Khagendra Barik vs Union Of India & Ors
2023 Latest Caselaw 2639 Cal

S/L 58
18.04.2023
Court. No. 12
Suvayan
                          WPA 5956 of 2018

                           Khagendra Barik
                                   Vs.
                          Union of India & Ors.

                Mr. Arup Kumar Lahiri
                Mr. Udayan Dutta
                                                      ...for the petitioner.

                Ms. Chandreyi Alam
                                                           ...for the U.O.I.


                1.   Both the parties are represented by their respective

                     learned Advocates.

                2.   The affidavit-in-reply as filed on behalf of the writ

                     petitioner be taken on record.

                3.   Heard Mr. Arup Kumar Lahiri, learned Advocate

                     for the writ petitioner and Ms. Chandreyi Alam,

                     learned Advocate for the respondents/Union of

India and its officials for and against the instant

writ petition.

4. The present case is now taken up for passing

appropriate order.

5. For effective disposal of the instant writ petition,

the facts leading to filing of the instant writ

petition is required to be discussed in a nutshell.

6. The writ petitioner was an employee of CRPF as

Daptari/Peon and he was placed on suspension on

April 25, 2007. A charge-sheet was submitted

upon him on May 13, 2008 and after holding a

disciplinary proceeding he was dismissed from

service with effect from July 30, 2009 (A.N).

Challenging the said order of dismissal dated July

30, 2009 the writ petitioner filed WP 14804(W) of

2009 before the Hon'ble High Court at Calcutta

and in the said writ petition by an order dated July

8, 2015 a co-ordinate Bench by this Hon'ble Court

has been pleased to set aside the impugned order

of dismissal dated July 30, 2009 with a liberty to

the respondents/Union of India to revisit the

enquiry report by the disciplinary authority. As

directed by this Hon'ble Court in WP 14804(W) of

2009 the respondents/Union of India after

revisiting the enquiry report again imposed

punishment of dismissal from the service upon the

writ petitioner with effect from February 22, 2016

(A.N).

7. Challenging the second order of dismissal, the

present writ petitioner again approached this

Hon'ble Court by filing WP 6930 (W) of 2016. In

course of hearing of the second writ petition,

another co-ordinate Bench of this Hon'ble Court by

its order dated April 20, 2016 allowed the said writ

petition and thereby set aside the impugned order

of dismissal dated February 22, 2016 by leaving the

disciplinary authority to continue with the

disciplinary proceedings, if, he is so advised, but to

begin the disciplinary action from the

commencement of the enquiry stage, if he decides

to peruse it.

8. From the materials as placed before this Court, it

reveals that the respondents/Union of India

decides not to proceed any further and accordingly

the writ petitioner was reinstated into service with

effect from June 22, 2016 (F.N) and while

reinstating the respondent authorities passed

following order amongst others:

"...................................................

(ii) As per provisions contained in FR-54(A)(2)(ii) that "the period interveining between the date of dismissal from service including the period of suspension proceeding such dismissal, i.e., 25/04/2007 and the date judgment of the Court, i.e., 08/07/2015 is hereby regularised as "non duty period" for all purposes in terms of FR 54(5) except for the purpose of pension under Rule 25 of CCS (Pension) Rules 1972 and the period from 09/07/2015, i.e., after the judgment dated to 21/06/2016, is hereby treated as "DUTY" in accordance with the Court judgment dated 20/04/2016..............................."

9. The writ petitioner though was happy with his

reinstatement but he felt prejudiced with regard to

the above finding of the respondent authorities

regarding the period of April 25, 2007 to July 8,

2015 as non-duty period which according to the

writ petitioner ought to have been considered by

the respondent authorities as on duty period so

that he must not be deprived of his due entitlement

from the service.

10. Mr. Lahiri, learned Advocate for the writ petitioner

in course of his submission draws attention of this

Court to the judgment as passed in WP 14804 (W)

of 2009 as well as the judgment as passed in WP

6930 (W) of 2016. Mr. Lahiri, learned Advocate

also draws attention of this Court to the

Fundamental Rules 54 and 54A on which the

impugned order was relied upon. It is contended

by Mr. Lahiri that while treating the period

commencing from April 25, 2007 to July 8, 2015 as

non-duty period, the respondent authorities have

assigned no reason whatsoever as to why the said

period has been treated as non-duty period within

the meaning of Fundamental Rule 54A(2)(ii) read

with Rule 54 Sub-Rule (5) of the said Rule. It is

contended by Mr. Lahiri on perusal of the

judgment as passed in WP 6930 (W) of 2016, it

would reveal that the said writ petition was

dismissed on merit basically on the ground of

breach of principles of natural justice and,

therefore, under no stretch of imagination it can be

said that the case of the present writ petitioner

comes under the purview of Fundamental Rule

54A(2)(ii) read with Sub-rule (5). According to Mr.

Lahiri, learned Advocate for the writ petitioner

since WP 6930 (W) of 2016 was dismissed on

merit, the case of the writ petitioner ought to have

been considered by the respondent authorities

under Rule 54A (3) of the said Rule.

11. Per contra, Ms. Alam, learned Advocate for the

respondents/Union of India also places her

reliance upon the said Fundamental Rule, more

specifically upon Rule 54A(2) read with Rule 54(5).

Drawing attention of this Court to the factual

aspects as involved in this case, Ms. Alam, learned

Advocate for the respondents/Union of India

submits before this Court that since the findings of

the disciplinary proceedings which was challenged

before this Hon'ble Court was not dismissed on

merit in none of the aforementioned two writ

petitions and since the respondent authorities have

decided not to proceed with the said disciplinary

proceedings from his enquiry stage, the respondent

authorities are very much justified in treating the

period of dispute, that is, April 25, 2007 to July 8,

2015 as non-duty period. Ms. Chandreyi Alam,

learned Advocate for the respondents/Union of

India, thus, submits that it is a fit case for dismissal

of the instant writ petition.

12. On perusal of the entire materials as placed before

this Court and after hearing the learned Advocates

for the contending parties, it reveals to this Court

that though WP 14804 (W) of 2009 was allowed by

a co-ordinate Bench of this Court but liberty was

given to the respondents/Union of India to revisit

the enquiry report by the disciplinary authorities.

As discussed hereinabove after revisiting the

enquiry report, the delinquent was again dismissed

from service with effect from February 22, 2016

(A.N) which was again challenged before this

Hon'ble Court by filing WP 6930 (W) of 2016. On

perusal of the order dated April 20, 2016 as passed

in WP 6930 (W) of 2016 it appears to this Court

that the said Court while disposing the said writ

petition categorically expressed the view that the

order impugned in the said writ petition is liable to

be set aside on a much more fundamental ground

of the breach of principles of natural justice, since

the petitioner was not given a further opportunity

to disabuse the disciplinary authorities of his pre-

disposition in the matter.

13. It is settled principle of law that a Court in exercise

of its writ jurisdiction is not supposed to act like an

appellate court but a writ court certainly interfere

with the finding of the disciplinary authority if it is

found that in course of the disciplinary

proceedings the principles of natural justice has

not been followed amongst other grounds. In the

reported decision of High Court of Judicature

at Bombay vs. Shaskikant S. Patil and Anr.

reported in (2000) 1 SCC 416 when the Hon'ble

Apex Court expressed the following view:

"16......................................................... Interference with the decision of departmental authorities can be permitted, while exercising

jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.."

14. Since in WP 6930 (W) of 2016 a co-ordinate Bench

of this Hon'ble Court allowed the said writ petition

on the ground of breach of principles of natural

justice. In considered view of this Court it cannot

be said that the said writ petition was not disposed

of on merit.

15. Since both the learned advocates for the

contending parties have relied upon Rules 54 and

54A of the Fundamental Rules, a look to the

aforesaid two Rules is necessary.

Rule 54 is reproduced hereinbelow:

          "F.R. 54 (1)          When         a        Government
          servant        who         has     been       dismissed,

removed or compulsorily retired is reinstated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement 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 preceding 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) Where the authority competent to order reinstatement is of 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 (60, be paid the 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 representation within sixty 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 preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent 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 form service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution and no further inquiry is proposed to be held) the Government servant shall, subject

to the provisions of sub-rules (5) 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 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 in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice.

(5) In a case failing under sub0rule (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 treated so 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.

(6) The payment of allowances under sub-rule (2) or sub-rule (4) shall

be subject to all other conditions under which such allowances are admissible. (7) The amount determined under the proviso to sub-rule (2) or under sub- rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.

(8) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the Government servant.

Rule 54A is reproduced herein below:-

F.R. 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 reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances 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

Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions 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 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 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

reinstatement 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 or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.

(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) Any payment made under this

rule to a Government servant on his

reinstatement shall be subject to

adjustment of the amount, if any,

earned by him through an employment

during the period between the date of

dismissal, removal or compulsory

retirement and the date of

reinstatement. Where the emoluments

admissible under this rule are equal to

or less than those earned during the

employment elsewhere, nothing shall

be paid to the Government servant."

16. On conjoint perusal of the Rules 54 and 54A of the

Fundamental Rule it appears to this Court that

since WP 6930 (W) of 2016 was allowed on merit

whereby the second dismissal order of the present

writ petitioner was set aside, the respondent

authorities ought to have applied the provisions of

Rule 54A(3) of the Fundamental Rule in respect of

the period of April 25, 2007 till July 8, 2015.

17. In view of the discussion made hereinabove, this

Court is, thus, of considered view that the

respondent authorities have acted in violations of

statutory regulations in treating the said period

April 25, 2007 to July 8, 2015 as 'non-duty

period' instead of treating the same as 'on duty

period'.

18. In view of the discussion made hereinabove, the

instant writ petition succeeds.

19. As a result, the respondent No. 4 authorities'

finding dated August 1, 2016 is modified to the

extent herein below.

20. The respondent authorities are hereby directed to

treat the period commencing from April 25, 2007

to July 8, 2015 as 'on duty period' of the present

writ petitioner and in respect of the said period the

writ petitioner is entitled to get all its service

benefits treating as if he was on duty for the said

period.

21. Considering the date of superannuation of the

present writ petitioner is not too far, the

respondent authorities are hereby directed to

comply with this order at the earliest.

22. With the aforementioned observation the instant

writ petition being WPA 5956 of 2018 is hereby

disposed of on contest.

23. Parties to act on the server copies of this order.

24. Urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon

compliance with all the necessary formalities.

(Partha Sarathi Sen, J.)