THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.24169 of 2011 Dated:05.09.2011 Between: Union of India, And others. …Petitioners and P.B.Dasan, And another. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION No.24169 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The writ petition by Union of India, represented by the General Manager, South Central Railway, and four others is against the order dated 02.03.2011 in O.A.No.48 of 2010 of the Central Administrative Tribunal, whereby and whereunder the petitioners (hereafter called, the respondents) were directed to recast the Leave Account of the first respondent (hereafter called, the applicant) treating the period of suspension as service irrespective of whether it was regularized as duty or leave or suspension. The applicant was appointed as Assistant Station Master in 1980. He was promoted to the post of Station Superintendent subsequently. His conditions of service were governed by the rules under the Indian Railway Establishment Code (Establishment Code). Rule 524 of the Establishment Code confers a right on every railway servant to be credited with Leave on Average Pay (LAP) at the rate of two and half days for each completed calendar month of service which he is likely to render in a half year in which he is appointed. The applicant was being credited with such LAP regularly. In 2007 he asked the authorities to supply a copy of the leave account. The same was supplied by the fifth respondent. Having noticed that the balance LAP of 297 days was reduced to 147 days as on 01.01.2007, he further sought information under the Right to Information Act, 2005. The fifth respondent who is also the Public Information Officer under the said Act supplied a copy of the letter dated 13.03.2007 issued by the Deputy Chief Accounts Officer (General) mentioning that LAP was recast for the period from 01.01.1985 to 01.07.2000 for which the basis was paragraph 1343 of the Establishment Code, Volume II. The applicant yet again approached the third respondent seeking intervention. In response thereto, by communication No.CP/Optg/668/PBD, dated 17.11.2009, he was informed that though there is no rule prohibiting the crediting of LAP to the leave account of an employee during the period of suspension, as the period of suspension was treated as “suspension only” the LAP was recast. Being aggrieved, the applicant approached the Central Administrative Tribunal praying for a declaration that the above communication of the third respondent is illegal, arbitrary, and a further direction to the respondents to credit back 147 days of leave. He contended that unless and until a specific order is passed treating any period of suspension of a railway servant as “not on duty”, the denial of LAP is unjustified. He also relied on paragraph 1343 of the Establishment Code and Government of India decision No.3 appended thereto, which is to the effect that period of suspension when not treated as duty, it will not be deemed to cause an interruption/break in service, and period of suspension shall be counted as service for the purpose of special contribution to the provident fund, leave on average/half average pay under the State Railway Leave Rules contained in Chapter V of the Establishment Code. The respondents opposed the Original Application. It was stated that the applicant was under suspended from 04.02.1996 to 26.05.2000 and 26.11.1993 to 06.02.1995, and that the said period of suspension was treated only as suspension, and therefore, the initial credit of LAP under Rule 524 of the Establishment Code is erroneous, which was rectified after the same was pointed out by the competent authority. The learned Tribunal interpreted Rule 524 of the Establishment Code observing that when the period of suspension is not treated as break in service, it has to be counted as service only; during suspension period, a Government servant is prevented from carrying out his normal duties but nevertheless he continues to be a Government servant; and only suspension treated as dies non, is not to be reckoned as service. Learned Tribunal also relied on the Government of India decision under Item No.8 of paragraph 1343 of the Establishment code and issued directions as noticed supra. The Standing Counsel for Railways submits that the order of the learned Tribunal is erroneous. He would contend that in the absence of any order passed by the competent authority during the period of suspension as service, it has to be deemed to be “not on duty”. When there is a break in service, the same cannot be counted as completed service for the purpose of Rule 524 of the Establishment Code. The submission is wholly misconceived, and we are not persuaded to take a different view than the one taken by the learned Tribunal. It is well settled that the judicial review of the order of the Tribunal is by and large a differential review. The strict scrutiny method has no place. The Tribunal is constituted under the Administrative Tribunals Act, 1985, which itself has constitutional backing under Article 323A of the Constitution of India. The Tribunal being the ultimate fact finding adjudicating body in service law disputes, its decision must be viewed with utmost respect. Unless there is a gross error apparent on the face of the record or the findings of the Tribunal are perverse, interference in judicial review is not called for. There is no gainsaying that judicial review is different from exercise of appellate jurisdiction, which is a continuation for the original proceedings. In judicial review of the orders of the Special Tribunals like the Central Administrative Tribunal, even if a different view is possible from the basis of the material available on record, the High Court cannot interfere, unless there are clear possibilities of miscarriage of justice. Applying the said principles, as mentioned, no interference is called for. The brief reasons are as follows. In response to the representation dated 03.06.2008 requesting to be clarified regarding the anomaly in reducing the LAP from 297 days as on 01.01.2007 by 147 days, the third respondent informed the applicant as follows. Your representation dated 03.06.2008 has been examined and you are advised as follows: Though there is no rule that prohibits the crediting of Leave on Average Pay to the leave account of an employee during the period of suspension, the Leave on Average Pay shall be credited in accordance with provisions contained in Rule 524 of India Railway Establishment Code (Vol.I). The Rule of IREC (Vol.I) stipulates that the leave on Average Pay shall be credited to the leave account of the Railway servant at the rate of 2½ day for each completed calendar month of ‘service’. The suspension period is not treated as “Serviced” unless the period of regularized as “Duty” or “Leave” as the case may be. In your case, the period of suspension is treated as “Suspension” only. Hence, the question of crediting the leave on Average pay to your leave account during the period of suspension does not arise. This has the approval of competent Authority. Even according to the third respondent, there is no rule, much less, Rule 524 of the Establishment Code Volume I prohibiting the crediting of LAP even in the case of the railway servant who is placed under suspension. It is settled principle of law that when a Government servant is placed under suspension pending enquiry where such action leads to disciplinary enquiry or not, the authority has to pass a clear order as to how the period of suspension should be treated. Even in a case where the disciplinary enquiry results in a major penalty and such order is set aside by the appellate authority, a specific order has to be passed as to how the period of suspension is to be treated whether as on duty, and if so, whether full wages should be paid to such employee who was under suspension. In this case, no material was placed before the learned Tribunal to show that the period of suspension of the applicant was treated as not on duty. Therefore, the respondents cannot assume that even without there being an order to that effect, the period of suspension was treated as “suspension only”. Rule 524 of the Establishment Code reads as under. Leave on average pay shall be credited to the leave account of a railway servant at the rate of two and half days for each completed calendar month of service which he is likely to render in a half year in which he is appointed. The plain meaning of the above Rule does not admit two interpretations. If a railway servant has completed one calendar month of service he shall be credited with two and half days of LAP. Further, the LAP is credited in advance as is made clear by the phrase “…which he is likely to render in a half year in which he is appointed”. Therefore, as rightly observed by the learned Tribunal, during the period of suspension though a railway servant is prevented from discharging his duties, he shall still be treated as such railway servant and only when the period of suspension is treated as dies non, service cannot be reckoned for the purpose of Rule 524 of the Establishment Code. No other rule is brought to our notice which would have any bearing on the interpretation of Rule 524 of the Establishment Code by the learned Tribunal. The Writ Petition is devoid of any merits, and the same is accordingly dismissed without any order as to costs. __________________ (V.V.S.RAO, J) _____________________ (B.N.RAO NALLA, J) 05.09.2011 vs