Case: Divisional Personnel Officer, Western Railway, Kota Vs. Sundar Dass

disciplinary proceeding and the order of dismissal pursuant to the finding recorded in the disciplinary proceeding is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, as in the present case, decides to hold a fresh inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. It is not the case of the respondent that he had resumed duty after the original order of dismissal dated 14-S-1949 was set aside and that he continued to be in service until he was subsequently dismissed fro m service by the order dated 23.12.1966. It is seen from the original order of Dismissal dated 14.5.1949 that the respondent had been informed by the instruction appended to that order that he would be given subsistence allowance at the rate of 50% o f his pay for the period from 17.2.1949 to 14.5.1949, both days inclusive, when he remained under suspension. The respondent did not dispute before us the fact that he was placed under suspension from 17.2.1949 pending the inquiry resulting in his dismissal by the order dated 14.5.1949. But what the respondent contended before us is that the original order of dismissal dated 14.5.1949 is based on the finding of guilt recorded in respect of a single charge and that a secon d allegation has been made in the charge framed in the fresh inquiry and therefore, the provisions of Rule 1706(4) of the Indian Railways Establishment Code are not attracted. The respondent invited our attention to the fact that in the first sus pension order dated 17.2.1949, he has been described as a Clerk, Executive Engineers Office, Kota Division and in the charge framed in the fresh inquiry on 22-3-1965 as ex-Clerk of the office of the Executive Engineer, Kota Divisi on and also to the fact that he had been informed by the Chief Engineers letter dated 9-9-1965 that he has not placed under suspension by the administra- tion and only fresh proceedings have been taken against him in view of the judgment of the Rajasthan High Court and therefore, the question of the administration granting him permission to leave his residence or Kota Railway Station does not arise-in support of his contention that he could not be deemed to have been under suspensi on after his original order of dismissal had been set aside by the High Court. The respondent appears to have been conscious of the fact that the order of suspension dated 17-2-1949 had not been revoked when he applied for permission to absent fr om his headquarters. The Chief Engineer appears to have stated in his letter dated 9-9-1965 that the respondent had not been placed under suspension and therefore, he did not require the permission of the Railway ad ministration to leave Kot a only on the basis that there was no fresh order of suspension after the original order of dismissal dated 14-S-1949 had been set aside by the High Court. As stated earlier, the respondent has not disputed the fact that he had been placed under suspension by the order 17-2-1949, and it is clear that he was under suspension thereafter throughout and he had attained the age of superannuation in 1963, his year of birth being 1908. The charge framed against respondent in the first inquiry was this:"Obtaining employment by concealment of his antecedents which would have prevented his employment in railway service, had they been known before his appointment, to the authority appointing him." 5. The reasons for that charge given were that he obtained employment in the Western Railway by giving false intimation to the Transfer officer (India), Ambala Cantonment to the effect that he was in service on the North Western Railway at the time o f partition. In the fresh charge dated 22.3.1965 framed against the respondent, it is stated that:" Fresh proceedings are being taken against him in view of the judgment of the Rajasthan High Court that his dismissal from ser vice was illegal and he has been informed that the charge is based on (1) the declaration of 8.1.1948 made by respondent to the Assistant Transfer officer, Ambala Cantt. that he was working on the ex-North Western Railway and was in receipt of substantive pay of Rs. 98/- plus Rs. 4.50 and has been confirmed in that post on 1.11.1943 and (2) the declaration dated 26.1.1948 after he joined the Ex-B.B. &C.I. Railway." 6. On a perusal of the two charges, we are of the opinion that the fresh charge dated 22.3.1965 is only a single charge and that the second allegation, namely, the declaration dated 26.1.1948 made by the respondent after he joined the Ex-B.B. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We perused the record of the fresh inquiry and are satisfied that the respondent has admitted the fact of his discharge from service on4 while securing fresh employment under B.B. &C.I. Rail way. Mr. Taluqdar, Senior Counsel, appearing for the appellant submitted that the respondent had been suspended from service on9 before he was originally dismissed from service on9 pursuant to a finding of guilt recorded in the departmental inquiry and that in the subsequent departmental inquiry also, he had been found guilty and was subsequently dismissed from service and therefore, by virtue of the provisions of Rule 1706(4) of the Indian Railway Establishment Code, he must be deemed to have A been under suspension right through from9 and he would be entitled only to subsistence allowance and not to full wages for the period from. Clause (1) of Rule 1706 provides for a railway servant being placed under suspension inter alia where a disciplinary proceeding against him is contemplated or pending. &C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on 12.4.1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on 17.2.1949 pending inquiry and had not reported for duty after the original order of dismissal dated 14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages.