Sharafat Ali vs Union of India

Veerendra Singh Siradhana, J.—The petitioner was initially appointed as Cleaner and was subsequently promoted as Fireman Grade-II in North-Western Railway at Jaipur Division on 9.03.1968. The petitioner fell ill on 21.04.1983 and remained under the treatment till 1.10.1985. On 26.10.1985 when the petitioner reported for duty, he was informed about the termination of his services in terms of Rule 14 (2) of the Railways Service (Discipline & Appeal), Rules, 1968 (for short ''the Rules of 1968''). The petitioner challenged the order of penalty of removal from service by way of Original Application No. 208 of 1989 before the Central Administrative Tribunal, at Jaipur Bench, Jaipur (for short ''the learned Tribunal''). The learned Tribunal allowed the said Original Application vide order dt. 21.06.1993 by setting aside the order of removal of the petitioner with all consequential benefits in accordance with law. The Railway Administration was at liberty to initiate fresh, disciplinary, proceedings against the petitioner, in accordance with law, if so advised. Thereafter, the, petitioner was placed under suspension and disciplinary proceedings were initiated again in consequence of the order dt. 21.06.1993. On conclusion of the disciplinary proceedings, the services of the petitioner were again terminated vide order dt 15.01.1996. On departmental appeal, the appellate authority vide order dt. 20.02.1998 substituted the penalty of removal from the service'', to that of ''compulsory retirement'' and made the same effective from 17.01.1996 and the period of deemed suspension i.e., from 01.10.1985 to 17.01.1996 has been treated as suspension and has also been treated as ''qualifying period'' of service for the purpose of ''pension''.

Since the pension of the petitioner-was not fixed extending the benefit of 5th Pay Commission and other pensionary benefits, he approached the departmental authorities to settle his grievance and being unsuccessful preferred yet another Original Application before the learned Tribunal, which was decided by the Tribunal vide order dt. 21.01.2009 whereby the learned Tribunal disposed of the said Original Application of the petitioner directing the Railway Administration to decide the representation of the petitioner on the following issues:--

The whole period, of deemed suspension i.e. from 01.1.0.1985 to 17.01.1996 is to be considered as qualifying service. The respondents are directed to pass speaking order on the point as to how he can be considered not on duty w.e.f. 01.01.1996 to 17.01.1996 even after the order of the Appellate Authority.

The second issue to be decided by the respondents is that when the applicant was compulsorily retired w.e.f. 17.01.1996, why not the benefit of 5th pay commission for calculation of pension, gratuity and all the pensionary benefits cannot be allowed in spite of the fact that the provision of this report shall apply to all railway servants who retired on or after 01.01.1996.

The respondents are directed either to admit the claim, of the applicant as per the recommendations of the 5 pay commission for the sake of allowing pension, gratuity, and other pensionary benefits or they should pass a speaking order and reasoned order on the above points within a period of 2 months from the date of receipt of a copy of this order. In case the applicant is aggrieved by the order to be passed by the respondents, he is at liberty to approach this Tribunal again.

The Railway Administration in compliance of the directions issued by the learned Tribunal passed the order dt. 30.04.2009 rejecting the claim of, the petitioner on the ground that since the petitioner was not on duty on 1.01.1996 and without joining his duty, he was treated on duty till 17.01.1996, therefore, the benefits of 5th Pay Commission was not admissible in his case.

The petitioner aggrieved by the order dt 30.04.2009 again approached the learned Tribunal by way of Original Application No. 349/2009, which has been dismissed by the learned Tribunal vide order dt. 21.04.2011, which is impugned in the present writ petition.

The learned counsel for petitioner submits that the learned Tribunal has passed the impugned order dt. 21.04.2011 without recording any finding on the controversy raised for the reason that the Rules of 1993 have not been taken into consideration, which under Rule 37 specifically stipulates to the effect that:--

a railway servant is kept under suspension pending enquiry into his, conduct, the period of such suspension shall count as qualifying service only on conclusion of such enquiry, he has been fully exonerated or the suspension is held to be wholly unjustified and in other cases, the period of suspension shall not count unless the authority competent to pass orders under the rules governing such cases expressly declares that it shall count to such extent as the authority may declare.

Therefore, once the appellate authority treated the period of suspension to be counted for the purpose of pension as qualifying service surely the petitioner is entitled for the benefits of 5th Pay Commission and the Railway Administration committed a grave error while calculating the pensionary benefits of the petitioner-in the pay scale of Rs. 2010-2017 as admissible in the year 1993. Further, Rule 50 of the Rules of 1993 stipulates as under:--

Average emoluments,--Average emoluments shall be determined with reference to the emoluments drawn by a railway servant during the last ten months of his service.

Note 1.--If during the last ten months of his service a railway servant had been absent from duty on leave of which leave salary is payable or having been suspended had been reinstated with forfeiture of service, the, emoluments which he would have drawn, had he not been absent from duty or suspended, shall be taken into account for determining the average emolument:

Provided that any increase in pay (other than the increment referred to in Note 3), which is not actually drawn shall not form part of his emoluments.

Note 2.--If, during the last ten months of his service, a railway servant had been absent from duty on extraordinary leave, or had been under suspension the period whereof does not count as service, the aforesaid period of leave or suspension shall be disregarded in the calculation of the average emoluments and equal period before the then months shall be included.

The learned counsel for petitioner further submits that note appended to Rule 50 of the Rules of 1993 could not have been made applicable in the case of the petitioner for the reason that vide order dt. 20.02.1998, the appellate authority while substituting the penalty of removal from service'' by that of ''compulsory retirement'' made it clear that the period of suspension shall be treated as qualifying service for the purpose of pension.

The learned counsel, Mr. D.S. Poonia, appearing for the respondent has supported the impugned judgment and order dt. 21.04.2011 passed by the learned Tribunal. It has been submitted that since as per the Rules of 1993, pension and other pensionary benefits are commuted on the basis of the last ten months salary drawn and the petitioner lastly worked and drew his salary, in the year 1985. Therefore, his pension and other pensionary benefits can only be calculated on the basis of the last salary drawn in the year-1985 and thus, the view taken by the learned Tribunal cannot be faulted.

The Railway Administration in their counter-affidavit filled before the learned Tribunal pleaded that admittedly the period with effect from 1.10.1987 to 17.1.1996 has been treated to be suspension period and therefore, cannot be treated to be period spent on duty. Therefore, the petitioner is not entitled for any benefit arising during that period including revision of pay scale as well as benefits of 5th Pay Commission even for the purpose of pensionary benefits. Further, there is no rule for treating the suspension period as spent on duty and merely existence of the relationship of master and servant, would not entitled the petitioner for pension and other pensionary benefits, which are to be commuted on the basis of the last ten months salary drawn. The counter-affidavit has also been filed to the writ petition on behalf of the respondents reiterating the contents of the reply before the learned Tribunal and placing reliance on the mandate of the Rules 49 & 50 of the Rules of 1993.

We have heard the learned counsellor the parties and have also considered the material available on record.

The learned Tribunal having recorded the submissions on the basis of the pleadings of the parties has declined the relief prayed for by the petitioner.

It is not in dispute that the appellate authority while deciding the departmental appeal of the petitioner vide order dt. 20.02.1998 partly allowed the appeal of the petitioner substituting the penalty of removal from service'' by that of ''compulsory retirement'' and further, treating the period of suspension to be counted as qualifying service, for the purpose of pension.

A bare perusal of the impugned order dt. 21.04.2011 would reveal that the learned Tribunal having recorded the submissions of both the sides, has concluded that the applicant-petitioner failed to make out a case for grant of relief, though the impugned order runs into 7 foolscap papers without recording any reason on the basis of the pleadings of the parties as well as in view of the material available on record. In the facts and circumstances state hereinabove, we quash and set-aside the impugned order dt. 21.4.2011. The writ petition is, accordingly, allowed. The matter is remanded back to the learned Tribunal for fresh adjudication according to law taking note of the observations as indicated above. Both the parties are directed to appear before the Tribunal on 8.4.2013.