R.P. Bhatnagar vs Union of India and Others

Instant writ petition is directed against order of the ld. Central Administrative Tribunal dt. 08.08.2012.

The basic grievance of the petitioner is that for the period during which he remained under suspension and to be more particular from 17.11.1978 to 25.02.1997, he is entitled for pay & allowances for the period during which he remained out of employment and held guilty in the Departmental Enquiry conducted against him.

Initially, he was punished with removal from service but finally he was held guilty and punished vide order dt. 24.02.1997 and on appeal being preferred, the Appellate Authority vide its order dt. 05.11.1997 modified the order of penalty indicated above.

Brief facts of the case are that the petitioner was placed under suspension during pendency of the departmental enquiry w.e.f. 28.07.1975 and reinstated on 06.02.1976 and practically remained out of service w.e.f. 17.11.1978 to 25.02.1997. In a regular enquiry initiated for imposing major penalty, after he was held guilty, awarded penalty of removal from service, which came to be challenged by filing of Original Application before the ld. Tribunal and the ld. Tribunal vide order dt. 15.09.1994 quashed and set aside the order of removal from service. Operative portion of the order dt. 15.09.1994 passed by the ld. Tribunal reads ad infra:-

"In the circumstances, the order removing the applicant from service is quashed with all consequential benefits. Consequently, the orders of the Appellate Authority and the Reviewing Authority are also quashed. We however make it clear that the appropriate Disciplinary Authority shall be free to pass such fresh order as it considers appropriate in the circumstances of the present case. Before passing any fresh order, the appropriate Disciplinary Authority shall grant an opportunity of personal hearing to the applicant."

Thereafter, the review application was filed against the aforesaid judgment that came to be rejected vide order dt. 30.01.1996 and pursuant to order of the ld. Tribunal, the Disciplinary Authority after due compliance of directions of the ld. Tribunal passed the order dt. 24.02.1997 by which following penalty was imposed upon the applicant:-

"Reduction by one stage in the same time scale of pay Rs. 1200-2040 (RP) at pay Rs. 1230/- p.m. for a period of one year, with future effect on pay and seniority. On expiry of the period of reduction, it will postpone his future increments."

The order dt. 24.02.1997 came to be challenged by the petitioner in a regular departmental appeal and the Appellate Authority vide order dt. 05.11.1997 modified order of Disciplinary Authority to the limited extent and imposed the following penalty:-

"Reduction shall be without effect on future pay and seniority. The penalty otherwise stands good."

In fact the Disciplinary Authority while passing the order dt. 24.02.1997 substituted punishment of removal from service and inflicted penalty that made it clear as to how the period of 17.11.1978 to 25.02.1997 is to be treated and that came to be confirmed by the Appellate Authority while passing order dt. 05.11.1997. At this stage, it reveals that certain representation was made by the petitioner for treating the suspension period during which he remained out of service w.e.f. 17.11.1978 to 25.02.1997 as period spent on duty for all purposes and salary may be paid for the aforesaid period.

A confidential letter on his representation was sent by the Officer for DRM (Establishment), who is not Disciplinary Authority, on 27.05.2002 directing to treat the suspension period from 28.07.1975 to 06.02.1976 and 17.11.1978 to 25.02.1997 as period spent on duty for all purposes by the competent authority and in compliance thereof computation was made for actual benefit to which he became entitled for vide order dt. 05.08.2002 but since such orders were not carried out and implemented, at this stage, the petitioner approached the ld. Tribunal by filing of Original Application No. 359/2005 and the ld. Tribunal finally observed that since there is an order passed by the authority on 27.05.2002 followed with order dt. 05.08.2002 and that has not been withdrawn, he may be paid full pay and allowances in the light of the provisions contained u/R.1344 & R.1345 of the Indian Railways Establishment Manual vide its order dt. 1/5.10.2009 but after the passing of order by the ld. Tribunal dt. 1/5.10.2009, the competent authority examined the matter and finally passed order dt. 15.11.2010 in meeting out the period from 17.11.1978 to 25.02.1997 and it was decided that it may be treated as suspension and will be qualified for pensionary benefits and the subsistence allowance already paid to the petitioner may not be recovered and no further payment of any salary will be entitled to him. It would be relevant to quote the order dt. 15.11.2010 for the present purpose, which reads ad infra:-

"Shri Bhatnagar has since retired from service on superannuation and a lenient view is being taken so as not to cause undue hardship to him. Considering all aspects of the case, the period from 17.11.1978 to 25.02.1997 is decided to be treated as suspension and will qualify for pensionary benefits. The subsistence allowance already paid to Shri Bhatnagar may not be recovered and no further payment of any salary will be entitled to him."

It will be relevant to note that the Contempt Petition was filed by the petitioner and it was pressed that the order passed by the authority on 15.11.2010 may not hold good in the light of order of the ld. Tribunal dt. 1/5.10.2009. However, that Contempt Petition was dismissed and notices were discharged with liberty to the petitioner to file fresh Original Application assailing order passed by the authority dt. 15.11.2010 and that was subject matter of challenge by filing of Original Application No. 359/2011 before the ld. Tribunal.

The sole grievance of the petitioner in the Original Application was that once there was an order of the ld. Tribunal dt. 1/5.10.2009 to make payment of full pay and other allowances for the period from 28.07.1975 to 06.02.1976 and 17.11.1978 to 25.02.1997 and that order has not been further challenged by the respondents in any of the proceedings and the same has attained finality, as such the later order passed by the authority dt. 15.11.2010 was not sustainable in law and he is entitled for full salary for the intervening period along with all consequential benefits for the period from 17.11.1978 to 25.02.1997.

Reply was filed by the respondents to the Original Application No. 359/2011 and their defence was that the Disciplinary Authority while inflicting penalty upon the petitioner vide order dt. 24.02.1997 followed with order of the Appellate Authority dt. 05.11.1997 left no discretion open for the authority for passing further orders and regularizing the period from 17.11.1978 to 25.02.1997 and apart from it, their further defence was that the order on which reliance has been placed by the petitioner was not an order passed by the competent authority and it was only a confidential letter by the Officer from DRM (Establishment) dt. 27.05.2002 pursuant to which arrears were also prepared but in absence of any decision being taken by the competent authority, at least the petitioner was not entitled of full salary for the intervening period for which a claim was made by him and their further defence was that after he has been held guilty and punished with penalty by the Disciplinary Authority vide order dt. 24.02.1997 followed with the order of Appellate Authority dt. 05.11.1997, he is not entitled for salary for the period i.e. from 17.11.1978 to 25.02.1997 in the light of the R.1344 & R.1345 of the Indian Railways Establishment Manual.

The ld. Tribunal after taking note of the material on record was of the view that after the orders passed by the Disciplinary Authority followed with order of Appellate Authority dt. 27.05.2002 & 05.08.2002 respectively, there was no justification available to the petitioner for making representation on 21.04.2002 at least after more than five years and without authority if some confidential letter has been sent on which arrears were also prepared that in itself may not be sufficient for the claim of salary, as prayed for by the petitioner and he is at least not entitled for the salary for the intervening period. However, necessary safeguards have been provided in treating the intervening period as suspension and qualified for pensionary and all other practical purposes.

The ld. Tribunal after taking note of the material available on record was of the view that after the order came to be passed by the Disciplinary Authority dt. 24.02.1997 followed with order passed by the Appellate Authority dt. 05.11.1997, the matter stands settled and the intervening period stood regularized accordingly and that has been taken care of by the authority in its order dt. 15.11.2010 and that being so, there appears no error in the decision making process which calls for interference.

R.1344 of the Indian Railway Establishment Manual clearly envisages that where dismissal, removal or compulsory retirement of a Railway servant is set aside by a Court of law and the employee is reinstated without holding any further inquiry, the period of absence from duty has to be regularized and paid pay & allowances keeping in view the provisions of sub-rules (2) or (3), subject to the directions, if any, of the Court. At the same time if dismissal, removal or compulsory retirement of a Railway servant is set aside by the Court on the ground of non-compliance of the mandatory requirement of law or in a case where the order of penalty of dismissal, removal or compulsory retirement is set aside on merits, the period has to be regularized in the light of sub-rules (2) & (3) of the R.1344. At the same time, in a case where a Railway servant who has been suspended is reinstated but punished in a Disciplinary Enquiry under sub-rule (3) of R.1345, the discretion is left with the competent authority while passing the order of reinstatement to consider as to whether the suspension was wholly unjustified and if that being so, the employee may be considered for grant of pay & allowances to which he would be entitled for during the period and remained under suspension.

Even after going through the R.1344 & R.1345 of the Indian Railways Establishment Manual in a case where the employee has been held guilty and punished, there is no such Rule which envisages to grant full pay & allowances unless the authority competent directs to order reinstatement after recording its opinion that the suspension was either unwarranted or wholly unjustified.

In the instant case, there was no opinion expressed by the authority competent that the suspension was wholly unjustified & in absence whereof, the employee is not entitled to full pay & allowances and that has been taken care of by the Disciplinary Authority in its order dt. 24.02.1997 and which was modified to some extent by the Appellate Authority by passing order dt. 05.11.1997 of which we have made a reference supra and for passing of an order in regularizing the period of service, order has been passed by the authority competent on 15.11.2010.

We have no hesitation in holding that the confidential letter issued from the office of DRM (Establishment) dt. 27.05.2002 followed with order dt. 05.08.2002 on which a great emphasis has been laid by the petitioner for making payment of full pay & allowances for the period in question, in our considered view, is without authority and competence and in the given facts & circumstances and order has been passed by the authority competent dt. 15.11.2010 for regularizing the period in question w.e.f. removal from service to reinstatement in service i.e. 17.11.1978 to 25.02.1997, the correspondence from officer of DRM (Establishment) dt. 27.05.2002 followed with dt. 05.08.2002 if restored may perpetuate illegality which at one stage being committed by the officer of the respondent and we find that the ld. Tribunal was rightly not inclined to perpetuate illegality which officer of the respondents at one stage has committed through the letters dt. 27.05.2002 & 05.08.2002 and we are also of the view that these two communications are not in conformity with R.1344 & R.1355 of the Indian Railways Establishment Manual.

The main thrust of counsel for petitioner that once there was an order of ld. Tribunal passed in Original Application No. 359/2005 dt. 1/5.10.2009 directing the respondents to release pay & allowances for the intervening period from 17.11.1978 to 25.02.1997 in the light of the provisions contained u/R.1344 & R.1345 and the order not being further assailed by the respondents and passing of order dt. 15.11.2010 by the authority and rejecting of Original Application by the ld. Tribunal, in the facts & circumstances, was not legally sustainable.

In our considered view, the submissions made is wholly bereft of merit for the reason that the ld. Tribunal earlier constrained to observe because of the correspondences which came on record of which a reference has been made dt. 27.05.2002 followed with the order dt. 05.08.2002 but after the matter came to be examined by the authority competent who finally passed the order dt. 15.11.2010, the ld. Tribunal itself reviewed & reconsidered its order and observed that the order dt. 27.05.2002 followed with order dt. 05.08.2002 are not in conformity with law taking note of R.1344 & 1345 of the Indian Railway Establishment Manual and the illegality committed by the respondents could not be perpetuated and we also fortify the view expressed by the ld. Tribunal to hold that after the authority competent has passed an order dt. 15.11.2010 regularizing the period from removal from service to reinstatement (deemed suspension) w.e.f. 17.11.1978 to 25.02.1997 being in conformity with R.1344 & 1345 of the Indian Railway Establishment Manual, the authority if asked to comply with the confidential letter dt. 27.05.2002 followed with letter dt. 05.08.2002 & released pay & allowances to the petitioner that is nothing but committing illegality and this court is not inclined to perpetuate the illegality committed by the Officer of DRM (Establishment) after it has been brought to our notice.

We have gone through order of the ld. Tribunal and find no manifest error being committed which may call for our interference.

Consequently, the instant writ petition is bereft of merit, accordingly stands dismissed.