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

1. In this appeal by special leave the respondent Sunder Dass appear s in person. The appeal by the Divisional officer, Western Railway, Kota is against the Judgment of Dwarka Prasad, J. Of the Rajasthan High Court at Jaipur in Civil Revision Nos. 63 and 158 of 1973. The learned Judge allowed Civil Revision No. 6 3 of 1973 filed by Sundar Dass and dismissed Civil Revision No. 158 of 1973 filed by the Divisional Personnel officer with costs in both.      2. The two revision petitions were filed against the order dated 18.9.1972 passed by the learned District Judge, Kota under the Payment of Wages Act (hereinafter referred to as "the Act"). The respondent filed petitions under s. 15 (2) of the Act before the Authority under the Act, the Special Judicial (Railways) Magistrate, Kota who held by his order dated7 that the respondent is entitled to get his salary for the period from 17.2.1949 to 14.5.1949 after adjustment of any amount which might have been paid to him for that period. Both parties filed appeals against that order before the District Judge, Kota who by order dated 18.9.1972 held that the respondent should have been paid wages for the period of six months prior to 25.3.1963, the date of his application under the Act and also for a period of six months in respect of each one of his subsequent seven applications filed under the Act. The learned District Judge directed the Authority under the Act to calculate the amount of salary and dearness allowance payable to the respondent as per his direction on the basis of the respondents basic salary as on 14.5.1949, the date of his original dismissal from service, after deducting the usual Provident Fund deduction and other permissible deductions, if any. Both parties filed revision petitions in the High Court against the order of the learned District Judge.The respondent was employed as an Assistant Sub Divisional Clerk at Sukkar in the Karachi Division of the North Western Railway. While he was working in that capacity at Nawabshah, he was discharged from service by order dated 12.4.1944 issued by the Divisional Engineer. The respondent instituted a suit in the Court of Judicial Commissioner, Karachi for declaration that the order of discharge was invalid. During the pendency of that suit there was partition of India and he migrated to India and reported for duty to the Transfer officer (India) at Ambala Cantonment on 8.1.1948. On the basis of the respondents declaration, he was taken as a Clerk in the former B .B. &C.I. Railway, which eventually became the Western Railway. But when the fact that the respondent had already been discharged from railway service on 12.4.1944 before the partition of India took place came to light, the respondent was suspended from service on 17.2.1949 and at was issued to him by the Chief Engineer of the Railway for the misconduct of concealment of the order of discharge from service and he was dismissed from service on 14.5.1949 in pursuance of the fin ding of guilt recorded in the inquiry. The respondents appeal against the order of discharge was dismissed by the General Manager of the Railway. The respondent thereafter filed a suit on 10.1.1950 for declaration that the order of discharge was void and obtained decree in the Trial Court, which was modified by the District Judge on appeal. Both parties filed Second Appeals in the High Court, which dismissed the same on 6.3.1963 by holding that the respondent is entitled to a declaration that the order of his dismissal from service dated 14.5.1949 is illegal on the ground that there was breach of the principles of natural justice and that it was, however, open to the Railway Administration to take fresh disciplinary proceedings against him from the stage at which the illegality crept in.Subsequently, the Chief Engineer, Western Railway started flesh disciplinary proceedings against the respondent and issued a fresht with a statement of allegations against him on 4.11.1963. No fresh order of suspension was issued to the respondent on this occasion. The departmental inquiry was held and an inquiry report dated 29.11.1965 was made holding the respondent guilty of the charge. The Chief Engineer accepted the report of the Inquiry officer and issued a notice to the respondent calling upon him to show cause against the punishment proposed to be awarded to him and eventually dismissed him from service by his order dated 23.12.1966 with effect from 14.5.1949, the date of his original dismissal. This order of dismissal was confirmed by the General Manager, Western Railways in the respondents appeal which was dismissed on 10.5.1967. The respondent challenged the order of dismissal by filing Writ Petition No, 558 of 1967 which was dismissed by the Rajasthan High Court on 21.11.1971 holding that the departmental inquiry was properly conducted and that the dismissal is valid but not retrospectively from 14.5.1949. The respondents Review Petition was dismissed by the learned Judge of the High Court on 7.3.1972.      3. After the dismissal of second appeals on 6.3.1963 the petitioner moved the Payment of Wages Authority on 25.3.1963 by a petition filed under section 15 (2) of the Act claiming wages for the period from 17.2.1949, the date of the original suspension, to 28.2.1963 less subsistence allowance, namely, Rs. 24, 792 7() and thereafter filed seven more petitions once in every six months claiming in all wages of Rs. 34, 096.07 for the period from 1.3.1963 to 31.8.1966. As stated earlier, the Authority under the Act held that the respondent is entitled to wages for the period from 17.2.1949 to 14.5.1949 and in the appeals filed before the learned District Judge it was held that the respondent is entitled to wages for a period of six months prior to 25.6.1963 and also for the period of six months in respect of each one of the seven petitions filed by him and the District Judge directed the Authority under the Act to calculate the amount payable to the respondent after making the necessary deductions on the basis of the respondents basic wages as on 14.5.1949. Both the parties filed revision petitions against the order of the learned District Judge.The plea of limitation which appears to have been raised in the revision petitions before the learned Single Judge of the Rajasthan High Court at Jaipur, has been held to be no longer available in view of the decisions of this Court referred to in the Judgment of the High Court in the Civil Revision cases under appeal in this case. The other objection raised under order 2 Rule 2 of theCode of Civil Procedure in view of the fact that the claim for wages had not been put forward in the civil suit and connected appeal and second appeal has also been rejected by the High Court. The learned Single Judge held that if the order of dismissal is set aside, it is not necessary to give a further declaration that the employee continues to remain in service in view of the fact that it follows as a consequence of that order of dismissal having been set aside.

Court's reasoning:
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.