Central Administrative Tribunal - Allahabad
Sudhanshu Vachaspati Tripathi vs General Manager N C Rly on 2 August, 2024
O.A./1230/2019
(Reserved on 23.07.2024)
Central Administrative Tribunal, Allahabad
Original Application No.1230 of 2019
nd
Pronounced on this the 2 Day of August, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Sudhanshu Vachaspati Tripathi S/o Sri Vachaspati Tripathi, R/o Village
Bariyarpur Bheshki, P.O. Saidabad, District Allahabad.
...........Applicant
By Advocate: Shri Bashist Tiwari
Versus
1. Union of India through the General Manager, North Central
Railway, Allahabad.
2. Senior Divisional Personnel Officer, North Central Railway,
Jhansi.
3. Accounts Officer, North Central Railway, Jhansi
...Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"(i) To issue an order or direction commanding the respondents to reinstate the applicant in scale of Rs. 200-250/-
(corresponding to Rs. 2610-3540/-) as on 15.04.1984 when he was removed from service working in this pay scale and drawing salary amounting Rs. 208/- per month and again give promotional benefit in comparison with his juniors.
Page 1 of 17MADHU KUMARI O.A./1230/2019
(ii) To issue an order or direction commanding the respondents to give benefit of ACP in scale of Rs. 800-1150/- and further he is entitled benefit of 2nd MACP in scale of Rs. 825-1200/- in pursuance of Railway Board's letters dated 01.10.1999 and 10.06.2009 with corresponding grade and grade pay with effect from 01.10.1999 and 01.09.2008 respectively.
(iii) To issue an order or direction commanding the respondents to grant medical and pass facility as he had worked for more than 39 years.
(iv) To issue an order or direction commanding the respondents to pay interest @ 12% on the amount due in pursuance of payment of subsistence allowance, revised pension and pensionary benefits including commutation value and other retiral dues.
(v) To issue an order or direction commanding the respondents to give Provident Fund and amount of insurance since 12.11.1976 to 15.04.1984 to the applicant.
(vi) To grant all the consequential relief which the applicant is entitled for.
(vii) To grant any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(viii) To award the cost.
2. A brief account of the facts involved in this case are that the applicant was appointed as Pointman on 12.11.1976 in Nagpur Division of Central Railway and he was transferred to Jabalpur in 1980. Due to unauthorized absence from duty w.e.f. 01.02.1981 to 12.03.1981 and 15.02.1982 to 05.06.1983, major penalty charge sheet was issued against the applicant and after taking representation on 06.12.1983 and after holding ex parte inquiry, the applicant was removed from service by order dated 31.03.1984 w.e.f. 15.04.1984. He filed a revision petition on 12.02.1996 and as the same was pending he filed the O.A. No. 948 of 1996 before this Tribunal which was disposed of on 16.05.2001 with the direction to decide the revision petition. On 30.08.2001, the Page 2 of 17 MADHU KUMARI O.A./1230/2019 General Manager rejected the revision petition of the applicant challenging which the applicant filed O.A. No.43 of 2002 before this Tribunal which was allowed on 19.08.2002 and after setting aside the removal order dated 31.03.1984, the respondents were directed to take disciplinary action against the applicant after serving a memo of charge and submission of reply. The respondents filed the Civil Misc. Writ Petition No. 52322 of 2022, (Union of India through the General Manager, Central Railway, Mumbai and another v. Central Administrative Tribunal, Allahabad and another) which was dismissed on 20.03.2007. Consequently, by order dated 23.07.2007 issued on behalf of Divisional Railway Manager (P), Jhansi, applicant was posted as Assistant Pointman in scale of Rs. 2550-3200/- which was corresponding to old grade amounting to Rs. 196-232/-
3. Aggrieved by order dated 23.07.2007, and other consequential order about absent period being treated as dies-non by the respondents, the applicant filed another Original Application No. 777 of 2009, which was dismissed by this Tribunal on 13.04.2010 against which the applicant preferred Civil Misc. Writ Petition No. 43945 of 2010 which was decided by the Hon'ble High Court on 30.05.2019. The operative portion of the said judgment reads as under:
"27. Thus, petitioner in view of Rule 5(4) of 1968, Rules is entitled to suspension allowance from the period 15.4.1984 to 23.07.2007. The order dated 13.04.2010 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad is set aside. Further, petitioner is entitled to all the consequential benefits arising thereof."
The Divisional Railway Manager (P), North Central Railway, Jhansi issued letters dated 19.07.2019 and 29.08.2019 in which he had written that order dated 30.05.2019 passed by the Hon'ble High Court in Writ Petition No.43945 of 2010 is being complied with and by letter dated 29.08.2019 he had intimated the applicant Page 3 of 17 MADHU KUMARI O.A./1230/2019 that Rs. 370292/- has been paid through CO-7 No. 522 dated 09.08.2019.
4. We have heard learned counsel appearing for the parties.
5. Submission of learned counsel for the applicant is that from perusal of the letter dated 29.08.2019, it is not clear on what basis and at what rate the subsistence allowance has been given to the applicant and no workout proceeding has been attached along with this letter. It is further argued that the applicant was drawing salary amounting to Rs. 208/- per month in the pay scale of Rs.200-250/- at the time of removal from service w.e.f. 15.04.1984 and it appears that the respondents have wrongly paid subsistence allowance since 15.04.1984 to 23.07.2007 in scale of Rs. 196-232/- per month. He further argues that the railway administration has not given PF and amount of insurance since 12.11.1976 to 15.04.1984 and no action has been taken about payment of PF and insurance, which comes within the purview of criminal breach of trust as defined under Section 405 I.P.C. and punishable under Section 409 I.P.C.
7. It is further contended by learned counsel for the applicant that after passing of the revisional order dated 22.01.2009 by Senior Divisional Operating Manager, N.C. Railway, Jhansi, punishment was modified to withholding of one increment for one year. This penal order will not affect any benefit which is given at the time of retirement by means of retiral dues and pay scale will be restored after one year and for the intervening period, decision of appointing authority will be maintained. He avers that the Hon'ble High Court in Para-27 of the judgment dated 30.05.2019 ordered that the applicant is entitled for all the consequential benefits thereof. Meaning thereby period w.e.f. 15.04.1984 to 23.07.2007 will be deemed to be treated as service period and all the consequential benefits should be given as per rules applicable on subject. From perusal of Pension Payment Order dated 26.06.2015, it is clear that only 13 years service period has been counted for calculating the pension, pass, medical and other retiral Page 4 of 17 MADHU KUMARI O.A./1230/2019 benefits which is absolutely incorrect in the eyes of law. In the present case, date of removal is 15.04.1984, as such, only period between 15.04.1984 to 15.04.1985 will be treated as penal period of one year and the same will be ignored in counting the service period although this period is withholding of increment which is minor penalty and in the case of minor penalty, this period cannot be excluded in computing the qualifying period for pensionary benefits. He states that according to the instructions issued by the Railway Board on 21.01.1993 by R.B.E. No. 13/93 in Para-3.6 of this letter if a minor penalty is imposed, the employee is entitled to be included in the panel prepared before expiry of the punishment period and if the junior is promoted, interpolation of the name of such employee is necessary. The Railway Board had issued a circular dated 01.10.1999 for upgradation of Group-B, C and D services/posts and isolated posts in Group-A, B, C and D categories. According to Annexure-I to this letter, after completion of 12 years from the date of first appointment an employee is entitled to be given upgradation in higher scale. In the present case, the applicant was appointed in scale of Rs. 196-232/- on 12.11.1976, and he was promoted on 28.07.1980 in scale of Rs. 200-250/- per month, and he was drawing salary Rs. 208/- per month when he was removed from service by order dated 31.03.1984. According to instructions issued by Railway Board on 01.10.1999, the applicant claims that he is entitled to the benefit of upgradation after completion of 12 years i.e. on 28.07.1980, meaning thereby, that the applicant is entitled to the benefit of upgradation after 28.07.1992 from the date of operation of the Railway Board's letter dated 01.10.1999. He further states that the applicant had completed 30 years qualifying service period and he is entitled to the benefit of 3rd MACP which is due after completion of 30 years in pursuance of Railway Board's letter dated 10.06.2009 issued by the Government of India, Ministry of Railways and denial of the same after passing order dated 30.05.2019 in Civil Misc. Writ Petition No. 43945 of 2010, Sudhanshu Vachaspati Tripathi v. Union of India and others is Page 5 of 17 MADHU KUMARI O.A./1230/2019 wholly illegal and arbitrary and all the retiral benefits are liable to be given by the railway administration which is also in consonance with the order passed by the revisional authority/ Senior Divisional Operating Manager, N.C. Railway, Jhansi on 22.01.2009.
8. Learned counsel for the applicant also argues that the benefit of 2nd MACP w.e.f. 01.09.2008 is liable to be given in pursuance of Railway Board's letter dated 10.06.2009. He contends that during the pendency of the disciplinary proceedings and judicial litigation, the applicant was deprived of promotional benefits and in the meantime, so many juniors have been promoted and posted against higher post and after retirement they are getting more pensionary benefits in comparison to the applicant, though they are junior. He states that in the case of S.K. Dua Vs. State of Haryana and another, reported in (2008) 3 SCC 44, it has been held by Hon'ble Supreme Court that "If there are Statutory Rules occupying the field, the appellant could claim payment of interest relying on such rules. If there are Administrative Instructions, Guidelines or Norms prescribed for the purpose, the appellant may claim benefit of interest on that basis. But even in absence of Statutory Rules, Administrative Instructions or Guidelines, an employee can claim interest under Part III of the Constitution relying on Articles 14, 19, and 21 of the Constitution. In the case of Union of India vs. Justice S.S. Sandhawalia, reported in (1994) 2 SCC 240, Hon'ble Supreme Court has held that once it is established that an amount legally due to a party was not paid to it, the party responsible for withholding the same must pay interest at a rate considered reasonable by the Court. Thus, he claims that the applicant is entitled for 12% interest for non-payment and delayed payment of all monetary benefits even though the rule is silent on this topic. He states that after a lapse of long time and long litigation, the railway administration has not reinstated the applicant in the scale of Rs.200-250/- corresponding to the scale of Rs. 2610-3540/-.
Page 6 of 17MADHU KUMARI O.A./1230/2019
9. Submission of learned counsel for the respondents is that para 37 of the Railway Service (Pension) Rules, 1993, reads as follows:-
"Counting period suspension- Where a railway servant is kept under suspension pending inquiry into his conduct the period of such suspension shall count as qualifying service only where on conclusion of such inquiry, he has been fully exonerated or the suspension is held to be wholly unjustified and in other cases, the period of such suspension shall not count unless the authority competent to pass orders count it under the rule governing such extent as that authority may declare. Where the authority reinstating the railway servant had not passed order as to the treatment of the period of suspension for the purpose of qualifying service for pensionary benefits the period of suspension shall qualify only if it had been treated as duty or leave due, as the case may be. He states that as per para 606 (ii) and 606 (iii) of Indian Railway Establishment Manual "606. (ii) From 1-1-73, the annual increment will be admitted from the first of the month in which it would fall due under the operation of normal rules and orders regulating increments. For this-
(a) An employee on leave draws leave salary and not duty pay. So, an increment accruing while on leave cannot be drawn during leave. It will be drawn from the date of resumption of duty on return from leave.
(b) In case of postponement of increments due to leave without pay, the postponement will be worked out as per normal rules and the increment granted from the first of the month.
(c) In case of there being broken periods of service at the same stage and next increment falls on a date later than 1st of the month, it will be granted from the 1st of the month provided the Railway servant had been holding the post from the 1st of that month to the date it falls due. Else, it will be granted from the date it falls due.Page 7 of 17
MADHU KUMARI O.A./1230/2019
(d) In case of withholding of increments for a specified period, if penalty expires after 1st of the month, the increment will be restored/granted from the date the penalty ceased. However, the next increment will be granted from the first of the month in which it would fall due.
(e) In case of increments other than normal increments e.g. advance or enhanced increments due to passing certain examination, the increment will be governed by normal rules and not by this rule.
606. (iii) In order to arrive at the date of increment where the different spells and/or total of the periods not counting for increments exceed 29 days, the periods as well as the total of the periods not counting for increments should be converted in terms of months and days in accordance with instructions. The total period so converted shall be added to the date of mal increment to arrive at the actual date of increment as provided in proviso to Rule 1320-R-II(1987 Edition) to illustrate the above ---and in view of the above the applicant is not entitled for pay increment because the applicant has been paid substance allowance for the given period.
10. Learned counsel for the respondents argues that the applicant has not completed the qualifying service of 12 years for granting the benefit of ACP because the applicant is suspended for the period of 15-04-1984 to 23-07-2007 which according to rule, is not counted for the purpose of granting ACP. The condition No.4 of the ACP scheme is stipulated as under: The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed conditions. In other words, if the first upgradation gets postponed on account of the employee not found fit or due to departmental proceedings, etc this would have a consequential effect on the second upgradation which would also get deferred accordingly. It is further submitted that the Page 8 of 17 MADHU KUMARI O.A./1230/2019 applicant joined the services on 25.07.2007 in lieu of the order dated 23.07.2007 and as such the applicant was getting the benefit of MACP in Grade pay of Rs. 1900/- after completing 10 years of qualifying service from 15.02.2010 which is according to rule/ condition of MACP scheme. He submits that in compliance of the order dated 30.05.2019 passed by the Hon'ble High Court, the applicant is entitled for suspension allowance for the period between 15.04.1984 to 23.07.2007 which is accordingly paid vide order dated 09.08.2019 to the tune of Rs. 370292/- and PPO has been prepared on the basis of last salary drawn which is correct as per rules since as per para 37 of Railway Service (Pension) Rules, 1993, the period of suspension is not counted as qualifying service for the purpose of pensionary benefit. It is submitted that the applicant was reinstated in service in the grade pay of Rs. 1800/- by the order dated 23.07.2007 and the applicant joined services on 25.07.2007 and accordingly the applicant was entitled for one financial upgradation in the MACP scheme in pay scale of Rs. 1900/- which is done according to rule. It is further submitted that the total length of the qualifying service of the applicant from the period of 12.11.1976 to 30.06.2015 is only 13 years, 01 month and 16 days and according to the qualifying service, the applicant was paid all his final payments and as per rules, the qualifying service of the applicant is less than 20 years, hence, he is not entitled for traveling pass.
11. Learned counsel for the applicant has reiterated his arguments in the rejoinder and further contended that the applicant is requesting that the period since 15.04.1984 to 23.07.2007 may be regularized by granting different kind of leaves and that the applicant was imposed minor penalty withholding increment for one year with cumulative effect, as such, according to the provisions contained in Government of India, Department of Personnel and Training, Office Memorandum No. 11012/15/85-Estt. (A) dated 03.12.1985, suspension period is wholly unjustified and the whole period is liable to be treated as on duty. In this respect, the applicant relied on the judgment of the Central Administrative Tribunal, Jabalpur Page 9 of 17 MADHU KUMARI O.A./1230/2019 Bench dated 04.10.2013 passed in Original Application No. 336 of 2010, P.K. Shrivastava v. Union of India and others. It is also pointed out that as per the judgment given by the Hon'ble Supreme Court in the case of Union of India and others v. P. Gunasekaran, reported in (2015) 1 SCC (L&S) 554, in Para-25 of the judgment, the Hon'ble Supreme Court has held that substituted punishment will be effective from the date of passing of original order dated 15.04.1984, as such, punishment period will be over on 15.04.1985 after completion of one year, and thereafter there is no any punishment in the eye of law, as such, this period cannot be treated as dies-non when there is no other punishment against the applicant at that very time.
12. We have considered the rival submissions of learned counsel appearing for both the parties and perused the entire documents on record.
13. The removal order passed against the applicant vide order dated 30.03.1984 was set aside by this Tribunal vide its order dated 19.08.2002 passed in O.A./43/2002 and the applicant was reinstated vide order dated 23.07.2007. Subsequently, Hon'ble High Court of Allahabad held the applicant entitled for the suspension allowance for the period between 15.04.1984 to 23.07.2007 along with all the consequential benefits.
14. We shall be taking for consideration the various reliefs claimed by the applicant in this O.A. one at a time.
(i) With respect to relief no.(i), the applicant has claimed to be reinstated in pay scale of Rs.200-250/- (corresponding to Rs. 2610-3540/-) as on 15.04.1984 when he was removed from service and drawing salary amounting Rs. 208/- per month and to give promotional benefit in comparison with his juniors. As per the order of reinstatement by this Tribunal, the respondents were to reinstate the applicant on the pay he was drawing at the time of removal from service. Perusal of the removal order dated 31.03.1984 reveals that the applicant was drawing his salary in the Page 10 of 17 MADHU KUMARI O.A./1230/2019 pay scale of Rs. 200-250 at the time of removal while the respondents claim that as per the service record, the applicant was drawing his pay in the pay scale of Rs. 196-232 after being reverted on transfer on his own request to Jabalpur division. There is a clear anomaly regarding the pay drawn by the applicant at the time of his removal. Even on request transfer, the employee shall be kept at the bottom in seniority with respect to the similarly placed personnels but his pay shall be protected. Thus, the applicant should have been reinstated in pay scale of Rs.200-250/- as he was drawing on 15.04.1984 when he was removed from service.
(ii) So far as relief no.(ii) is concerned, the applicant has prayed for grant of ACP in scale of Rs. 800-1150/- and further benefit of 2nd MACP in scale of Rs. 825-1200/- in pursuance of Railway Board's letters dated 01.10.1999 and 10.06.2009 with corresponding grade and grade pay with effect from 01.10.1999 and 01.09.2008 respectively. For the purpose of ACP and MACP, there are certain benchmark qualifications that need to be satisfied. These qualification criteria cannot be fulfilled by the applicant unless the period between 15.04.1984 and 23.07.2007, during which the applicant was removed from service and which is treated as period of suspension as per Rule 5 (4) of Railway Servant (Discipline and Appeal) Rules, 1968 following the revocation of the removal order by this Tribunal, is regularized by the respondents as per the rules in this regard. The respondents, however, have decided to treat this period of suspension as dies non. As the punishment order has been modified by the respondents, in light of the modified punishment order, there is no justification for treating the suspension period as dies non.
(iii) So far as relief no. (iii) is concerned, the applicant claimed the grant of medical and pass facility for which he shall be eligible if the aforesaid period of suspension is counted for this purpose.
(iv) With respect to the claim of interest on the amount due as subsistence allowance, revised pension and pensionary benefits Page 11 of 17 MADHU KUMARI O.A./1230/2019 including commutation value and other retiral dues, it must be clarified that the Hon'ble High Court has not given any specific direction regarding payment of interest on the suspension allowance and as the said order has attained finality and since the direction for payment of arrear is not the same as direction for payment of interest as well, in absence of any specific order to that effect, interest on the amount due cannot be claimed as vested right.
(v) With respect to relief no.(v) as for grant of Provident Fund and amount of insurance from 12.11.1976 to 15.04.1984 to the applicant, the same shall be due to the applicant since he had been in service for the said period.
15. DoPT OM No.11012/15/85-Estt (A) dated 03.12.1985 provides as under:
"...Accordingly, where departmental proceedings against a suspended employee for the imposition of a major penalty finally end with the imposition of a minor penalty, the suspension can be said to be wholly unjustified in terms of FR (54-B) and the employee concerned should, therefore, be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B."
FR- 54 provides that :
(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the 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 or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and
(b) Whether or not the said period shall be treated as a period spend 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 Page 12 of 17 MADHU KUMARI O.A./1230/2019 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 the 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 servant 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, it any, submitted by him in thal 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.
(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 duly, 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 casa may be, shall be converted into leave of any kind due and admissible to the railway servant.
16. As per Railway Services (Pension) Rules-1993, "39. Counting of past service on reinstatement- (1) A railway servant, who is dismissed, removed or compulsorily retired from service, but is reinstated on appeal review, is entitled to count his past service as qualifying Page 13 of 17 MADHU KUMARI O.A./1230/2019 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 or reinstatement.
17. The applicant has argued that the removal order has been modified to a minor penalty of withholding of increment and he has further claimed that according to the provisions contained in the Government of India, Department of Personnel and Training, Office Memorandum No. 11012/15/85-Estt. (A) dated 03.12.1985, his suspension period is wholly unjustified and the whole period is liable to be treated as on duty. In this respect, the applicant relied on the judgment of the Central Administrative Tribunal, Jabalpur Bench dated 04.10.2013 passed in Original Application No. 336 of 2010, P.K. Shrivastava v. Union of India and others.
18. The applicant has contended that as per the judgment given by the Hon'ble Supreme Court in the case of Union of India and others v. P. Gunasekaran, reported in (2015) 1 SCC (L&S) 554, in Para-25 of the judgment, the Hon'ble Supreme Court has held that substituted punishment will be effective from the date of passing of original order dated 15.04.1984, as such, punishment period will be over on 15.04.1985 after completion of one year, and thereafter there is no punishment in the eyes of law, as such, this period cannot be treated as dies-non when there is no any other punishment against the applicant at that very time. The relevant portion of the judgment given by the Hon'ble Supreme Court in the case of Union of India and others v. P. Gunasekaran (supra) is as under:
"25. The last contention is with regard to date of effect of the punishment. According to the respondents, even assuming that compulsory retirement is to be imposed, it could be only with effect from the date of order viz. 28-2-2000. We are unable to appreciate the contention. The respondent stood dismissed from service as per order dated 10-6-1997. It was that punishment which was directed to be reconsidered.Page 14 of 17
MADHU KUMARI O.A./1230/2019 Consequent thereon only, the punishment was altered/ substituted to compulsory retirement. Necessarily, it has to be from the date of dismissal from service viz. 10-6-1997."
Order in OA 43 2002 order dated 19.08.2002 is as under:
" Considering the facts and circumstances of the case in our opinion, the ends of justice will be served if the respondents are directed to reopen the inquiry from the stage of the service of the memo of charge and submission of reply by the applicant and conclude it within the time fixed by this order. The counsel for the applicant has submitted that applicant shall extend full co-operation in concluding the inquiry within the time fixed by this Tribunal. It is made clear that the applicant has been supplied copy of all the documents of the disciplinary proceedings and he will not claim any adjournment on the ground of non supply of the documents.
For the reasons stated above, this O.A. is allowed. The order dated 30.8.2001 passed by General Manager (Annexure
1) and order dated 30/31.3.1984 passed by Disciplinary Authority are quashed. The disciplinary proceedings against the applicant shall be resumed from the stage stated above and shall be concluded within three months from the date a copy of this order is filed. So far as the back wages and other reliefs are concerned, they shall be considered by the Disciplinary Authority and orders shall be passed in accordance with law.
There will be no order as to costs."
Comparing the aforesaid two orders, in the case of the applicant, the disciplinary proceedings have been directed to be resumed from a particular stage and the punishment order is not merely directed to be reconsidered. Thus, the final punishment imposed upon the applicant should be considered effective from the date on which it is imposed rather than retrospectively from the date on which the previous order of removal from service was imposed upon him.
19. In view of the above discussions, we pass the following orders:-
(i) With respect ot relief no.(i) claimed by the applicant, the respondents are hereby directed to address the anomaly of pay scale of the applicant at the time of his removal from service on 15.04.1984 supported firmly by official documents and records and treat the applicant as reinstated on 23.07.2007 on the pay scale Page 15 of 17 MADHU KUMARI O.A./1230/2019 he was actually drawing at the time of his removal from service on 15.04.1984 keeping in view the fact that even on request transfer, although seniority is forfeited, the pay has to be protected.
(ii) With respect to relief no. (ii), the respondents are hereby directed to reconsider the period of suspension of the applicant between 15.04.1984 to 23.07.2007 in light of the DoPT OM No.11012/15/85-Estt (A) dated 03.12.1985 since the punishment finally imposed upon the applicant is a minor punishment and thus, the period of suspension of the applicant should be treated in light of the aforesaid OM. Having reconsidered the aforesaid period of suspension of the applicant in light of the OM No.11012/15/85-Estt (A) dated 03.12.1985, the respondents shall further consider the case of the applicant for grant of the benefit of ACP in scale of Rs. 800-1150/- and 2nd MACP in scale of Rs.825-1200/- in pursuance of Railway Board's letters dated 01.10.1999 and 10.06.2009 with corresponding grade and grade pay with effect from 01.10.1999 and 01.09.2008 respectively only if the applicant satisfies the conditions for the same as per the rules governing the matter.
(iii) With respect to relief no. (iii), the respondents are directed to reconsider the case of the applicant for grant of medical and pass facility by counting the period of suspension for this purpose since finally there is an imposition of a minor penalty upon the applicant.
(iv) So far as relief no. (iv) is concerned, the same is rejected for the reasons already discussed above in para 14 of this order.
(v) Relief No. (v) is allowed and the respondents are directed to give Provident Fund and amount of insurance from 12.11.1976 to 15.04.1984 to the applicant.
(vi) The aforesaid exercise including the payment of arrears of the amount accruing to the applicant as a result thereof should be completed within a period of five months from the date of receipt of a certified copy of this order.
Page 16 of 17MADHU KUMARI O.A./1230/2019
20. Thus, the O.A. stands partly allowed with the above directions and the respondents are also directed to grant the consequential service benefits arising out of the outcome of the decision after complying with the directions given in para 19 above. All associated M.A.s also stand disposed of. No order as to costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
Page 17 of 17
MADHU KUMARI