SCA/21217/2007 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21217 of 2007 With SPECIAL CIVIL APPLICATION No. 29304 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= UNION OF INDIA THRO' GENERAL MANAGER & 3 - Petitioner(s) Versus JATASHANKARSINH RAMSINH THAKUR - Respondent(s) ================================================= Appearance : MR BIPIN I MEHTA for Petitioner(s) : 1 - 4. RULE SERVED for Respondent(s) : 1, Ms SUNITA S CHATURVEDI for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 14/02/2008 COMMON ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) Both these petitions are directed against the judgmement and order dated 10th December 2004 of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as “the Tribunal”) rendered in Original Application No.159 of 2003. SCA/21217/2007 2 JUDGMENT 2. The facts leading to filing of these petitions, briefly stated, are as under:- 2.1 The respondent in Special Civil Application No.21217 of 2007 (hereinafter referred to as “the respondent”) was employed as Fitter (Grade-III) under the Workshop Manager, Western Railway, Vadodara. Charge Sheet dated 12th July 1994 was issued against the respondent for unauthorised absence from duty for a period of 53 ½ days. By order dated 12th October 1995, the disciplinary authority imposed penalty of removal from service. The respondent's appeal and revision were dismissed. The respondent requested for Compassionate Allowance, which was granted vide order dated 27th March 2007. The respondent was paid Rs.11,377/- as Death cum Retirement Gratuity (DCRG) and minimum pension of Rs.1275/- per month. 2.2 The respondent challenged the order of his removal by filing Original Application No.713 of 1997 before the Tribunal. Considering that the respondent had put in 21 years of service, the Tribunal by order dated 23rd January 2002 quashed and set aside the penalty of removal of the respondent from service as harsh, excessive and disproportionate and remitted the case to the disciplinary authority for reconsideration of the penalty imposed on the respondent. The Tribunal directed that the disciplinary authority may impose any penalty other than removal or dismissal from service or compulsory retirement from service. 2.3 The Disciplinary Authority thereupon reconsidered the matter and by order dated 31st January 2003 decided to reinstate the respondent in Railway Service by awarding penalty of reversion from the Skilled Fitter to Khalasi in the scale of pay of Rs.2550 – 3200/-, at the minimum of the scale of pay of Rs.2550/- per month for three years with future effect. As regards the intervening SCA/21217/2007 3 JUDGMENT period the Disciplinary Authority also passed the following further order :- “The intervening period from removal from service to reinstatement has been decided as Dies-Non.” The Disciplinary Authority further directed that the amount of Compassionate Allowance and DCRG which were granted to the respondent after removal from service, were required to be deposited by the respondent with the Railways along with interest. In view of the above order, the authorities also started making recovery of the amount of Compassionate Allowance and DCRG in instalments. 2.4 The Tribunal has passed the following operative order while disposing of the Original Application:- “The impugned orders to the extent they treat this period as dies non are set aside. The respondents shall pass an order in accordance with rule 1345. The applicant is also not entitled for automatic promotion and shall be entitled for further promotion only in accordance with instructions quoted in para 11 above. The respondents are entitled to recover the amount of compassionate allowance/ DCRG together with interest as per rules/ instructions in force. The O.A. is disposed of accordingly. No costs.” 3. While the Railways have challenged the above order by filing Special Civil Application No.21217 of 2007 for contending that the Tribunal erred in setting aside the order treating the intervening period as Dies Non, the employee, i.e. respondent in Special Civil Application No.21217 of 2007 has challenged the second part of the Tribunal's order insofar as the Tribunal held that the respondent was not entitled to automatic promotion and that the authorities were entitled to recover the amount of Compassionate Allowance/ DCRG together with interest as per the rules/ instructions in force. SCA/21217/2007 4 JUDGMENT 4. Mr.Bipin I. Mehta, learned Standing Counsel for the Railways has submitted that the order of the Disciplinary Authority treating the intervening period as dies non did not call for any interference by the Tribunal, because the Disciplinary Authority had passed that order in its discretion and the Tribunal was not supposed to sit in appeal over the said order. 5. On the other hand, Ms.Sunita S. Chaturvedi, learned counsel for the respondent-employee supported the order of the Tribunal insofar as the direction of the Tribunal for treating the intervening period as dies non has been set aside by the Tribunal. The learned counsel has further submitted that the Compassionate Allowance and the DCRG were paid to the employee after the first penalty order was passed by way of removal from service, therefore, the amounts already paid to the employee may not be permitted to be recovered. 6. Before we deal with the rival submissions, we may refer to the relevant rules governing the subject, which are to be found in the Indian Railways Establishment Code, Part II (hereinafter referred to as “the Code”). Rule 1343 of the Code is analogous to Rule 54 of the Fundamental Rules of the Central Government, which reads as under :- “When a Railway 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 -- (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 SCA/21217/2007 5 JUDGMENT (b) whether or not the said period shall be treated as a period spent on duty.” Sub-rules (2) and (3) provide that where the competent authority is of the opinion that the Railway servant, who had been removed, has been fully exonerated, the Railway servant shall be treated as on duty for all purposes and shall also be entitled to be paid full pay and allowances. Sub-rule (4) provides that in cases other than the above category, the Railway servant shall be paid such an amount to which he would have been entitled to had he not been removed, as the competent authority may determine, after giving an opportunity of hearing to the Railway servant. Sub-rule (5) provides that in such a case the period of absence from duty shall not be treated as period spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose. The sub- rule also gives an option to the Railway servant to request the authority to direct that the period of absence from duty may be converted into leave of any kind due and admissible to the Railway servant. Sub-rule (7) clarifies that the amount determined under sub- rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 of the Code. 7. Rule 1344 of the Code provides that where removal 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 regularised and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court. SCA/21217/2007 6 JUDGMENT Sub-rule (2) also confers discretion on the competent authority to determine the quantum of pay and allowances to be paid to the Railway servant after giving him an opportunity of being heard. Sub-rule (3) provides that if removal is set aside by Court on merits of the case, the intervening period shall be treated as duty for all purposes and the Railway servant shall be paid full pay and allowances for the intervening period. 8. Rule 1345 of the Code provides that when a railway servant, who has been suspended, is reinstated, the competent authority to order reinstatement shall consider and make a specific order -- (a) regarding pay and allowances to be paid to the Railway servant for the intervening period, and (b) whether or not the said period shall be treated as a period spent on duty. Here also discretion is conferred on the competent authority to decide whether suspension was wholly unjustified, in which case full pay and allowances would be paid and the period of suspension shall be treated as period spent on duty for all purposes, but in other cases the competent authority, after giving an opportunity of hearing to the Railway servant, shall determine the quantum of pay and allowances to be paid to the Railway servant for the intervening period. 9. Having considered the aforesaid Rules, it is obvious that the Tribunal erred in directing the Railway Administration to consider the respondent's case under Rule 1345 of the Code, which deals with the situation where the Railway servant under suspension is reinstated and the authority is required to consider regularisation SCA/21217/2007 7 JUDGMENT of the period between the date of suspension and the date of reinstatement. In the instant case, the respondent was already removed from service pursuant to the order of penalty dated 12th October 1995. 10. Once it was clear that the case did not fall under Rule 1345 of the Code, there was some controversy as to whether the case would fall under Rule 1343 or Rule 1344 of the Code. However, for all practical purposes, it will not make any difference whether the case is treated as falling under one or the other Rule, because sub-rules (2) and (3) of Rule 1344 of the code refer to the provisions of sub- rules (3) and (4) of Rule 1343 of the Code conferring discretion on the competent authority to determine, after giving an opportunity of hearing to the Railway servant, the quantum of pay and allowances to be paid for the intervening period and how the intervening period is to be regularised. 11. We accordingly direct the Railway Administration to consider the respondent's case under Rule 1344 read with Rule 1343 of the Code. It is obvious that the Tribunal in its decision dated 23rd January 2002 had not exonerated the respondent on merits, but considering the fact that the respondent had put in service of about 21 years, found that removal from service was too harsh a penalty for the misconduct of unauthorised absence for 53 ½ days. The Tribunal, therefore, quashed and set aside the penalty of removal from service and remitted the case to the Disciplinary Authority for reconsideration of penalty with a further direction to the Disciplinary Authority that it may impose any penalty other than removal or dismissal from service or compulsory retirement from service. It is, therefore, clear that there would be no question of paying the respondent-Railway servant full pay and allowances for the intervening period. SCA/21217/2007 8 JUDGMENT 12. As to the quantum of pay and allowances to be paid to the respondent-Railway servant, the competent authority will have to issue a Show Cause Notice to the respondent-employee and after giving him an opportunity of being heard, pass appropriate orders under the aforesaid Rules. This shall be done within three months. 13. However, it is brought to our notice that the Railway Administration has already calculated not only the amount to be recovered from the respondent-employee by way of Compassionate Allowance and DCRG paid to the respondent during the intervening period, but also the amount of interest. In this regard, having heard the learned counsel for the parties, we find that the respondent-employee will also be required to be paid some amount of pay and allowances, against which recovery will have to be adjusted and therefore, the authority will not make any recovery or adjust amount of interest against the amount to be paid to the respondent. The authority will calculate (1) the amount to be paid to the respondent, (2) the amount of Compassionate Allowance and DCRG to be recovered from the respondent and (3) after adjusting (2) against (1), only on the balance amount, the question of payment of interest may be required to be considered. In the facts and circumstances of the case and taking an overall view of the matter, it appears to the Court that the question of interest may not be required to be considered in the peculiar facts of the present case. 14. The aforesaid exercise shall be carried out within three months from the date of receipt of this judgement. We do make it clear that we are confirming the order of the Central Administrative Tribunal, Ahmedabad in so far as the Tribunal has set aside the order of the authority which provided for treating the intervening period as dies non. Both these Special Civil Applications are disposed of in terms of the above directions and clarifications. SCA/21217/2007 9 JUDGMENT Rule is made absolute to the aforesaid extent only with no order as to costs. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim