SCA/2976/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2976 of 2006 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 & 1 - Petitioner(s) Versus JAGDISHBHAI V JHALA - Respondent(s) ================================================= Appearance : MR RAVI KARNAVAT for Petitioner(s) : 1 - 2. MR RC KAKKAD for Respondent(s) : 1, ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 23/04/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) Union of India and the Divisional Railway Manager, Western Railway, Rajkot have challenged the judgement and order dated SCA/2976/2006 2/7 JUDGMENT 27th July 2005 of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as “the Tribunal”) in Original Application No.374 of 2004 by which the Tribunal interfered with the order of the Disciplinary Authority. The respondent herein was charge- sheeted for unauthorised absence for a period of three months and the Disciplinary Authority passed order dated 21.02.1995 resmoving the respondent from the Railway Service. The respondent challenged that order by filing Original Application No.576 of 1998, which came to be partly allowed by the Tribunal after holding that penalty of removing the respondent from service was too harsh and disproportionate to the misconduct proved and the Tribunal remitted the matter to the Disciplinary Authority to reconsider the question of imposition of penalty on the applicant after taking into account all the factors of the case to impose an adequate and appropriate penalty except that of removal/ dismissal from service or compulsory retirement. The authority accordingly reconsidered the matter and thereafter passed order dated 04.08.2003 reducing the respondent's pay to one stage lower in the same time scale of pay for a period of three years with future effect. The Disciplinary Authority mentioned in the order that the intervening period from removal to reinstatement will be decided later on. Thereafter, by the impugned order dated 26.08.2004 the Disciplinary Authority directed that “The period from removal to the date of reinstatement is treated as 'dies non' for all the purpose.” This order of the Disciplinary Authority came SCA/2976/2006 3/7 JUDGMENT to be challenged by the present respondent in Original Application No.374 of 2004. After hearing learned counsel for the parties, the Tribunal quashed the above order dated 26.08.2004 insofar as the intervening period was ordered to be treated “as dies non”. The Tribunal directed the respondents to pass appropriate order in terms of Rule 1344 of the Indian Railways Establishment Manual (“IREM” for brevity). The Tribunal also directed that upon completion of this exercise the amount payable, if any, shall be paid within three months, failing which interest at the rate of 9% will be payable beyond the six month period. 2. When this petition came up for preliminary hearing on 24.02.2006, ad interim stay of the above order of the Tribunal was granted. 3. Mr.Ravi Karnavat, learned advocate for the petitioner- authorities has invited our attention to the respondent's service career and submitted that in the year 1987 also the petitioner- respondent had remained absent and by order dated 16.03.1989 penalty of withholding of increment for one year without future effect was passed. Thereafter, the respondent again remained unauthorisedly absent for a period of three months from 01.06.1992 and therefore, after holding departmental inquiry the respondent was removed from service of the Railways. The respondent challenged the said order of removal and in appeal SCA/2976/2006 4/7 JUDGMENT penalty imposed was reduction of pay to three stages lower in the same time scale with cumulative effect for three years. The intervening period was treated as leave due. Mr.Karnavat submits that this was the third occasion when the respondent was found to have remained unauthorisedly absent for a period of three months and therefore, the Disciplinary Authority had imposed penalty of removal from service on 21.02.1995. The Tribunal, however, interfered with the said order also and the Department was required to reconsider the question of penalty and therefore, penalty imposed was reduction to one stage lower in the same time scale of pay for a period of three years with future effect. Mr.Karnavat submits that in such circumstances order dated 26.08.2004 treating the intervening period as dies non was fully justified and the Tribunal erred in interfering with the same. 4. Mr. R.C. Kakkad, learned advocate appears for the respondent-original applicant and submits that the Tribunal has passed just and proper order in accordance with law and therefore, no interference of this Court is called for in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India 5. Mr.Kakkad has submitted that if the authorities are permitted to treat the intervening period as “dies non”, there will be break in the respondent's service and the respondent will not be able to get pensionary benefits upon retirement even after more than 25 years SCA/2976/2006 5/7 JUDGMENT of service. It is, therefore, submitted that this would amount to penalty and would also be too harsh and disproportionate to the misconduct proved, which was only unauthorised absence for three months, which was on account of the respondent's illness and not for any other reason. Mr.Kakkad also submits that the respondent was not working in safety category post and was working as Group 'D' employee, therefore, the respondent should not be subjected to such harsh treatment. 6. Having heard the learned advocates for the parties, we find considerable substance in the submission made on behalf of the respondent-employee that by treating the intervening period from the date of removal till the date of reinstatement as “dies non” there will be break in the respondent's service, which will affect not only the respondent's increments during the service after reinstatement but will also severely and adversely affect the respondent's pension and other retiral benefits at the time of his retirement after long service. Hence the Tribunal was justified in quashing and setting aside that part of order dated 25.08.2004, by which the Disciplinary Authority directed that the intervening period from the date of removal till the date of reinstatement be treated as “dies non”. 7. At the same time we are of the view that the Tribunal was not justified in directing the authorities to consider the respondent's SCA/2976/2006 6/7 JUDGMENT case under Rule 1344 of IREM for the purpose of giving him monetary benefits for the intervening period. First time when the respondent remained absent from service, he was visited with only minor penalty of withholding of one increment without future effect. Second time, the respondent remained absent for three months and was visited with the penalty of removal from service, but the higher authority took a lenient view and instead imposed penalty of reduction to three stages lower in the same time scale for three years with future effect. Even thereafter, the respondent remained absent for a period of three months in the year 1994 and the Disciplinary Authority passed order of removal from service which came to be set aside by the Tribunal and this time also the Disciplinary Authority took a lenient view and imposed penalty of reduction of the respondent's pay to one stage lower in the same time scale of pay for a period of three years with future effect. Under such circumstances, reinstating the respondent in service with continuity of service should have sufficed and there would be no justification for the respondent in claiming any monetary benefit for the intervening period except continuity of service for the purposes of leave, increments and pensionary benefits. 8. The petition is accordingly partly allowed. While confirming that part of the order of the Tribunal by which the Disciplinary Authority's order dated 07.08.2004 treating the intervening period as “dies non” is set aside, we set aside the order of the Tribunal SCA/2976/2006 7/7 JUDGMENT directing the authorities to pass appropriate order in terms of Rule 1344 of the Indian Railways Establishment Manual. We, however, direct that the intervening period shall be treated as leave without pay but the respondent shall be treated as in continuous service for all other purposes including for the purpose of leave, increments and retiral benefits. 9. Rule is made absolute in the above terms with no order as to costs. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim