IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4884 of 2004 Date of Decision: .5.2004 -------------------------------------------------------------- UNION OF INDIA (WESTERN RAILWAY) VERSUS ODHAVJI C THAKOR (for full cause title, see next sheet) -------------------------------------------------------------- Coram: The Hon'ble Mr.Justice Bhawani Singh, Chief Justice The Hon'ble Mr.Justice H.K.Rathod, Judge Whether approved for reporting? 1. Special Civil Application No. 4884 of 2004 MR MUKESH A PATEL for Petitioners. MR KK SHAH for Respondent No. 1. -------------------------------------------------------------- CAV JUDGEMENT (Per : HON'BLE MR.JUSTICE H.K.RATHOD) Heard learned Counsel Mr. Patel for the petitioners and Mr. K.K. Shah, learned Counsel for the respondent Odhavji C.Thakore. Rule. Learned counsel Mr. K.K.Shah appearing for the respondent workman on caveat waives service of rule. In the facts of the case, the petition is taken up for final hearing today. Whether reporters of Local Papers may be allowed to see the Judgment? In this petition, the petitioner has challenged the order of Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in OA No. 727 of 1997 with M.A. No. 203 of 2003 dated 6th November, 2003 wherein the Tribunal directed the petitioners to treat the entire period as on duty and refix the pension of the present respondent in light of the observations made by it in the order and pay to the respondent arrears of salary etc. as well as retirement benefits including leave encashment, GPF, Group Insurance etc. due and payable as per rules. The tribunal directed to complete the said exercise within one month from the date of receipt of the order. The tribunal also allowed interest at the rate of 12 per cent p.a. from the due dates under different schemes with costs, quantified at Rs.2000.00 in favour of the respondent. With these directions, the tribunal disposed of the application. The respondent who is appearing on caveat has filed reply. 2. The facts, in brief, are to the effect that workman joined service in the year 1950; then, he was promoted as a Driver of the Mail Train in the year 1958. He was working as a Driver to the Mail Train till the date of his removal from service. He met with a serious accident while taking the Engine to Sabarmati Railway Yard and he was hospitalized. He remained on leave for about 75 days from October 10, 1980 to December 27, 1980 without prior permission from the higher authority. He was served with a show cause notice dated November 16, 1981. Thereafter, Enquiry Officer was appointed on December 28, 1981. Departmental Enquiry was completed. In enquiry, he pleaded guilty of remaining absent for 75 days without prior permission of the authority. Disciplinary proceedings were initiated on March 21, 1982. He explained in enquiry that he met with an accident and sustained serious injury on the stomach; he was not keeping good health; his wife and son were also sick; he had to look after them; he was confused and remained absent. He was removed from service on May 25, 1982 for remaining absent for 75 days. Copy of the inquiry officer's report was served upon the workman alongwith the order of removal. Departmental appeal filed by him against the order of removal was rejected. Mercy petition was also rejected. The workman therefore filed TA No. 452 of 1986 before the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad ["CAT" for short]. The CAT, by order dated August 31, 1990, held that the enquiry is vitiated and order imposing penalty of removal from service must be quashed; this however, will not preclude the petitioners from supplying a copy of the enquiry report to the respondent and giving him an opportunity to make his representation and proceeding to complete the disciplinary proceedings from that stage. The application was, thus, allowed by the tribunal to that extent with no order as to costs. It was also observed by the tribunal that if the petitioners chose to continue the disciplinary proceedings and complete the same, the manner as to how the period spent in the proceedings should be treated would depend upon the ultimate outcome; nothing said therein would affect the decision of the disciplinary authority in that regard. The tribunal also observed that the said order of the tribunal is not a direction to necessarily continue the disciplinary proceedings and that was entirely left to the discretion of the disciplinary authority. The petitioners thereafter filed review application before the CAT being Review Application No. 460 of 1990 against the order in TA No. 452 of 1986, on October 11, 1990. During the pendency of the said review application, the respondent workman retired on December 31, 1990. Review application came to be rejected by the Tribunal on August 14, 1991. Thereafter, the said orders of the tribunal were not challenged by the petitioners before the higher forum. The petitioners did not initiate any further proceeding against the respondent workman as per the directions of the tribunal. The respondent was staying in a quarter. The respondent was not paid the retirement benefits by petitioners. No order of reinstatement was passed by the petitioners in favour of the respondent workman but the respondent workman was served with notice by the petitioners to evict the quarter occupied by the respondent workman. Therefore, the workman filed OA No. 130 of 1994 before the CAT praying to direct the petitioners to pay all the retirement benefits and till then, he may be permitted to occupy the quarter. The CAT granted interim stay against the eviction of the quarter. The CAT decided the OA NO. 130 of 1994 on August 4, 1994 directing the workman to make representation within 15 days. The CAT directed the petitioners to dispose of such representation within 12 weeks from the date of receipt of such representation. The workman undertook to vacate the railway quarter within two weeks after the receipt of retiral dues. With these directions, said OA was disposed of by the Tribunal. The petitioners passed order on December 13/20, 1995 and no decision to the representation dated August 20, 1995. The respondent vacated the quarter on September 26, 1994. The petitioners passed order regulating the service of the petitioners from May 25, 1982 to December 31, 1990, on April 23, 1994 in view of the representation made by the petitioner pursuant to the order passed by the Tribunal in OA NO. 130 of 1994. The respondent challenged the order dated December 13/20, 1995 and inaction on the part of the petitioners on his subsequent representation dated August 20, 1996 by filing OA No. 727 of 1997 with MA No. 203 of 2003, decided by the Tribunal on November 6, 2003 which is the subject matter of challenge in this petition. We have heard the learned Counsel Mr. Patel for the petitioners and Mr. KK Shah, learned Counsel for the respondent workman. Both the Counsel have placed on record their written arguments. Learned counsel Mr. Patel contends that the tribunal has erred in directing the petitioners to treat the period spent on duty. It was his submission that since the order of punishment was set aside by the tribunal only on the ground of violation of the principles of natural justice, the tribunal ought not to have issued such directions. He also submitted that whether to initiate further enquiry or not was left at the discretion of the disciplinary authority by the tribunal. He also submitted that the action was not initiated in view of the pendency of the review application; the respondent retired from service on December 31, 1990 and thereafter, no action was initiated. He also submitted that the workman unauthorizedly occupied the quarter from December 31, 1990 to 1994. According to rules, the petitioner is entitled to recover market rent as per service rules. The petitioner passed orders under rule 1343, 1344 and 1345 of the Service Rules for deciding the issue about period and wages of intervening period. Said amount can be adjusted against the amount of market rent (damage rent) from the respondent. Therefore, the petitioner passed order regulating the interim period and granted 50 per cent wages for the intervening period. It was his submission that, otherwise, the respondent is not entitled to any amount on the principle of No work No Pay. It was also his submission that the respondent is not entitled to full wages for the intervening period. The quarter came to be vacated by the workman on September 26, 1994, therefore, the authorities of the petitioners were entitled for the retention of the retirement benefits including the pension till the vacation of the quarter by the respondent under the statutory rules having force of Article 309 of the Constitution and the order passed by the petitioners was legal and valid and, therefore, tribunal ought not to have set aside such orders. He also submitted that under the Pension Rules, maximum service period is 33 years and yet the petitioners considered 37 years and calculated benefits on that basis. Therefore, inter alia, his submission is that the tribunal was in error in passing the order in question and error is apparent on the face of the record. Learned Counsel Mr. Patel has not cited any decision in support of his submissions. Except the aforesaid submissions, no other submissions have been made by Mr. Patel before this Court, either oral or in writing. In substance, his submission is to the effect that the action and decision of the petitioner both are legal and valid and, therefore, the tribunal ought not to have granted the reliefs in favour of the respondent workman. On the other hand, learned Counsel Mr. K.K. Shah for the respondent has submitted that the tribunal was right in granting the relief in favour of the respondent; the order of removal was not in existence as it was quashed by the tribunal in earlier proceedings; the petitioners failed to initiate proceedings till the respondent retired from service on 31st December, 1990. No steps were taken by the petitioner; no retirement benefits were paid by the petitioners till 1994. He submitted that the respondent workman was entitled to occupy the quarter as he was not paid the retirement benefits by the petitioners; that the tribunal was right in relying upon the case of Violet Isaac versus Union of India and Union of India versus Madan Mohan Prasad [(2003) 1 ATJ 246]; that the tribunal was right in discussing the whole issue and considering various decisions of the apex court on the subject and has passed proper orders; has not committed any error, therefore, no interference is necessary; that looking to the alleged misconduct of remaining absent for 75 days because of the serious accident, extreme punishment of removal from service is illegal, unjust and improper; that the workman was admitted in the Railway Hospital after the accident while on duty; extreme and unjustified punishment of removal and the intervening period of unemployment from the date of penalty May 25, 1982 till the date of his retirement has ruined the whole life of the respondent. He high-lighted pitiable condition of the workman during the course of his oral submissions and submitted that the unemployment of the respondent during the intervening period has compelled the son of the respondent to give up his studies from Std. 3 and has, thereby, affected the education of his children; in the year 2000, the respondent has become blind and has lost his vision due to failure in surgery; in 2004, lower part of the body become dead due to paralysis. He submitted that the Railway Medical Facilities are available but for want of sufficient funds and timely action, the respondent could not take proper treatment; the amount of retirement benefits received by the respondent has been spent on medical expenses. At present, the respondent is staying in a kacha chawl on rental basis and his son is selling corriander and vegetables in vegetable market at Maninagar for some one and is getting Rs.1200.00 to Rs.1500.00 per month. He also submitted that it was left at the sole discretion of the petitioners to hold or not to hold further proceedings from the stage indicated by the tribunal but the petitioners failed to continue the proceedings from the stage indicated by the tribunal and the respondent retired in the mean time, on December 31, 1990 after the order of removal was quashed by the Tribunal on August 31, 1990 and, therefore, the respondent workman is deemed to have continued in service as if he has never been removed from service and, therefore, tribunal was right in granting the relief in favour of the respondent. He submits that the petitioners were not precluded from proceeding further in the proceedings against the respondent from the stage indicated by the tribunal but they filed review application wherein stay was not granted and the order quashing the order of removal was operating against the petitioners. He submits that the respondent joined service in 1950 and had put in more than 32 years and was having unblemish past which was ignored while passing the order of removal; looking to the gravity of misconduct of remaining absent for 75 days, the extreme punishment of removal was harsh and unjustified considering his past unblemish service record of 32 years from 1950 and, therefore, considering the matter as a whole, the tribunal is perfectly right in granting the reliefs in favour of the respondent, therefore, there is no substance in the petition and the petition is required to be dismissed. Except these submissions, no other submissions were made by the learned advocate Mr. Shah before this Court either oral or in writing. We have perused the order in question as well as the earlier orders made by the tribunal in the subject matter. We have also considered the oral and written submissions made by the learned counsel for the parties. We have also considered the averments made by the petitioners in the memo of petition and the reply thereto filed by the respondent on caveat. Considering these aspects of the matter, we are of the view that most of the facts are not in dispute. In light of such undisputed facts emerging from the record, the real question for our consideration is what would be the legal status of the respondent workman after the order dated 31st August, 1990 made by the Tribunal in TA No. 452 of 1986. The concluding portion of the order passed by the tribunal is reproduced as under: "In the circumstances, we hold that the enquiry is vitiated and the order imposing the penalty of removal from service must be quashed. This however, will not preclude the respondents from supplying a copy of the enquiry report to the applicant and giving him an opportunity to make his representation and proceeding to complete the disciplinary proceedings from that stage. The application is allowed to the extent indicated here but in the circumstances we make no order as to costs. If the respondent chose to continue the disciplinary proceedings and complete the same, the manner as to how the period spent in the proceedings should be treated would depend upon the ultimate outcome. Nothing said herein would affect the decision of the Disciplinary Authority in that regard. At the same time, we hasten to add, that this order of the Tribunal is not a direction to necessarily continue the Disciplinary Proceedings. That is entirely left to the discretion of the Disciplinary Authority. [Emphasis Supplied] Thus, from the aforesaid order of the tribunal, it is clear that it was entirely left to the discretion of the Disciplinary Authority to continue or not to continue the Disciplinary Proceedings against the respondent from the stage indicated by the tribunal. After the said order made by the Tribunal on August 31, 1990, the petitioners filed Review Application in October, 1990 wherein no stay was granted against the order dated August 31, 1990 and while the order dated August 31, 1990 was in operation and the application for review of that order was pending before the Tribunal, the respondent retired on December 31, 1990. From the date of the order August 31, 1990 till the date of retirement of the respondent, no steps were taken and no efforts whatsoever were made by the petitioners to complete the proceedings from the stage indicated by the tribunal. It was also clarified by the tribunal that the manner as to how the period spent in the proceedings should be treated would depend upon the ultimate outcome. In view of that, if the petitioners have not chosen to complete the proceedings, then, there would be no ultimate outcome thereof except the order dated August 31, 1990 wherein the enquiry was declared as vitiated and the order was quashed while reserving liberty in favour of the petitioners to complete the inquiry from the stage indicated by the tribunal. However, from the facts of the present case, it is clear that thereafter, the petitioners have not proceeded further against the respondent by supplying him a copy of the enquiry report and giving him an opportunity to make his representation and proceeding to complete the disciplinary proceedings from that stage. Therefore, in view of that, on the date of retirement of the respondent, the order of his removal was not in existence, therefore, respondent is deemed to be in service for all purposes as if the order of removal was not passed against him. Liberty was given by the tribunal in favour of the petitioners to put their house in order and that was entirely left to the discretion of the Disciplinary Authority by the Tribunal. From the conduct of the petitioners, it is appearing that they chose not to continue the disciplinary proceedings against the respondents, otherwise, instead of filing an application for review, they would have immediately supplied a copy of the enquiry report to the respondent for enabling him to make his representation. Date of retirement of the respondent must be within the knowledge of the petitioners. There was a clear four months' period available with the petitioners to continue the disciplinary proceedings in the manner indicated by the Tribunal but the petitioners have failed to avail such liberty, therefore, the petitioners have to face the natural and normal consequences of the quashing of the order of removal. In review application, no stay was granted against the order dated August 31, 1990, therefore, the order dated August 31, 1990 was in operation. In these circumstances, action of the respondents in passing the order with regard to the intervening period on December 23, 1994 while exercising the powers in terms of rule 2044/ARII(FR 54A) Sub Rule 2(i), Rule 1344 (II) 1987 ED is without jurisdiction and contrary to rule 1344 (FR 54A) Sub Rule 3. Considering the language of Rule 1344 as referred to above, decision of the tribunal to quash the order of removal on the ground of non supply of the inquiry officer's report before passing the order of removal and direction to supply the inquiry officer's report and to consider the representation of the respondent and then to pass the appropriate order, it is clear that the order of removal was quashed by the tribunal on merits because the non supply of the inquiry officer's report before passing the order of punishment has deprived the respondent from challenging the findings given by the inquiry officer and thereby, the respondent has been deprived from submitting his explanation about the proper punishment looking to the gravity of misconduct. There are two objects for supply of the inquiry officer's report to the delinquent after completion of the departmental inquiry and before passing the final order of punishment. One is to enable the workman to challenge the findings given by the inquiry officer in his report and the other is to enable the workman to submit explanation or defence about the proper punishment looking to the gravity of misconduct, past record, length of service and other relevant factors. These two opportunities were not given to the respondent herein and thereby the workman was deprived of his right to challenge the findings given by the inquiry officer in his report and to enable the workman to submit explanation or defence about the proper punishment looking to the gravity of misconduct, past record, length of service and other relevant factors. Therefore, order of removal was quashed by the tribunal on merits. Thus, the order of removal was quashed by the tribunal on the ground of non compliance with the requirement of clause (1) or (2) of Article 311 of the Constitution, therefore, the workman is entitled to be treated on duty for all purposes and he is entitled for full pay and allowances for the period to which he would have been entitled had he not been removed from service. This aspect has been recently examined by the apex court. In such circumstances, when the order of removal is set aside as violative of Article 311(2) of the Constitution, Fundamental Rule 54 would not apply. Same are the facts in this case. Apex Court examined this issue in Union of India versus Madhusudan Prasad [2004 SCC Lab & Service page 29]. Therefore, first, it is necessary for this court to consider the observations made by the Tribunal in its order dated August 31, 1990 in TA No. 452 of 1986, as under: "In this case, the applicant implicitly admitted the fact of his unauthorized absence from duty with an intention that the Department would take a lenient view and impose a lesser punishment. But the Enquiry Officer after enquiring into the matter basing his admission of the guilt in the charge, came to the conclusion that the applicant is guilty of the charge and submitted his report to that effect. The Disciplinary Authority basing on the report of the Enquiry Officer, imposed the major penalty of removal of the applicant from service. Before imposing the penalty, they ought to have supplied copy of the Enquiry Report to the applicant so that the applicant could have made his representation against the report. The denial of a copy of the enquiry report and an opportunity to make representation against it offends the principles of natural justice and violates the provisions of Article 311(2) of the Constitution as held by the Full Bench of the New Bombay of the Central Administrative Tribunal in Premnath K. Sharma Vs. Union of India (1988) 6 ATC 904." Now, similar case was decided wherein also, show cause notice was not given by the disciplinary authority to the concerned employee. In this case also, after receiving the report from the inquiry officer, the Disciplinary Authority passed order of removal from service against the respondent straight away without supplying to the respondent a copy of the inquiry officer's report and also without issuing show cause notice to the respondent. Therefore, according to our opinion, Fundamental Rule 54A read with Rule 1344 would not apply to the facts of the present case. Relevant observations made in para 5 and 6 of the decision in Union of India v. Madhusudan Prasad 2004(1) SCC L & S page 29, are reproduced as under: (5) It is true that when a reinstatement is ordered in appeal or review, the authorities can pass specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty preceding the dismissal, removal or compulsory retirement, as the case may be. This is an enabling provision and the authorities can consider the relevant facts as to whether the employee should be denied the salary for the period he was kept under suspension preceding the removal, dismissal or compulsory retirement. The counsel for the appellant has placed reliance on the decision of the Constitution Bench of this Court in Managing Director, ECIL v. B. Karunakar [(1993) 4 SCC 727] where this Court held that the question whether the employee would be entitled to the back wages and other benefits from the date of