Anu Poulose vs Union Of India & Ors

K. Haripal, Member J

The applicant is an Assistant Loco Pilot in Trivandrum Division, of the Southern Railway. He had faced disciplinary proceedings for imposition of major penalty alleging dereliction of duty while running a train. That proceedings ended by AnnexureA1 order dated 26.10.2015 whereunder penalty of compulsory retirement was imposed on him. That order took effect from 30.10.2015. Against the said finding of the 3rd Respondent he preferred Annexure A2 appeal on 02.11.2015 before the 2nd Respondent. By Annexure A3 order dated 09.02.2017 the 2nd Respondent interfered with the said finding and the penalty of compulsory retirement was modified; he was reinstated with a lesser punishment of reduction of pay by four stages for a period of five years with recurring effect. The intervening period between the date of imposition of compulsory retirement and reinstatement was directed to be treated as 'dies-non'. Thereafter the 2nd Respondent issued Annexure A4 corrigendum. The applicant was reinstated in service with effect from 21.02.2017. Thereafter he preferred Annexure A5 revision before the 1st Respondent. However, the revision was rejected. The applicant is aggrieved by the direction in the Annexure A3 appellate order which stands confirmed in Annexure A6 revision order that the intervening period between dates of compulsory retirement and reinstatement will be treated as 'dies-non'. According to him even though in the revision, he had specifically agitated this aspect as well, that was not considered by the revisional authority. The Appellate and Revisional Authorities did not consider the intervening period in tune with Rule 1343 of the Indian Railway Establishment Code Vol.II, hereinafter referred as the Code. Therefore, he seeks to quash Annexures A3 and A6 to the extent that they treat the intervening period between compulsory retirement from service and reinstatement as 'dies-non' and grant him pay and allowances as provided in Rule 1343 (4) of the Code for the period between 30.10.2015 upto 21.02.2017, direct the respondents to treat the intervening period as duty for specific purposes like pension, annual increments, promotion etc. with all consequential benefits.

The applicant submits that treating the intervening period as 'dies-non' is arbitrary, discriminatory and ultra vires of Rule 1343 of the Code. According to him Appellate and Revision Authorities should have taken decision on the intervening period independent of the power vested under the Railway Service (D&A) Rules 1968. Such a question is different from the materials required for deciding the quantum of penalty tobe imposed for the offence committed and therefore orders passed without giving him an opportunity is violative of the principles of natural justice. According to him the concept of treating the interventing period as 'dies-non' does not exist. The period should be treated as either on duty or non-duty. In terms of Rule 1343(4) the quantum of pay and allowances is to be determined and paid and the same shall not be less than the subsistenance allowance. For the first three months, the applicant would be entitled to 50% of the pay and allowances and for the remaining period upto the date of reinstatement, the applicant would be entitled for 75% of the pay and allowances. Refusal on the part of the respondents to grant payment as above was done without affording an opportunity to the applicant to explain. He has also placed reliance on the decision of the Apex Court in M. Gopalakrishna Naidu vs. State of Madhya Pradesh (AIR 1968 SC 240).

The Respondents filed reply denying the contentions in the application. According to them it is settled principle that the Tribunal cannot sit as Court of Appeal over a decision based on the finding of the Appellate Authority in the disciplinary proceedings. If there are relevant materials resonably supporting the conclusion reached by the Appellate Authority it is not the functin of the Tribunal to review the same and reach at different finding. Here the penalty of compulsory retirement was reduced and he was reinstated to service taking into account the compassionate circumstances pointed out by the applicant. The allegations against him were very serious. The intervening period was treated as 'dies-non' as per the provision in Rule 1343 of the Code. Annexure A7 representation was filed by him before the 4th respondent with some motive. The applicant is working under the control of the Additional Railway Manager, Southern Railway, Trivandraum and Chief Operations Manager. Therefore, representation like Annexure A7 filed before the 4th Respondent is without any meaning. The Appellate Authority had specifically taken into account whether or not the intervening period should be treated on duty. The impugned orders at Annexure A3 & Annexure A6 were issued in accordance with law. The word 'dies-non' is non-duty. Sub Rule 4 of Rule 1343 is not relevant and hence there is no violation of the statutory provision. Thus the respondents have sought for dismissing the Original Application.

The applicant filed rejoinder contending that Sub Rule(4) of Rule 1343 is independent of other considerations and he reiterated the earlier contentions.

We have heard the Learned counsel for the applicant and also the Learned ACGSC. Relying on the decision reported in Gopalkrishna Naidu, quoted supra, the learned counsel submitted that the Appellate as well as Revisional Authorities did not appropriately consider how the period between the date of compulsory retirement and reinstatement should be dealt with, that involved independent consideration which was not done. According to the learned counsel, consideration of that aspect calls for two separate orders. But the impugned orders were passed treating the intervening period as 'dies-non' without hearing him and without notice to him. Thus principles of natural justice have been violated. According to the learned counsel Sub Rules 1(a)& (b) are independent. Here the respondents have passed Annexure A3 & Annexure A6 without following the principles of natural justice as provided in Rule 1(b) read with Sub Rule (5) of Rule 1343 of the Code.

On the other hand, the learned Standing Counsel disputed the contentions of the counsel for the applicant. He pointed out that the allegations against the applicant were very serious which called for his removal from service. However the Appellate Authority was considering the mitigating circumstances that (i) the incident did not result in dire consequences, that (ii) the applicant had taken earnest attempt to stop the train, (iii) the Loco Pilot, who was the prime person to stop the train has already been granted punishment with compulsory retirement and (iv) the young age and remaining residual service and that he needed to support the family; he was not exonerated from the charge. During the course of inquiry he was heard by the Appellate as well as Revisional Authorities so that there is no violation of the principles of natural justice.

No doubt, allegations against the applicant were serious in nature. It being highly technical it is not necessary to restate the allegations against him. Suffice it to say that while he was working as Assistant Loco Pilot in Train No.22620, on 08.03.2015 he had committed serious dereliction of duty and had skipped the signal. He was placed under suspension and disciplinary proceedings were initiated. After detailed inquiry a report was obtained and by Annexure A1 order dated 26.10.2015, he was imposed with penalty of compulsory retirement with effect from 30.10.2015. Then he preferred a statutory appeal. By order dated 09.02.2017 the 2nd respondent interdicted the penalty of compulsory retirement by imposing the following penalty:-

'Reduction by five stages in the Pay scale that you were in at the time of the incident for a period of five years (recurring) without loss of seniority and at the expiry of this period, you shall go back to the position that you were in your pay scale on the day of the incident. During the period of punishment, you shall not be booked for running duty. On completion of five years, you shall be suitably evaluated by a team of competent officials and be posted to running duties which do not touch the main line. On completion of one year of satisfactory performance in such duty, you may again be evaluated for your fitness, including retraining and fresh psycho test (Aptitude test), in undertaking running duties on main line. The intervening period between the imposition of Compulsory Retirement and reinstatement may be treated as dies-non'

Later Annexure A4 corrigendum was issued on the following lines-

'I modify the penalty of Compulsory retirement imposed by ADRM/TVC, the Disciplinary Authority and reinstate you in service with the penalty of 'Reduction of pay by 4 stages and pay fixed as Rs.9,210/- + GP Rs.1900/- in Pay Band Rs.5200-20200 VI PC for a period of five years (recurring) which will have the effect of postponing future increment of pay. You will regain seniority on completion of penalty.'

The applicant filed Revision petition against the said decision. The 1st Respondent, General Manager rejected the revision with a rider that during the period of penalty he shall not be booked for running duties and on completion of penalty he shall be suitably evaluated by a team of competent officials for considering him for running duties. With the above modification the order of the Appellate Authority was confirmed.

Here the applicant is aggrieved by the order only to the extent that the intervening period between imposition of compulsory retirement and reinstatement shall be treated as 'dies-non'.

Rule 1343 of the Code is the guiding provision, reads thus:-

“1343 (F.R.54).--(1) When a railway servant who has been dismissed, removed or compulsorily retired is re -instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-

(a) regarding the pay and allowances to be paid to the railway 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 re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway 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, 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 railway servant had been delayed due to reasons directly attributable to the railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay only such amount of such pay and allowances as it may determine.

(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.

(4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed 60 days from the date on which the notice has been served as may be specified in the notice.

(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose; provided that if the railway servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the railway servant.

NOTE:-- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of—

(a) extraordinary leave in excess of three months in the case of temporary railway servant; and

(b) leave of any kind in excess of five years in the case of permanent railway servant.

(4) The payment of allowances under Sub-rule(2) or sub-rule shall be subject to all other conditions under which such allowances are admissible.

(7) The amount determined under the proviso of sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (F.R. 53).

(8) Any payment made under this rule to a railway servant on his re-instatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the railway servant.”

A reading of the above Rule clearly indicates that whenever a railway servant is reinstated after dismissal, removal or compulsorily retired, an order should follow as to how the period of absence should be treated. Similarly, the Rule envisages two category of cases, namely those who were fully exonerated of the charges and those cases other than that covered by Sub Rule (2), including cases covered by clause (2) of Article 311 of the Constitution. In the case of employees in Sub Rule (2), there leaves no doubt that, they are entitled to be paid full pay and allowances for the period of absence from duty. But in the case of second category of employees, Sub Rule (5) works as a statutory injunction against the competent authority in treating the period of absence as period spent on duty, unless the authority specifically directs. In other words, in the second category of cases, the rule is that the period 'shall not be treated as a period spent on duty' unless otherwise directed.

We have no doubt that consideration of this aspect involves application of mind by the competent authority, followed by giving notice to the employee by affording opportunity of being heard, specifically on that point. In our opinion, there is nothing wrong in passing a composite order, but it should reflect the fact that the above aspect was considered by the authority in its true spirit.

We have no doubt that the Appellate Authority has in terms of Sub Rule (1) has held that the intervening period shall be treated as dies non. By employing the expression 'dies non', intention is very clear; he cannot be treated as on duty and hence cannot be granted any pay. No doubt, Sub Rule (2) is not applicable since it is not a case of complete exoneration. The applicant was found guilty of the allegations. In appeal the punishment was reduced, as stated supra and and he was reinstated. We have also no doubt that clause 2 of Article 311 of the Constitution cannot come to play in the facts of the case.

It is very pertinent to state that the applicant has not challenged the finding of the Inquiry Officer holding him guilty of the charges. Punishment imposed on him, as confirmed by the order in Revision also has not been challenged.

But we are convinced that the decision rendered by the disciplinary authority or Appellate authority, as the came may be, in respect of the DAR proceedings and matters to be dealt with in sub clause (a) & (b) of Rule 1 of Rule 1343 are independent and distinct. The verdict in Gopalkrishna Naidu, quoted supra, is a decision rendered in the background of FR 54 where it is held that, in the very nature of the situation, there is an implied obligation to give an opportunity to the affected person to show cause against the action proposed to be taken. If such an opportunity is not given, it is violative of the principles of natural justice. The Hon'ble Supreme Court held that FR 54 contemplates duty to act with the basic concept of justice and fair play and the authority should have afforded reasonable opportunity to the person to show cause why clause 3 & 5 ( of FR54) should not be applied and that having not been done the order must be held to be invalid. There the appellant had superannuated while undergoing suspension on 05.09.1952. Finding that opportunity was not granted under Sub Rule 3 & 5 of FR 54, by the judgement dated 24.08.1967, the Apex Court directed the Competent Authority to consider the question de novo after affording reasonable opportunity to show cause against the proposed action.

Rule 1343 of the Code is identical to FR 54. Here also the applicant has brought before us an identical situation. It may be true that the disciplinary authority might have heard him; while the appeal was considered by the 2nd Respondent also, he should have been heard in person, though that aspect is not inferable from Annexure A3. Whatever it may be, before passing a direction to treat the intervening period as 'dies non' independent consideration was not done.

Similarly Annexure A6 indicates that personal hearing was done by the 1st Respondent. Here also the question as to how the intervening period should be treated, was not considered as held by the Hon'ble Supreme Court.

From Gopalkrishna Naidu, quoted supra, it is clear that if the order affects the applicant financially it must be passed after objective consideration and assessment of all relevant facts and circumstances and after giving the person concerned full opportunity to make out his own case about the order. In Manzoor Ahmed Mazumdar vs. State of Meghalaya and others {(1997) 11 SCC 374} quoting Gopalkrishna Naidu it is held that even though there is no express requirement in FR54(3) for giving an opportunity to the employee before passing an order, giving of such an opportunity is implicit in the exercise of the power which has been conferred by the said provision. It is therefore necessary for the competent authority to afford an opportunity to the applicant before passing the order regarding pay and allowances payable to him in respect of the period of absence.

Materials placed before us do not suggest that such a vital aspect was considered by the authorities independently, after due application of mind. Therefore we quash that part of the order in Annexure A3 directing to treat the intervening period as 'dies-non' and direct the 2nd respondent to consider the matter afresh within a period of two months from the date of receipt of a copy of this order, after giving the applicant an opportunity of being heard. It goes without saying that such an order shall be passed untrammelled by the observations made by us. The OA is allowed to the above extent. No costs.

(Dated this the 10th day of March 2023)