Akhilesh Kumar vs Union Of India on 19 August, 2021

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Jharkhand High Court

Akhilesh Kumar vs Union Of India on 19 August, 2021

2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the order dated 18.07.2014, passed by respondent No.4, whereby the concerned respondent has forfeited the salary of intervening period from the date of dismissal to date of reinstatement i.e. from 01.09.1998 to 30.03.2011 on the ground that "period not spent on duty".

3. The fact of the case has a checkered history. On 21.05.1998, while the petitioner was posted at Dum-dum 2 Airport, Kolkata as LNK (Lance Naik), he was served with a charge sheet. The petitioner was exonerated from the second charge by the Inquiry Officer. However, charge No.1 was proved and the disciplinary authority dismissed the petitioner from his service w.e.f. 01.09.1998 besides forfeiture of medals and decorations earned by him.

The petitioner assailed the aforesaid order of termination before the Kolkata High Court in W.P. No.11317(W) of 1999. The said writ petition was allowed in favour of the petitioner and he was directed to be reinstated in service with all back wages.

4. The respondent authorities challenged the order of the Writ Court in F.M.A. No.1509 of 2003. The Division Bench of Kolkata High Court has observed that since the petitioner was exonerated from charge No.2 he should not have been dismissed from service. However, the Division Bench further observed that since one charge is proved which is minor in nature; a liberty was given to the respondent to impose minor punishment.

5. The fact further transpires that a Special Leave Petition was also filed by the respondents being Special Leave to Appeal (Civil) No(s).17197 of 2008 which was also 3 dismissed. Pursuant thereto; the D.I.G.P, (Law), Directorate General, CRPF (HQ), New Delhi vide its letter dated 23.11.2010 communicated to the I.G.P, Bihar Sector, CRPF to implement the Court's order passed by the Division Bench of the High Court of Kolkata in FMA No.1509/2003. Consequently, the I.G.P, Bihar Sector Patna directed the Commandant-94 Bn, CRPF to reinstate the petitioner and regularize the intervening period from the date of dismissal and pay wages under FR 54 (A) (3).

Pursuant thereto; the Commandant has passed the order and the petitioner was reinstated in service w.e.f. 30.03.2011 and the intervening period from the date of dismissal to date of reinstatement was regularized as duty for all purpose under FR 54 (A) (3).

6. Thereafter, on 21.05.2011 petitioner was put on show cause as to why not a minor punishment be imposed upon him and vide order dated 02.01.2012, minor punishment was imposed by way of 30 days confinement to lines with forfeiture of pay and allowance and 2 hours pack drill.

7. At this stage, it is pertinent to mention here that after the aforesaid order the direction of appellate court of the Kolkata High Court has been fully complied with. 4

8. Subsequently, about 9 months thereafter; pursuant to the letter dated 13.06.14 of the Special D.G. a show cause notice was issued to this petitioner about regularization of the intervening period from the date of dismissal to the date of reinstatement and finally, after receiving the show cause reply the respondent authorities has passed the impugned order dated 18.07.2014, whereby the intervening period between the date of dismissal till the date of reinstatement i.e. from 01.09.1998 to 30.03.2011 was regularized as "PERIOD NOT SPENT ON DUTY" under the provision of FR 54(A) (2) (ii) read with FR 54 (5). This impugned order was further modified vide order dated 21.02.2015 which was consequential in nature.

9. It was ordered that during this period an amount equivalent to the leave salary which he would have drawn, if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary, shall be paid to him.

10. Mr. Krishna Murari, learned counsel for the petitioner apart from arguments on merits of the case, raised a preliminary objection that when the respondent authority has passed an order on 30.03.2011; implementing the direction of the Division Bench of the Kolkata High Court and reinstated 5 the petitioner in service by treating the intervening period between the date of dismissal to date of reinstatement under FR 54 (A) (3) as duty for all purpose and further a minor punishment was also imposed upon him; then under which provision of law the concerned respondent has revisited the order passed by the other officer and changed the decision that the intervening period between date of dismissal till reinstatement will be treated as "period not spent on duty".

He further submits that when in compliance to the order passed by the Hon'ble Court he has been awarded minor punishment and after reinstatement the intervening period was also treated as on duty in accordance with law and the same was also acted upon then the concerned respondent was having no jurisdiction to review its own order.

He contended that since the order of Kolkata High Court had already been complied and the petitioner has been inflicted with minor punishment as per order dated 02.01.2012; the revised order of punishment amounts to double jeopardy which is violative of Article 20(2) of the Constitution of India. He further referred the judgment passed in the case of Kalabharati Advertising versus Hemant Vimalnath Narichania and Others & Kanchan Pandey versus The State 6 of Jharkhand & Ors. reported in (2010) 9 SCC 437 and (2013) 2 JLJR 520 respectively.

He lastly submits that due to respondents' illegal act, this petitioner is facing hardship.

11. Ms. Nitu Sinha, learned counsel for the respondent-CRPF (Union of India) submits that though the pay fixation order was issued by the DIGP, CRPF, Ranchi vide order dated 31.03.2011 after issuance of reinstatement order; the revised order dated 18.07.2014 was issued in accordance with the existing rule and as per the direction of Special DG of Central Zone.

The respondent authority had observed that the order of the Commandant passing the earlier order regarding regularization of intervening period between the date of dismissal till the date of reinstatement as period spent on duty is not proper and was contrary to the instructions on the matter. As such, regularization of intervening period was regularized under provision contained in FR 54(A) (2) (ii) read with FR 54 (5) as the FR 54 (A) (3) does not apply in the instant case.

Ms. Sinha, strenuously contended that the impugned order is not a review order and since the earlier order was passed against the rules; as such, the same was corrected 7 because admittedly exoneration of the petitioner from the charges was not honorable, inasmuch as, in one charge he was found guilty and the Division Bench of the Kolkata High Court has rightly remitted the matter back to the authorities to pass a fresh order for minor punishment. As such, treating the impugned order as the review order, is, not correct.

She further submits that the impugned order is otherwise also not bad in law, inasmuch as, there is no categorical direction in the High Court's order or anywhere with regard to treating the intervening period from the date of dismissal till the date of reinstatement as period spend on duty.

She lastly refers Para 10 of the Supplementary counter affidavit dated 07.08.2021 which is quoted herein below:

"10. That statement made in para 7 of the rejoinder, it is stated that the matter of regularization being administrative in nature can be reviewed by Disciplinary/Competent authority keeping in view of rule position. As per rule under FR 54(4) a show cause notice was served to the petitioner by giving 15 days time for submission of his representation if any to regularize the intervening period from 01.09.1998 to 30.03.2011 as 'Non duty' as no further enquiry was held on his reinstatement and he was also awarded a minor punishment vide 94 Battalion, CRPF letter No.J.II- 1/1999-2014-94-EC-II dated 26.06.2014. The petitioner has not submitted any representation before the disciplinary authority within the stipulated time. The intervening period between the date of dismissal and the date of reinstatement i.e. from 01.09.1998 to 30.03.2011 has been regularized as 'PERIOD NOT SPENT ON DUTY' under the 8 provision of FR 54(A) (2) (ii) read with FR 54(5) as per the orders of Special Directorate General, Central Zone, CRPF Signal No.J.II- 9/2013-CZ- Legal dated 13.06.2014. During above period an amount equivalent to the leave salary which he would have drawn, if he had been on leave on half average pay or on half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary, shall be paid to him under the provision of FR 54(4) read with 54(5) vide Commandant 94 Battalion, CRPF revised Office Order No.J.II-4/1999-2014-EC-II dated 18.07.2014. A copy of above order was also provided to the petitioner vide Commandant 94 Battalion, CRPF letter No.J.II-4/1999-2014-EC-II dated 23.07.2014."

She concluded her argument by submitting that the petitioner has even not challenged the subsequent order dated 21.02.2015.

12. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein it appears that after the dismissal of this petitioner a writ application was filed before the Kolkata High Court which was allowed in his favour with the direction to the respondents to reinstate him with full back wages. However, the said order of Writ Court was modified by the appellate court by observing that since charge No.1 is proved and which is obviously minor in nature, as such, the matter was remitted back to the respondent authorities to reinstate the petitioner in service and a liberty was given to the respondents to take a decision on charge No.1 which was 9 obviously minor in nature. The said order of Division Bench of Kolkata High Court was also upheld by the Hon'ble Apex Court, inasmuch as, the SLP filed by the respondent was dismissed.

Pursuant thereto; the petitioner was duly reinstated in service vide order dated 30.03.2011. For brevity, Para 8 of the order dated 30.03.2011 is quoted herein below:

"8. In view of above to comply the court order dated 11/11/2010, the following orders are hereby passed:-

(A) The order No.P-VIII-7/98-EC II dated 01.9.1998 regarding dismissal from service w.e.f. 01/09/1998 in r/o No. 850832773 LNK Akhilesh Kumar passed by this (i.e. the Commandant 94 Bn, CRPF) is hereby set aside.

(B) No.850832773 LNK Akhilesh Kumar (Petitioner) is hereby re-instated into service with effect from 30/03/2011 (AN) i.e. from the time of his reporting at this unit Head Quarter i.e. 94 Bn. CRPF, Bawana, Delhi with all consequential benefits/Back wages in light of F.R. 54(A) (2) (1) and (2).

(C) In accordance with provision contained in in light of F.R. 54 (A) (3), the intervening period between the date of dismissal and re-instatement i.e. w.e.f. 01/09/1998 to date of reporting i.e. 30/03/2011 (AN) in r/o No.850832773 LNK Akhilesh Kumar is hereby treated as duty for all purpose. (D) Show Cause notice for imposing another minor penalty commensurating with the gravity of offence of the individual as observed by the Hon'ble High Court, Kolkata Judgment dated 20/07/2007 will be issued separately."

13. Pursuant to the aforesaid order of reinstatement, the petitioner was put on show cause as to why minor punishment be not imposed upon him and finally vide order dated 02.01.2012 the minor punishment was imposed upon him 10 by way of 30 days confinement to lines with forfeiture of pay and allowance and 2 hours pack drill. Thereafter, the effect of the said order was carried out vide office order dated 31.03.2012. The DIG, CRPF, Ranchi, while concurring with the same revised the pay scale of the petitioner under 6th pay revision with corresponding fixation and regularizing of entire intervening period between the date of termination of his service till date of re-instatement.

However, when the file was processed for payment of differential arrears of salary as against intervening period amounting to Rs.12,60,398/-; one of the respondents differed with the order passed by the earlier officer in treating the intervening period which was earlier passed under Rule 54 (A) (3); has issued a show cause notice to the petitioner and reviewed the earlier order as treating the intervening period between the date of dismissal till date of reinstatement as "period not on duty".

14. This review order gave rise to the instant writ application. The sole question which requires for consideration is that "whether review can be done in absence of statutory provision?".

15. Ms. Nitu Sinha, learned counsel for the 11 respondents strenuously contended that primarily this is not a review order; further, since an illegal payment was being made to the petitioner under different provision, as such, the same was corrected and due process of law was followed by giving show cause notice.

This issue came before the Hon'ble Apex Court way back in the year 1965 in the case of Patel Chunibhai Dajibha etc. vs. Narayanrao Khanderao Jambekar & Anr. reported in AIR 1965 SC 1457. The said proposition of law was reiterated in the case of Kalabharati Advertising (supra) reported in (2010) 9 SCC 437 wherein at para 11, 12, 13 and 14 the Hon'ble Apex Court has held as under:

"11. We have considered the rival submissions made by both the parties and perused the record. Legal Issues Review in absence of statutory provisions

12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.)

13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Major Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. of Land Records and Settlement and Sunita Jain v. Pawan Kumar Jain this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only 12 from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.

14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.

Case dismissed/withdrawn -- Effect on interim relief"

16. In yet another judgment passed by this Court in the case of Kanchan Pandey (supra), similar issue has been dealt with by quoting the ratio as decided in the case of R.T. Rangachari v. Secretary of State reported in AIR 1937 Privy Council 27. Paragraph-10 of the order rendered in Kanchan Pandey (supra), is quoted herein below:

" 10. Adverting to the contention of the learned senior counsel appearing for the petitioner that order dated 24.12.2002 passed by the Deputy Inspector General of Police could not have been reviewed /recalled/modified by the successor Deputy Inspector General of Police, I find that law in this regard is well settled. It is not open to the authority to review/recall its own earlier order unless, fraud or misrepresentation is detected. In "R.T. Rangachari Vs. Secretary of State", reported in A.I.R. 1937 Privy Council 27, it has been held, "In a case in which after Government Officials, duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision."

17. Looking to the aforesaid proposition of law, now it 13 is a settled law that unless the statute/rules so permits; review is not permissible in the garb of correction.

In other words, in the absence of any provision in the Act/Rules granting excess power of review; no officer is empowered to review. In a case in which after Government officials duly competent and duly authorized in that behalf have arrived at one decision; their successors in office after the decision has been acted upon and is in effective operation, cannot reconsider the matter and arrive at a different conclusion.

Even otherwise, change of opinion in passing any quasi-judicial order is always reprimanded. So far as the judgment relied upon by learned counsel for the respondent is concerned; the same did not consider the issue as to whether any review can be made without any statutory provisions? As such, the same is not applicable in the instant case.

18. In view of the aforesaid findings, the instant writ application is allowed. The impugned order dated 18.07.2014 and all consequential orders, are hereby, quashed and set aside.

19. It goes without saying that all monetary benefits shall be given to this petitioner which has already been conferred by order dated 30.03.2011; within a period of 16 14 weeks from the date of receipt/production of copy of this order.

Recovery, if any, which has been made pursuant to the impugned order, shall be refunded to the petitioner within the aforesaid stipulated period. I.A. No.2408 of 2015, also stands disposed of.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 19th August, 2021 Pramanik/ AFR

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