Ram Bachan Ram vs Union Of India And 4 Ors.
2021 Latest Caselaw 4717 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED  
 
A.F.R.       
 
Court No. - 74
 

 
Case :- WRIT - A No. - 1309 of 2017
 

 
Petitioner :- Ram Bachan Ram
 
Respondent :- Union Of India And 4 Ors.
 
Counsel for Petitioner :- Bed Kant Mishra
 
Counsel for Respondent :- A.S.G.I.,Dileep.Kumar.Pandey U.O.I.
 

 
Hon'ble J.J. Munir,J.

The petitioner has brought the present petition, challenging an order dated 07.01.2016, passed by the Deputy Inspector General of Police, Group Center, Central Reserve Police Force, Allahabad (now Prayagraj) to the extent that it declines full wages to the petitioner for the period 17.04.2008 to 19.07.2013. Further, a mandamus has been sought, ordering the respondents to release full pay and arrears for the period 17.04.2008 to 19.07.2013, together with award of seniority and grant of promotion. In substance, the petitioner asks this Court to treat the period 17.04.2008 to 19.07.2013 as period of service deemed to be rendered free from blemish, like any other employee.

2. The facts giving rise to the present writ petition are these :

The petitioner was recruited on the post of Constable/Mali with the Central Reserve Police Force1 in the year 1991. He was posted at the Group Centre, Allahabad in the month of December, 2008. Shorn of unnecessary details, it appears that the petitioner's wife was unwell and undergoing treatment at the Nazreth Hospital, Prayagraj. The petitioner was detailed to Sentry duty at the residence of the Deputy Inspector General of Police, Group Center, CRPF, Allahabad on 01.03.2008 from 18:00 hours to 02.03.2008 until 18:00 hours, along with other guards. The petitioner, however, on 02.03.2008, left post from 06:00 hours to 08:00 hours. The respondents say that this absence from post was without permission, whereas, the petitioner claimed that he had sought the requisite permission. A preliminary inquiry was held in the matter. A departmental inquiry was ordered under Section 11(1) of The Central Reserve Police Force Act, 19492 read with Rule 27 of the The Central Reserve Police Force Rules, 19553. Vide memo dated 13.03.2008 issued by the Additional Deputy Inspector General of Police, Group Center, Allahabad, two charges were framed against the petitioner. The first was about his unauthorized absence from post on 02.03.2008 from 06:00 hours to 08:00 hours, without the permission of the competent authority, and the other was that on 02.03.2008 at 05:45 hours, the petitioner, without permission of the competent authority, carried his service weapon/ammunition to his allotted government quarter, and that he left the weapon and ammunition without security at his quarter located in the camp compound for the period of time that he moved out of the camp premises to drop his wife to the railway station.

3. A departmental inquiry followed. At the conclusion of the disciplinary proceedings, about which there is no issue here, the petitioner was punished by the Disciplinary Authority/Additional Deputy Inspector General of Police, Group Center, CRPF, Allahabad, inflicting the following penalties :

[1]. Dismissal from service w.e.f. 17.04.2008.

[2]. The period of suspension pending inquiry from 02.03.2008 to 16.04.2008 (46 days) to be treated as such.

There were certain ancillary directions, that are not relevant.

4. This order was appealed by the petitioner to the Deputy Inspector General of Police, CRPF, Allahabad through a statutory appeal. The Deputy Inspector General of Police, by his order of 7th August, 2008 dismissed the appeal and affirmed the Disciplinary Authority's order. The petitioner carried a revision under Rule 27/29 of the Rules of 1955 to the Inspector General, CRPF, Lucknow. The aforesaid revision was dismissed vide an order dated 27.01.2009. Aggrieved, the petitioner instituted a writ petition before this Court, being Writ - A No. 16965 of 2009. The aforesaid writ petition was allowed by a judgment and order dated 08.05.2013, in terms that the orders dated 17.04.2008, 07.08.2008 and 27.01.2009, dismissing the petitioner from service and its affirmation in appeal and revision, were all quashed, with a remit of the matter to the Disciplinary Authority, directing him to pass fresh orders in accordance with law, within three months of the date of presentation of a certified copy of this Court's order.

5. In compliance with the said judgment and order passed by this Court, it appears that the petitioner was issued a letter dated 26.06.2013, directing him to report at the Group Center, CRPF, Allahabad on or before 20.07.2013, to consider his case for reinstatement in service, and further to pass fresh orders in the disciplinary matter. The petitioner reported on 20.07.2013 in the forenoon. He was permitted to join w.e.f. 20.07.2013, again in the forenoon. The respondents then proceeded to consider what fresh orders were to be made in the disciplinary matter. The Disciplinary Authority proceeded to pass those fresh orders on 08.08.2013, punishing the petitioner in the following terms :

[1]. Confinement to Quarter Guard for 15 days from 16.08.2013 to 30.08.2013 with one hour punishment drill daily. Dismissal from service ordered earlier vide order dated 17.04.2008 was directed to be set aside.

[2]. The period of suspension from service pending inquiry from 02.03.2008 to 16.04.2008 (46 days) was directed to be treated as such.

6. The period of dismissal from service from 17.04.2008 forenoon to 19.07.2013 i.e. until the petitioner's reinstatement on 20.07.2013 (forenoon) was directed to be treated as "dies non" on the principle of "no work no pay". The aforesaid break in service was, however, condoned, acting in terms of an order of the Government of India dated 23.09.1982, pursuant to Rule 28 of the Central Civil Services (Pension) Rules, 19724. This condonation was indicated to be for the limited purpose of reckoning the petitioner's pensionary benefits etc.

7. The petitioner appealed the order dated 08.08.2013 to the Deputy Inspector General of Police, Group Center, CRPF, Allahabad to the extent that the Disciplinary Authority had treated the period of his dismissal from service as one not spent on duty and deprived him of all consequential benefits of salary, allowances and seniority. The aforesaid appeal, preferred under Rule 27 of the Rules of 1955, was rejected by the Appellate Authority vide order dated 04.02.2014. The petitioner carried a revision to the Inspector General of Police, under Rule 27 of the Rules of 1955, assailing both orders and asking that the period intervening 17.04.2008 and 19.08.2013, that is to say, the period when the petitioner was out of service, be treated as one spent on duty, with grant of consequential benefits of arrears of salary, bonus and promotion. The Inspector General of Police, vide order dated 11.06.2014, dismissed the revision, but passed better worded directions, reiterating what the Authorities below had done. All the three orders were put in issue by the petitioner through a petition preferred to the Special Director General, Central Zone, Kolkata. The Special Director General, Central Zone, Kolkata, vide his order dated 5th of December, 2014 apparently rejected the petitioner's representation in terms of the following directions :

(i) "The petitioner has been given relief on the direction of the Hon'ble Court (Judgment dated 08/05/2013 in WP No.16765 of 2009). The Hon'ble Court has not given specific service and financial benefits to the petitioner. As such there is no parity with CT/GD Murugesan and ASI/M M.D. Salam as claimed with that of the petitioner. The benefits which are to be allowed should be based on rule positions i.e. FR-54.

(ii) The petitioner has already been given leniency by way of awarding a lesser punishment. The petitioner has not submitted any new material or valid ground to interfere in the orders of disciplinary, appellate and Revisioning authorities. Since in the instant case the petitioner has not been exonerated from the charges, the competent authority has treated the intervening period as period spent not on duty, which is correct as per FR-54 (1,5).

(iii) In view of the above, I reject the request of the petitioner to the extent of service benefits of intervening period. The pay and allowance of intervening period of the petitioner from the date of dismissal to the date of re-instatement as per FR (4,7) may be finalized by the IG, CS immediately."

8. While giving effect to the order of 5th December, 2014 passed by the Director General of Police, the Deputy Inspector General, CRPF, Allahabad regularized the period between 17.04.2008 to 19.07.2013 and directed that for the intervening period from 17.04.2008 to 19.07.2013, the petitioner would be entitled to salary and allowances at the rate of 50 percent. It has further been provided that the petitioner would be entitled to the first Assured Career Promotion5 pay scale w.e.f. 05.10.2003, upon completion of 12 years' service and to the second ACP pay scale w.e.f. 05.10.2011, upon completion of 20 years' service. The order dated 07.01.2016 passed by the Deputy Inspector General of Police, CRPF, Allahabad, which is the order impugned read as a whole, shows that the period between 17.04.2008 to 19.07.2013 has been held for the petitioner as one spent on duty. It has not been regarded as period not spent on duty. If this were not so, the petitioner would not have been awarded the second ACP pay scale w.e.f. 05.10.2011, inasmuch as the said ACP is awarded upon completion of 20 years' service. The impugned order also shows to its face that the second ACP was granted on completion of 20 years' service. The petitioner had joined service in the year 1991, and, therefore, he was awarded the second ACP in the year 2011. This award of the second ACP shows that the break in service from 17.04.2008 to 19.07.2013 was effectively regularized and reckoned as period spent on duty. The only deprivation to which the petitioner was subjected was the award of salary and allowances, reduced by 50 percent, for the period 17.04.2008 to 19.07.2013. Learned counsel for the petitioner urges as the first grievance, the denial of 50 percent wages for the period 17.04.2008 to 19.07.2013 and asks to be paid in full for that period, together with arrears.

9. The last order that governs the rights of the petitioner, which, admittedly, became final inter se the parties, is the order of December the 5th, 2014 passed by the Special Director General, CRPF, Kolkata. This order, while substantially upholding the orders passed by the Authorities below, makes a specific direction, subject to which the petitioner stands reinstated in service. The Director General's order clearly says that since the petitioner has not been exonerated of the charges, the Competent Authority has treated the intervening period (from 17.04.2008 to 19.07.2013) as one spent not on duty. The Director General has also remarked that this part of the order is correct, as it accords with the Fundamental Rule 54 (1) and (5). The Director General has gone on to further say in his order that he rejects the petitioner's request to the extent of grant of service benefits for the intervening period (that is to say, 17.04.2008 to 19.07.2013).

10. So far, there is no ambiguity in the Director General's order. But, towards the tail end of it, there is a rather confounding direction, which has been referred to verbatim, in the part of this judgment where the order of the Director General dated 05.12.2014 has been quoted. This direction says that the pay and allowance for the intervening period from the date of dismissal to the date of reinstatement may be finalized as per "FR (4,7)" by the Inspector General, CS immediately. It is this last direction carried in the Director General's order of 5th December that has led the Deputy Inspector General, CRPF to award 50 percent back wages to the petitioner for the period 17.04.2008 to 19.07.2013 and also grant continuity of service without break. To the understanding of this Court, there is variance between the order of the Director General, in terms of which, the petitioner finally stands reinstated in service and those carried in the order impugned. The terms carried in the order impugned are at variance to the petitioner's advantage, contrary to the Director General's order of 5th December, 2014. The Director General's order of 05.12.2014 has not been formally impugned in the writ petition, but this Court would think that the validity of the order could still be examined, considering that the petitioner has asked for a mandamus to direct the respondents to release his full pay and arrears for the intervening period 17.04.2008 to 19.07.2013, with consequential benefits (seniority and promotion).

11. The right to receive back wages and grant of continuity of service upon dismissal etc. from service being set aside, is governed by Fundamental Rule 54 and 54-A of the Financial Handbook, Vol. 2, Part II to IV. The relevant clauses of these rules may be quoted in extenso :

54. (1) When a Government servant who has been dismissed, removed or compulsorily retired is re- instated as a result of appeal or review or would have been so re-instated but for his retirement on superannuation, while under suspension or not, the authority competent to order re-instatement shall consider and make a specific order:-

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension proceeding 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) When the authority competent to order re- instatement is of the opinion that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6),be paid 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 Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representations within 60 days from the date on which the communication in this regard is served on him and after considering the representation, if any submitted by him, direct for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7),be paid for the period of such delay, only such amount not being the whole 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 proceeding dismissal, removal or compulsory retirement, as the case may be shall be treated as a period spend 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 (1) of Clause (2) of Article 311 of the Constitution and no further inquired is proposed to be held], the Government servant, shall, subject to the provision of sub-rules (6) and (7) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not dismissed, removed or compulsory 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 Government 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 sixty days from the date on which the notice has been served) as my 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 his 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 specified purpose :

Provided that if the Government 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 Government servant.

Note. - The order of the competent authority under the preceding proviso shall be absolute and higher sanction shall be necessary for the grant of-

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

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

(6). xxxxx

(7). xxxxx

(8). xxxxx

54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is re-instated without holding any further enquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowance in accordance with the provisions of sub- rule (2) or (3) subject to the directions, if any, of the court.

(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of the clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall subject to the provision of sub-rule (7) of rule 54, be paid such amount (not being the whole) of the 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, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which is no case shall exceed 60 days from the date on which the notice has been served) as may be specified in the notice:

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be and the date of judgment of the court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.

(3) If the dismissal, removal, or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of re- instatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired, as the case may be."

(4) xxxxx

(5) xxxxx

12. A reading of Rules 54 and 54-A of Fundamental Rules makes it evident that these govern the entitlement of a government servant to his back wages during the period of time that he has remained out of service, in consequence of an order of dismissal, removal or compulsory retirement etc. and the date of his reinstatement. These rules also govern the entitlement of a government servant to the treatment or otherwise of the period of absence from service as one spent on duty. Rule 54 specifically speaks about these entitlements and some others upon a government servant being reinstated in service, in consequence of an order of dismissal, removal etc. being set aside in appeal or review. More specifically, it deals with those consequences and the relevant entitlement of a government servant, where the order is set aside by higher departmental authority or forum in appeal or review. Reference to the words "appeal" or "review" in Rule 54 is to a departmental remedy alone, and not a judicial remedy. The provisions of Rule 54 were held not to apply by their Lordships of the Supreme Court in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others6 where the dismissal of a public servant was declared invalid by a decree of the Civil Court. This is all the more evident from the fact that Rule 54-A was introduced later on in the Fundamental Rules, which specifically deals with the consequence of an order of dismissal, removal or compulsory retirement of a government servant being set aside by a Court of Law and the government servant being reinstated in consequence. There might be slight difference of form between between Rule 54 and Rule 54-A of the Fundamental Rules, but what is of importance is that both under Rule 54 and 54-A, there is a broad and discernible difference between the consequences of an order of dismissal etc. being set aside on merits ft, and on the other, on the ground of non-compliance with Clauses (1) or (2) of Article 311 of the Constitution, followed by a decision not to hold any further inquiry. Where the order of dismissal etc. is set aside on merits, sub-Rule (3) of Rule 54-A is clear that the period intervening date of dismissal etc. and the date of reinstatement shall be treated one spent on duty for all purposes, including payment of full pay and allowances. In case, however, the dismissal order is set aside on grounds of violation of Clause (1) or (2) of Article 311, with no further inquiry being proposed to be held, the government servant, on reinstatement, would be entitled to such amount of pay and allowances for the period of his ouster from employment, as the competent authority may determine after provision of opportunity to represent Clause (2) of sub-Rule (2). Rule 54-A also provides, in a situation of the latter kind, that the period of time between the dismissal etc. and the date of judgment of the Court shall be governed by the provisions of sub-Rule (5) of Rule 54. Now, sub-Rule (5) of Rule 54 provides that in a case where the order of dismissal etc. is set aside in the contingencies envisaged by sub-Rule (4) of Rule 54 (that are the same as those enumerated in sub-Rule (2) of Rule 54-A), that is to say, the order being set aside for violation of Article 311 (1) and (2), the period of time between dismissal and reinstatement shall not be treated as one spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose, to borrow the precise phraseology of the Rule.

13. A careful comparison of the provisions of Rule 54 and 54-A shows that there is no difference in the principles applicable to the rights of an employee upon reinstatement, in case of relief by departmental forum or a court of law, except those that emanate from the nature of the Court's jurisdiction on the one hand and that of the departmental, appellate or reviewing authority on the other. For instance, while sub-Rule (3) of Rule 54-A speaks about the order of dismissal etc. being set aside by a court on merits, entitling the government servant to a reinstatement with all monetary and other consequential benefits, the pari materia provision of sub-Rule (2) of Rule 54 speaks about the opinion of the competent authority to order reinstatement of a government servant upon his dismissal etc. being set aside in appeal or review, specifically on the point whether the government servant has been fully exonerated in order to entitle him to full salary and emoluments. Likewise, it is under sub-Rule (3) of Rule 54 the opinion of the authority reinstating about a full exoneration in appeal or review for the government servant that would entitle him to the period of his absence from duty to be treated as time spent on duty for all purposes. The principles in sub-Rule (3) of Rule 54-A and sub-Rule (3) of Rule 54 are identical. The differences in phraseology to express the same substance, as said earlier, emanate from the difference in the nature of the powers exercised by the Court that are of judicial review in one case, and, in the other, of the employer.

14. The common thread running between provisions of Rule 54 and Rule 54-A of the Fundamental Rules is that it is a complete and clean exoneration of a government employee that entitles him to all his emoluments, and continuity of service for the period of deprivation. In case the government servant is reinstated on anything short of a full exoneration, that would compare to an honourable acquittal in a criminal trial, the entitlement to the entire salary and allowances as also continuity of service is not envisaged. Sub-Clause (1) of sub-Rule (2) of Rule 54-A clearly refers to a dismissal etc. being set aside not only for breach of Clauses (1) or (2) of Article 311 but also where the exoneration is not on merits. There is, thus, no substantial difference between Rule 54 and Rule 54-A of the Fundamental Rules, except that in one case, reinstatement is in consequence of an order made in departmental appeal or other remedy and the other, as a result of judicial determination.

15. In the present case, it is not in issue that this Court, while setting aside the order of dismissal, did not do so on merits. In other words, the order was not set aside, fully exonerating the petitioner. Rather, it was set aside because the punishment was found to be disproportionate. It is for the said reason that the matter was remitted to the Disciplinary Authority to pass fresh orders, in accordance with law. The findings of the Inquiry Officer about the petitioner's guilt were not disturbed, or the acceptance of these by the Inquiry Officer. What troubled the Court's conscience was the disproportionate punishment meted out. There is also no cavil that out of the two charges laid against the petitioner, he admitted one and contested the other. Thus, the petitioner cannot be said to be a government servant, who, by any means, stands fully exonerated by a judicial determination or otherwise. The petitioner's case, therefore, would clearly be governed by the provisions where entitlement to full back-wages and continuity of service is not there. In this connection, there is a very illuminating guidance by the Supreme Court to be found, albeit, in the context of an industrial dispute, in J.K. Synthetics Ltd. v. K.P. Agrawal and Another7 which was a case of the dismissal of a workman on three charges. The Labour Court had ultimately held one charge not proved, the second proved and as regards the third, the workman held entitled to the benefit of doubt. The Labour Court had initially awarded substitution of the punishment of termination of service with stoppage of increment for two years, but, later on, on an application for the correction of award under Section 66 of the Uttar Pradesh Industrial Disputes Act, 1947 directed that apart from stoppage of two annual increments, the employer would pay full wages for the period of ouster from service. In the background of those facts, in J.K. Synthetics Ltd. (supra) their Lordships held :

19. ..... Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.

20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.

(emphasis by Court)

16. The decision in J.K. Synthetics Ltd. might have been rendered in a very different statutory context and relating to a different jurisdiction, to which a different jurisprudence applies, but the fundamental principles about ordering reinstatement of an employee and his rights to back-wages and continuity of service are the same, as those expressed in Fundamental Rule 54 and 54-A.

17. In view of facts that obtain here, this Court does not find any good ground to interfere.

18. In the result, this writ petition fails and stands dismissed.

19. Costs easy.

Order Date :- March the 26th, 2021

I. Batabyal / NSC