IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19277 of 2010 Girish Chandra Dubey, son of late Maheshwar Dubey, R/O Mohalla Mishratola, P.O.+ P.S.- Darbhanga, Distt. Darbhanga …………. Petitioner Versus 1. The Union of India through Director General, RPF, Railway Board, Rail Bhawan, New Delhi 2. Director General, RPF, Railway Board, Rail Bhawan, New Delhi 3. Chief Security Commissioner, RPF, East Central Railway, Hazipur 4. Divisional Security Commissioner, RPF, East Central Railway, Samastipur 5. Deputy Security Commissioner, RPF, East Central Railway, Samastipur ………… Respondents ----------- For the petitioner: M/S Ashok Kr. Singh, Sr. Advocate and Kunal Tiwary, Advocate For Resp. Railway: Mr. Parashuram Singh, Advocate. ----------- 5. 4.4.2011 Heard learned counsel for the petitioner and learned Central Government Counsel. The petitioner seeks setting aside of the order dated 31.8.2010 passed by DG/RPF/New Delhi by which the representation dated 28.3.2009 of the petitioner for payment of arrears of salary has been rejected and also for a direction for payment of the said arrears of salary. The petitioner was appointed as Sub- Inspector in the Railway Protection Force (RPF) on 1.4.1977 and was promoted to the post of Inspector in 2 the year 1993 but subsequently by order dated 1.5.2000 of the Divisional Security Commissioner, Sonepur after a departmental enquiry he was awarded punishment of reduction of rank from that of Inspector to Sub- Inspector for three years and the punishment was to continue for one year after its expiry as per the order of the Security Commissioner (Headquarters) North East Railway, Gorakhpur dated 22.11.2001. Subsequently the petitioner became ill and demanded sick leave for free medical assistance by the Railway Doctor but the same not having been granted he went on leave from 25.3.2000 to 18.4.2002 and during this period he remained under the treatment of a private medical practitioner. Another disciplinary proceeding was initiated against the petitioner and by order dated 18.4.2002 passed by the Divisional Security Commissioner, he was compulsorily retired from service. Aggrieved by the same the petitioner filed an appeal which was allowed by order dated 8.1.2004 of the Director General, RPF, Railway Board who set aside the order of compulsory retirement but holding that the petitioner having remained absent from his 3 official duty without any sanctioned leave during this period, he reduced the punishment to withholding of increments in the scale of IPF for two years but with non-cumulative effect. The said order was subsequently modified by the order dated 13.7.2004 holding that he shall be reinstated as SIPF instead of IPF with effect from the date of his reporting for duty to undergo the punishment already awarded. Subsequently, the period between his compulsory retirement from service to his reinstatement in service was directed to be regularized by order dated 26.6.2006 of the Director General as leave due/Earned Leave/Extra Ordinary Leave in accordance with Para 1343 (FR 54) IR Estt. Code Vol. II. It is the further case of the petitioner that after the appellate order dated 8.1.2004 was passed, the petitioner gave his joining in the after noon of 22.1.2004 but he was kept waiting and ultimately permitted to join on 28.2.2004 and has not been paid salary for the said period. It is the stand of the respondents that the period 25.3.2000 to 17.4.2002 has been regularized as leave without pay due to 4 unauthorized absence of the petitioner. So far as the order dated 26.6.2006 is concerned, the same was again modified by the order dated 14.8.2006 in which the period from 18.4.2002 to 25.4.2002 was regularized by granting 221 days Earned Leave, 4 days Half Pay Leave and 4 days Extra Ordinary Leave. The petitioner filed various representations including the last representation dated 28.3.2009 addressed to the Director General. However when nothing happened in the matter he approached this Court by filing CWJC No. 7666/2010 which was disposed of by order dated 7.5.2010 directing the Director General to consider the representation of the petitioner dated 28.3.2009 and the joining of the petitioner pursuant to the impugned order dated 26.3.2010 was to be subject to the result of the said representation, which should be disposed of as early as possible, in any case within two months from the date of receipt/production of a copy of the said order. Pursuant to the same the impugned order dated 31.8.2010 has been passed by the Director General. In the said representation certain other reliefs has also 5 been prayed but learned counsel for the petitioner has confined the matter only with respect to payment of salary for the period from (25.3.2000 to 18.4.2002) = 760 days, (19.4.2002 to 22.1.2004) = 643 days and (23.1.2004 to 28.2.2004) = 36 days. Learned counsel for the petitioner submits that it is evident from the order dated 8.1.2004 passed by the Director General that he has given a finding that the petitioner was actually sick with due leave intimation to the Divisional Security Commissioner, Sonepur but this point was not given due cognizance while passing the punitive order dated 17.4.2002 by the Chief Security Commissioner, NER. In the said circumstances, it is urged by learned counsel that the authorities ought to have regularized the period of 760 days from 25.3.2000 to 18.4.2002 as on sick leave to the extent permissible by the rules and the remaining part could have been adjusted against any other leave as permitted. With respect to the period from 19.4.2002 to 22.1.2004, learned counsel relies upon Fundamental Rule 54. It is urged by learned counsel that under the 6 said rules where a Government servant compulsorily retired is reinstated as a result of appeal the authority competent to order reinstatement is required to consider and make a specific order regarding pay and allowance to be paid to the government servant for the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be and also whether or not the said period be treated as period spent on duty. It is further emphatically argued by learned counsel that under Sub-Rule (2) of FR 54 the petitioner ought to be paid full pay and allowance as the order for compulsory retirement has been set aside. It is submitted that the said period cannot be ordered to be adjusted against any type of leave due to the petitioner as has been done in the present case rather there has to be a specific order taking a decision as to the amount of pay and allowance which are to be paid for the said period of compulsory retirement and whether the said period is to be treated as period spent on duty. That having not been done the authorities have acted contrary to law in adjusting the leave of the petitioner 7 in the said period and granting extra-ordinary leave for the remaining part. As regards the period from 23.1.2004 to 28.2.2004 learned counsel submits that the petitioner having given his joining pursuant to the passing of the order dated 8.1.2004 he was kept out of duty by the respondents who did not permit him to join until after 28.2.2004 and thus for the said period also the petitioner is entitled to salary for the entire period whereas the same has been treated as a period of extraordinary leave. It is further urged by learned counsel for the petitioner that the impugned order dated 31.8.2010 also suffers from non-application of mind as no reasons have been assigned by the authority for coming to any conclusion rather only after noting the information received from the lower authorities, it has been simply held that the plea of redressal of grievance of the petitioner being devoid of merit, is not tenable. Learned counsel for the respondents, on the other hand, submits that the petitioner’s services for the period 25.3.2000 to 17.4.2002 has already been 8 regularized by the Chief Security Commissioner by his order dated 17.4.2002 since the petitioner was absent from duty without taking any leave as has also been observed in the order dated 8.1.2004 of the Director General and thus the petitioner is not entitled to any sick leave for the said period. With regard to the period from 19.4.2002 to 22.1.2004 and 23.1.2004 to 28.2.2004 it is urged that the authorities have already passed the orders regularizing the said period as one spent on duty by granting Earned Leave, Half pay leave and Extraordinary Leave. However, learned counsel was unable to satisfy the Court as to how such an order could have been passed. It is further submitted by learned counsel that so far as the period from 23.1.2004 to 28.2.2004 is concerned, the order of the appellate authority, Director General, dated 8.1.2004 was not communicated to the petitioner or any authority and thus the giving of joining on 22.1.2004 afternoon cannot be of any benefit to the petitioner for the purpose of payment of salary. I have considered the submissions of learned counsels for the parties and the facts and 9 circumstances as narrated above. In the appellate order dated 8.1.2004 it was clearly held by the Director General as follows:- “The above facts indicate that appellant was actually sick with due intimation to the DSE/Sonepur. This point was not given due cognizance while passing the punitive order dated 17.4.2002 by the then CSE/NER.” Once the Director General as appellate authority has arrived at the aforesaid findings, it is evident that while regularizing the said period the petitioner ought to have been granted sick leave to the extent permissible under the rules and the remaining period could have been adjusted in any other leave permissible in accordance with the rules. The same not having been done, it has to be held that the earlier order dated 17.4.2002 of the Chief Security Commissioner in this regard is not correct and the impugned order dated 31.8.2010 has seriously erred in not accepting the said contention of the petitioner. So far as the period during which the petitioner remained out of service on account of his compulsory retirement by the order dated 17.4.2002 is 10 concerned, i.e., for the period from 19.4.2002 to 22.1.2004, it is evident that the order of compulsory retirement has been set aside by the appellate authority by his order dated 8.1.2004. That being the position, F.R. 54 would consequently come into the picture and any order that is passed has naturally to be in terms of the said Rule. F.R. 54 (1) and (2) is reproduced below:- “F.R.54 (1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order- (a) regarding the pay and allowances to be paid to the Government 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 (b) Whether or not the said period shall be treated as a period spent on duty. (2) Where the authority competent to order reinstatement is of opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, 11 removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be: Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly, attributable to the Government servant it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.” From the aforesaid rules, it is clear that the respondent authorities were required to decide the issue as to what pay and allowances were to be paid to the petitioner for the period of his compulsory retirement, i.e., from 19.4.2002 to 22.1.2004 as also whether or not the said period is to be treated as period spent on duty. So far as the second part is concerned, the authorities have already treated the said period as one spent on duty which is sought to be adjusted against Earned 12 Leave, Half Pay Leave or Extra Ordinary Leave. However, the said period under FR 54 cannot be adjusted against any leave or treated as Extraordinary Leave, rather a separate order has to be passed as to the pay and allowances that the employee is to receive for the period during which he remained under compulsory retirement. So far as the submission of learned counsel for the petitioner that the petitioner is entitled to full pay and allowance in terms of Sub Rule (2) of FR 54 is concerned, this Court does not find the same acceptable. It is clearly provided in the said rules that full pay and allowances are to be paid as a matter of course only if a Government servant who has been compulsorily retired is fully exonerated; that is not the position in the case of the petitioner. Instead of punishment of compulsory retirement he has been visited with the punishment of withholding of two increments without cumulative effect. The said punishment, though a minor punishment, is still meted out to him. In the said circumstances, the petitioner cannot be paid full pay and allowance as a matter of 13 course but it was required by the respondent authorities to have considered the issue as to what pay and allowance is to be given to the petitioner for the period of his compulsory retirement. It is clear from the order of the appellate authority that he has held the punishment of compulsory retirement as excessive compared to the offence and very severe. It is thus evident that the petitioner cannot be deprived of the entire salary for the said period. However, since the discretion has been vested in the competent authority by FR 54 this Court remands the matter back to the competent authority to consider the same and decide the quantum of pay and allowance to be paid to the petitioner for the said period within two months from the receipt/production of a copy of this order after giving the petitioner an opportunity to file his representation or be personally heard as they may deem fit. With regard to the period from 23.1.2004 to 28.2.2004, after the petitioner had given his joining in the afternoon on 22.1.2004 till he was permitted to join, it is evident that the petitioner has been kept out of duty 14 during the said period without any fault on his part and while he was willing to perform his duty. In the said circumstance, the fault is entirely of the respondent authorities in not permitting the petitioner to work. The submission on behalf of the respondents that the order was not communicated to the petitioner before 20.6.2004 is only to be noticed to be rejected as the order itself is dated 8.1.2004 and this Court is inclined to accept the submission of learned counsel for the petitioner that such orders are also directly communicated by the appellate authority to the proceedee apart from the communication of the same by the immediate superiors. In any view of the matter, any delay in this regard is attributable to the respondent authorities for which the petitioner cannot be made to suffer. It is accordingly ordered that the petitioner shall be entitled to full salary for the period 23.1.2004 till the date he was permitted to join after his compulsory retirement. Thus, in view of the aforesaid discussions, the writ application is allowed in the terms as aforesaid and with the above direction, and the impugned order 15 dated 31.8.2010 is set aside to the above extent. S.Pandey ( Ramesh Kumar Datta, J.)