Union Of India (Uoi) vs Shri Keshva Nand
2006 Latest Caselaw 882 Del

JUDGMENT

Swatanter Kumar, J.

1. This appeal is directed against the judgment and decree dated 26.8.85 passed by the learned Additional District Judge, Delhi wherein the Court decreed the suit of the plaintiff for recovery of Rs. 43,789.50/-. The present appeal was filed in the year 1985. When the case was taken up for final hearing, the following orders were passed by the Court on 1st May, 06:

This is an appeal of the year 1985 and came up for hearing before this Court on 2.3.06 in furtherance to the directions issued by the Court. The Court passed the following orders:

This appeal relates to the year 1985. The same has been listed before the Court for directions. The appeal has not been listed for all these years.

List the appeal for final disposal on 1st May, 2006. The registry would inform the parties as well as counsel for the parties of the next date of hearing without process fee.

2. The necessary facts are that plaintiff was originally employed as a watchman in Railway Protection Force in 1952. Later on, he was promoted as Head Rakshak and then as Assistant Sub-Inspector in the year 1960. Plaintiff claimed that he had a clean record of service and was awarded cash prizes several times in recognition of his meritorious service. According to the plaintiff, a chargesheet was served upon him on 27.11.65 which was malafide and was result of some animosity shown by certain enimical persons. The plaintiff was removed from service vide order dated 7.1.67. The plaintiff preferred an appeal before the Chief Security Officer, Northern Railway but the same was dismissed. This resulted in filing of the suit by the plaintiff. The suit was also dismissed by sub-Judge vide its judgment and decree dated 25.5.76 against which the plaintiff preferred an appeal which was accepted by the learned Additional District Judge vide judgment and decree under appeal. The case of the plaintiff was that the inquiry conducted against him was in violation of the principles of natural justice and the charges had not proved against him, thus, he claimed setting aside the order of removal from service and pray for all consequential reliefs including the higher pay for the intervening period. Plaintiff claimed, besides reinstatement, a sum of Rs. 1,48,200/- on account of salary, allowances, pension, gratuity and damages. The suit was contested by the defendants and it was stated that he was removed in accordance with law. The order of removal was justified and with regard to his back wages, it was stated that as per Regulation No. 2044-A(R-II) of the Railway Establishment Code Rules the plaintiff was entitled to only for three years wages preceding the date when he was exonerated on merits. It may be noticed that the suit of the plaintiff filed earlier for setting aside the order of removal was decreed by the learned Additional District Judge vide judgment and decree dated 6.11.80. The District Judge further held that the plaintiff was entitled to full back wages. That judgment and decree had attained finality and was not questioned by the department. Thereafter, the plaintiff had filed the present suit for recovery of money. Keeping in view the pleadings of the parties, the learned Trial Court in the present case had framed the following issues:

1. Whether the suit is not maintainable?

2. Whether the suit is time barred?

3. Whether the suit is bad for mis-joinder of parties?

4. Whether the plaintiff is entitled to recover any amount on account of salary, Gratuity and pension, if so how much?

5. Whether the emoluments due to the plaintiff have already been determined by the Competent Authority as alleged in para no. 7 of the written statement? If so its effect?

6. Relief.

3. Keeping in view the evidence produced on record, the issues were answered in favor of the plaintiff partially and the suit was decreed to the extent of Rs. 43,789.50/- while the claim for damages was declined.

4. The learned Trial Court while recorded its findings as follows:

Besides the impugned order passed by the Competent Authority has to be struck down because the Competent Authority did not issue any notice to the plaintiff before passing the order. Clause 4 of Regulation No. 2044 of Railway Establishment Code requires that the Competent Authority may determine the amount payment to such employee after giving notice to the Railway servant of the quantum proposed and after considering representation, if any, submitted by such employee. In the present case the defendant has not pleaded that notice as required by Clause 4 of Regulation 2044 was ever given to the plaintiff nor any such notice has been proved on record. It is thus evident that in passing the order determining the amount payable to the plaintiff, the competent authority did not follow the procedure prescribed by this regulation in as much as no notice as required by Clause 4 of Regulation 2044 was ever served on the plaintiff. Therefore, the determination of the amount payable to the plaintiff is clearly in violation of the Regulation 2044 of Clause 4 and, therefore, must be held to be illegal. I accordingly hold that the determination of the amount payable to the plaintiff by Competent Authority vide order whose copy is Ex. DW1/1 is invalid. These issues are decided accordingly in negative against the defendant.

ISSUE No. 4.

14. The plaintiff claim of Rs. 1,48,200/- was made up of following amounts:

 i)    Salary and allowances    Rs. 72000/-
      w.e.f 7.1.67 to 31.8.79
ii)   Pension w.e.f 31.8.79
      to 31.12.83 at the rate 
      of Rs. 350/-p.m         Rs. 18,200/-
iii)  Gratuity                 Rs. 8,000/-
iv)   Damages                 Rs. 50,000/-
                  _________________________
   Total                    Rs. 1,48,200/-
                  _________________________
 

5. The claim for damages of Rs. 50,000/- has been given up by the plaintiff as per his averments contained in para no. 16 of the plaint. Thus the balance claim of the plaintiff would come to Rs. 98,200/-. This includes the plaintiff claim for Rs. 18,200/- towards pension and Rs. 8,000/- towards gratuity. The plaintiff claim of pension and gratuity cannot be upheld because there is no evidence on record to show that the plaintiff ever opted for the pension scheme. I have gone through he pension Scheme which was introduced w.e.f 1.4.57 and pension rules were made applicable to the staff appointed after 16.11.57 if the later had exercised their option in favor of pension scheme. The plaintiff was originally appointed in the year 1952 i.e before 16.11.57 so the pension scheme which came into force on 16.11.57 was not applicable to the plaintiff unless the plaintiff had given an option opting for the pension scheme. Plaintiff has nowhere pleaded that he opted for pension scheme which came into force on 16.11.57. Sube Singh DW1 deposed in this regard that the plaintiff was a P.F. Optee and the plaintiff is not entitled to the benefit of pension scheme because he did not opt for the pension scheme. There is no evidence to the contrary from the plaintiff side in this regard. Plaintiff Keshva Nand admitted in cross-examination that he had opted for provident Fund Scheme. The plaintiff has neither pleaded nor proved that he ever opted for the benefit of the pension scheme which came into force on 16.11.57. Under this scheme the gratuity could be paid those employees who had opted for this pension scheme. Since the plaintiff did not opt for pension scheme which came into force on 16.11.57 he is not entitled to claim any amount towards pension or gratuity. Therefore, the plaintiff claim has to be rejected. Deducting the said amount of Rs. 26,200/- from the plaintiff's balance claim of Rs. 98,200/- plaintiff balance claim comes to Rs. 72,000/-. Out of this plaintiff has already received a sum of Rs. 28,210.50 ps., thus leaving a balance of Rs 43789.50 ps. Which the plaintiff is entitled to recover. The Ld. Counsel for the defendant did not dispute the correctness of the plaintiff's claim of Rs. 72,000/- towards salary for the period from Jan.1967 to 31.8.79 nor any mistake was pointed out in the calculation done by the plaintiff. In the result, the plaintiff suit for recovery of Rs. 43,789.50 ps. must succeed. Issue is decided accordingly.

6. The above findings of the Court are challenged on the ground that they are based on misconception of law and misreading of the evidence produced on record. It is further argued that in view of Regulation 2044, the plaintiff was not entitled to any benefit in excess of three years and as such the decree of the learned Trial Court is liable to be set aside.

7. We find no merit in this contention. It is not in dispute that the judgment and decree dated 6.11.80 in favor of the plaintiff being Ex PW1/1 has attained finality and was tendered in evidence in the present case. Once the order of dismissal was set aside, particularly, for violation of principles of natural justice, it does not stand to reasoning as to how the appellant can take any benefit of the said rule. The order of removal was violative of principles or based upon an inquiry which itself was violative of principles of natural justice as such the entire inquiry and the order was vitiated and was set aside by the Court of competent jurisdiction vide Ex PW1/1. The department, for reasons best known to it, did not question the correctness of the said judgment. The learned Trial Court while relying upon the judgment of the Supreme Court in the case of Maimoona Khatun and Anr. v. State of U.P. and Anr. correctly stated the principle of law as where an employee was removed from service and was reinstated by order of the Court then the starting point of limitation for recovery of wages will not be date of order of dismissal or removal but would be the date when the right actually accrued, that is to say, when the said order is set aside. The provisions of the Rule 2044, in any case, would not be applicable in the present case as per the own stand of the appellant. The departmental proceedings was not, in any way, delayed by the delinquent officer. They had also not served a notice upon the delinquent officer as contemplated under Rule 4. It is nowhere indicated that when was the rule amended so as to include the proviso. The proviso will have to be construed with reference to the judgment of the Supreme Court.

8. The departmental proceedings taken against the delinquent officer were vitiated being in violation of principles of natural justice and upon reinstatement the respondent in this appeal would be entitled to the complete benefits. In fact, the appellants led no evidence to show before the learned Trial Court as to why the respondent would not be entitled to the complete benefits. In fact, reference can also be made in this regard to the judgment of the full Bench of Punjab and Haryana High Court in the case of Hari Palace, Ambala City v. The Presiding Officer, Labour Court and Anr. 1979 (81) PLR 720. In view of the above settled position and the reasoning given by the learned Trial Court, we find no merit in this appeal. The same is dismissed, while leaving the parties to bear their own costs.