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wp2613.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.2613 of 2002
Vinod Sakharam Ganvir,
Aged about 43 years,
R/o Baba Buddha Nagar,
Binaki Layout, Nagpur. ... Petitioner
Versus
1. The Union of India,
Society of Railways,
Rail Bhavan,
New Delhi, through its Secretary.
2. General Manager,
Central Railway,
Chatrapati Shivaji Terminus,
Mumbai.
3. The Divisional Commercial Manager,
Central Railway,
Divisional Railway Manager's Office,
Nagpur. ... Respondents
Shri S.A. Pathak, Advocate for Petitioner.
Shri N.P. Lambat, Advocate for Respondents.
Coram : R.K. Deshpande & Manish Pitale, JJ.
Dated : 22 nd September, 2017 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 2 wp2613.02.odt Oral Judgment (Per R.K. Deshpande, J.) :
1. Heard Shri Pathak, the learned counsel appearing for the petitioner; and Shri Lambat, the learned counsel appearing for the respondents.
2. The petitioner was removed from service on 26-8-1994 upon his conviction being recorded by the Court of competent jurisdiction in respect of the offence of theft of the property of Railway, of which he was an employee. The petitioner was sentenced to suffer rigorous imprisonment for one year with fine. Invoking the power under Rule 14(i) of the Railway Servants (Discipline & Appeal) Rules, 1968 ("the said Rules"), the petitioner was called upon by issuing a show cause notice dated 6-6-1994 for removal from service. The petitioner did not make any representation within a stipulated period and, therefore, he was removed from service on the ground that he was found to be convicted on a criminal charge. ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 3
wp2613.02.odt
3. The order of removal was the subject-matter of challenge before the Central Administrative Tribunal in Original Application No.993 of 1996, which was partly allowed on 26-9-2001 by maintaining the order of removal from service and directing the respondents to grant the petitioner subsistence allowance at the rate of 75% of the basic pay from October 1990 to 15-7-1994, i.e. after six months from the date of deemed suspension, and to pay the differential amount within three months from the date of receipt of the order. This order has been complied with by making payment to the petitioner on 21-2-2002.
4. Shri Pathak, the learned counsel for the petitioner, has invited our attention to the judgment delivered by the Central Administrative Tribunal on 15-7-1994 in the Original Application filed by the petitioner, in which a direction was given to pay the petitioner subsistence allowance in accordance with the rules. He submits that in spite of the aforesaid direction given on 15-7-1994, the petitioner was paid subsistence allowance only at ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 4 wp2613.02.odt the rate of 50% and not at the rate of 75% as per the rules. He submits that in the order impugned in this petition, the Central Administrative Tribunal has found that the subsistence allowance was not paid to the petitioner in accordance with rules and, therefore, the direction was given. Relying upon the decision of the Apex Court in the case of Ghanshyam Das Shrivastava v. State of Madhya Pradesh, reported in (1973) 1 SCC 656, it is urged that the order of removal stands vitiated for non-payment of subsistence allowance as per the rules. He further submits that there was no departmental enquiry conducted before removal of the petitioner from service. He submits that the Central Administrative Tribunal has failed to take into consideration the challenge to the order of removal.
5. The order directing payment of subsistence allowance in accordance with rules was passed by the Central Administrative Tribunal on 15-7-1994. The petitioner was removed from service by an order dated 26-8-1994. The petitioner was considered to be under deemed suspension during the period from 15-3-1990 ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 5 wp2613.02.odt to 6-6-1994. In view of the compliance of the order passed by the Central Administrative Tribunal, which is impugned in this petition, the grievance of the petitioner regarding non-payment of subsistence allowance does not at all survive.
6. So far as the challenge to the order of removal is concerned, Rule 14(i) of the said Rules with Proviso 1 below it invoked by the respondents for removing the petitioner from service, being relevant is reproduced below :
"14. Special procedure in certain cases - Notwithstanding anything contained in Rules 9 to 13 -
(i) where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge;
...
the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 6
wp2613.02.odt Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause (i) above."
Undisputedly, the procedure for imposing the major penalties is prescribed under Rule 9, and the procedure for imposing the minor penalties is prescribed under Rule 11 of the said Rules. Rule 14, reproduced above, is given overriding effect and it starts with non obstante clause of "notwithstanding anything contained in Rules 9 to 13", which clearly shows that the procedure contemplated under Rules 9 to 13 can be dispensed with if the case is covered by sub-rule (i) of Rule 14 of the said Rules.
7. It is not in dispute that the petitioner was found to be convicted on a criminal charge and on that basis he was removed from service on 26-8-1994. The only requirement before issuing the order of removal is to provide the petitioner an opportunity to make a representation on the penalty proposed to be imposed, ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 7 wp2613.02.odt and this has been complied with by issuing a show cause notice dated 6-6-1994, to which the petitioner did not reply within a stipulated period, but he replied on 7-4-1995, i.e. much after the order of removal was passed. We, therefore, do not find any substance in the contention raised by the learned counsel for the petitioner that the departmental enquiry was required to be conducted in this matter or that the petitioner was not given any opportunity to make a representation, as contemplated by Rule 14 of the said Rules, reproduced above.
8. Coming to the last contention raised by the learned counsel for the petitioner, relying upon the decision of the Apex Court in Ghanshyam Das Shrivastava's case, cited supra, it is not the case of total non-payment of subsistence allowance. The subsistence allowance was paid at the rate of 50% as per the order of the Central Administrative Tribunal. The petitioner was not suspended pending the departmental enquiry, but was considered to be under deemed suspension on account of his arrest and prosecution for the offence of theft. The learned ::: Uploaded on - 27/09/2017 ::: Downloaded on - 28/09/2017 01:05:01 ::: 8 wp2613.02.odt counsel for the petitioner could not point out to us any prejudice caused to the petitioner. The entire amount of subsistence allowance has already been paid to the petitioner.
9. In the result, the petition has no substance, and the same is dismissed. Rule stands discharged. No order as to costs.
(Manish Pitale, J.) (R.K. Deshpande, J.)
Lanjewar
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