Central Administrative Tribunal - Mumbai
Manoj Vyankatrao Kumare vs M/O Railways on 4 June, 2024
1 OA No.224/2020 CENTRAL ADMINISTRATIVE TRIBUNAL, MUMBAI BENCH, MUMBAI | a ORIGINAL APPLICATION No.224/2020 | Dated this Tuesday, the oa% day of June, 2024 CORAM: SHRI R.N.SINGH, MEMBER (JUDICIAL) SHRI RAJINDER KASHYAp, MEMBER (A) Shri Manoj Vyankatrao: Kurnare (deceased) through legal heir (1) Smt. Shatin; Manoj Kumare, Age 48 years, Wife of Late Shri Manoj Vyankatrao Kumare, Residing at: Shivaaradhana -- Tulip, Plot No.7, Shiv Ganga Nagar, Ambernath (East) 421 501. (2) Smt. Vinaya Kumare, Age 23 years, Daughter of Late Manoj Vyankatrao Kuma re, Residing at: Shivaaradhana -- Tulip, Plot No.7, Shiv Ganga Nagar, Ambernath (East) 421 501. ; - Applicants (By Advocate Shri 'Vishal P, Shirke) Versus 1. Union of India, Through the General Manager, Central Railway, CSMT, Mumbai 400 001. 2, The Divisional Railway Manager, Central Railway, CSMT, . Mumbai. 400 001. a - Respondents (By AdvocateShri R.R.Shetty) Reserved an 15.03.2024 Prdnounced on 04 .06.2024. Page lof33 2 DA No.224/202¢ ORDER Per: Rajinder Kashyap, Member (A)
The applicant is challenging the order dated 19. 11.2018 ys which the respondent No.2 has decided to treat the intervening period between thedate of removal of the Applicant from service til the date Ofreinstatement ie. from 22.06.2001 to 19. 11.2018 as dies nonfor allpurposes, The Applicant \ Was removed from service vide order dated22.06.2001 after holding him guilty in the disciplinary proceedings. The said removal order came to be set aside by this Tribunal anil1.03.2004 on the ground that the penalty was imposed by an incompetent Authority. Respondents were given liberty to proceed in thematter by referring the matter to the competent authority. The order ofthis. Tribunal was challenged by the Railway Administrationbefore the Hon'ble High Court and during its peridency, the order passedby this Tribunal was stayed. By order dated 30.01.2018, theHon'ble High Court was pleased to dismissed the Writ Petition filed bythe Railway Administration (respondents) and the order passed by this Tribunal was upheld. Towards implementation of the said Orders, orderdated 19.11.2018 came to be passed reinstating the Applicant in --
4 Page 2 of 33 3 OA No.224/2029service. However, shockingly the intervening period from the date of dismissaltill the date of reinstatement will be treated as dies non.
Representationof the Applicant is rejected, Hence, applicant has approached this Tribunal by filing this OA under Section 19 of the Administrative Tribunals, Act, 1985 by seeking the following reliefs: -
*8a) This: Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same quash and set aside the order dated 1$.11,2018 to the extent it seeks to treat as intervening period as dies nonas well as letter dated 03.02.2020 with all 'consequential benefits.
8(b). This Hon'ble Tribunal may graciously be pleased to direct the Respondents to treat the intervening period of the Applicant from thedate of his removal til his reinstatement L@. 22.06.2001 te 18.11.2018 as duty for all Purposes such as pay and allowances, increments, seniority, promotion, eligibility service, financial upgradation etc. &{t}. This Hon'ble Tribunal may graciously be pleased to direct the Respondents. ta Pay to the Applicant arrears arising out of treatment of the period from 22.06.2001 to 19.14.2018 as duty for all purposes along with interest @ 12% per annum.
8(d). Costs of the application be provided for.
8{e). Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed." | Page 3 of 33 4 ©. OANe.224/2029
2. the brief facts Of the case are that the applicant was appointed on the post of Untrained Clerk on 03.08.199. He was promoted to the post of senior Booki ing Clerk on 09.02.1999 and was posted as Ambernath Station. During the surprise check conducted, the applicant was placed under suspension on 18.02.1999. The suspension was revoked on 25.03.1999. He was issued Memorandum of Charge-sheet dated 07.04.1999, Vide order dated 22.06.2001, penalty of removal from - Service was imposed upon the applicant. The said penalty was upheld by the Appellate Authority on 01.11.2001. The Revising Authority also --
agreed to the decision of the Appellate Authority on 14.02.2002.
2{a).. The Applicant filed Original Application No.829/2002 before this Tribunal challenging which was decided on 11.03.2004(Annexure A-3). This Tribunal held that the officer who im posed penalty on the Applicant was not competént to impdsé the said penalty and, therefore, quashed and set aside the order of the Disciplinary Authority dated 22.06. 2001 and Appellate Authority's order dated 01.01.2001 and of the Revising. Authority's order dated 14.02.2002. The applicant was directed to be reinstated. Respondents were, however, granted liberty to Proceed ahead in the matter by referring the same to the Competent Authority Page 4of33 --
5 OA No.224/2999said Writ Petition, the Hon'ble High Court vide is order dated 30.06:2005 stayed the order of Tribunal. The said Writ Petition was finally heard and decided by this Hon'ble High Court on 30.01.2018 tannexure Ad) wherein the order of this Tribunal was set aside. The respondent No.2 issued order of 19.11.2018 and applicant Was reinstated. In the Said order, it was directed that the applicant "
The said order dated 19.11.2018 is challenged in the Present Original Application to the limited extent it seeks to treat the intervening period as dies non.Page 5 of 33 6 OA No.224/3020
2{c). The Applicant accordingly joined at Bhandup Station on 19.11.2018, The Respondents in the meantime proceeded ahead with the disciplinary Proceedings and issued order dated 31.01.2019 (Annexure A-S}imposing penalty of withholding of increment of pay for
31.01.2019, He further states that he made. representation dated *8.06.2019{Annexure A-6} challenging the decision of the Respondents te treat the. intervening pariod.as dies non. Since no reply was received, Applicant submitted letter dated 29.08.2019(Annexure A-7).
2(d). The Applicant has been given reply dated 03.02.2020 (Annexure A-2) statirig that the Rule No.1344 (Vol-H) (FR 54 (a)} is not applicable to the case of the Applicant, which is also the impugned Order in the Present OA. The said letter merely narrates the chronology of events leading to passing of the reinstatement order, the said letter does not really record any reason for rejecting the representation 'of the \ Applicant.
Page 6 of 33 7 OA No.224/20902(é). The Applicant challenges the propriety, legality and Constitutional Validity of impugned order dated 19.11.2018 as well as order of dated 93.02.2020 on following amongst many other grounds which are taken without prejudice to one another:
"(a) 'The impugned order dated 19.11.2018, to the extent of treatment of intervening period as dies non, as well as order of dated 03.02.2020 are ex-facie illegal and deserve to be quashed and set aside. .
(b) The ease of the Applicant is governed by provisions of FR 54{a}(2) which Provides that where dismissal, remova! or of the quantum Proposed and after considering the representation submitted by him. In the Present case the Said.
Process has not at ail been followed.
(¢) FR 54fay(2}(i) Specifically provides that the amount to be paid to the government Servant who has not been determined shall net be lass than the subsistence allowance, Thus under the Provisions of FR 24(a}(2Hi) read with FR (7)
(d) In the Peculiar facts and circumstances of the case, the aside by this Tribunat on 11.03.2004. it js the Railway | | Page 7 of 33 8 OA No.224/2029 reinstated immediately and would-have received full pay and allowances, Promotions, ACP/MACP etc.However, on account of the conduct of the Respondents, the Applicant remained Out of duty for a period of 14 years. Therefore, in the peculiar facts and circumstances of the case the intervening period has to be treated as duty for all purposes, (=) Another factor which is required to be taken into consideration is that the Applicant is ultimately punished with the penalty of Withholding of increment for a period of one Promotions etc. in respect of the said period.
(g) Qn account of pendency of Writ Petition of the Respondents before the High Court, the intervening period cannot be treated as dies non. On the contrary the Original penalty of the Applicant of removal from service has not been Sustained and is replaced with substantially lesser penalty of | Page 8 of 33 3 GA No.224/2029 | Applicant has been reinstated in service on account of the fact that the penalty of removal from service was not Warranted, Therefore the Applicant cannot be denied pay, allowances and other beriefitsin respect of the intervening period.
{h} There is absolutely no application of mind on the part of the Respondents while rejecting the application for decision and because liberty was granted, Rule 1344 (VOL-II) (E.R, 54A) is fot applicable. However as demonstrated hereinabove E.R. S4A to {i} clearly states that when removal js Set aside on allowances which shall not be less than subsistence allowance, However, this Tule is not at all taken into consideration by Respondent No.2. The letter dated 03.02.2020 thus suffers.
from cornplete Non-application of mind and déserves to be quashed and set aside.
fi) The Applicant was appointed in Railways on 03.08.1993 and by the time removed from service on 22.06.2001, he had fendered only about g years of service. After keeping the Applicant out of service during the years 2001 to 2018, he came to be reinstated in service only on 19.11.2018, Therefore, if the intervening period is not treated as duty, the "Page 9 of 33 10 ; OA No.224/2020 2(f}. Hence, the applicant Prays before this Tribunal to give direction to the respondents to. quash and set aside the order dated 19.11.2018 and treat the intervening Period of the applicant from the date of his removal till his reinstatement as duty for all Purposes and also to pay arreats Tor the period from.22.06.2001 to 19.11.2008 along with interest @ 12 per annum with al consequential benefits,
3. Respondents have filed their reply on 24.02.2021 and submitted that the applicant in the present OA has had a long history of litigation with the respondents and is seéking quashing and setting aside of Order dated 19.11.2018 to the extent that the intervening period from the date of his removal from service on 22.06.2001 until his reinstatement inte: service on 19.14.2013 should not be treated as Dies non but should be treated as Duty with all consequential benefits.
3{a). The respondents submits that the chequered history in the present OA is that the applicant joined in 1993 as Junior Booking Clerk and Was eventually promoted to the post to Senior Booking Clerk. On 09.02.1999, the applicant whilst posted as Senior Booking Clerk at Ambernath Station g0t himself embroiled in a corruption case which in | Page 10 of 33 1i CA No.224/2020 turn resulted in issue of charge sheet on 07.04.1999, Deta is of charges levelled against applicant is recorded in order dated 11.03.2004 Passed by this Tribunal in OA 829/2002. The said charge-sheet culminated in 01:11: 2001 & 14.02.2069.
3(b). They submit that the applicant invoked the jurisdiction of this Tribunal by way of OA No.828/2002 which came to be finally decided on Applicant was directed to be reinstated into service on the technical ground that the order of the Disciplinary Authority (DCM) is not the competent to impose the penalty of removal from service. Whilst quashing the orders of the Disciplinary, Appellate and Revisionary Authorities, the Hon'ble Tribunal! granted the liberty to the Competent Authority to continue with the departmental proceedings as also treat thie. intervening period in the Manner deemed ap propriate.
Page 11 of 33 12 ' OA No.224/20293(c). They submit that the Respondents challenged the said Judgment by way of a Writ Petition being W.P. No.4072/2005 before the Hon'ble High Court of Judicature at Bombay. The Hon'ble High Court was pleased to stay the Judgment of the Tribunal vide its interim Order dated 30.06.2005 (Annexure R-1). The Writ Petition was finally decided by the Disciplinary Proceedings were eventually completed and a penalty of withholding of increment of pay for a period of one year with cumulative effect was imposed on 31.01.2019. Whilst doing So, the respondents were at liberty to take decision in respect of intervening period as deemed appropriate. The respondents keeping in view the Provisions of Rule 1343 & 1344 of TREC-Vol- decided that the intervening period will be treated as "Dies non", which is the only &rievance of the applicant. A copy of Said rule is annexed as Annexure-
R-2.
3(d). it is Pertinent to mention here that the charge against the applicant was.one of Corruption and the same has been proved against ! Page 12 of 33 13 OA No.224/2929 the applicant, the respondents only impased a major penalty of withholding of increment for a period for one year with cumulative effect. It would be interesting to note that the applicant has not bothered to challenge the penalty order imposed against him Which ebviously is indicative of the guilt of the applicant, It is pertinent to mentien here that the reason for imposing such a lenient penalty has also béen made clear by the Disciplinary Authority who has taken note of the long Perdency of the litigation -and, therefore, imposed the penalty in question. Having dane so, the applicant had already got the benefit of leniency only on account of the jong pending litigation, The applicant, therefore, cannot be granted any further benefit.
3fe). Further, the respondents have repeated and 'reiterated their submissions and again submits that the applicant Shri Manoj V Kumare, Senior Booking Clerk at Ambernath Station while working as booking clerk on ticket booking window No. MCT, at Ambernath Station in 07.00 to 15,00 hrs, shift on 09.02.1999. committed serious misconduct in that:
() 'He collected a sum of Rs. 157/- (Rupees One Hundred Fifty-Seven anly) from G.S. Yadav RPF CT No.1225, the decoy passenger while issuing a ticket No. 06719 li/M-
Exp Card ticket ex.ABH to HYB fare Rs. 147/- (Rupees
-| Page 13 of 33
i d i
(ii) (iff)
(iv)
(v) 14 OA No.224/2026 One Hundred atid Forty-Seven Only) and he thereby ireegularly overcharged the decoy passenger by Rs.10/-
{Rupees Ten an ly} in this transaction.
During the vigilance check, Rs.140.50/- (Rupees One Hundred Forty-Seven and Fifty paisa) found excess in his Railway cash, which was remitted under sundry earning vide M.R. No. €281925 dated 09.02.1999 During the vigilance check, Rs, 10/- ( Rupees Ten Only} found excess in his Private cash which was remitted under sundry earning vide MR No. C287926 dated 99.02.1999, An inquiry was conducted and the charges were held to be proved. A copy of the inquiry report was ; Sent to the DE on 29.05.2001 and the acknowledged by The DE submitted his representation dated 18.06.2001 against the Inquiry Officer's report. After considering al] - the facts, Disciplinary Authority-DCM (Cog) CSTM imposed the Penalty "Removal fram Service" vide Order service" which was imposed upon him.
That this Hon'ble Tribunal vide its Order dated 11.03.2004 quashed and set aside the order holding that
- the Order passed by the authority holding the pcm is | Page 14 of 33 15 CA No.224/2029 not Competent Authority to impose the penalty of removal as he was subordinate in rank to the Appointing Authority. That this Hon'ble Tribunal further held that the aptilicant Stands reinstated, however, liberty was granted te the Railwayadministration te proceed in the matter by referring it to thecompetent authority for appropriate orders includingtreatment of period from the date of removal from service to reinstatement. The Said Order of this Tribunal was challenged by the Railway Administration by way of Writ Petition No.4072/2005. The Writ Petition filed by the Railway was dismissed by the Hon'ble High Court of Judicature at Bombay vide Order dated 30.01.2018.
(vi) Further, the matter has been considered in consultation with the Learned ASG, who has Opined that the case js not fit for filing an S.LP. in the Hon'ble Supreme Court. Therefore, the Railway is advised to implement the Judgment of - the Hon'ble Tribunal in this case. Accordingly, the applicant was reinstated and posted as competent authority ie. Sr. DCM (Wks) had decided that intervening period will be treated as "Dies non" for ail purpose. The same is in consonance with the provisions of Rule 1343 & 1344 of IREC-VoI-IL In the light of the aforesaid submissions, the respondents respectfully pray that this Hon'ble Tribunal! may be pleased to dismiss the
0.A. with costs. .
| | Page 15 of 33 16 OA No.224/2020 3{f). The respondents further submits that there js no question of granting any relief to the applicant since the charge against the applicant is that of corruption which has come to be proved and the applicant has accepted the penalty imposed upon him. Therefore, the question oftreating the said period as duty and granting him benefit of Promotion, ACP/MACP sj imply does not arise and is a preposterous demand of the applicant. It is pointed out that during the pendency of 'OA, applicant has. expired. After the death of applicant settlement dues and family penston as applicable under Rule has been paid to the legal heir of the applicant, ag. The respondents submit that a carefu] perusal of the Order of penalty would go to show that the respondents are well within their rights to treat the intervening period from the date of sett ng aside the order of removal fram service until the date of his reinstatement as Dies nen. The same, therefore, does not Warrant any interference. in the light of the aforesaid. submissions, the respondents Pray that this Tribunal may bé pleased to dismiss the OA as being devoid of merits.
Page 16 of 33 17 OA No.224/20204 --s Ih rebuttal, applicant has filed his rejoinder on 08.03.2021, He submits that the issue involved in the present OA is whether the intervening. period between 22.06.2001 te 18.41.2018 can be completely wiped off when the actual penalty imposed upon the Applicant in the year 2001 was only stoppage of increment for 1 year with cumulative effect. Actually, the penalty imposed vide order dated 31.01.2019 should date back to the date of the original penalty i.e, 22.06.2001, The question, therefore, is whether the respondents were justified in keeping the applicant away from duties for 17 long years when the misconduct alleged, was iniposed with Penalty of stoppage of increment for 1 year with cumulative effect. This is all the more important in view of the fact that the Original Applicant is no more and has expired in July 2020 and the Present OA is being prosecuted by his wife and daughter solely for the purpose of receipt of wages and other benefits in respect to the period from 22.06.2001 to 18.11.2018.
4{a). Applicant further submits that the contention of the Respondents that the charge in question was one of corruption is completely misleading. The charge of overcharging the Passengers by Rs.10 and finding Rs.140.50 excess in railway cash has been held to be worth Page 17 of 33 18 OA No.224/2020 imposition. of penalty of withholding of 1 increment. The deceased Applicant-and his family have already suffered immensely on account of Keeping the Applicant without job for 17 long years which is Tar excess than the penalty that is ultimately imposed on him. The Respondents have sought to rély upon the Rule 1343 and 1344 of FREC-IL, which actually in favour of the Applicant. The provisions of the said rules have been. breached with impunity. No notice as provided for in Rule 1344 (2} {i} was issued to the deceased Applicant. Rule 1343 (7) specifically Provides that the amount determined under Proviso to Sub Rule 2 of under Sub Rule 4 shall not be fess than the subsistence allowance and other allowances All these aspects are not at all considered by the Respondeiits while pa ssing the impugned order.
A(b). He submits that the penalty is imposed by the Disciplinary Authority is campletely misleading in that, imposition of lenient or mederate penalty cannot be a ground for not following the provisions of Rule. 1343 and 1344 of the IREC. it is denied that the Disciplinary Authority has taken note of the long pendency of the litigation and, therefore, imposed. the. penalty of withholding of increment, On the contrary, the Disciplinary Authority has taken note of the fact that the Page 18 of 33 i t 19 OA No.224/2020 deceased Applicant was transferred to Nagpur division and that the said Transfer Order was quashed by this Hon'ble Tribunal. The deceased Applicant did not challenge the penalty as he had already suffered for 17 long years because of the pending litigation. The deceased Applicant
- cannot be expected to-continue with the litigation endlessly. Therefore, the contention that non challenge to the penalty order is indicative of guilt of the Applicant is completely irresponsible.
A(c). Again, applicant states that the deceased Applicant was reinstated to the post of Sr, Booking Clerk after a period of 17 long years. Several of the Applicant's compatriots received several Promotions and were working on Senior posts. The Applicant was, however, forced to work on the lower post of Sr. Booking Clerk during the Covid 19 pandemic as the duties of the deceased Applicant felt under essential services. It is pertinent to note here that the deceased Applicant got detected COVID- 19 positive in the month of July and he unfortunately succumbed to the disease. and passed away on 24.07.2020. The least that can be done in these circumstances is that the legal heirs of the deceased Applicant nay be granted wages and other benefits in respect to the period fram ; | | i Page 19 of 33 20 _ OANO.224/2070 22.06.2001 to 18.11.2018. Therefore, it js prayed that the OA be allowed with costs,
5. Heard the léarned counsels for the applicant and the respondents and perused the Pleadings and documents available on record, 6 Learned couisel for the applicant has placed reliance on the following decisions:
(a). Tarak Nath Khan Vs. The Union of India and Ors., 2016 SCC Online Cal 8172 decided on 14.03.2016, the Hon'ble High Court of Caieutta held in pardgraph Nos.1 to 4& 8 that --
2. The petitioner is unquestionably right,
3. Two charges were framed against the Petitioner. The revising authority considered the findings rendered by the appellate authority on both counts and concluded as follows:
"The Appellate Authority has indeed taken note of the Strange act of the petitioner in throwing away part of the money on seeing the HQ. team, and this has been cited for provittg Als guilt.in my opinion this though a Page 20 of 33 21 OA No.224/2020 questionable act cannot be itself Prove his guilt.The other charge No.(2) also has not been established in the DAR enquiry."
4, There fs no dispute that only two charges were leveled against the petitioner. There cannot be any second view that the revising authority found that the first charge remained unpraven and the second charge was not established. Thus, both charges brought against the petitioner failed. in such circumstances, the revising authority had no jurisdiction to order any form of punishment against the petitioner; as punishmerit follows fram a preven charge and there can no punishment when afl the charges are found to have failed or not proven or established, Be 6
7. eaete
8. Accordingly, WP 2572 (W) of 2016 is allowed by no intterfering-with the order of November 28, 2013 passed by the revisional authority, but by modifying the same by directing that the period of the petitioner's removal from service (August 18, 2012 to February 25, 2013 both days inclusive) should be regarded as a petiod of suspension which will be counted towards the petitioner's service for the purpose of assessing the petitioner's retiral benefits and further promotional Opportunities, but which will entitle the petitioner only to the subsistence allowance in accordance with the rules for such period and not the full pay therefor."
{b} In the case of Mahesh Kumar Shrivastava Vs. State of M.P, and others, 2007(3} MPLI 525, it has been held by the Court that --
"1. Petitioner has filed this petition chal enging the order Annexure P-1 dated 8-1-2004. By the afo resaid order the i Page 21 of 33 22 OA No.224/2020 period of absence of the petitioner from 24-11-2002 to 21-7- 2003 total period of 240 days have been declared as dies non.
2. AS per the petitioner when he was working as Manager | in District Commerce and Industries Centre, Morena (M.P.} a shoOw-cause notice was issued to him mentioning the facts that he was absent from duty w.e.f, 24-11-2002 to 24-7-2003 near about 240 days and he did fot submit any application for the aforesaid period of absence, hence, why the aforesaid period be not treated as dies non.
3. Edtlier, the petitioner did net receive salary for certain period for the year of 2003. He filed a petition before this Gourt which was registered as W.P. No. 622/03 and this Court disposed of the petition with a direction to the respondents to pay the salary of the petitioner or assign reasons for non- payment of salary. Thereafter, the aforesaid show-cause notice was issued to the petitioner. The petitioner submitted his reply. He specifically mentioned that he Was present on duty from 24-11-2002 to 21-7-2003. He further submitted that he was working in the office in the aforesaid period and also went on tour to Bhopal and same facts could be verified from the records. The petitioner mentioned detail facts in the reply, copy of which has been field as Annexure P-3. However' vide impugned ordér the authority rejected the contentions of the petitioner and treated the period of absence of the petitioner as dies non. While rejecting the contentions of the petitioner the authority held that with regard to submission of the petitioner that he was present in the office, the General Manager, Industries in his noting mentioned that the petitioner was not present in the office and the documents submitted by the petitioner in his reply were related to his personal correspondence.
A. The respondents in the return denied the fact that the petitioner was présent in the office during the period of absence i.8., from 24-11-2002 to 21-7-2003.
\ \ Page 22 of 33 23. OA No.224/2020
7. '8. A Division Bench of this Court reported in Batiilai vs. Union of India and Others, 2005 93)MPHT 32 (DB) has held as under with regard to dies non:
"The authority imposing the punishment can direct how the period when the employee was out of service shall be treated. When. the authority directs that the Period will be treated 'dies non', it means that continuity of service _ is. maintained, but the period treated 'dies non! will not count for leave, salary, increment and pension.
9. It is clear from the judgment of this Court that dies non means continuity of service but the period will not be counted for leave, salary, increment and pension, it means that due to the order of the dies non the pension of the employee will be reduced.
10. The learned Single Judge of this Court held in the case. ef Dr, Anil Kumar Varma Vs. State of Madhya Pradesh and Ors. reported in 2005 (1) MPHT 24 (NOC), as under with regard todiesnon:
"2. Annexure A-1, dated 12-5-1997 is impugned order in this petition. On going through this order, it is gathered that the period in between 8-8-1990 to22-3-1993 has been treated as dies-non. The order of dies-non is stigmatic in nature for simple reason that the Said period would not be counted in the entire service period of an employee and that period would be counted as break in service and for that Period salary is also not being paid to the delinquent employee. if a Stigmatic order is being passed, holding a departmental enquiry is pre-supposed. Admittedly no departmental Page 23 of 33 24 OA No.224/2020 enquity is being canducted in the present case and, therefore, the impugned order canmot be allowed remain stand.and the same is hereby quashed."
Li.
12.
13. Consequently, the petition of the petitioner is allowed.
. The impugned order, Annexure P-1, dated 8-1-2004 is hereby ic} GNCT of Delhi & Others, 07.11.2014 in OA No.424i/2 that:
quashed. It is further clarified that the respondents are free to conduct regular departmental enquiry against the petitioner."
in the case of Nisha Rani TGT (Physical Education Teacher) Vs. "tl. Atbeit the applicant filed the present Original Application against the order No. DE. 7/363/PET/SWA/NGV/VIG/HQ/2010- 4647 dated 11.1.2011 passed by the disciplinary authority imposing upon her the penalty of reduction to lower timescale of pay for a period of one year by two stages, during the . course of hearing. Mr. Sourabh Ahuja, learned counsel for' ' applicant, on instruction from his clent, submitted that the applicant would be satisfied if the expression "dies non without break in service" used in the order of the disciplinary.
' authority is-clatitied by the Tribunal.
2, Ort the ether hand, Mr. Vijay Pandita, learned cou nsel for respondents fairly submitted that the decision regarding intervening period taken by the disciplinary authority in its order is self-explanatory and no further explanation is required,
3. Re-joining the submissions, Mr. Ahuja espoused that once the disciplinary authority has directed the period to be treated as-diés non, the ramification may be that the applicant will not be entitled to the. benefit of the period of absence for | :Page 24 of 33
decided by the CAT Principal Bench on 022, itis held by the Tribunal in para i to 6 25 OA No.224/2020 the purpose of financial upgradations in terms of the Assured Cateer Progression/Moditied Assured Career Progression Schemes:and pension.
4, We heard tHe learned counsel for the parties and perused the record.
5. We find that in Government of India's decisions Vide C. & A.G., U.O. No. 1947- A/438-58 dated 12.9.1958 it has been made. clear that such absence without leave where it stands singly and not in continuation of any authorized leave of @bsence will constitute an interruption of service for the Purpose of pension and should be treated as dies non for all Purpose, i.e., increment, leave and pension. The term "dies fan", as understood in the said U.O. is that when certain Period of service is treated as dies non, it has to be treated as an interruption of service. in the present case, when the --
disciplinary authority has directed the period to be treated as dies non, it has also ordered that the period will not constitute break in service, thus the order of the disciplinary authority is paradox,
6. In the circumstances, we Clarify that once the disciplinary @uthority viewed that the absence period would not. be treated as break in service, the applicant would not be denied the benefit of said period far the pu rpose of financial upgradations and pensionary benefits. The Original Application stands disposed of. No costs." .
7, it May be stated that facts stated in the case of Tarak Nath Khan Vs. The Union of india and Ors., 2016 SCC Online Cal 8172 and in the case of Mahesh Kumar Shrivastava Vs. State of MLP. and others, 2007(3) MPL) 525 are differant as compared to the facts in Page 25 of 33 26 | OA No.224/2029 the Case at hand.tn the case of Nisha Rani TGT (Physical Education Teather) Vs. GNCT of Delhi & Others, decided by the CAT Principal Bench on 07.11.2014 in O4 No.4241/2012, it is held by the Tribunal that the disciplinary authority viewed that the absence period would not be treated as break in service, the applicant would not be denied the benefit of said period for the purpose of financial upgradations and pensionary benefits. The Original Application stands disposed of.
No cests.
8. Learned counsel for the respondents has placed reliance in the case of Battilal Vs. Union of India (UOI) and others decided on 21.02.2005 reported in 200 5{3) MPHT32, in which it is held in para 1 to 5 that:
"1. The petitioner Was appointed as an Unskilled Labourer on 26-12-1976, Disciplinary Proceedings were initiated against him in regard to a charge of making bogus LTC claim without actually undertaking the Journey, culminating in imposition of before the Central Administrative Tribunal, Bench Jabalpur.7 OA No.224/2020
employees, a penalty of compulsory retirement had been reduced to a lesser penalty. in pursuance of the said order, 'the Appellate Authority reconsidered the matter and passed the following. arder on 28-1-2002:-
"auln deference to the observations made by CAT regarding differential treatment meted out to the appellant, the undersigned has re-appreciated the case and after proper examination has decided to moderate the penalty of compulsory retirement to reduction of Pay te. the minimum of the Ray scate for a period of 3 years with cumulative effect with the stipulation that the intervening period between the date of compulsory retirement and the date of re-instatement shall be treated as dies-non and no back-wages shall be payable for the period in question,"
; lint pursuance of the order dated 28-1-2003, the petitioner was reinstated by order dated 21-2-2003 by treating the period between 2-7-1994 to 20-2-2003 as dies-non.
2. Feeling aggrieved, the petitioner again approached the Tribunal in O.A. No. 44 of 2004 for quashing the order dated. 28-1-2003 and 21-2-2003 to the extent it treated the period from 2-7-1994.to 22-2-2003 as dies-non and denied Pecuniary' benefits and consequentially for quashing the order dated 12- 6-2003 regarding recovery of pension that was paid from 2-7- 1994. He also sought a declaration that the said period should either be treated as period on salary or the period during which he was. entitled to half salary. The said application has been rejected by the Triburdl by order dated 17-12-2004, which is under challenge in this petition,
3. The petitioner contends that when an order of compulsory retirement or termination is set aside in pursuance of the order of the Court and the delinquent employee is reinstated, the period between the date of - termination to the date of reinstatement should be i Page 27 of 33 23 OA No.224/2020 regularised and he should be paid pay and allowances in accordance with the relevant rules. In that behalf, the petitioner relied on FR 54-A (1), which reads as under:-
"E.R. 54-A. (1) Where the dismissal, removal or compulsory retirement of a Government 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 allowance in accordance with the Provisions of Sub-rule (2) or (3) subject to the directio ns, if any, of the Court."
-A catéful reading of the said clause would show that it applies only where the order of dismissal, removal or compulsory retirement is set aside unconditionally by a Court of Law and the Government servant is reinstated without holding any further inquiry and witheut any further consideration relating to punishment. [It dees not apply whete the punishment ifnpesed is set. aside. by a Court or a Tribunal with a direction to impose a fesser punishment. Where the Tribunal directs the authority to consider and impose a lesser punishment than what is imposed, the matter is wholly within the discretion of the authority who decides on the punishment, subject only to the condition that the punishment should be lesser than the earlier punishment. The refore, FR 54-A would have. ne application. The authority imposing the punishment can direct héw the period when the employee was out of service shall be treated. When the Authority directs that the period will be treated 'dies-non', it means that continuity of service is maintained, but the period treated as 'dies-non' will not count for leave, salary, increment and Pension. In fact, F.R. 54 {1) casts such a duty.on the authority. 't provides that when @ Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review, the authority . competent, to order reinstatement shall consider and make a specific order--
Page 28 of 33 29 OA No.224/2020(a) régarding the pay and aJlowances to be paid te 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.
4, The petitioner next referred to the Government instructions noted under Rule 11 of the CCS (CCA) rules in (Swamy's Compilation) clarifying that marking of dies-non by the leave Sanctioning authority is permissible, only in three circumstances, namely (a} when the official remains absent from. duty without prior information; (b} when on duty in office, the official leaves the office without proper pérmission; and {c) the official remains in office, but refuses to perform duty assigned to him. According to the petitioner, 'dies-nan' can be marked only in the said three. situations and not:
otherwise. The entire contention is misconceived and if we may Say se, absurd. The three: instances were referred, while clarifying that marking of dies-nen is not permissible for late coming. It has nothing to do with the period between the date - of termination and reinstatement being treated as dies-non, where an employee is reinstated as a consequence of | imposition of a lesser punishment. The Disciplinary Authority or the Appellate Authority, while imposing a lesser . punishrriérit in pursuance of the order of the Tribunal has full authority to direet how the period between the date of termination to date of reinstatement is to be treated and pass appropriate orders thereon. In this case the Appellate Authority has considered the matter and directed that the said period be treated as dies-non. Therefore, the question of interfering with it does not arise as there is no iegal infirmity in the order,
5. The petitioner next contended that if the period between 2-7-1994 and 20-2-2003 was treated as dies-non, it ' Page 29 of 33 30 OA No.224/2020 would mean that he will not get any salary for the said period and the said period will also not be treated as qualifying service for purpose of pension, and that would cause hardship to him. The petitioner was earlier compulsorily retired. He should count himself lucky that in spite of the charge of production of fake documents for claiming benefit of LTC being proved, the Tribunal was kind enough to direct lesser punishment than compulsory retirement resulting in reinstaterhent. The petitioner should net expect more."
9. It is observed that the applicant earlier filed OA No.829/2002 which.was decided on 11.03.2004. The applicant succeeded on technical ground and the Hon'ble Tribunal was pleased to quash and set aside the Penalty imposed by the Disciplinary Authority on 22.06.2001 and Appellate Authority on 01.11.2001 and Revising Authority on 14.02.3002. The Applicant was directed to be reinstated into service on the technical ground that the order of the Disciplinary Authority (DCM) fs net issu ed by the com petent authority and the authority imposing the punishment is not competent to impose the penalty of removal from service. While quasHing the orders of the Disciplinary, Appellate ard Revisionary Authorities, the Hon'ble Tribunal granted the liberty to the Competent Authority to continue with the Departmental proceedings as also treat the intervening period in the manner as deemed appropriate.
a Page 30 of 33 31 OA No.224/2020 The Respondents challenged the said judgment by way of a Writ Petition being wp. No.4072/2005 before the Hon'ble High Court of Judicature at Bombay. The Hon'ble High Court was pleased to Stay the Judgment of the Tribunal vide its interim Order dated 30.06.2005. The Writ Petition Was finally decided by the Hon'ble High Court on 30.01.2018, The respondents reinstated the applicant in service on 19.11.2018. The Disciplinary proceedings were eventually completed and a penalty of withholding of increment of Pay for a period of one year with cumulative effect was imposed on 31.01.2019. While doing so, the respondents were at liberty to take decision in respect of intervening period as deemed appropriate and the period was treated as "Dies non", | Charge against the applicant was one of the . COrruptionand the same has been proved against the applicant. The respendenits only imposed a major penalty of withholding of increment for a périod for ene year with cumulative effect, The applicant did not challenge the Penalty imposed on him. ft is also important to mention that thé reason for imposing such a lenient penalty has been made clear by the. Disciplinary Authority who has taken hote of the long pendency of the litigation. The applicant was reinstated and posted as Senior . : i Page 31 of 33 32 OA No.224/2020 Booking Clerk at Bhandup Railway Station (Pay Band Rs.5200-20200/- + 'GP Rs.2800/-) vide Office Order No. 277 of 11/2018 dated 19.11.2018 with liberty to proceed in the matter by referring it to the competent authority for appropriate orders incl uding treatment of period from the date of removal fram service té reinstatement, the competent authority i.e, Sr. DEM (WKS) had decided that intervening period will be treated as "Dies non" in consonance with the provisions of Rule 1343 & 1344 of IREC-Vol-i. During the pendency of OA, applicant has expired. After the demise of applicant, settlement dues and family pension as applicable under Rule has bean paid fo the legal heir of the applicant.
10. This Tribunal is of the view that the applicant has not been absolved of the charges framed against his and as a result of conclusion
-of disciplinary proceedings, a penalty has been imposed upon him. Further, the respondents are -well within their rights to treat the intervening period from the date of setting aside the order of removal from service until the date of his reinstatement which they have settled as Dies non. We are of the view that the decision of respondents does not watra many interference, \ \ 4 5 Page 32 of 33 33 OA No.224/2020 li. In view of afore-mentioned position, Original Application is dismissed.
12. Pending MA, if any, stands closed. No costs.
(RAJINDER KASHYAP) (R.N.SINGH) MEMBER (A) | MEMBER (3) kmg* Page 33 of 33