Vinod Sakharam Ganvir vs The Union Of India,Society Of Rly. ...
2017 Latest Caselaw 7462 Bom

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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

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.

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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

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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

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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:

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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,

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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

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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