1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : D.B. Civil Writ Petition No.4201/2001. (Raj Kumar Vs. Union of India & Others) DATE OF ORDER : March 31st, 2010 P R E S E N T HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS _________________________________________ Mr. J.K. Kaushik for the petitioner. Mr. Ravi Bhansali for the respondent(s). Reportable BY THE COURT : (Per Hon'ble Mr. Vyas, J.) In this writ petition, the petitioner has prayed for quashing impugned judgment dated 26.06.2001, Annex.-8 passed by the Central Administrative Tribunal in original application No.25/1999, whereby, the learned Tribunal dismissed the original application filed by the petitioner on the ground of limitation and observed that the original application of the applicant is hopelessly time-barred, therefore, deserves to be dismissed. As per brief facts of the case, the petitioner was 2 appointed to the post of Loco Clerk on 11.04.1975 at Loco Shed, Hanumangarh and he was promoted further as per rules on the posts of Fireman-II, Fireman-I, Shunter and Goods Driver. The day on which the petitioner preferred original application before the Tribunal he was holding the post of Goods Driver at Hanumangarh Junction, Northern Railway (Bikaner). A charge-sheet was issued to the petitioner for inflicting major penalty and, after inquiry, a penalty of reduction to the lower post of Fireman – II for a period of one year, subject to fitness by the competent authority, and postponing future increments was ordered vide order dated 24.02.1989. Against said penalty order, the petitioner preferred appeal; but, aforesaid penalty was enhanced by the appellate authority vide communication dated 21/26.06.1989 and order was made for reversion from the post of Fireman – I to Fireman – II permanently subject to review by ADRM after three years with certain other conditions. The petitioner being aggrieved and dissatisfied with both the above orders preferred original application before the Central Administrative Tribunal and said original application was registered as Original Application No.701/1989. 3 Learned Tribunal vide its judgment dated 28.01.1992 partly allowed the original application filed by the petitioner and passed the following order : “Thus considering these facts and circumstances of the case, we partly allow the application and quash the impugned order dated 24.2.89 (Annexure A/1) and 21/26.6.89 (Annexure A/2). We, however, make it clear that this will not preclude the disciplinary authority from reviving the proceedings and continuing it in accordance with law. Since a copy of the inquiry report has already been supplied to the applicant along with copy of order of disciplinary authority, the applicant may make representation, if any, within one months from the date of receipt of this order and the disciplinary authority shall pass a fresh order after considering the representation and if, no such representation is made within the aforesaid period of one month the disciplinary authority will be at liberty to pass a fresh order without waiting further. No order as to costs.” Upon perusal of the above order, it is abundantly clear that an opportunity was granted to the petitioner to submit representation against the finding of the inquiry officer; and, upon filing the said representation, it was directed by the Tribunal that the disciplinary authority shall pass fresh order after considering the representation. It was further clarified that if no such representation is made within one month, then, the disciplinary authority will be at liberty to pass fresh 4 order without waiting further; meaning thereby, penalty orders which were challenged in the original application, Annex.-A/1 dated 24.02.1989 and Annex.- A/2 dated 21/26.06.1989 were quashed, thereby meaning that after remanding the case to the disciplinary authority, the disciplinary authority was under obligation to provide opportunity to the petitioner and, after granting the same, a fresh order was required to be passed for inflicting penalty. But, as per the petitioner, after filing representation by him, although an order was passed by the disciplinary authority on 04.05.1993 but no specific penalty was imposed upon the petitioner and only assertion was made in the said order that, “I do not find any reason to modify the punishment already imposed and undergone by you at this stage.” The petitioner challenged the said order dated 04.05.1993 by way of filing appeal but the appellate authority also rejected his appeal vide order dated 18.01.1995 wholly in mechanical manner while saying that he did not see any reason to modify the punishment awarded to the CO. The case of the petitioner is that once order of inflicting penalty upon him dated 24.02.1989 and order passed by the appellate authority dated 21/26.06.1989 5 were quashed by the Tribunal in original application No.701/1989, then, there was no question of passing order on remand by the disciplinary authority that no modification in the punishment order is required. In fact, the original penalty order itself was quashed and set aside by the Tribunal, then, obviously the order of penalty was not in existence after having been quashed by the Tribunal, therefore, the disciplinary authority was under obligation to pass fresh order for specific penalty expressly while giving reasons after consideration of the representation filed by the petitioner, as ordered by the Tribunal; meaning thereby, the order dated 04.05.1993 passed by the disciplinary authority after remand, so also, order of the appellant authority dated 18.01.1995 were non est orders because no specific penalty was imposed by the disciplinary authority or by appellate authority, therefore, in view of the judgment of the Constitution Bench of the Hon'ble Supreme Court, reported in 1967 S.L.R. 228, State of Madhya Pradesh Vs. Syed Qamarali, such type of non est order which does not bear the legal existence was not necessary for the respondent to have the order set aside by the Court. So also, no benefits could be detained on the basis of a non est order but the petitioner was not 6 granted benefit of re-fixation, therefore, original application No.25/1999 was filed by the petitioner, in which, it was prayed that the respondents may be directed to re-fix the basic pay of the applicant as detailed in para 4.15 ignoring the punishment order dated 24.02.1989 and appellate authority's order dated 21/26.06.1989, which were quashed by the Tribunal in the earlier original application No.701/1989 vide judgment dated 28.01.1992; and, the order dated 04.05.1993 which is not fresh punishment order. Further, it is prayed that the respondents may be directed to provide monetary benefits admissible as per Railway rules on the basis of revised pay-scale prevailing in the Railways. Along with the original application, one M.A. Was also filed by the petitioner for condonation of delay for seeking remedy but the learned Tribunal vide its judgment impugned dismissed the original application the ground that the application is hopelessly time barred and deserves to be dismissed vide judgment dated 26.06.2001 which is under challenge in this writ petition. Learned counsel for the petitioner vehemently argued that once the order of punishment was set aside by the learned Tribunal, then, there was no occasion or 7 liberty left with the disciplinary authority to say while passing fresh order that the order of punishment does not require to be modified because the penalty order itself was not in existence because the Tribunal has already quashed the same. The disciplinary authority was under obligation to pass fresh punishment order specifying the quantum of punishment; but, instead of passing fresh specific order, it was only observed that, “I do not find any reason to modify the punishment already undergone by you at this stage. Likewise, the order of the appellate authority upholding the order dated 04.05.1993 is also because no specific punishment was made after remitting the matter by the Tribunal vide order dated 28.01.1992, in which, impugned orders dated 24.02.1989 and 21/26.06.1989 were quashed and set aside. Learned counsel for the petitioner vehemently argued that both orders were non est and it was not necessary for the petitioner to challenge the same because both these orders were non est in the eye of law and in view of the judgment of the Constitution Bench of the Supreme Court in the case of State of Madhya Pradesh Vs. Syed Quamrali (supra), as per the verdict of the Constitution Bench of the apex Court non 8 est order which has no legal existence is not required to be challenged by the petitioner and respondents were under obligation to grant the benefit of fixation. But, the learned Tribunal erroneously rejected the original application filed subsequently by the petitioner for seeking direction to the respondent to re-fix the basic pay of the applicant as detailed in para 4.15 of the application on the ground of limitation. Therefore, it is prayed that the judgment impugned may be set aside and relief prayed for by the petitioner in the original application may be granted. Per contra, learned counsel appearing for the respondents vehemently argued that after remand, the order passed by the disciplinary authority is required to be seen in the context that the disciplinary authority was satisfied that the punishment order made earlier was right and it does not require any modification and till the existence of the said order dated 04.05.1993 and order dated 18.01.1995 passed by the appellate authority, there is no question of granting any benefit of re-fixation for six years. After remand by the Tribunal, the petitioner was again penalized for committing misconduct. The petitioner's original application filed for claiming the relief of re-fixation was dismissed 9 because the petitioner preferred the original application for re-fixation in the year 1999 after prescribed limitation, therefore, no interference is required in this matter. We have considered the rival submissions made by both the parties. Upon the pleadings, it emerges that the order of penalty inflicted upon the petitioner was made on 24.02.1989 by which the petitioner was reverted from the post of Fireman – I to Fireman – II for one year subject to fitness by the competent authority and postponing future increments. Against that order, an appeal was preferred but the appellate authority, instead of quashing the said penalty order enhanced the punishment and passed order for reversion from the post of Fireman – I to Fireman – II permanently subject to review after three years by the ADRM. Admittedly, both these orders were set aside by the Central Administrative Tribunal in original application No.701/1989 vide judgment dated 28.01.1992 and further opportunity was granted to the respondents while saying that the order of quashing impugned orders will not preclude the disciplinary authority for reviving the proceedings and and 10 continuing it in accordance with law. Since a copy of the inquiry report has already been supplied to the applicant along with copy of order of disciplinary authority, the applicant may make representation, if any, within one month from the date of receipt of this order and the disciplinary authority was directed to pass a fresh order after considering the representation. The petitioner filed his representation after above order was passed by the Tribunal and, after considering his representation, order dated 04.05.1993 was passed by the disciplinary authority which was further upheld by the appellate authority vide order dated 18.01.1995. We have assessed the validity of both these orders. To ascertain whether both these orders are non est orders or not and if these orders are non est orders, then, petitioner is entitled for the relief prayed for or not. For the purpose of adjudicating this question, we deem it just and proper to re-produce the said order dated 04.05.1993 which reads as under : “I have gone through your representation referred to above, submitted by you in compliance. CAT/Ju Judgement dated 28- 1-92 and I do not rind it satisfactory due to following reasons :- 1. All reasonable opportunities were given to you to defend your case and no illegality has been observed 11 in finalising the enquiry. This fact has also been admitted by Hon'ble CAT/JU in para 5 of the Judgement referred to above. 2. Operation of Rlys. Are essential services and in case or emergency, any staff can be booking to work the trains or on any other duties. Irrespective of their seniority position. Your remarks in the call book that you are ready to perform shunting duty provided he is booked as per seniority, tantamount to refusal for duty which seriously of factual the Railway working. Non performance of shunting duty by Shri Naxatar Singh cannot be genuine ground or your refusal to perform shunting duty. You have also not associated with the enquiry as a true Railway men and delaying tacts were adopted by you. 3. As per evidence & other material on record, the charges leveled against you in the memorandum of charge sheet dated 1.4.87 stands proved and you have failed to attend duty in 0-8hrs. Shift on 13.1.87 without any valid reasons. Accordingly I do no find any reason to modify the punishment already imposed and under gone by you at this stage. If you are not satisfied with this order, you can file an appeal before ADRM within 45 days of receipt of this order.” The above order was further challenged by way of appeal but the appeal was rejected vide order dated 18.01.1995. After considering the above order, we are of the opinion that order dated 04.05.1993 cannot be 12 defined as order of inflicting any penalty because in pursuance of the order passed by the Tribunal dated 28.01.1992, fresh specific punishment order was to be passed but, it is very strange that the disciplinary authority while treating the order dated 24.02.1989 whereby penalty was inflicted against the petitioner and appellate authority's order dated 21/26.06.1989, which were quashed by the Central Administrative Tribunal, to be in existence has erroneously observed that no modification is required in the punishment order. We are unable to accept such type of order because after remand, fresh order of specific penalty was required to be made. But, obviously while treating the earlier penalty order in existence the Disciplinary Authority passed order dated 04.05.1993 which is non est order and in view of the Constitution Bench judgment, reported in 1967 SLR 228 (supra), the petitioner was not required to challenge the said orders. The Central Administrative Tribunal has committed gross error while rejecting the original application on limitation vide impugned judgment dated 26.06.2001 because the apex Court has made following adjudication in para 20 of the said judgment rendered in almost similar circumstances as existing in the 13 present case : “20. We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected.” In our opinion, order dated 04.05.1993 passed by the disciplinary authority after remand and order of the appellate authority upholding the said order dated 18.01.1995 are non est orders and it was not necessary for the petitioner to challenge those non est orders because no fresh punishment order has been made against the petitioner by the disciplinary authority. In this view of the matter, while following the principle laid down by the apex Court in the aforesaid judgment, we deem it just and proper to allow this writ petition. Learned Tribunal has erroneously dismissed the original application filed by the petitioner-applicant 14 merely on the ground of limitation while holding that claim of the petitioner is hopelessly time barred. In our opinion, when no punishment order was passed, then, there was no option left with the respondents except to grant benefit of re-fixation of pay to the petitioner as if no penalty order was inflicted upon him. As a result, this writ petition is allowed. Impugned judgment dated 21.06.2001 passed by the Tribunal is set aside. The dispute is pending since 1989, therefore, without remitting the matter to the Tribunal for deciding the matter on merit, we deem it just and proper to direct the respondents to grant the benefit of re-fixation of pay to the petitioner in the revised pay scale ignoring order dated 04.05.1993 within a period of three months and pay all arrears as a consequence of re-fixation of petitioner's pay for the post of Fireman – I while treating the petitioner on the post of Fireman – I as if he was not reverted from the said post, within a period of three months from the date of production of certified copy of this order. No order as to costs. (Gopal Krishan Vyas) J. (A.M. Kapadia) J. Ojha, a.