Jharkhand High Court

Akhilesh Kumar vs Union Of India on 19 August, 2021

                                  1


IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(S) No. 4358 of 2014
                       With
               I.A. No.2408 of 2015
(An application under Article 226 of the Constitution of India)

Akhilesh Kumar                                 ..... Petitioner
                        Versus
1. Union of India
2. Deputy Inspector General of Police,
   CRPF special Range, Ramkrishna Puram, New Delhi;
3. Commandant, 94 Battalion, CRPF,
   Dumdum Airport, Kolkata;
4. Commandant, 94 Battalion, CRPF, Khunti,
   P.O: Khunti, P.S: Khunti, Dist:Khunti,
  Jharkhand;                              ..... Respondents
                        ---------
For the Petitioner      : Mr. Krishna Murari, Advocate
For the Respondents     : Ms. Nitu Sinha, Advocate
                        --------
                        PRESENT
        HON'BLE MR. JUSTICE DEEPAK ROSHAN
                        ---------
                        JUDGEMENT

By Court: Heard through V.C.

2. The instant writ application has been preferred by

the petitioner praying for quashing and setting aside the order

dated 18.07.2014, passed by respondent No.4, whereby the

concerned respondent has forfeited the salary of intervening

period from the date of dismissal to date of reinstatement i.e.

from 01.09.1998 to 30.03.2011 on the ground that "period not

spent on duty".

3. The fact of the case has a checkered history. On

21.05.1998, while the petitioner was posted at Dum-dum

Airport, Kolkata as LNK (Lance Naik), he was served with a

charge sheet. The petitioner was exonerated from the second

charge by the Inquiry Officer. However, charge No.1 was

proved and the disciplinary authority dismissed the petitioner

from his service w.e.f. 01.09.1998 besides forfeiture of medals

and decorations earned by him.

The petitioner assailed the aforesaid order of

termination before the Kolkata High Court in W.P.

No.11317(W) of 1999. The said writ petition was allowed in

favour of the petitioner and he was directed to be reinstated in

service with all back wages.

4. The respondent authorities challenged the order of

the Writ Court in F.M.A. No.1509 of 2003. The Division Bench

of Kolkata High Court has observed that since the petitioner

was exonerated from charge No.2 he should not have been

dismissed from service. However, the Division Bench further

observed that since one charge is proved which is minor in

nature; a liberty was given to the respondent to impose minor

punishment.

5. The fact further transpires that a Special Leave

Petition was also filed by the respondents being Special Leave

to Appeal (Civil) No(s).17197 of 2008 which was also

dismissed. Pursuant thereto; the D.I.G.P, (Law), Directorate

General, CRPF (HQ), New Delhi vide its letter dated

23.11.2010 communicated to the I.G.P, Bihar Sector, CRPF to

implement the Court's order passed by the Division Bench of

the High Court of Kolkata in FMA No.1509/2003.

Consequently, the I.G.P, Bihar Sector Patna directed the

Commandant-94 Bn, CRPF to reinstate the petitioner and

regularize the intervening period from the date of dismissal and

pay wages under FR 54 (A) (3).

Pursuant thereto; the Commandant has passed the

order and the petitioner was reinstated in service w.e.f.

30.03.2011 and the intervening period from the date of

dismissal to date of reinstatement was regularized as duty for

all purpose under FR 54 (A) (3).

6. Thereafter, on 21.05.2011 petitioner was put on

show cause as to why not a minor punishment be imposed upon

him and vide order dated 02.01.2012, minor punishment was

imposed by way of 30 days confinement to lines with forfeiture

of pay and allowance and 2 hours pack drill.

7. At this stage, it is pertinent to mention here that

after the aforesaid order the direction of appellate court of the

Kolkata High Court has been fully complied with.

8. Subsequently, about 9 months thereafter; pursuant

to the letter dated 13.06.14 of the Special D.G. a show cause

notice was issued to this petitioner about regularization of the

intervening period from the date of dismissal to the date of

reinstatement and finally, after receiving the show cause reply

the respondent authorities has passed the impugned order dated

18.07.2014, whereby the intervening period between the date of

dismissal till the date of reinstatement i.e. from 01.09.1998 to

30.03.2011 was regularized as "PERIOD NOT SPENT ON

DUTY" under the provision of FR 54(A) (2) (ii) read with FR

54 (5). This impugned order was further modified vide order

dated 21.02.2015 which was consequential in nature.

9. It was ordered that during this period an amount

equivalent to the leave salary which he would have drawn, if he

had been on leave on half average pay or on half pay and in

addition, dearness allowance, if admissible on the basis of such

leave salary, shall be paid to him.

10. Mr. Krishna Murari, learned counsel for the

petitioner apart from arguments on merits of the case, raised a

preliminary objection that when the respondent authority has

passed an order on 30.03.2011; implementing the direction of

the Division Bench of the Kolkata High Court and reinstated

the petitioner in service by treating the intervening period

between the date of dismissal to date of reinstatement under FR

54 (A) (3) as duty for all purpose and further a minor

punishment was also imposed upon him; then under which

provision of law the concerned respondent has revisited the

order passed by the other officer and changed the decision that

the intervening period between date of dismissal till

reinstatement will be treated as "period not spent on duty".

He further submits that when in compliance to the

order passed by the Hon'ble Court he has been awarded minor

punishment and after reinstatement the intervening period was

also treated as on duty in accordance with law and the same

was also acted upon then the concerned respondent was having

no jurisdiction to review its own order.

He contended that since the order of Kolkata High

Court had already been complied and the petitioner has been

inflicted with minor punishment as per order dated 02.01.2012;

the revised order of punishment amounts to double jeopardy

which is violative of Article 20(2) of the Constitution of India.

He further referred the judgment passed in the case of

Kalabharati Advertising versus Hemant Vimalnath

Narichania and Others & Kanchan Pandey versus The State

of Jharkhand & Ors. reported in (2010) 9 SCC 437 and

(2013) 2 JLJR 520 respectively.

He lastly submits that due to respondents' illegal

act, this petitioner is facing hardship.

11. Ms. Nitu Sinha, learned counsel for the

respondent-CRPF (Union of India) submits that though the pay

fixation order was issued by the DIGP, CRPF, Ranchi vide

order dated 31.03.2011 after issuance of reinstatement order;

the revised order dated 18.07.2014 was issued in accordance

with the existing rule and as per the direction of Special DG

of Central Zone.

The respondent authority had observed that the

order of the Commandant passing the earlier order regarding

regularization of intervening period between the date of

dismissal till the date of reinstatement as period spent on duty is

not proper and was contrary to the instructions on the matter. As

such, regularization of intervening period was regularized under

provision contained in FR 54(A) (2) (ii) read with FR 54 (5) as

the FR 54 (A) (3) does not apply in the instant case.

Ms. Sinha, strenuously contended that the

impugned order is not a review order and since the earlier order

was passed against the rules; as such, the same was corrected

because admittedly exoneration of the petitioner from the

charges was not honorable, inasmuch as, in one charge he was

found guilty and the Division Bench of the Kolkata High Court

has rightly remitted the matter back to the authorities to pass a

fresh order for minor punishment. As such, treating the

impugned order as the review order, is, not correct.

She further submits that the impugned order is

otherwise also not bad in law, inasmuch as, there is no

categorical direction in the High Court's order or anywhere

with regard to treating the intervening period from the date of

dismissal till the date of reinstatement as period spend on duty.

She lastly refers Para 10 of the Supplementary

counter affidavit dated 07.08.2021 which is quoted herein

below:

"10. That statement made in para 7 of the rejoinder, it is stated that the matter of regularization being administrative in nature can be reviewed by Disciplinary/Competent authority keeping in view of rule position. As per rule under FR 54(4) a show cause notice was served to the petitioner by giving 15 days time for submission of his representation if any to regularize the intervening period from 01.09.1998 to 30.03.2011 as 'Non duty' as no further enquiry was held on his reinstatement and he was also awarded a minor punishment vide 94 Battalion, CRPF letter No.J.II- 1/1999-2014-94-EC-II dated 26.06.2014. The petitioner has not submitted any representation before the disciplinary authority within the stipulated time. The intervening period between the date of dismissal and the date of reinstatement i.e. from 01.09.1998 to 30.03.2011 has been regularized as 'PERIOD NOT SPENT ON DUTY' under the

provision of FR 54(A) (2) (ii) read with FR 54(5) as per the orders of Special Directorate General, Central Zone, CRPF Signal No.J.II- 9/2013-CZ- Legal dated 13.06.2014. During above period an amount equivalent to the leave salary which he would have drawn, if he had been on leave on half average pay or on half-pay and in addition, dearness allowance, if admissible on the basis of such leave salary, shall be paid to him under the provision of FR 54(4) read with 54(5) vide Commandant 94 Battalion, CRPF revised Office Order No.J.II-4/1999-2014-EC-II dated 18.07.2014. A copy of above order was also provided to the petitioner vide Commandant 94 Battalion, CRPF letter No.J.II-4/1999-2014-EC-II dated 23.07.2014."

She concluded her argument by submitting that

the petitioner has even not challenged the subsequent order

dated 21.02.2015.

12. Having heard learned counsel for the parties and

after going through the documents annexed with the respective

affidavits and the averments made therein it appears that after

the dismissal of this petitioner a writ application was filed

before the Kolkata High Court which was allowed in his favour

with the direction to the respondents to reinstate him with full

back wages. However, the said order of Writ Court was

modified by the appellate court by observing that since charge

No.1 is proved and which is obviously minor in nature, as such,

the matter was remitted back to the respondent authorities to

reinstate the petitioner in service and a liberty was given to the

respondents to take a decision on charge No.1 which was

obviously minor in nature. The said order of Division Bench of

Kolkata High Court was also upheld by the Hon'ble Apex

Court, inasmuch as, the SLP filed by the respondent was

dismissed.

Pursuant thereto; the petitioner was duly reinstated

in service vide order dated 30.03.2011. For brevity, Para 8 of

the order dated 30.03.2011 is quoted herein below:

"8. In view of above to comply the court order dated 11/11/2010, the following orders are hereby passed:-

(A) The order No.P-VIII-7/98-EC II dated 01.9.1998 regarding dismissal from service w.e.f. 01/09/1998 in r/o No. 850832773 LNK Akhilesh Kumar passed by this (i.e. the Commandant 94 Bn, CRPF) is hereby set aside.

(B) No.850832773 LNK Akhilesh Kumar (Petitioner) is hereby re-instated into service with effect from 30/03/2011 (AN) i.e. from the time of his reporting at this unit Head Quarter i.e. 94 Bn. CRPF, Bawana, Delhi with all consequential benefits/Back wages in light of F.R. 54(A) (2) (1) and (2).

(C) In accordance with provision contained in in light of F.R. 54 (A) (3), the intervening period between the date of dismissal and re-instatement i.e. w.e.f. 01/09/1998 to date of reporting i.e. 30/03/2011 (AN) in r/o No.850832773 LNK Akhilesh Kumar is hereby treated as duty for all purpose. (D) Show Cause notice for imposing another minor penalty commensurating with the gravity of offence of the individual as observed by the Hon'ble High Court, Kolkata Judgment dated 20/07/2007 will be issued separately."

13. Pursuant to the aforesaid order of reinstatement,

the petitioner was put on show cause as to why minor

punishment be not imposed upon him and finally vide order

dated 02.01.2012 the minor punishment was imposed upon him

by way of 30 days confinement to lines with forfeiture of pay

and allowance and 2 hours pack drill. Thereafter, the effect of

the said order was carried out vide office order dated

31.03.2012. The DIG, CRPF, Ranchi, while concurring with the

same revised the pay scale of the petitioner under 6th pay

revision with corresponding fixation and regularizing of entire

intervening period between the date of termination of his

service till date of re-instatement.

However, when the file was processed for

payment of differential arrears of salary as against intervening

period amounting to Rs.12,60,398/-; one of the respondents

differed with the order passed by the earlier officer in treating

the intervening period which was earlier passed under Rule 54

(A) (3); has issued a show cause notice to the petitioner and

reviewed the earlier order as treating the intervening period

between the date of dismissal till date of reinstatement as

"period not on duty".

14. This review order gave rise to the instant writ

application. The sole question which requires for consideration

is that "whether review can be done in absence of statutory

provision?".

15. Ms. Nitu Sinha, learned counsel for the

respondents strenuously contended that primarily this is not a

review order; further, since an illegal payment was being made

to the petitioner under different provision, as such, the same

was corrected and due process of law was followed by giving

show cause notice.

This issue came before the Hon'ble Apex Court

way back in the year 1965 in the case of Patel Chunibhai

Dajibha etc. vs. Narayanrao Khanderao Jambekar & Anr.

reported in AIR 1965 SC 1457. The said proposition of law

was reiterated in the case of Kalabharati Advertising (supra)

reported in (2010) 9 SCC 437 wherein at para 11, 12, 13 and 14

the Hon'ble Apex Court has held as under:

"11. We have considered the rival submissions made by both the parties and perused the record. Legal Issues Review in absence of statutory provisions

12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (Vide Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Harbhajan Singh v. Karam Singh.)

13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Major Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. of Land Records and Settlement and Sunita Jain v. Pawan Kumar Jain this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only

from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.

14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.

Case dismissed/withdrawn -- Effect on interim relief"

16. In yet another judgment passed by this Court in

the case of Kanchan Pandey (supra), similar issue has been

dealt with by quoting the ratio as decided in the case of R.T.

Rangachari v. Secretary of State reported in AIR 1937 Privy

Council 27. Paragraph-10 of the order rendered in Kanchan

Pandey (supra), is quoted herein below:

" 10. Adverting to the contention of the learned senior counsel appearing for the petitioner that order dated 24.12.2002 passed by the Deputy Inspector General of Police could not have been reviewed /recalled/modified by the successor Deputy Inspector General of Police, I find that law in this regard is well settled. It is not open to the authority to review/recall its own earlier order unless, fraud or misrepresentation is detected. In "R.T. Rangachari Vs. Secretary of State", reported in A.I.R. 1937 Privy Council 27, it has been held,

"In a case in which after Government Officials, duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision."

17. Looking to the aforesaid proposition of law, now it

is a settled law that unless the statute/rules so permits; review is

not permissible in the garb of correction.

In other words, in the absence of any provision in

the Act/Rules granting excess power of review; no officer is

empowered to review. In a case in which after Government

officials duly competent and duly authorized in that behalf have

arrived at one decision; their successors in office after the

decision has been acted upon and is in effective operation,

cannot reconsider the matter and arrive at a different

conclusion.

Even otherwise, change of opinion in passing any