Jharkhand High Court
M. Govind Raju Son Of M. Laxhami ... vs Union Of India on 25 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2942 of 2010
M. Govind Raju Son of M. Laxhami Narayan, Ex- PDP/Tata, subsequently
was posted at TP/RGZ, workin under CYM/BNDM, resident of Tatanagar,
Keris Colony, Dhanji Thikedar Back Side, P.O. & P.S.- Jamshedpur, Dist-
Jamshedpur, (East) Jharkhand --- --- Applicant/Petitioner
Versus
1. Union of India, through the General Manager, South Eastern Railway,
Garden Reach, Kolkata- 43(W.B.).
2. The Senior Divisional Operating Manager, S.E. Railway, Chakradhapur,
Division, Chakradhapur, Dist- Singhbhum (West) Jharkhand.
3. The Area Manager, South Eastern Railway, Tatanagar, Dist- Singhbhum
(East) Jharkhand.
4. Area Manager, BNDM, South Eastern Railway, Dist- Sundergarh (Orissa).
--- --- Respondents
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through : Video Conferencing
---
For the Petitioner : Mrs. M. M. Pal, Senior Advocate
Ms. Aprajita Sinha, Advocate
For the Respondents : Md. Jalisur Rahman, Advocate
---
14/25.02.2021 Heard learned Senior counsel for the petitioner Mrs. M. M. Pal and
Md. Jalisur Rahman, learned counsel appearing on behalf of the respondent
railways.
2. This writ petition relates to claim of either full salary or subsistence
allowance for the period from 22.03.1995 to 18.08.2003 i.e. the date on which
he was reinstated by order dated 18.08.2003 (Annexure-3) passed by Assistant
Personnel Officer, Chakradharpur in obedience to the order of learned CAT
in O.A. No. 410/97 dated 23rd April, 2003. By Annexure -3, the Sr.
DOM/CKP, APO(W)/TATA, OS (Optg) Bill/CKP/ARM/TATA were
requested to decide the intervening period i.e. the period from the date of
removal to the date of re-instatement on his back wages.
Learned CAT has dismissed the Original Application No. 38 of 2009 by
the impugned order dated 04.02.2010 holding as under:
"9. As per the law, the only thing for which the benefit of this order of
reinstatement dated 18.8.2003 shall be available to the applicant for the
period from 22.3.1995 to 18.8.2003 shall be the deemed continuation of
service over this period, which could count towards his entitlement for
pensionary benefits, and that the applicant is not at all entitled to either
full salary as if in employment, or for subsistence allowance as if under
suspension for the period from 22.3.1995 to 17.8.2003, the date of his
reinstatement."
3. Respondents, in their counter-affidavit at para 23 have made statement
that the intervening period from 22.03.1995 to 20.08.2003 has been decided by
the competent authority as dies-non. However, no such order has been
enclosed. In the supplementary-affidavit dated 27.09.2016, the petitioner has
made statement that no such order was issued or served upon the petitioner. In
the O.A. also, no such order was brought on record though as per the petitioner
a prayer was made to that effect.
4. Learned Senior counsel for the petitioner has relied upon the decision of
the apex court in the case of "Deepali Gundu Surwase Vs. Kranti Junior
Adhyapak Mahavidyalaya (D.Ed.) and Others" reported in (2013) 10 SCC
324 (para 22, 38.5 and 38.6) as also in the case of "Union of India Vs.
Madhu Sudan Prasad" reported in 2003 (4) JCR 231 SC (para 5 and 6).
Learned Senior counsel for the petitioner has also referred to Rule 2044-A
(FR-54(A)2(1) of the fundamental rules at para 8 of the writ petition, which
according to her has not been categorically answered at para 27 of the counter-
affidavit.
5. The learned counsel for the respondent railways was allowed time vide
order dated 20.01.2021 to obtain categorical instructions whether any such
order on the intervening period from the date of his removal till the date of his
re-instatement has been passed or not. He was asked to place such order on
record by the next date. The matter was again adjourned on 04.02.2021 on his
request as instructions were awaited, with the categorical observation that in
case the affidavit in respect of the query made by this Court vide order dated
20.01.2021 is not filed by 09.02.2021, it would be presumed that the
respondents do not have anything to say on that.
6. Learned counsel for the railways has not got any instructions on this
particular query nor any such order of dies-non has been produced or brought
on record. According to him, the office of the Area Personnel Officer was
shifted from Jamshedpur to Chakradharpur in the year 2018 and therefore,
such documents could not be traced.
7. Learned counsel for the respondents has also submitted that after his
reinstatement pursuant to the order dated 23.04.2003 passed in O.A. No. 410
of 1997, disciplinary authority has, after due show-cause and notice, passed a
fresh order of removal from service dated 16.04.2004 which stood modified to
an order of removal by the appellate authority dated 05.06.2004 with 50%
terminal benefits. Petitioner approached the learned CAT in O.A. No. 223 of
2004 challenging the order of the disciplinary authority and the appellate
authority. The learned CAT refused to interfere in the order of the disciplinary
and appellate authority vide order dated 09.09.2008 which is subject matter of
W.P.(S) No. 1832 of 2009 also on board today.
8. We have considered the submissions of learned counsel for the parties.
In the instant writ petition, the issue involved is relating to claim of salary or
subsistence allowance for the period 22.03.1995 to 18.08.2003 i.e. the date on
which applicant was reinstated by order dated 18.08.2003 passed by Assistant
Personnel Officer, Chakradharpur in obedience to the order of the learned
CAT in O.A. No. 410 of 1997 dated 23.04.2003. The operative portion of the
order of the learned CAT dated 23.04.2003 is as under:
"5. After hearing both the sides lawyers, the other side lawyer Mr.
Gautam Bose, even submitting that it was expected of the disciplinary
authority as to issue show cause notice prior to passing the order
(Annexure-2) when he decided as to differ with the inquiry report, as to
meet the ends of justice, we also feel satisfied that this opportunity was not
so given to the applicant which has caused prejudice to the applicant and
to give an opportunity to the applicant to show cause, it is hereby ordered
that the orders under challenge i.e., Annexure-2, Annexure-3 & Annexure-
R/4 i.e., the orders dated 27.02.1995, 01.06.1995 & 26.02.1998
respectively stand set-aside. The matter is remanded to the disciplinary
authority who had passed the order at Annexure-2 as to issue fresh show
cause notice to the applicant and after receiving reply from the applicant
as to pass necessary orders in accordance with law within a period of four
months from the date of receipt/production of a copy of this order by
passing a speaking and reasoned orders. Needless to say that if in any way
the applicant is aggrieved by the order so passed by the disciplinary
authority, he will have the liberty to file an appeal before the concerned
appellate authority.
This OA stands disposed of in terms of direction as above with
no order as to costs."
9. Apparently, the order of dismissal passed by the disciplinary authority
and affirmed in appeal in the first round of litigation was interfered on the
ground that no show-cause notice containing the difference of opinion by the
disciplinary authority from the report of the inquiry officer was furnished to
the applicant delinquent. The learned CAT held that the order of dismissal was
bad for non-issuance of show-cause notice. The order of dismissal was set-
aside and the matter was remanded to the disciplinary authority to pass an
order in accordance with law after fresh show-cause notice to the applicant and
on consideration of his reply within a stipulated period by a speaking order.
Applicant was granted liberty to assail the order so passed, if aggrieved
thereby before the appellate authority. The second round of disciplinary
proceedings after remand, has ended up in an order of removal as modified by
the appellate authority which was subject matter of O.A. No. 223 of 2004 and
W.P.(S) No. 1832 of 2009 before this Court. Apparently, no decision in
relation to the intervening period from 22.03.1995 to 18.08.2003 had been
taken by the disciplinary authority as no such order has been brought on record
despite time granted to the respondent railways. Rule 2044-A (FR-54(A)2(1)
quoted in rejoinder affidavit reads as under:
"2(i) Where the removal or compulsory retirement of a Railway servant is
aside by the Court solely on the ground of non-compliance with the
requirement of clause (2) of the Article 311 of the Constitution and where
he is not exonerated on merits, the railway servant shall, subject to the
provisions of Sub-rule (7) of Rule 2044, be paid such amount ( not being
the whole) of the full pay and allowances to which he would have been
entitled, had he not been dismissed removed or compulsory retired or
suspended prior to such dismissal, removal or compulsory retirement, as
the case may be, as the competent authority may determined, after giving
notice to the Railway servant of the quantum proposed and after
considering the representation, if any, submitted by him, in that connection
within such period (Which shall in no case exceed 60 days from the date
on which the notice is served) as may be specified in the notice.
Provided that any payment under this sub-rule to a Railway
servant (other than a Railway servant who is governed by the provisions of
payment of wages Act 1936) shall be restricted to a period of 3 years
immediately preceding the date on which the judgment of the Court was
passed, or the date of retirement on superannuation of such Railway
servant, as the case may be."
10. Petitioner has placed reliance upon the decision of the apex court in the
case of "Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and Others" reported in (2013) 10 SCC 324 (para
22, 38.5 and 38.6) as also in the case of "Union of India Vs. Madhu Sudan
Prasad" reported in 2003 (4) JCR 231 SC (para 5 and 6).
11. Having taken note of the aforesaid facts and circumstances, it appears
that for the intervening period, upon his reinstatement with effect from
22.03.1995 till 18.08.2003, no decision has been taken by the disciplinary
authority though applicant was proceeded against after reinstatement and
punished also. The order of punishment in the disciplinary proceeding
resumed after his reinstatement from the stage of show-cause notice is a
subject matter of W.P.(S) No. 1832 of 2009.
12. In those circumstances, the disciplinary authority is directed to take a
fresh decision on the claim of the petitioner for salary/subsistence allowance
for the period from 22.03.1995 to 18.08.2003 in accordance with law, rules
applicable to the organization and the decisions rendered by the apex court
within a period of 12 weeks from the date of receipt of copy of this order.
Depending upon such decision, the admissible amount, if any, be paid within a
reasonable time thereafter preferably within 8 weeks therefrom.
13. The order of the learned CAT dated 04.02.2010 is accordingly set-
aside. The writ petition is disposed of.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Pankaj/Saurav
