Central Administrative Tribunal - Delhi
M P Singh vs M/O Railways on 5 October, 2016
1 OA No.100/2542/2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.100/2542/2012
New Delhi this the 5th day of October, 2016
HON'BLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
HON'BLE MR. V.N. GAUR, MEMBER (A)
Sh. M. P. Singh
S/o Late (Sh.) Sohan Pal
Office Superintendent Grade 1
DRM Office, Northern Railway,
State Entry Road,
New Delhi. ...Applicant
(Argued by: Ms. Meenu Mainee, Advocate)
Versus
1. Union of India through
General Manager,
Northern Railway,
Baroda House,
New Delhi.
2. Divisional Railway Manager,
Northern Railway, Delhi Division,
State Entry Road,
New Delhi.
3. Divisional Personnel Officer,
Northern Railway,
State Entry Road,
New Delhi. ...Respondents
(By Advocate : Mr. Satpal Singh)
ORDER (ORAL)
Justice M. S. Sullar, Member (J) The challenge in this Original Application (OA), filed by applicant, M.P. Singh, is to the Show Cause Notice (SCN) dated 09.05.2012 (Annexure A-1), order dated 22.05.2012 (Annexure A-2) of the competent authority and order dated 13.07.2012 (Annexure A-2A) of the Appellate Authority (AA). 2 OA No.100/2542/2012
2. The matrix of the facts and material, which needs a necessary mention, for the limited purpose of deciding the core controversy involved in the instant OA, and emanating from the record, is that applicant, while working as Sr. Clerk, produced some forged documents at the time of his seniority, transfer and promotion. Thus, he was stated to have committed grave misconduct, during the course of his employment.
3. As a consequence thereof, he was accordingly charge sheeted for imposing a minor penalty. After completion of enquiry, a penalty of dismissal from service was imposed on him, vide order dated 11.04.2005 by the Disciplinary Authority (DA). The applicant challenged the order of dismissal from service through the medium of OA bearing No.2412/2005. The OA was partly accepted and order of the punishing authority was set aside on a technical ground, vide order dated 12.12.2006 (Annexure A-3) by this Tribunal. The operative part of the said order is as under:-
"27. We also find that whereas the same disciplinary authority earlier on the same evidence and finding imposed upon applicant a major punishment of reduction by two stages but on disagreement in pursuance of the decision of the Tribunal and on remand of the case back by the appellate authority without looking into the earlier order passed and the punishment rather inflicted a severe punishment on a charge which could not be established, certainly shows his pre-determination of mind to inflict the penalty in its severest kind.
28. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Matter is remanded back to the respondents to be resumed from the stage of supply of the documents to applicant and thereafter procedure be adopted where law shall take its own course. However, applicant would be forthwith re-instated in service and the interregnum would be regulated in terms of rules, instructions and law on the subject. No costs".
4. Consequently, the applicant was reinstated in service in pursuance of the order of the Tribunal. The enquiry was 3 OA No.100/2542/2012 resumed from the stage of supply of documents to the applicant. Then the Enquiry Officer (EO) submitted his report on 23.12.2009 (Annexure A-4). The DA issued SCN along with the findings of the EO to the applicant, to which he filed the reply dated 04.02.2010 (Annexure A-5). The DA considered the reply, took a lenient view and imposed a penalty of withholding of three (3) sets of Privilege passes on the applicant, vide order dated 13.04.2010 (Annexure A-6). The applicant accepted and did not challenge the punishment order.
5. According to the applicant that although a minor penalty was imposed on the applicant, but the respondents did not pass any order in regard to the treatment of intervening period as spent on duty from 11.04.2005 (date of his dismissal) to 18.06.2007 (date of his reinstatement). He submitted representation dated 02.02.2011, requesting the competent authority to treat the intervening period as spent on duty. The respondents issued impugned SCN (Annexure A-1) proposing to treat the intervening period as leave of the kind due. He submitted the representation to SCN on 15.05.2012 (Annexure A-7). The competent authority considered the reply and treated the intervening period w.e.f. 11.04.2005 to 18.06.2007 as leave of the kind due, vide impugned order dated 22.05.2012 (Annexure A-2).
6. Dissatisfied with the order (Annexure A-1), the appeal filed by the applicant was dismissed, vide impugned order dated 13.07.2012 (Annexure A-2A) by the AA.
4 OA No.100/2542/2012
7. Aggrieved thereby, the applicant has challenged the impugned SCN and orders on the following grounds, invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985:-
"A. Because the charges levelled against the applicant were false and baseless and have not been conclusively proved in spite of two enquiries held.
B. Because in accordance with settled principles of law no government servant can be punished when the Enquiry Officer had not proved the charges conclusively and therefore disciplinary authority could not have imposed any penalty without giving an opportunity of hearing to the applicant after recording reasons and communicating the same to the applicant. In this view of the matter even the minor penalty which has been imposed is illegal and arbitrary because of being in violation of the principles of natural justice.
C. Because the disciplinary authority in such cases have no powers to treat the intervening period as 'leave due'.
D. Because as per Rule 1344(2)(i) the disciplinary authority cannot determine the amount less than the subsistence allowance.
E. Because as per DOPT when a minor penalty has been imposed there is no misconduct and as such the suspension period has to be treated as wholly unjustified and therefore the entire period of suspension including the intervening period which has to be treated as suspension in accordance with Rule 1343(7) of IREC has to be treated as period spent on duty with the benefit of full pay and allowance.
F. Because the case of the applicant is fully covered by the Railway Board's circular dated 21.3.1986 as also the judgment of the Hon'ble High Court.
G. Because the impugned order passed by the Respondent is without application of mind to the representation made by the applicant and therefore is a non-speaking order."
8. Levelling a variety of allegations and narrating the sequence of events, in all, the applicant claimed that he is entitled to the pay and other allowances for the intervening period, i.e., 11.04.2005 to 18.06.2007 as spent on duty, but the competent authority has illegally treated the said period, as leave of the kind due. On the strength of the aforesaid grounds, the applicant seeks quashing of impugned SCN and orders in the manner indicated hereinabove.
5 OA No.100/2542/2012
9. The respondents have refuted the claim of the applicant and filed the reply, wherein it was pleaded that, the competent authority on consideration of request of the applicant, issued SCN proposing to regularize the intervening period as "leave due". The representation (Annexure A-7) filed by him was duly considered, rejected and the DA treated the pointed period, as leave of the kind due, vide impugned order dated 22.05.2012 (Annexure A-2). The appeal filed by him was also dismissed, vide order dated 13.07.2012 (Annexure A-2A) by the AA.
10. The contesting respondents have specifically pleaded, that after the direction of the Tribunal, EO was nominated to resume the enquiry from the stage of supply of documents to the applicant. The EO submitted his findings as under:-
"The charges levelled against the CO of having submitted forged documents regarding his transfer does not stand conclusively proved".
11. Accordingly, a penalty of withholding of three (3) sets of Privilege passes was imposed on the applicant by the competent authority. It was confirmed that the pointed interregnum period was treated as leave of the kind due as per Rule 1343 (FR 54) as he was not exonerated from the charge and penalty was imposed. His case was considered under para 1343(4), as he was not fully exonerated. Even he did not challenge the order of punishment dated 13.04.2010 (Annexure A-6).
12. According to the respondents, since the applicant was not fully exonerated, he was reinstated and further enquiry was conducted against him, in which indicated minor penalty was imposed on him by the competent authority. Therefore, his 6 OA No.100/2542/2012 indicated interregnum period cannot be treated as spent on duty and he is not entitled to any pay/allowances in this regard.
13. Virtually acknowledging the factual matrix and reiterating the validity of the impugned SCN and orders, the respondents have stoutly denied all other allegations & grounds contained in the OA and prayed for its dismissal.
14. Controverting the allegations pleaded in the reply of the respondents and reiterating the grounds contained in the OA, the applicant filed the rejoinder. That is how we are seized of the matter.
15. Having heard the learned counsel for the parties, having gone through the records with their valuable assistance and after considering the entire matter, we are of the firm view that there is no merit, and the instant OA deserves to be dismissed, for the reasons mentioned hereinbelow.
16. As is evident from the record, that initially the applicant was charge sheeted for imposing a major penalty. He was dismissed from service, vide order dated 11.04.2005 by the DA. The penalty was upheld, vide order dated 09.09.2005 by the AA. However, the punishment orders were set aside on the technical ground and liberty was granted to the respondents, to resume the enquiry from the stage of supply of the documents to the applicant, vide order dated 12.12.2006 passed in OA bearing No.2412/2005 (Annexure A-3) by this Tribunal. It is not a matter of dispute that in compliance thereof, the applicant was reinstated in service. However, EO was nominated to resume 7 OA No.100/2542/2012 the departmental enquiry from the stage of supply of documents to the applicant. Ultimately, a lenient view was taken and minor penalty of stoppage of three (3) sets of Privilege passes was imposed on the applicant, vide order dated 13.04.2010 (Annexure A-6) by the competent authority, which has already attained the finality. In this manner, the applicant remained out of job w.e.f. 11.04.2005 (the date of his dismissal from service) to 18.06.2007 (the date of his reinstatement in pursuance of order of the Tribunal).
17. Thus, it would be seen, that the facts of the case are neither intricate, nor much disputed. Such this being the position of material on record, now the short and significant question that arises for our consideration in this case, is as to whether the interregnum period from 11.04.2005 to 18.06.2007 is liable to be treated as spent on duty and applicant is entitled to pay and allowances during the said period or not?
18. Having regards to the rival contentions of the learned counsel for the parties, the answer must obviously be in the negative in this regard.
19. Ex-facie, the argument of the learned counsel that the applicant is entitled to the pay and allowances of the pointed period in view of Circular of DOP&T No.11012/15/85-Estt(A) dated 03.12.1985 adopted by Railway Board, vide letter dated 21.03.1986 and clauses (2) and (7) of Rule 1343 (FR 54) (Annexure A-8), is not only devoid of merit but misplaced as well. Evidently, the instructions (Annexure A-8) deal with the 8 OA No.100/2542/2012 treatment of period of suspension in contemplation of regular Departmental Enquiries. Rule 1343 (1) of the Railway Rules postulates that when a railway servant, who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated, but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
20. According to sub-rule (2), where the authority competent to order re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
9 OA No.100/2542/2012Provided 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. Sub-rules (4) and (5) deals with the situations which do not fall under clauses (2) and (4).
21. Sequelly, according to Rule (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. Further according to Rule (7), the amount determined under the proviso of sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (FR 53).
22. Likewise, Rule 1344 (FR 54A) further posits that where the dismissal/removal or compulsory retirement of a railway servant is set aside by a Court of law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to 10 OA No.100/2542/2012 the directions, if any, of the court. Sub-rule (2)(i) further provides that where the dismissal, removal or compulsory retirement of a railway servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 1343 (FR 54), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired , or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
23. Therefore, a conjoint and meaningful reading of the above provisions would reveal, that the competent authority can only treat the period as spent on duty, if an employee is suspended in contemplation of departmental enquiry has been reinstated, if he was fully exonerated from the charges & without holding any further enquiry and not otherwise. As indicated hereinabove, in the instant case, the applicant was neither suspended during the course of resumption of the enquiry, nor 11 OA No.100/2542/2012 was fully exonerated from the charges without holding further enquiry. On the contrary, in compliance of the order of this Tribunal, the EO resumed the enquiry proceedings and ultimately a penalty of stoppage of 3 sets of Privilege passes was imposed on the applicant vide order dated 13.04.2010 (Annexure A-6) by the competent authority. The applicant has accepted, did not challenge the punishment order which has already attained the finality.
24. Therefore, since none of the indicated conditions, as contemplated under instructions (Annexure A-8) are fulfilled so the interregnum period of the applicant w.e.f. 11.04.2005 to 18.06.2007 indeed cannot and should not be treated as spent on duty, and the competent authority has rightly treated the same as leave of the kind due.
25. There is yet another aspect of the matter which can be viewed entirely from a different angle. The competent authority has followed the due procedure and issued the SCN (Annexure A-1) to the applicant proposing to treat the period as leave of the kind due. In pursuance thereof, applicant filed the reply dated 15.05.2012 (Annexure A-7). The competent authority, after considering the entire matter, treated the period from 11.04.2005 to 18.06.2007 as leave of the kind due, vide impugned order dated 22.05.2012 (Annexure A-2). 12 OA No.100/2542/2012
26. Not only that the matter was re-examined and the claim of the applicant was negated vide impugned order dated 13.07.2012 (Annexure A-2A) by the AA, which reads as under:-
"From the perusal of the file, it is seen that you were dismissed from service in April 2005 and appeal against these orders of Disciplinary Authority was also upheld by the Appellate Authority. Thereafter, you filed an OA No. 2412/2005 which was decided on 12.12.2006 wherein the Hon'ble Court partially allowed the OA and impugned orders were set aside and matter was remanded back to the respondents to resume the disciplinary proceedings from the stage of supply of documents to the applicant. While deciding this matter, Court also decided that applicant be forthwith reinstated in service and the interregnum would be regulated in terms of rules, instructions and law on the subject. Accordingly, you were put back on duty w.e.f. 21.06.2007. Finally on conclusion of disciplinary inquiry in this case, you were imposed a penalty of stoppage of three sets of privilege passes by the disciplinary authority on 13.04.2010.
You have requested for deciding the intervening period from 11.04.2005 to 18.06.2007 as duty between your earlier dismissal from service and re- instatement in service. Disciplinary Authority on consideration of your request, issued a Show Cause Notice in May 2012, wherein, it was decided to regulate this period as leave due. Your representation to this show because notice has been considered by disciplinary authority and it was decided and communicated to you that this intervening period has been decided as "Leave Due".
Now, you have submitted another appeal dated 18.06.2012, wherein you have again represented for declaring this intervening period as duty in terms of Rule 1343 (Para 6 & 7) of IREC Vol. II.
On going through the rule position, it is seen that rule 1344 (2) (i&ii) stipulates that:
1344(2) (i)-Where the dismissal, removal or compulsory retirement of a railway servant is set aside by the Court solely on the ground of non- compliance with the requirements of clause (1) or clause (2) of Article 311 of the Constitution and where you are not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 1343 (FR54), 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 compulsory retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be, as the competent authority may determine after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as maybe specified in the notice.
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the court shall be regularized in accordance with the provisions contained in sub-rule (5) of rule 1343.
Sub-rule 5 of rule 1343 stated that:-
"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 13 OA No.100/2542/2012 spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose, provided that if the railway servant so desires such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal m removal or compulsory retirement, as the case may be shall be converted into leave of any kind due and admissible to the railway servant."
Further, Govt. of India's order as recorded under FR 54(2) states that:-
"When suspension regularized as leave consequential recovery inescapable - A question having arisen whether in case where the period of suspension is ordered to be treated as one spent on leave and when on conversion it is found that the greater part of the period is to be treated as extraordinary leave for which no leave salary is admissible, the recovery of the subsistence allowance already paid would be in order. The moment the period of suspension is converted into leave it has the effect of vacating the order of suspension and it will be deemed not have been passed at all. Therefore, if it is found that the total amount of subsistence and compensatory allowances than an officer received during the period of suspension exceeds the amount of leave salary and allowances, the excess will have to be refunded and there is no escape from this conclusion."
From the above it is very clear that the intervening period in your case at the best can be decided as "Leave Due" and under no circumstances there is any case for regularizing this period as duty".
27. Meaning thereby, the authorities have considered the matter in the right perspective and correctly negated the claim of pay & allowances of the pointed interregnum period of the applicant by passing the speaking and reasoned orders. Moreover, the learned counsel for the applicant has miserably failed to point out any law, rule or instruction entitling the applicant to claim the pay & allowances, during the indicated period and thus the instructions/rules (Annexure A-8) would not come to his rescue in the obtaining circumstances of the case.
28. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
14 OA No.100/2542/2012
29. In the light of the aforesaid reasons, as there is no merit, the instant OA is dismissed. However, the parties are left to bear their own costs.
(V.N. GAUR) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
05.10.2016
Rakesh