Central Administrative Tribunal - Ahmedabad
Sh. Jatashankarsingh Ramsingh vs Union Of India (Uoi) And Ors. on 10 December, 2004
Equivalent citations: 2005(2)SLJ377(CAT)
JUDGMENT Shankar Prasad, Member (A)
1. Aggrieved by the order dated 31.01.2003, which treats the period from the date of removal to that of reinstatement as dies non and asks him to refund the amount of compassionate allowance and D.C.R.G. etc. with interest before he can be actually reinstated and the subsequent order dated 07.03.2003 (Annexure A-4) on his application dated 13.02.2003 the applicant has preferred the present O.A. He has sought for the following relief:
"10.1 In view of the facts mentioned in para 6 above the applicant prays to the Hon'ble Tribunal to quash and set aside Paras 2 to 3 of Annexure A/4.
(A) The first part of penalty is already implemented and direct to the respondents to pay the salary of a Khalasi from 12.10.1995 to 12.10.1998.
(B) The applicant should be passed as Fitter Grade-II from 13.10.1998 and pay the salary with arrears with all consequential benefits.
10.2 Any other relief which the Hon'ble Tribunal deems fit.
10.3 Cost of the suit be awarded."
2. The facts lie in a narrow compass. The applicant was proceeded against on the charge of unauthorised absence. A penalty of removal from service was imposed vide order dated 12.10.1995. The appeal and revision were rejected. The applicant preferred O.A. 713/1997. The said O.A. was disposed off vide order dated 23.01.2002 with a direction to reconsider the quantum of punishment. The Tribunal, while upholding the findings of Enquiry Officer, quashed and set aside the order of punishment.
The respondents preferred Special C.A. 5280/02 before the Gujarat High Court. The same was dismissed vide orders dated 16.12.2003. The respondents were also asked to bear a cost of 3,500 only.
The order dated 31.01.2003 was issued thereafter. They asked him to refund the amount after which further action for reinstatement will be taken. The applicant submitted a representation dated 13.02.2003 that he should be reinstated without asking for refund of compassionate allowance. It was contended that no D.C.R.G. was paid and that this period cannot be treated as dies non. It appears from Annexure A-3 that the applicant was reinstated in service subject to outcome of proposed S.L.P.
3. The order dated 07.03.2003 (Annexure A-4) indicated that the amount paid earlier as D.C.R.G./compassionate allowance shall be recovered from his salary and the balance amount from his terminal benefits. It also indicated that as the Central Administrative Tribunal has passed no order for intervening period, this had already been decided as dies non. The relief for quashing of these directions.
4. We have heard the Learned Counsels.
5. It has been contended by Learned Counsel for the applicant that as the penalty order has been quashed and the revised penalty imposed, the penalty has to be substituted from that very date. As the three year penalty will be over in 1998 he is required to be restored to his earlier post from that date. He has also relied on Railway Board Circular R.B.E. 98/ 96.
The respondents, on the other hand, have stated that the Tribunal had not exonerated the applicant. The decision has been rightly taken,
6. The short question for consideration is as to whether the modified order passed by the Disciplinary Authority on the directions of the Tribunal relates back to the date of the original order of Disciplinary Authority.
7. Mr Handa, Learned Counsel for the applicant, has relied on the Railway Board Circular R.B.E. 98/96 dated 03.10.1996. The Railway Board vide its circular has clarified various points relating to the Railway Servants (Discipline & Appeal) Rules. Point (ii) clarified by this order is as follows:
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Points Raised Clarifications
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(ii) Whether the reduced penalty In cases where the penalty of dismissal/ should take effect from the date of removal/compulsory retirement is set
original penalty of dismissal/removal/ aside in appeal orreview and the employee compulsory retirement. is reinstated in service with a reduced penalty, the reduced penalty takes effect from the date of reinstatement. In all other cases, the reduced penalty takes effect from the date of imposition of the original penalty. This is because regular-
isation of the intervening period from the date of dismissal/removal/compulsory retirement to the date of reinstatement including the period of suspension, if any, is governed by provisions contained in Rules 1343-RII which may be contra-
vened if the reduced penalty takes effect from the date of the original penalty.
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It is clear from this circular that when the earlier orders of dismissal, removal, compulsory retirement are set aside by the Tribunal and matter remitted back to Disciplinary Authority for imposing any other penalty or Tribunal modifies the penalty it shall relate back to the date of imposition of original penalty.
8. We also not in this connection the decision of the 7 Judge Bench of Apex Court in S.S. Rathore v. State of M.P., . The applicant was dismissed from service vide order dated 13.01.1966 and the appeal was dismissed vide order dated 31.08.1966 and was communicated to the applicant on 19.09.1966. The applicant filed a suit on 30.09.1969 after serving notice under Section 80, C.P.C. on 17.6.1969. The Trial Court accepted the plea that suit was time barred as it had not been filed within three years of the order of Disciplinary Authority. The first and second appeal failed. The Division Bench of the Apex Court in the light of 5 Judges decision in Sitaram Goel v. The Municipal Board, Kanpur, , dismissed the appeal and observed that the decision in Sita Ram Goel's case requires to be considered by Larger Bench. It amongst others held:
"The distinction adopted in Mohammad Nooh's case, AIR 1958 SC 86, between a Court and a Tribunal being the appellate or the Revisional Authority is one without any legal justification. Powers of adjudication ordinarily vested in Courts are being exercised under the law by Tribunals and other constituted authorities. In fact, in respect of may disputes the jurisdiction of the Court is now barred and there is a vesting of jurisdiction in Tribunals and authorities. That being the position, we see no justification for the distinction between Courts and Tribunals in regard to the principle of merger. On the authority of the precedents indicated, it must be held that the order of dismissal made by the Collector did merge into the order of the Divisional Commissioner when the appellant" appeal was dismissed on 31.8.1966.
9. It is clear from the above decision of the Apex Court that the punishment order passed by the Appellate Authority shall also relate back to the date of passing of the order by Disciplinary Authority.
10. Whether the part of this circular 98/96 which states that where the order is set aside by the Appellate Authority or Revisional Authority the modified penalty takes effect from the date of reinstatement is valid in law is not examined as the same is not before us in the instant case.
11. The penalty imposed on the applicant is as follows:
"A penalty of reversion from Skilled Fitter to Khalasi Scale Rs. 2550-3200 on minimum pay of Rs. 2550 p.m. for 03 years 'A penalty of reversion from Skilled Fitter to Khalasi Scale Rs. 2550-3200 on minimum pay of Rs. 2550 p.m. for 03 years with future effect'."
This penalty is a major penalty within the meaning of Rule 6 of the Railway Servants (Discipline & Appeal) Rules.
12. The Railway Board letter dated 30.07.1964 indicates that the order of reversion to lower grade, etc. should specifically indicate that the reduction is permanent or for indefinite period and if the period of reduction is specified, whether on re-promotion the railway servant will regain his original seniority in the higher service, grade or post or higher time scale which had been assigned to him prior to the imposition of penalty.
It also suggests that where an order of reduction is intended for a indefinite period the order should be framed on the following lines.
(a) "His reduction to a lower post/grade/service of X until he is found fit by the competent authority to be restored to the higher post/grade/service of Y."
(b) Railway Board letter dated 27.08.1966 and 26.05.1970 indicate that re-promotion will be ordered only by the Competent Authority to do so and the Disciplinary Authority has nothing to do with it as such.
Railway Board's order quoted at page 95 and 96 of M.L. Jand's Railway Servants (Discipline & Appeal) Rules, 1968 [1991 Edition].
It is clear from the above that the applicant is not automatically entitled to promotion after three years from the date of reinstatement.
13. Rule 5(3) of Railway Servants (Discipline & Appeal) Rules provides that where the penalty of dismissal, removal or compulsory retirement of service of a Government servant under suspension is set aside in appeal or on revision and review and remitted for further action the Government servant shall be deemed to be under suspension till further order.
Rule 5(4) contains provisions relating to deemed suspension of a Railway servant when the penalty of dismissal/removal/compulsory retirement is set aside or declared or rendered void on account of a decision of a Court of Law and the Disciplinary Authority deciding to holding a further enquiry against him on the allegations.
14. Rule 1342 of Indian Railway Establishment Code contains provisions relating to pay under suspension. Rule 1343 contains provisions regarding the pay & allowances payable to a Government servant whose dismissal/removal/compulsory retirement had been set aside by the Appellate/Revisional Authority. It contains provisions as to how the period will be treated. This rule envisages two situations namely- where the applicant has been completely exonerated and those cases where the orders are set aside for violation of Article 311(2) and no further enquiry is proposed. Rule 1344 relates to the situation where the order of dismissal, removal or compulsory retirement was quashed by a Court of law and Government servant is reinstated without further enquiry. This rule also envisages two situations as in Rule 1343. Rule 1345 contains provisions relating to employees who were under suspension.
15. Para 1344 (i) of the Indian Railway Establishment Code reads as follows:
"(i) Where the dismissal, removal or compulsory retirement of arailway 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 regularised 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."
Does it cover both the situations, namely when the applicant is reinstated without punishment or reinstated together with punishment?
A related question is as to whether the revised penalty of stoppage of increment, reduction to a lower stage or reduction to a lower scale of pay, grade, post or service without or without cumulative can be imposed during a period when the applicant is not on duty?
16. The first question to be considered is as to whether the case of the applicant is governed by Rule 5(4) of Railway Servants (Discipline & Appeal) Rules, 1968 or Rule 1344 of I.R.E.C. Vol.11 or by some other rule. The answer to this question depends on as to at what stage the disciplinary enquiry is concluded. If the enquiry concludes with the imposition of penalty or-exoneration of the delinquent employee then Rule 5(4) of Railway Servants (Discipline & Appeal) Rules, will be applicable and not the Rule 1344.
17. We note that Part IV of Railway Servants (Discipline & Appeal) Rules, 1968 contains provisions relating to a procedure for imposing the penalties. Rule 9 provides for the procedure for imposing major penalties and Rule 10 for action on the enquiry report. Rule 11 provides the procedure for imposing minor penalties. It is clear from a reading of Rule 9 along with Rule 10 or a reading of Rule 11 along with Rule 10 that the disciplinary proceedings concludes with remitting the matter for further enquiry or issuing a disagreement note or exoneration of the concerned Government servant. This, however, doe's not mean that the Disciplinary Authority can keep on remitting the matter back for getting a favourable report. Even after receipt of further report of the Inquiry Officer/reply to the disagreement note, the Disciplinary Authority has to come to a finding as to whether the employee is to be exonerated or appropriate penalty has to be imposed.
18. We note in this connection the following decision of Constitution Bench in K.R. Deb v. Collector of Central Excise, Shillong, . The appellant has been issued a charge sheet. The Enquiry Officer held that charges were not proved. A supplementary enquiry was ordered. The second Inquiry Officer too exonerated him. The disciplinary officer thereafter directed examination of two more witnesses. On receipt of the report of the second Enquiry Officer, a third Enquiry Officer was appointed vide order dated 13.4.1982. The third Enquiry Officer held the delinquent guilty. The Apex Court was seized off the question whether successive Enquiry Officer can be appointed. It held:
"13. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusions under Rule 9."
19. It therefore follows that there can be one enquiry only and that there can be no repeated enquiry into the same charge.
It also follows from a plain reading of Rule 10 'action of enquiry report' that enquiry' concludes with the passing of final order by Disciplinary Authority either imposing the penalty or exonerating the Government servant.
20. The case will accordingly be governed by Rule 5(4) of Rail way Servants (Discipline & Appeal) Rules, 1968 and not Rule 1344. The applicant will be under deemed suspension. The case of the applicant will be governed by Rule 1345 of I.R.E.C. This rule requires passing of two orders namely that for payment of pay and allowances during this period and as to how this period has to be treated. A bare perusal of the order will show that provisions of this rule have not been considered.
21. Can a penalty be imposed even if the applicant is not to be treated on duty. As we have noted in the preceding paragraph a part of pay and allowance is payable. They have to be computed with reference to a particular scale. It shall have to be in accordance with the penalty order.
22. The last contention of the applicant is that the compassionate allowance paid to the applicant is not recoverable. We note that the said compassionate allowance is referred to in the Chapter V of Railway Servants (Pension) Rules which provides for types of pension. Rule 40 of the said Rules provide that in case of dismissal/removal from service, the past service shall be forfeited and accordingly no pension shall be payable. This Rule 65 is in the nature of exception to this general rule and provides for payment of pension upto 2/3rd of what would be otherwise payable as pension. This has been termed as compassionate allowance.
Once the employee had started receiving this pension it could have been argued as to whether he can challenge the penalty. Be it as it may, the applicant has been reinstated in service and would continue to serve till the date of his superannuation. He can now earn pension only after superannuation. The amount of compassionate allowance sanctioned in an altogether different situation has accordingly be refunded.
23. The impugned orders to the extent they treat this period as dies non only are set aside. The respondents shall pass an order in accordance with Rule 1345. The applicant is also not entitled for automatic promotion and shall be entitled for further promotion only in accordance with instructions quoted in para 11 above. The respondents are entitled to recover the amount of compassionate allowance/D.C.R.G. together with interest as per rules/instructions in force. The O.A. is disposed of accordingly. No costs.