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CASE NO.: Appeal (civil)  4904 of 2007

PETITIONER: UNION OF INDIA & ORS

RESPONDENT: K.N. PRAKASAN

DATE OF JUDGMENT: 06/02/2008

BENCH: H.K. SEMA & MARKANDEY KATJU

JUDGMENT: JUDGMENT

O R D E R CIVIL APPEAL NO. 4904 OF 2007

       Heard the parties at length.

       The respondent was appointed under the appellant-Union of India as Junior  Engineer in the Department of Lighthouses and Lightships, Mumbai on 10/02/1983.  By  an order dated 01/03/1993, he was charge-sheeted with article (1) and (2) of the charge.   The enquiry officer found that both the charges (1) and (2) were proved against the  respondent.  His services was terminated on 23/08/1993 preceded by an enquiry.  In the  interregnum, he filed an appeal before the appellate authority.  The appellate authority  remanded his case to the disciplinary authority to pass a fresh order.  Thereafter on  10/02/1994, the disciplinary authority passed a fresh order terminating the service of the  respondent.  The appeal was dismissed on 24/08/1994.  Aggrieved thereby, he filed  original petition before the Central Administrative Tribunal, Bombay. By an order dated  7/12/2000, the tribunal again remanded the case to the appellate authority to  pass an  order supported by  ......2.

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reasons.  Thereafter, a final order was passed on 26/03/2001 by the appellate authority  reinstating the respondent.  While reinstating the respondent, the appellate authority  directed that the period from 10/02/1994 to 26/04/2001 shall not be treated as on duty.   The appellate authority further directed that the respondent will be paid the pay and  allowances equal to subsistence allowance and other allowance admissible under  Fundamental Rule 53, for period of his absence from duty from 10/02/1994 till he takes  over the charge, including the period of suspension, preceding his removal and that this  period will be treated as not on duty.  The pay and allowances to be paid to the  respondent will further be subject to other conditions as laid down under Fundamental  Rule 54(in short ’F.R. 54’).  By the aforesaid order, the respondent was also given liberty  to submit a representation before the competent authority.

       Pursuant to the aforesaid order, the respondent joined the service on 27/04/2001.  H e  also filed a representation as directed which was rejected by the authority on 08/06/2001.   Aggrieved thereby, he preferred another O.A. before the tribunal.  The tribunal, after  hearing the parties, allowed the application and directed the appellant to treat the period  of absence from 10/02/1994 to 26/04/2001 as on duty for all purposes including pay and  allowances and directed the appellant to issue orders accordingly.   The  appellants  writ  ......3.

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petition ended without any result.  Hence this appeal by special leave.

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       At the outset, we notice that the tribunal did not at all considered the effect and  impact of the provisions of F.R.54 in the facts and circumstances as recited above.   When the provisions of F.R.54 was pointed out, the tribunal simply brushed it aside  saying that F.R.54 was not applicable, albeit, without considering the order passed by  the appellate authority which directed that other allowances of the respondent shall be  decided in terms of the provisions of F.R.54.

       F.R.54(4) reads as under:-         "In cases other than those covered by sub-rule(2)  (including cases where the order of dismissal, removal or  compulsory retirement from 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  ........4.

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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." On reading of the aforesaid provision it clearly emerges that if the dismissal, removal or  compulsorily retirement is set aside by the appellate authority 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, as may be  determined by the competent authority.

       In the present case, undisputedly, the order of termination of the respondent was se t  aside for non-compliance of the requirements of Clause (1) and (2) of Article 311 of the  Constitution.  In that view of the matter, we are clearly of the opinion that in such a   situation  the  provisions  of F.R.54 was clearly attracted. ....5.

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       Counsel for the respondent has referred to a decision of this Court rendered in Unio n  of India Vs. Madhusudan Prasad, (2004) 1 SCC 43 and contends that the F.R.54 will  have no application in the present case and since the respondent was directed for  reinstatement he was entitled to backwages for the period he was out of service.  We  have gone through the said judgment.  In Madhusudan Prasad case (supra), the  respondent was removed from service without any enquiry and he was not even given a  show-cause notice prior to his dismissal from service.  Therefore, it is different from the  facts of the present case.  In the present case, as already stated, respondent’s services  was done away with preceded by an enquiry.  His termination was set aside only on the  ground of non-compliance of requirements of Clause (1) and (2) of Article 311 of the  Constitution.  Therefore, the ratio in Madhusudan Prasad case (supra) will not be

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applicable in the facts of the present case.

       Learned counsel for the respondent has also referred to another decision of this  Court rendered in U.P. State Brassware Corpn. Ltd. & Anr. Vs. Uday Narain Pandey,  (2006) 1 SCC 479.    In  that  case,  this  Court  was  considering the  .........6.

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termination of a workman in violation of Section 25-F of the Industrial Disputes Act,  1947.  The ratio of decision in Uday Narain Pandey case (supra) is also not applicable in  the facts of the present case.

       In the result, this appeal is allowed.  The orders of the High Court and tribunal ar e  set aside.  No order as to costs.