Gauhati High Court
Page No.# 1/ vs Utpal Datta Talukdar on 12 November, 2024
Author: Chief Justice
Bench: Chief Justice
Page No.# 1/10
GAHC010078442024
2024:GAU-
AS:11018-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2477/2024
THE UNION OF INDIA AND 8 ORS.
REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
GUWAHATI, ASSAM-781011.
2: THE GENERAL MANAGER
N.F. RAILWAY
MALIGAON
GUWAHATI
ASSAM
PIN- 781011.
3: THE DIVISIONAL RAILWAY MANAGER (P)
N.F. RAILWAY
ALIPURDUAR JN
PIN- 736123.
4: THE PRINCIPAL CHIEF SIGNAL AND TELECOMMUNICATION ENGINEER
N.F. RAILWAY
MALIGAON
GHY
ASSAM
PIN- 781011.
5: THE ADDL. DIVISIONAL RAILWAY MANAGER
O/O- THE DIVISIONAL RAILWAY MANAGER
N.F. RAILWAY
ALIPURDUAR JN
PIN- 736123.
6: THE SR. DIVISIONAL SIGNAL AND TELECOMMUNICATION ENGINEER
N.F. RAILWAY
ALIPURDUAR JN.
Page No.# 2/10
PIN- 736123.
7: FINANCIAL ADVISOR AND CHIEF ACOUNTS OFFICER
N.F. RAILWAY
MALIGAON
PIN- 781011.
8: SR. DIVISIONAL FINANCIAL MANAGER
O/O- THE DIVISIONAL RAILWAY MANAGER (P)
N.F. RAILWAY
ALIPURDUAR JN.
PIN- 736123.
9: NARENDRA SINGH
SR. DIVISIONAL SIGNAL AND TELECOMMUNICATION ENGINEER
N.F. RAILWAY
ALIPURDUAR JN.
PIN0 736123
VERSUS
UTPAL DATTA TALUKDAR
S/O- LATE SUDHARANJAN DUTTA TALUKDAR, EX. SR. SECTION
ENIGNEER/SIGNAL/ALIPURDUAR JN., RESIDENT OF 1174 A.D.S. COLONY,
P.O. ALIPURDUAR JN., ALIPURDUAR, WEST BENGAL, PIN- 736123.
Advocate for the Petitioner : MS. B SARMA,
Advocate for the Respondent : DR G J SHARMA, FOR CAVEATOR
Page No.# 3/10
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date : 06-11-2024
Date : 12-11-2024
JUDGMENT & ORDER (CAV)
(N. Unni Krishnan Nair. J)
Heard Ms. B. Sarma, learned CGC appearing on behalf of the petitioners. Also
heard Dr. G. J. Sharma, learned counsel appearing for the sole respondent.
2. The present proceeding has been instituted by the petitioners, presenting a
challenge to the order dated 05.12.2023, passed by the learned Central Administrative
Tribunal, Guwahati Bench in Original Application No. 040/0062/2023.
3. The sole respondent, herein, on conclusion of a departmental proceeding
initiated against him came to be imposed with a penalty of dismissal from service
without any compassionate allowance i.e. Pension and Gratuity both, vide an order
dated 27.09.2021, passed by the Disciplinary Authority. The appeal as preferred
against the said order dated 27.09.2021 was also dismissed by the Appellate Authority
vide an order dated 03.06.2022. The sole respondent had also preferred a revision
petition in the matter, before the Revisional Authority, which was also rejected by the
competent authority. The sole respondent, thereafter, instituted Original Application
No. 62/2023 before the Central Administrative Tribunal, Guwahati Bench, praying for
release of his Provident Fund dues along with the dues receivable under Group
Insurance Scheme and also the benefits of Leave Encashment. The learned Tribunal,
upon consideration of the issues so arising in the said O.A. No. 62/2023 was pleased
vide order dated 05.12.2023, to dispose of the O.A., directing the petitioners, herein,
to release to the sole respondent, herein, his Leave Encashment benefits after
verifying his leave account. Being aggrieved, the petitioners have instituted the
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present proceeding.
4. The issue arising in the present proceeding is as to whether a Railway employee
imposed with the penalty of dismissal or removal from service is entitled to claim
encashment of the leave in credit in his leave account.
5. The learned CGC appearing for the petitioners, by referring to the provisions of
Rule 504 of the Indian Railway Establishment Code, (Vol-I) has submitted that a
Railway servant who is dismissed or removed, or who resigns from railway service is
not entitled to claim the leave in credit in his leave account, inasmuch as, the same
ceases from the date of such dismissal or removal, or resignation. The learned CGC
has further submitted that the learned Tribunal had committed an error in concluding
that the provisions of Rule 504 of the said Code would have no relevancy with regard
to the claim of Leave Encashment as raised by the sole respondent before it. The
learned CGC in the above premises submits that the learned Tribunal having passed
the order dated 05.12.2023, basing on an erroneous conclusion; the order dated
05.12.2023 stands vitiated and requires interference from this Court.
6. Per contra, Dr. G. J. Sharma, learned counsel for the respondent by referring to
the provisions of Rule 542 (2) (b) of the IREC has contended that the Railway
authorities are required to credit Earned Leave at the rate of 2½ days per completed
calendar month up to the end of the calendar month preceding the calendar month in
which such Railway employee is removed or dismissed from service, or dies in service.
It is contended that the stipulations as contained in the provisions of Rule 542 (2) (b),
requiring computation of earned leave even in case of a dismissed or removed railway
servant, would go to show that even a Railway employee imposed with the penalty of
dismissal, would be entitled to claim Leave Encashment to the extent of the leave
credited to his leave account. Dr. G. J. Sharma, learned counsel has further in support
of his case, placed reliance on the provisions of Rule 550(B)(1)(ii) of the IREC.
7. Dr. Sharma, by referring to the order of the Disciplinary Authority dated
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27.09.2021, has contended that the Disciplinary Authority had only withheld the
Pension and Gratuity of the sole respondent along with denial of any compassionate
allowance while imposing the penalty of dismissal from service upon him. The
Disciplinary Authority not having withheld the Leave Encashment benefits due to the
sole respondent, the respondent authorities cannot deny the said benefit to the sole
respondent. Dr. Sharma further submits that during the pendency of the proceeding
before the learned Tribunal, the respondent authorities had released to the sole
respondent, the amounts due to him under the Provident Fund account as well as
under the Group Insurance Scheme. Accordingly, Mr. Sharma submits that there exists
no bar for the applicant to receive his Leave Encashment benefits to the extent of the
leave credited and available in his leave account.
8. Dr. G. J. Sharma, learned counsel in support of his submission, has placed
reliance on a decision of the Hon'ble Supreme Court in the case of State of
Rajasthan & Ors. V. O. P. Gupta reported in [2022 Live Law (SC) 785].
9. We have heard the learned counsel appearing for the parties and also perused
the materials available on record.
10. At the outset, it is required to be noted that, as on date, the penalty of dismissal
along with the stipulations so made, therein by the Disciplinary Authority while
imposing the same on the sole respondent, has not been interfered with by any
authority. From the materials on record, it is revealed that the sole respondent had
presented a challenge to the order of his dismissal before the learned Tribunal by way
of instituting Original Application No. 120/2023, which is presently pending disposal.
11. The Disciplinary Authority, on conclusion of the departmental proceeding
instituted against the sole respondent, had imposed the following penalty upon him:-
"Dismissal from service without any compassionate allowance i.e. Pension &
Gratuity both".
12. Rule 504 of the IREC (Vol-I) being relevant to the issue arising in the present
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proceeding is extracted herein below:-
"504. Effect of dismissal, removal or resignation on leave at credit--
(1) Except as provided in rule 541 and this rule, any claim to leave to the credit
of a railway servant, who is dismissed or removed or who resigns from railway
service ceases from the date of such dismissal or removal or resignation.
(2) where a railway servant applies for another post under the Government of
India but outside the Railways, if such application is forwarded through proper
channel and the applicant is required to resign his post before taking up the new
one, such resignation shall not result in the lapse of the leave to his credit.
(3) A railway servant who is dismissed or removed from service and is
reinstated on appeal or revision shall be entitled to count for leave his service
prior to dismissal, or removal, as the case may be.
(4) A railway servant, who having retired on compensation or invalid pension or
gratuity is re-employed and allowed to count his past service for pension or
State Railway Provident Fund benefits, as the case may be, shall be entitled to
count his former service towards leave."
13. A perusal of the provisions of Rule 504 as extracted herein above, would go to
show that any claim to leave to the credit of a Railway servant who is dismissed or
removed, or resigns from railway service, ceases from the date of such dismissal,
removal or resignation. The provisions of Rule 40 of the Railway Services (Pension)
Rules, 1993, also mandates that dismissal or removal of a Railway servant from a
service or post leads to forfeiture of his past service. The provisions of Rule 40 of the
said Rules of 1993, being relevant is extracted herein below:-
"40. Forfeiture of service on dismissal or removal--Dismissal or removal of
a railway servant from a service or post shall lead to forfeiture of his past
service".
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14. A reading of the provisions of Rule 40 of the said Rules of 1993 would go to
show that on imposition of the penalty of dismissal or removal upon a Railway servant,
the same automatically leads to forfeiture of his past service. Leave is earned by an
employee on account of the services rendered by him and if such past service, upon
imposition of the penalty of dismissal or removal stands forfeited, the leave earned on
account of such past service must also be held to have been forfeited.
15. In the light of the provisions of Rule 40 of the said Rules of 1993, the stipulation
made in Rule 504 of IREC to the effect that any claim to leave to the credit of the
Railway servant, ceases from the date of such dismissal, removal or resignation has to
be understood to have stipulated that on account of the forfeiture of the past services
rendered by such employee prior to being imposed with the penalty of dismissal or
removal, the leave earned by the employee on account of such forfeited past service
also stands forfeited. Any other interpretation would result in a violence being caused
to the express provisions of Rule 504 of IREC.
16. The above being the conclusion reached by us with regard to the provisions of
Rule 504 of the IREC (Vol-I), it has to be concluded that the penalty of dismissal as
imposed upon the sole respondent herein, being in existence as on date, the sole
respondent would not be entitled to claim Leave Encashment benefits, inasmuch as,
upon imposition of penalty of dismissal upon him, the leave credited to his leave
account and available would also stand forfeited along with forfeiture of his past
services.
17. The reliance placed by the learned counsel for the sole respondent, on the
provisions of Rule 524 (2) (b) of the IREC, in our considered opinion would not
advance the case of the sole respondent, inasmuch as, the said provision only
mandates the manner of computation of Earned Leave in respect of an employee who
is removed or dismissed from service or dies while in service. Further, the provisions of
Rule 550 (B) (1) (ii) of the IREC would also be of no assistance to the sole
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respondent, inasmuch as, he being a regular employee would not be covered by the
said provision.
18. Having noticed the above position with regard to the Rules holding the field, we
would not examine the conclusions drawn by the learned Tribunal in its order dated
05.12.2023. The conclusions being relevant is extracted herein below:-
"5. It is noted that Rule 503 is related with Right to leave i.e. whether leave can
be claimed as a matter of right or not and the Rules 504 and 542 has no
relevance. Therefore, Rules 503, 504 and 542 has no relevancy with the Leave
Encashment which basically deals with the right of leave to the employees in
different situations. Now come to the Rule 550, which deals with the different
situation for cash payment in lieu to leave which is as under:-
(A) In case of retirement on attaining the age of superannuation.
(B) In case of retirement other that on attaining the age of
superannuation.
(1) In case of Premature/Voluntary retirement.
(2) In case of retirement from service on attaining the age of
retirement while under suspension or while disciplinary
proceedings are pending against the applicant at the time of
retirement.
(C) In case of invalidation from service.
(D) In case of re-employment.
(E) In case of resignation or quitting from service.
Therefore, from the perusal of the leave Rule--550, it is evident that the
situation enumerated in the said Rule is not at all relevant with regard to the
leave encashment of the applicant. Since the respondents had already made
payment of PF and GIS amount to the applicant, they are directed to make
payment of Leave Encashment amount after verifying his leave due as per his
service book within a period of six weeks from the date of receipt of a copy of
this order."
19. A perusal of the conclusions reached by the learned Tribunal in its order dated
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05.12.2023, extracted herein above, would go to reveal that the learned Tribunal had
proceeded to consider the issue arising before it by holding that the provisions of Rule
504 of the IREC would have no application and the same cannot be applied for
denying to the petitioner his leave encashment benefits.
20. In view of the discussions made herein above by us, with regard to the purport
of the stipulations contained in Rule 504 of the IREC and, it having been concluded
that the sole respondent would not be entitled to claim leave encashment benefits in
view of the fact that the penalty of dismissal from service as imposed upon him had
also resulted in forfeiture of his past service and consequently, the leave so earned by
him on account of such forfeited of past service would also stand forfeited, we are of
the considered view that the learned Tribunal while passing the order dated
05.12.2023, failed to appreciate the issue arising before it in the proper perspective
and accordingly, drew conclusions which are clearly erroneous. Accordingly, the order
dated 05.12.2023 would call for an interference.
22. At this stage, the contention of the learned counsel for the sole respondent that
the Disciplinary Authority in its order dated 27.09.2021, having not stipulated that the
sole respondent would not be entitled to authorized his due leave encashment
benefits, the sole respondent would be entitled to receive the said benefits, is required
to be considered. The said contention is being considered, only to be rejected,
inasmuch as, as concluded by us herein above, the denial of the benefits of leave
encashment is a natural consequence of the imposition of the penalty of dismissal
upon the sole respondent. The imposition of penalty of dismissal having the effect of
causing automatic forfeiture of past service, the leave earned, on account of such
forfeited past service would also automatically stands forfeited. Accordingly, the
disciplinary authority is not called upon to make any observation while imposing the
penalty of dismissal or removal upon a Railway servant, with regard to his
disentitlement to the leave encashment benefits on account of imposition of the said
penalty.
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23. The decision of the Hon'ble Supreme Court in the case of O. P. Gupta (supra)
relied upon by the learned counsel for the sole respondent, has been duly perused by
us and we are of the considered view that the same would not advance the case of
the sole respondent.
24. In view of the above conclusions reached by us in the matter, the impugned
order dated 05.12.2023, passed by the learned Central Administrative Tribunal,
Guwahati Bench in Original Application No. 040/0062/2023, stands set aside.
25. At this stage, it is to be observed that the conclusions reached by us, herein
above, in this order, is so reached only with regard to the entitlement of the sole
respondent for being authorized the Leave Encashment benefits during the existence
of the penalty of dismissal as imposed upon him by the Disciplinary Authority, vide the
order dated 27.09.2021.
26. We having not examined the validity of the disciplinary authorities order dated
27.09.2021 in the present proceeding, the conclusions reached herein above by us,
would not stand in the way of the learned Tribunal while considering the challenge as
presented by the sole respondent to the said order dated 27.09.2021, in the
proceeding of Original Application No. 120/2023 and the same shall be so considered
by the learned Tribunal, strictly, on its own merits and in accordance with law.
27. In view of the above, the writ petition stands disposed of.
JUDGE CHIEF JUSTICE
Comparing Assistant
