Central Administrative Tribunal - Delhi
Shri Jagdish Prasad vs M/O Railways on 10 May, 2018
Central Administrative Tribunal
Principal Bench
OA No.4220/2014
MA No.2460/2016
MA No.3708/2014
New Delhi this the 10th day of May, 2018.
HON'BLE MRS. JASMINE AHMED, MEMBER (J)
HON'BLE MR. K.N. SHRIVASTAVA, MEMBER (A)
Jagdish Prasad (age 61),
Ex. Chief Goods Superintendent
Under DRM, North Central Railway,
Allahabad, presently R/o C/o Sanjay Kumar,
G-318 Kumhar Chowk, Chirag Delhi
Sheikh Sarai Phase-II,
New Delhi-17.
-Applicant
(By Advocate Mrs. Meenu Mainee)
-Versus-
1. Secretary,
Railway Board,
Ministry of Railways,
Rail Bhawan,
New Delhi.
2. The General Manager,
North Central Railway,
Allahabad.
3. Divisional Railway Manager,
North Central Railway,
Allahabad.
-Respondents
(By Advocate Mr. Shailendra Tiwary)
2
(OA No.4220/2014
MA No.2460/2016
MA No.3708/2014)
O R D E R (ORAL)
Shri K.N. Shrivastava:
Through the medium of this O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"8.2 That this Hon'ble Tribunal may further be pleased to treat the period from 19-3-2010 to 31-12-2012 as spent on duty and therefore pay wages, full pay and allowances minus the amount which has been paid as pension.
8.3 That this Hon'ble Tribunal may also be pleased to direct the respondents to pay the amount of commutation which they had admitted to be paid. A copy of the PPO is annexed as Annexure A-11."
2. The factual matrix of this case, as noticed from the record, is as under:-
2.1 The applicant was initially appointed as Goods Clerk in the respondent-Railway department on 30.06.1980. He earned his regular promotions and finally was promoted to the rank of Goods Supervisor in the pay scale of Rs.5500-9000 (5th CPC) by the DRM, Allahabad vide order dated 02.07.2004.
2.2 While he was posted as a Goods Supervisor at Mainpuri railway station, a memorandum of charges dated 28.07.2008 came to be issued to him for imposition of major penalty. It was alleged therein that the applicant with malafide intention had manipulated the records of the Railways. Instead of mentioning an amount of Rs.15,65,159/- in the Railway receipt for freight, he mentioned an 3 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) amount of Rs.15,93,931/-. The excess amount of Rs.28,772/-
shown in the Railway receipt was with a view to enable the parties to claim refund. Following the issuance of memorandum of charges, Departmental Enquiry (DE) proceedings were launched. The Disciplinary Authority (DA) namely, the Divisional Commercial Manager (DCM), Allahabad vide order dated 15.07.2009 imposed the penalty of "reduction in the same grade of Goods Supervisor and placed at the bottom of the scale, i.e., from Rs.18460/- to Rs.9300/- in Grade Rs.9300-34800 for a period of three years with cumulative effect."
2.3 The applicant appealed against the punishment order passed by the DA before the departmental Appellate Authority (AA), i.e., Senior DCM, Allahabad. The AA, however, enhanced the punishment and ordered for compulsory retirement of the applicant vide order dated 19.03.2010. The applicant preferred a Review Petition before the Revisionary Authority (RA), i.e., Additional Divisional Railway Manager, Allahabad, against the enhanced punishment, which was rejected by the RA vide order dated 07.08.2010.
2.4 The applicant challenged the orders of the DA, AA and RA before this Bench of the Tribunal in OA No.3281/2010. The Tribunal held that the punishment order has not been passed by the competent authority. The Tribunal was of the view that the 4 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) appointing authority, at the time when the punishment was imposed upon the applicant, is relevant and not the appointing authority at the time of initial appointment. Accordingly, the Tribunal disposed of the OA vide order dated 20.01.2012, in the following terms:
"10. We are of the firm opinion that the appointing authority at the time when the punishment was imposed upon the applicant is relevant and not the appointing authority at the time of initial appointment as made out by the respondents. Therefore, the impugned orders of punishment dated 15.07.2009 which are bad in law as without proving malafide, charges have been proved against the applicant and impugned orders of the appellate authority dated 21.10.2009 cannot be sustained on the ground that they have not been passed by the appointing authority. Accordingly we quash and set aside the impugned orders dated 15.07.2009 and 21.10.2009 and remit the matter back to the disciplinary authority to decide it afresh in the light of the observations made by us and after considering all the grounds raised by the applicant, pass reasoned and speaking orders in accordance with rules and law within a period of three months from the date of receipt of a copy of this order. Meanwhile, the applicant is to be allowed to join duty forthwith. The period from the date of compulsory retirement to the date of joining will be decided by the competent authority, at the time of finalizing the departmental proceedings against the applicant, as to whether he will be treated as on duty or otherwise."
2.5 The order of the Tribunal was challenged by the Railway Department before the Hon'ble High Court of Delhi in W.P. (C) No.4847/2012 , which was dismissed vide order dated 22.04.2013 in the following terms:
"14. Clarifying with respect to the inchoate finding written by the Tribunal in para 8 of its opinion with respect to the merits of the indictment, we concur that the competent authority has not passed the penalty order of compulsory retirement requiring the competent authority to start from the stage when the wrong was committed.5 (OA No.4220/2014 MA No.2460/2016
MA No.3708/2014)
15. The writ petition is accordingly dismissed."
2.6 The applicant, in the meanwhile, had retired from the service on reaching the age of superannuation on 31.12.2012. Taking this into consideration, the respondents vide the impugned Annexure A- 1 order dated 16.12.2013 regularized the period from the date of his compulsory retirement, i.e., 19.03.2013 and till the date of his superannuation, i.e., 31.12.2012 as leave admissible to him. The operative part of the order reads as under:
"Now in terms of judgment orders referred as above, the orders dated 15.07.2009 and 19.03.2010 are quashed and set aside. Since you have already attended superannuation on 31.12.2012 the period from the date of compulsory retirement i.e. 19.03.2010 to the due date of superannuation i.e. on 31.12.2012 is regularized into leave admissible to you on the date of superannuation."
2.7 Aggrieved by the impugned Annexure A-1 order the applicant has filed the instant OA praying for the reliefs as indicated in para-1 supra.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply in which, inter alia, they have stated that the competent authority has regularized the intervening period (from the date of compulsory retirement to date of superannuation) in accordance with Rule 1344 (FR 54-A) sub para 2
(i) & (ii) along with Rule 1343 (FR 54) sub para (5) of IREC-II. It is stated that according to these rules the period of absence from duty including the period of suspension preceding the dismissal, removal 6 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) 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 so treated for any other specific purpose 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 case may be, shall be converted into leave of any kind due to the railway servant. It is thus contended that in terms of the ibid rules, the intervening period has been regularized as leave admissible to the applicant.
4. Arguments of the learned counsel for the parties were heard.
5. It would appear from the records that after the Tribunal vide its order dated 20.01.2012 in OA No.3281/2010 had held that the punishment order has not been passed by the competent authority and after the order of the Tribunal was upheld in the Hon'ble High Court of Delhi in W.P. (C) No.4847/2012 dated 22.04.2013, the respondents decided not to proceed with the DE proceedings. Instead, they decided to allow the applicant to retire in the normal course and chose to regularize the intervening period (from the date of his compulsory retirement w.e.f. 19.03.2010 and till the date of his superannuation, i.e., 31.12.2012) by sanctioning leave to the applicant. This action of the respondents cannot be approved and appreciated. After all, the applicant could not discharge his duties during the intervening period for the reasons entirely attributable to 7 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) the respondents. It is the respondents who had imposed the penalty of compulsory retirement on the applicant w.e.f. 19.03.2010, due to which the applicant could not work in the intervening period. Therefore, they are liable for paying him salary for the intervening period. As such, this period cannot be adjusted against the leave due to the credit of the applicant.
6. Sub-rule 4 of Rule 54 of the Fundamental Rules provides that when the appellate or reviewing authority set aside the order of dismissal, removal or compulsory retirement of a Government servant solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution of India and no further inquiry is proposed to be held, the Government servant shall be paid such amount, not being the whole, of 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 government servant of the quantum proposed and after considering the representation, if any, submitted by the Government servant in that regard. FR 54 (4) reads as under:
"(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 8 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) the Constitution of India 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 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 government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.
7. As noticed hereinabove, the respondents themselves have decided not to impose any penalty of dismissal, removal or compulsory retirement on the applicant and hence the applicant is entitled to get his pay and allowances to which he was entitled for the intervening period.
8. In the conspectus, this OA is allowed with the following directions to the respondent-Railways:
i) The period from 19.03.2010 (date of compulsory retirement which has since been withdrawn) to 31.12.2012 (date of his normal superannuation) shall be treated as spent on duty. The applicant shall be entitled to full pay and allowances for this period.
ii) The applicant shall also be entitled for commutation value of pension.
iii) The payments in relation to (i) and (ii) supra shall be released to the applicant within a period of three months from the date of receipt of a certified copy of this order. It is, 9 (OA No.4220/2014 MA No.2460/2016 MA No.3708/2014) however, made clear that the applicant shall not be entitled for any interest on the arrears.
9. In view of the order passed in the OA, no separate order is required to be passed on MAs, which are accordingly disposed of.
10. There shall be no order as to costs.
(K.N. Shrivastava) (Jasmine Ahmed) Member (A) Member (J) 'San.'