found to be illegal and set aside by a court and the reasoning for directing the employer to pay wages for the earlier period proceeds on the premise that the employer has by passing an illegal order of dismissal prevented the employee from earning his pay and allowances in terms of the contract of employment. The legal principle even in the law of contract, in a situation when there is a breach of contract, the party to the contract who commits breach of the contract is required to compensate the sufferer and it is for this reason the courts have indicated that though the person had not actually worked for earning the pay and allowances, he should nevertheless be compensated by the employer by paying pay and allowances for the period. Otherwise, the basic postulate that a person gets pay and allowances only when he works and not otherwise remains in position and if the employee has not Page 1833 actually worked for the period, the employer can legitimately deny him any pay or allowances as the employee has not actually worked for the period. In the present case, there is no setting aside of the order of dismissal by the court or any higher authority and therefore the very observations as in paragraph-22 of Pyarelal Sharma's case supra does not apply to the present case and the question of automatic payment of back wages does not arise.
46. Though Col. Bhupinder Singh, learned Counsel for the petitioner has placed reliance on the observations of the Supreme Court made in paragraph-21 of Sheel Kumar's case supra, that a person by merely joining the Armed Forces does not cease to be a citizen or be prevented of human or constitutional right, it is precisely for this purpose, the above examination. But, notwithstanding being a Member of the Armed Forces or as in the present case, a Member of the Border Security Force, such person is nevertheless governed by the provisions of this Act and in the name of either a constitutional right or human right, the provisions of the Act which applies to the person cannot be brushed aside or ignored. If at all, the action under the provision can also be tested on the touchstone of the constitutional provisions and also on the basic human rights perception.
47. The legal foundation of the order passed by the respondent No. 2 - Director General in terms of Section 117 of the Act having been examined and the order being one valid in terms of the provisions of the Act, the next question will be what is the effect of this order, whether this order in fact has the effect of not providing pay or allowances to the petitioner and can also come in the way of the petitioner earning increments for the interregnum period. If the effect of the order passed by the respondent No. 2 in terms of Annexure-D is such, then the follow up action by the Commandant in terms of the order at Annexure-F sustains itself. If the effect of the order at Annexure-D passed by the respondent No. 2 - Director General is not that, the order passed by the Commandant automatically falls to ground. It is in this regard, the impact of the last sentence in the order passed by the Director General has to be examined which reads as, The interregnum period between dismissal firm the service and re-joining duties by the petitioner shall be regularized as per rules.
48. It is in this examination the provisions of the Fundamental Rules come into picture, which are made applicable to persons of the Force by the Presidential Order. The Fundamental Rule - 54 governs the situation.
While in a situation where the Government Servant who had been dismissed, removed or compulsorily retired, has been fully exonerated in the appeal or review, he would be normally entitled for full pay and allowances for the interregnum period subject to the rider that if the authority is of the view that the employee had contributed to the delay of the proceedings, the authority may reduce the pay and allowances after according an opportunity of hearing to the employee, but not to reduce it below the subsistence allowance for this period. Otherwise, in terms of Fundamental Rule 54(1), the authority competent to order reinstatement has to make a specific order for payment of pay and allowances for the period and also to indicate Page 1834 as to whether the said period is to be tried as period spent on duty or otherwise.
49. In the instant case, there is no setting aside of any order of dismissal, in the sense that, holding the order of dismissal to be illegal or bad due to any other reason. On the other hand, it is a case of commutation of the sentence imposed by the Summary Security Force Court. The authority has not made any positive order for payment of pay and allowances for the interregnum period. On the other hand, it is only indicated that the interregnum period should be regularized as per rules. If the interregnum period is not regularized as per rules, there will be a break in service, in which event, the employee like the petitioner will be rejoining duty at the starting point of the pay scale in the post to which he rejoins. He will be losing the past service benefits including the increments earned till then. But, the competent authority has expressly directed regularization of the interregnum period as per rules. That means that there cannot be any break in service and is to be treated as period spent on duty. In the absence of any positive order for payment of pay and allowances for the period and if the interregnum period is regularized, the other possible benefits are continuity of service, counting the period for retirement benefits like pension and gratuity etc., and for earning increments, in the sense, whether the period is to be treated as period for earning increments.
50. Sri. Yateesh Kumar, learned standing counsel for the Central Government submits that the provisions of fundamental rules and supplemental rules govern the service conditions of the Members of the Force and therefore a situation of the present nature is governed not only by the fundamental rules but also by the Pension Rules; that fundamental Rule 54 [for short 'the Rules] is attracted to a situation of this nature.
51. When once this legal position is conceded, the further examination will only be the outcome as a result of working fundamental Rule-54 and as to whether the concerned authority has adhered to the same.
52. It appears for such purposes, the Commandant, STC BSF Bangalore, to give effect to the orders passed by the appellate authority had issued an order dated 20.10.2005 [copy at Annexure-E], indicating, inter alia, that while the petitioner is to be treated as a person who has not put in qualifying service during the period when he was undergoing the punishment of three months rigorous imprisonment in Force custody, but nevertheless, the period will not constitute a break in service except for the purpose of computing his pension and further that the date of his earning next increment had been shifted from 10.10.2000 to 9.1.2001 because of serving of the sentence of three months rigorous imprisonment during this period, also refixed his pay and allowances as on 9.1.2005 by giving notional annual increments during the period between the order of dismissal and the order of reinstatement and accordingly was fixed in pay scale of Rs. 3050-75-3950-80-4590/- at Rs. 3,800/- with effect from 27.9.2005 i.e., the date when he has resumed to duty.
Page 1835
53. It was made clear in that order that the increments referred to were only notional and that the petitioner will not be entitled to any arrears of pay and allowances or annual increments but that will be subject to final orders to be passed by the competent authority regarding the status of interim period between 7.12.1999 to 27.9.2005.
54. Even before the ink was dry on this order, the respondent No. 3 passed yet another order on 2.12.2005 [copy at Annexure-F] varying the order to the extent of the period between 6.3.2000 to 26.9.2005 is to be treated as extraordinary leave which will not count towards qualifying service for the purpose of pension also. It was indicated that the entire period between 7.12.1999 the date of dismissal upto 27.9.2005 the date of reinstatement will not count towards qualifying service for the purpose of pension and also could not count towards increment and for the purpose of leave. The pay fixation in terms of the earlier order was also withdrawn and notional increments that had been given were cancelled and the petitioner was indicated that on reinstatement he is being fixed in the pay scale of Rs. 3050-75-3950-80-4590/- only at Rs. 3,425/- the pay the petitioner was drawing on the date of dismissal. There was also an order for recovery of any over payment made as a consequence of earlier order and as a result of the present order.
55. It is at this stage, the petitioner approached this Court impugning the order dated 2.12.2005 [copy at Annexure-F] contending that the order is totally prejudicial to the interest of the petitioner; that it has been passed behind the back of the petitioner even without affording an opportunity; that the petitioner was not even put on notice for modifying the earlier order dated 20.10.2005 and therefore the order dated 2.12.2005 deserves to be quashed for being in violation of the principles of natural justice and not following the rules and regulations etc.,.
56. While it is a fact that the order at Annexure-F had come to be passed without putting the petitioner on notice about such possibility, the further development during the pendency of the petition was that the petitioner had also given a representation seeking for pay and allowances for the period between dismissal and reinstatement which had not been touched upon either in the order at Annexure-E or in the order at Annexure-F and such representation it appears had been forwarded by the Commandant to the Director General of Border Security Force the appellate authority for consideration etc.,.
57. It further transpires that the appellate authority rejected the representation as devoid of merit and that was communicated by the DIG [HQ] FHQ vide their L/No. 50/215/Estt-II/DIG (HQ].FHQ/2006/14270 dated 25.8.2006 and in turn was so communicated to the petitioner as per communication dated 15.9.2006 from the office of the DIG & Commandant, STC.BSF, Bangalore.
58. It is on coming to the knowledge of this development which was during the pendency of the petition, petitioner has filed I.A. No. I of 2007 praying Page 1836 for amendment of the writ petition by including this subsequent fact and with an additional prayer for quashing of this communication.
59. The ground urged in support of this prayer is yet again that the order has been passed by the appellate authority the Director General without giving an opportunity to the petitioner and therefore is again in violation of the principles of natural justice.
60. When once it is not in dispute that the situation subsequent to passing of the order by the appellate authority and directing regularization of the services of the petitioner in accordance with the rule in the interregnum between the date of dismissal and the date of reinstatement is to be implemented, then orders as required under fundamental Rule 54 are necessarily to be passed.
61. Fundamental Rule - 54 reads as under:
[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 for 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 the 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, 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.
Page 1837 [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 (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 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 purpose;
Provided that if the Government 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 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] 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 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 Page 1838 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.
62. Fundamental Rule-54 of the Rules provide for not only the manner in which the period should be treated for the purpose of regularizing the service as otherwise it may amount to a break in service but also for making payment of pay and allowances for the period.
63. A perusal of fundamental Rule 54 clearly indicates that it is the provisions of Sub-rules - (4), (5) and (7) that are attracted to the present situation as the present situation is a case wherein the petitioner was not fully exonerated of the guilt by the appellate authority directing reinstatement and therefore the provisions of Sub-rules (4) and (5) comes into play.
64. Here again Sub-rule (5) of Rule-54 while provides for the manner of regularization of the period for service purpose i.e., the benefit of continuity of service, drawing pension etc., Sub-rule (7) provides for the minimum amount of pay and allowances that has to be given to such a person which is not less than the subsistence allowance admissible and other allowances admissible under Rule-53.
65. Sub Rule (4) of Rule-54 itself indicates that the amount to be paid to an employee in a situation of the present nature has to be less than the maximum pay payable if the person had continued in service and a combined reading of Sub-rules (4) and (7) indicate that such a person will be entitled for a minimum of pay and allowances equal to the subsistence allowance and other allowances in terms of Rule-53, but less than the maximum pay and allowances payable for the period. However, Sub-rule (4) again mandates the competent authority to issue a notice proposing the actual amount of pay and allowances it proposes to allow in favour of the person which can be between the two limits i.e., between the subsistence allowance and other allowances and the maximum pay and should allow a minimum period of 60 days to elapse to enable the person to represent against such fixation. Obviously, if the person finds the fixation to be low, he may represent for higher amount and that is the object of this rule.
66. Yet again another ambiguity is not clearly resolved, in the sense that who has to pass orders for the purpose of fundamental Rule 54. While part of the order it appears had been passed by the respondent No. 3 - the Commandant, the very order that he had passed in the first instance indicated that even that order was subject to final orders to be passed by the competent authority. It obviously gives an impression that he is not the competent authority.
67. It is for this reason, Col. Bhupinder Singh, learned Counsel for the petitioner has vehemently contended that the respondent No. 3 - Commandant who Page 1839 has passed orders both at Annexures- E & F is not competent to pass such orders and it was the Director General who should have passed the orders.
68. This apart, as the respondent No. 3 - Commandant has forwarded the representation of the petitioner with regard to pay and allowances for the period to the Director General and the Director General who had acted as an appellate authority having rejected that representation, it does give an impression that the Director General is the competent authority for the purpose of fundamental Rule -54.
69. It is not very clear as to the Commandant who in fact had initially passed the order of dismissal though acting as a Presiding Officer of Summary Staff Force Court is himself the competent authority as if he has the power and authority to pass the order of dismissal of the petitioner from the Force. It has to be necessarily inferred that he also has the competence to reinstatement into service.
70. This aspect being not clear it is for the authorities to examine this aspect and orders are to be passed by that authority who answers the requirement of Competent authority' for the purpose of fundamental Rule 54 which indicates that he should be an authority who is competent to order reinstatement of a dismissed person into service.
71. It may be so in the present case that the reinstatement itself is as a sequel to the order passed by the appellate authority which is the Director General. It need not be necessarily that the competent authority is also only the Director General. It may be that the Commandant thinks that the Director General being the appellate authority who has passed the order for reinstatement is the competent authority for passing the orders regarding the compliance with the fundamental Rule-54. But, that necessarily may not be the position as though the Director General is the appellate authority who had directed reinstatement as per his appellate order, it may still be possible that the respondent No. 3 -Commandant is the competent authority for the purpose of fundamental Rule -54. This aspect as is not made clear, it is left open to be examined by the authorities and to pass an order.
72. But, the matter does not end here as if the Commandant was the competent authority and has passed orders as at Annexures-E & F and even if the Director General was the competent authority if he has passed the second part of the order regarding fixation of pay and allowances under fundamental rule by rejecting the same, all orders are bad in law and deserve to be quashed for the simple reason that the competent authority whether be it the Commandant or the Director General has not followed the procedure contemplated under Sub-rule (4) of Rule-54.
73. The orders are also bad for the reason that under fundamental Rule-54, a combined reading of Sub-rules (4) and (7) indicate that the pay and allowances that has to be fixed to a person like the petitioner will be between the subsistence allowance and the actual pay and allowances that the person may draw for the period.
Page 1840
74. That means the person will definitely get minimum of subsistence allowance for the period but not as much as the full salary and allowances in terms of the orders passed by the authorities whether the Commandant or the Director General. Petitioner has been denied full pay and allowances for the period and that is how it is communicated to the petitioner. If so, such orders are not sustainable in law on the touchstone of the provisions of fundamental Rule - 54.
75. Though the precise order passed by the Director General is not placed before the court and only a copy of the communication received by the petitioner from the office of the Commandant as communicated to that office by the office of the Director General is placed before the court, the order of the Director General rejecting the representation of the petitioner necessarily has to be quashed.
76. It is for this reason, I.A. No. I of 2007 for amendment of the writ petition is allowed. The contents of the application is taken as part of the writ petition.
77. The order bearing No. 154/Eect/P-F/2005/8007 dated. 20.10.2005 (copy at Annexure-E] and order bearing No. 199 [CJMM]/Estt/STC/BLR/4582-86 dated 2.12.2005 [copy at Annexure-P] both issued by the respondent No. 3 and communication bearing No. 184/ Estt/STC/BSF/06/3901 dated 15.9.2006 [copy at Annexure - A1] issued by STC, BSF, Bangalore on behalf of respondent No. 2 are all quashed by issue of a writ of certiorari.
78. It is made clear that the orders are not sustainable for not only the reason of not extending the minimum of pay and allowances for the period but also for the reason that before fixing the amount the petitioner should have been given an opportunity and no such opportunity has been given as mandated under Rule-54 of the rules.
79. As a consequence of quashing of orders at Annexures-E, F and A1, though the petitioner would revert back to his earlier position of continuing service without proper fixation of pay and allowances, it is nevertheless directed that the beneficial part of order at Annexure-E in favour of the petitioner i.e., refixing his pay scale at Rs. 3,800/- with effect from 27.9.2005 shall be retained subject to the orders to be passed by the competent authority in this regard also.
80. No recovery can be made against the petitioner henceforth on the premise of the order at Annexure-F. However, any amount already recovered shall be again subject to the orders that are required to be passed by the competent authority in consonance with Rule-54.
81. The competent authority is directed to put the petitioner on notice about the proposal to fix his pay and allowances not only for the period between the date of dismissal and the date of reinstatement but also for the purpose of regularizing the services during this period by issuing a notice to the petitioner within 60 days from the date of receipt of copy of this order and to accord the petitioner an opportunity to represent which should be not less than 60 days in terms of Rule-54 and thereafter to dispose of the Page 1841 representation and pass orders in accordance with the provisions of Rule-54 (4), (5) and (7) of fundamental rules.
82. Writ petition allowed imposing cost of Rs. 5,000/- on the respondents payable to the petitioner.
Rule issued and made absolute.