Dlvisional Personnel Officer, Western
Railway, Kota Vs. Sundar Dass [1981] INSC 179 (16 October 1981)
VARADARAJAN, A. (J) VARADARAJAN, A. (J)
CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J)
CITATION: 1981 AIR 2177 1982 SCR (1) 937 1981
SCC (4) 563 1981 SCALE (3)1647
CITATOR INFO :
D 1992 SC1981 (7,12)
ACT:
Indian Railway Establishment Code, Rule 1706
(4)- Railway servant dismissed after departmental enquiry- dismissal order set
aside by court-Fresh charge sheet issued-No fresh order of suspension however
issued-Railway servant eventually dismissed-Railway servant-Whether deemed to
have continued to be under suspension.
HEADNOTE:
Clause (1) of Rule 1706 of the Indian Railway
Establishment Code provides for a railway servant being placed under suspension
where a disciplinary proceeding against him is contemplated or pending.
Clause (4) of The same Rules provides that
where a penalty of dismissal, removal or compulsory retirement from service
imposed upon a railway servant is set aside by a decision of a Court of Law and
the disciplinary authority decides to hold a further enquiry, the railway
servant shall be deemed to have been placed under suspension by the competent
authority from the date of the original order of dismissal, removal or
compulsory retirement.
The Respondent was employed as an Assistant
Sub Divisional Clerk in the North Western Railway. He was discharged from
service by an order dated 12.4.44. On the partition of India. he migrated to
India and was taken as a clerk in the Western Railway. When the fact that the
Respondent had already been discharged from Railway service on 12.4.44 came to
light, the Respondent was suspended from service on 17.2.49 and a charge sheet
was issued to him for the misconduct of concealment of the order of discharge,
and after an enquiry he was dismissed from service on 14 5.59.
The Respondent filed a suit for a declaration
That the order of discharge was void. The High Court in Second Appeal held that
the Respondent was entitled to a declaration that the order of his dismissal
from service was illegal on the ground that there was a breach of the
principles of natural justice and that it was open to the railway
administration to take fresh disciplinary proceedings from the stage at which
the illegality crept in.
In pursuance to the order of the High Court
the department issued a fresh charge sheet against him on 14,11.63 and held an
inquiry. No fresh order of 938 suspension was however issued to the respondent.
The respondent was even tually dismissed from service by an order dated
23.12.66 with effect from 14.5.59, the date of his original dismissal. The
respondent's writ petition challenging the order of dismissal was dismissed by
the High Court.
After the dismissal of the Second Appeal by
the High Court, the Respondent moved the Payment of Wages Authority on 22.2.63
by a petition under section 15 (2) of the Act claiming wages for the period
from 17.2.49, the date of the original suspension, to 22.2.63 less subsistence
allowance.
He also filed (seven) petitions once in every
six months claiming wages for the period from 1.3.63 to 31.8.66. The Authority
held that the Respondent was entitled to wages for the period from 17.2.49 to
14.5.49 but the District Judge in appeal held that the Respondent was entitled
to wages for a period of six months prior to 25.6.63 r and also for the period
of six months in respect of each one of the seven petitions filed by him. The
High Court, however, dismissed the appellant's Civil Revision Petition and
allowed the respondent's revision petition and held that the 5 respondent was
entitled to receive the arrears of wages from 17.2.49 to 31.8.66.
In the appeal to this Court it was contended
on behalf of the Appellant that the Respondent had been suspended from service
on 17.2.49 before he was originally dismissed from service on 14.5.49 pursuant
to the finding of guilt recorded in the departmental inquiry and that in the
subsequent departmental inquiry he was found guilty and was therefore dismissed
from service and by virtue of the provisions of Rule 1706(4) he must be deemed
to have been under sus- pension right from 17.2.49 and he was only entitled to
subsistence allowance and not to full wages for the period from 17.2.49. The
Respondent, however, contended that the original order of dismissal dated
14.5.49 was based on the finding of guilt recorded in respect of a single
charge and that as a second allegation had been made in the fresh inquiry, the
provisions of Rule 1706(4) were not attracted.
Allowing the appeal HELD: 1. Rule 1706 (4) of
the Indian Railway Establishment Code is Squarely attracted to the case of the
Respondent. [945 F] In the instant case the Respondent had been suspended on
17.2 49 pending inquiry and had not reported for duty after the original order
of dismissal dated 14.5.49 had been declared to be illegal by the High Court,
in the second appeals filed by both the parties. The Respondent 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 he 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. [945 G]
2. 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 12.4.44 while he secured employment in
1948 after the partition of India. The fresh charge dated 22.3.65 was only a
single charge and the second allegation, namely, the declaration dated 26.1.48
made by the respondent after 939 he joined the Ex. B.B. and Central Indian
Railway was only intended to be A relied upon for proving that charge. [945 E,
D]
CIVIL APPELLATE JURISIDICTION: Civil Appeal
No. 1085 of 1981.
Appeal by special leave from the judgment and
order dated the 28th February, 1979 of the Rajasthan High Court (Jaipur Bench)
at Jaipur in S.B. Civil Revn. No. 63 and 158 of 1973.
N.C. Taluqdar and R.N. Poddar for the
Appellant.
Respondent in person.
The Judgment of the Court was delivered by
VARADARAJAN, J. In this appeal by special leave the respondent Sunder Dass
appears 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. 63 of 1973 filed by Sundar Dass and dismissed Civil Revision
No. 158 of 1973 filed by the Divisional Personnel officer with costs in both.
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
dated 30-10-1967 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 respondent's 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 940
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 respondent's 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 a charge-sheet 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 finding of guilt recorded in the
inquiry. The respondent's 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 fresh charge-sheet 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 941 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 respondent's 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 respondent's Review Petition was
dismissed by the learned Judge of the High Court on 7.3.1972.
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 respondent's 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 the Code 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 942 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.
It was contended before the learned Single
Judge of the High Court that since after the original order of dismissal had
been set aside by the High Court, the disciplinary authority had decided to
hold a fresh inquiry and had dismissed the respondent pursuant to the finding
of guilt recorded by the Inquiry officer in the fresh inquiry and accepted by
the disciplinary authority, in view of the provisions of Rule 1706(4) of the
Indian Railway Establishment Code, the respondent must be deemed to have been
placed under suspension from the date of the original order of dismissal. The
learned Single Judge did not allow that contention to be raised before him on
the ground that it was not raised either before the Authority under the Act or
before the learned District Judge in the appeals. The learned Judge dismissed
the Divisional Personnel officer's revision petition and allowed the
respondent's revision petition with costs and held that the respondent is
entitled to receive arrears of wages from 17-2-1949 to 31-8-1966. The
Divisional Personnel officer had filed this Civil Appeal by special leave
against those orders of the learned Single Judge of the High Court.
The fact that the respondent had been
dismissed from service pursuant to the finding of guilt recorded in the fresh
inquiry has not been disputed before us by the respondent who has appeared in
person though the appellant in this appeal had been directed by this Court
while ordering show cause notice in the special leave petition to deposit a sum
of Rs. 1,000/- to enable the respondent to engage a counsel to appear for him
in this Court and that amount had been deposited by the appellant and withdrawn
by the respondent. We perused the record of the fresh inquiry and are satisfied
that the respondent has admitted the fact of his discharge from service on
12-4-1944 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 on 17-2-1949 before he was
originally dismissed from service on 14-5-1949 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 943
Indian Railway Establishment Code, he must be deemed to have A been under
suspension right through from 17-2-1949 and he would be entitled only to
subsistence allowance and not to full wages for the period from 17-2-1949.
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. Clause (4) of that rule reads thus:
"Where a penalty of dismissal, removal
or compulsory retirement from service imposed upon a railway servant 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, decides to hold a further inquiry against him on the
allegations on which the penalty of dismissal, removal or compulsory retirement
was originally imposed, the railway servant shall be deemed to have been placed
under suspension by the competent authority, mentioned in Rule 1705, from the
date of the original order of dismissal. removal or compulsory retirement and
shall continue to remain under suspension until further orders".
We are of the opinion that this sub-clause
will be attracted in cases where there had been a suspension of a railway
servant due to a contemplated or pending 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 from 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% of 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 944 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 second 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
suspension order dated 17.2.1949, he has been described as a Clerk, Executive
Engineer's 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 Division
and also to the fact that he had been informed by the Chief Engineer's letter
dated 9-9-1965 that he has not placed under suspension by the administration
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 suspension 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 from 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 administration to leave Kota 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." 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 of 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 service 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." 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. The appeal is accordingly allowed, but in the circumstances of
the case without costs. The appellant had deposited In this Court a sum of Rs.
16,000 being subsistence allowance for the said period as directed by this
Court 946 on 2.12.1980 when notice to show cause was ordered in the special
leave petition and it has been withdrawn by the respondent. We, therefore, add
that nothing more remains to be paid to the respondent towards his subsistence
allowance.
Appeal allowed.
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