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PETITIONER: DlVISIONAL PERSONNEL OFFICER, WESTERN RAILWAY, KOTA

       Vs.

RESPONDENT: SUNDAR DASS

DATE OF JUDGMENT16/10/1981

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) CHANDRACHUD, Y.V. ((CJ) SEN, AMARENDRA NATH (J)

CITATION:  1981 AIR 2177            1982 SCR  (1) 937  1981 SCC  (4) 563        1981 SCALE  (3)1647  CITATOR INFO :  D          1992 SC1981  (7,12)

ACT:      Indian  Railway  Establishment  Code,  Rule  1706  (4)- Railway  servant   dismissed  after   departmental  enquiry- dismissal  order  set  aside  by  court-Fresh  charge  sheet issued-No fresh  order of  suspension however issued-Railway servant eventually  dismissed-Railway servant-Whether deemed to have continued to be under suspension.

HEADNOTE:      Clause  (1)   of  Rule   1706  of  the  Indian  Railway Establishment Code  provides for  a  railway  servant  being placed under  suspension  where  a  disciplinary  proceeding against him is contemplated or pending.      Clause (4)  of The  same Rules  provides that  where  a penalty of  dismissal, removal or compulsory retirement from service imposed  upon a  railway servant  is set  aside by a decision of  a Court  of Law  and the disciplinary authority decides to hold a further enquiry, the railway servant shall be deemed  to have  been  placed  under  suspension  by  the competent authority  from the  date of the original order of dismissal, removal or compulsory retirement.      The  Respondent   was  employed  as  an  Assistant  Sub Divisional Clerk  in  the  North  Western  Railway.  He  was discharged from  service by  an order  dated 12.4.44. On the partition of  India. he migrated to India and was taken as a clerk in  the  Western  Railway.  When  the  fact  that  the Respondent had  already been discharged from Railway service on 12.4.44  came to light, the Respondent was suspended from service on  17.2.49 and a charge sheet was issued to him for the misconduct of concealment of the order of discharge, and after an  enquiry he  was dismissed from service on 14 5.59. The Respondent filed a suit for a declaration That the order of discharge  was void. The High Court in Second Appeal held that the  Respondent was  entitled to a declaration that the order of  his dismissal  from service  was  illegal  on  the ground that  there was a breach of the principles of natural justice and  that it  was open to the railway administration to take  fresh disciplinary  proceedings from  the stage  at which the illegality crept in.

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    In pursuance  to  the  order  of  the  High  Court  the department issued  a  fresh  charge  sheet  against  him  on 14,11.63 and held an inquiry. No fresh order of 938 suspension  was   however  issued  to  the  respondent.  The respondent was  even tually  dismissed from  service  by  an order dated  23.12.66 with  effect from 14.5.59, the date of his  original  dismissal.  The  respondent’s  writ  petition challenging the order of dismissal was dismissed by the High Court.      After the  dismissal of  the Second  Appeal by the High Court, the  Respondent moved  the Payment of Wages Authority on 22.2.63  by a  petition under  section 15  (2) of the Act claiming wages  for the period from 17.2.49, the date of the original suspension,  to 22.2.63 less subsistence allowance. He also  filed (seven)  petitions once  in every  six months claiming wages  for the  period from  1.3.63 to 31.8.66. The Authority held that the Respondent was entitled to wages for the period from 17.2.49 to 14.5.49 but the District Judge in appeal held  that the Respondent was entitled to wages for a period of  six months  prior to  25.6.63 r  and also for the period of  six months  in respect  of each  one of the seven petitions filed  by him.  The High Court, however, dismissed the appellant’s  Civil Revision  Petition  and  allowed  the respondent’s  revision   petition  and   held  that   the  5 respondent was entitled to receive the arrears of wages from 17.2.49 to 31.8.66.      In the  appeal to this Court it was contended on behalf of the Appellant that the Respondent had been suspended from service on  17.2.49 before  he was originally dismissed from service on 14.5.49 pursuant to the finding of guilt recorded in the  departmental inquiry  and  that  in  the  subsequent departmental inquiry  he was  found guilty and was therefore dismissed from  service and  by virtue  of the provisions of Rule 1706(4)  he must  be deemed  to have  been  under  sus- pension right  from 17.2.49  and he  was  only  entitled  to subsistence allowance  and not  to full wages for the period from 17.2.49.  The Respondent,  however, contended  that the original order  of dismissal  dated 14.5.49 was based on the finding of  guilt recorded in respect of a single charge and that as  a second  allegation had  been made  in  the  fresh inquiry, the provisions of Rule 1706(4) were not attracted.      Allowing the appeal ^      HELD:  1.   Rule  1706   (4)  of   the  Indian  Railway Establishment Code  is Squarely attracted to the case of the Respondent. [945 F]      In the  instant case  the Respondent had been suspended on 17.2  49 pending  inquiry and  had not  reported for duty after the original order of dismissal dated 14.5.49 had been declared to  be illegal  by the  High Court,  in the  second appeals filed  by both  the parties.  The Respondent must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706 (4) in view of the fresh inquiry and he  would be  entitled only  to  subsistence  allowance, being 50%  of his  wages for  the period of suspension until the final order of dismissal and not to full wages. [945 G]      2. The  subsequent inquiry  was in  respect of the same charge namely,  that the  respondent had suppressed the fact that he  had been discharged from railway service on 12.4.44 while he  secured employment  in 1948 after the partition of India. The  fresh charge  dated 22.3.65  was only  a  single charge and  the second  allegation, namely,  the declaration dated 26.1.48 made by the respondent after 939

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he joined  the Ex.  B.B. and Central Indian Railway was only intended to  be A  relied upon for proving that charge. [945 E, D]

JUDGMENT:      CIVIL APPELLATE  JURISIDICTION: Civil  Appeal No.  1085 of 1981.      Appeal by  special leave  from the  judgment and  order dated the  28th February,  1979 of  the Rajasthan High Court (Jaipur Bench)  at Jaipur in S.B. Civil Revn. No. 63 and 158 of 1973.      N.C. Taluqdar and R.N. Poddar for the Appellant.      Respondent in person.      The Judgment of the Court was delivered by      VARADARAJAN, J.  In this  appeal by  special leave  the respondent Sunder  Dass appears in person. The appeal by the Divisional officer,  Western Railway,  Kota is  against  the Judgment of Dwarka Prasad, J. Of the Rajasthan High Court at Jaipur in  Civil Revision  Nos. 63  and  158  of  1973.  The learned Judge allowed Civil Revision No. 63 of 1973 filed by Sundar Dass  and dismissed  Civil Revision  No. 158  of 1973 filed by  the Divisional  Personnel officer  with  costs  in both.      The two revision petitions were filed against the order dated 18.9.1972  passed by  the learned District Judge, Kota under the  Payment of  Wages Act (hereinafter referred to as "the Act").  The respondent  filed petitions under s. 15 (2) of the  Act before  the Authority under the Act, the Special Judicial (Railways)  Magistrate, Kota  who held by his order dated 30-10-1967  that the respondent is entitled to get his salary for  the period  from 17.2.1949  to  14.5.1949  after adjustment of  any amount  which might have been paid to him for that  period. Both  parties filed  appeals against  that order before  the District  Judge, Kota  who by  order dated 18.9.1972 held  that the  respondent should  have been  paid wages for  the period  of six months prior to 25.3.1963, the date of  his application under the Act and also for a period of six months in respect of each one of his subsequent seven applications filed under the Act. The learned District Judge directed the Authority under the Act to calculate the amount of salary  and dearness  allowance payable to the respondent as per  his direction on the basis of the respondent’s basic salary as  on 14.5.1949,  the date of his original dismissal from service,  after  deducting  the  usual  Provident  Fund deduction and other permissible 940 deductions, if any. Both parties filed revision petitions in the High  Court against  the order  of the  learned District Judge.      The  respondent   was  employed  as  an  Assistant  Sub Divisional Clerk  at Sukkar  in the  Karachi Division of the North Western Railway. While he was working in that capacity at Nawabshah,  he was discharged from service by order dated 12.4.1944 issued  by the Divisional Engineer. The respondent instituted a  suit in  the Court  of Judicial  Commissioner, Karachi for  declaration that  the order  of  discharge  was invalid.  During   the  pendency  of  that  suit  there  was partition of India and he migrated to India and reported for duty to the Transfer officer (India) at Ambala Cantonment on 8.1.1948. On  the basis  of the respondent’s declaration, he was taken  as a  Clerk in  the former  B.B. &  C.I. Railway, which eventually  became the  Western Railway.  But when the fact that  the respondent  had already  been discharged from

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railway service  on 12.4.1944  before the partition of India took place  came to light, the respondent was suspended from service on 17.2.1949 and a charge-sheet was issued to him by the Chief  Engineer of  the Railway  for the  misconduct  of concealment of  the order  of discharge  from service and he was dismissed  from service on 14.5.1949 in pursuance of the finding of  guilt recorded  in the inquiry. The respondent’s appeal against  the order  of discharge was dismissed by the General Manager  of the  Railway. The  respondent thereafter filed a  suit on 10.1.1950 for declaration that the order of discharge was  void and  obtained decree in the Trial Court, which was  modified by  the District  Judge on  appeal. Both parties filed  Second  Appeals  in  the  High  Court,  which dismissed  the   same  on   6.3.1963  by  holding  that  the respondent is  entitled to  a declaration  that the order of his dismissal from service dated 14.5.1949 is illegal on the ground that  there was  breach of  the principles of natural justice and  that it  was,  however,  open  to  the  Railway Administration  to   take  fresh   disciplinary  proceedings against him from the stage at which the illegality crept in.      Subsequently,  the   Chief  Engineer,  Western  Railway started   flesh   disciplinary   proceedings   against   the respondent and  issued a fresh charge-sheet with a statement of allegations  against him  on 4.11.1963. No fresh order of suspension was  issued to  the respondent  on this occasion. The departmental  inquiry was  held and  an  inquiry  report dated 29.11.1965  was made  holding the respondent guilty of the charge. The Chief Engineer accepted the report of 941 the Inquiry  officer and  issued a  notice to the respondent calling upon  him  to  show  cause  against  the  punishment proposed to  be awarded  to him and eventually dismissed him from service  by his order dated 23.12.1966 with effect from 14.5.1949, the date of his original dismissal. This order of dismissal was  confirmed by  the  General  Manager,  Western Railways in  the respondent’s  appeal which was dismissed on 10.5.1967. The  respondent challenged the order of dismissal by filing  Writ Petition No, 558 of 1967 which was dismissed by the  Rajasthan High  Court on 21.11.1971 holding that the departmental inquiry  was properly  conducted and  that  the dismissal is  valid but  not retrospectively from 14.5.1949. The  respondent’s  Review  Petition  was  dismissed  by  the learned Judge of the High Court on 7.3.1972.      After the  dismissal of  second appeals on 6.3.1963 the petitioner moved the Payment of Wages Authority on 25.3.1963 by a petition filed under section 15 (2) of the Act claiming wages for  the  period  from  17.2.1949,  the  date  of  the original   suspension,   to   28.2.1963   less   subsistence allowance, namely, Rs. 24,792 7() and thereafter filed seven more petitions  once in  every six  months claiming  in  all wages of  Rs. 34,096.07  for the  period  from  1.3.1963  to 31.8.1966. As  stated earlier,  the Authority  under the Act held that the respondent is entitled to wages for the period from 17.2.1949  to 14.5.1949 and in the appeals filed before the learned  District Judge  it was held that the respondent is entitled  to wages  for a  period of  six months prior to 25.6.1963 and  also for  the period of six months in respect of each  one of  the seven  petitions filed  by him  and the District Judge  directed the  Authority  under  the  Act  to calculate the  amount payable to the respondent after making the necessary  deductions on  the basis  of the respondent’s basic wages as on 14.5.1949. Both the parties filed revision petitions against the order of the learned District Judge.      The plea  of limitation  which  appears  to  have  been raised in  the revision  petitions before the learned Single

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Judge of  the Rajasthan  High Court at Jaipur, has been held to be  no longer  available in view of the decisions of this Court referred  to in  the Judgment of the High Court in the Civil Revision  cases under  appeal in  this case. The other objection raised  under order  2 Rule 2 of the Code of Civil Procedure in  view of  the fact that the claim for wages had not been  put forward in the civil suit and connected appeal and second  appeal has also been rejected by the High Court. The learned Single Judge held that if the order of dismissal is set 942 aside, it  is not  necessary to  give a  further declaration that the  employee continues to remain in service in view of the fact  that it  follows as a consequence of that order of dismissal having been set aside.      It was contended before the learned Single Judge of the High Court  that since after the original order of dismissal had been  set aside  by the  High  Court,  the  disciplinary authority had  decided to  hold  a  fresh  inquiry  and  had dismissed the  respondent pursuant  to the  finding of guilt recorded by  the Inquiry  officer in  the fresh  inquiry and accepted by  the disciplinary  authority,  in  view  of  the provisions  of   Rule  1706(4)   of   the   Indian   Railway Establishment Code,  the respondent  must be  deemed to have been placed  under suspension  from the date of the original order of  dismissal. The  learned Single Judge did not allow that contention  to be  raised before him on the ground that it was  not raised either before the Authority under the Act or before  the learned  District Judge  in the  appeals. The learned Judge  dismissed the  Divisional Personnel officer’s revision petition  and  allowed  the  respondent’s  revision petition with costs and held that the respondent is entitled to receive arrears of wages from 17-2-1949 to 31-8-1966. The Divisional Personnel  officer had filed this Civil Appeal by special leave  against those  orders of  the learned  Single Judge of the High Court.      The fact  that the  respondent had  been dismissed from service pursuant  to the  finding of  guilt recorded  in the fresh inquiry  has  not  been  disputed  before  us  by  the respondent who  has appeared  in person though the appellant in this  appeal  had  been  directed  by  this  Court  while ordering show  cause notice in the special leave petition to deposit a  sum of  Rs. 1,000/-  to enable  the respondent to engage a  counsel to  appear for  him in this Court and that amount had  been deposited by the appellant and withdrawn by the respondent.  We perused  the record of the fresh inquiry and are  satisfied that the respondent has admitted the fact of his  discharge from  service on  12-4-1944 while securing fresh employment  under B.B.  & C.I. Rail way. Mr. Taluqdar, Senior Counsel,  appearing for  the appellant submitted that the respondent  had been suspended from service on 17-2-1949 before he was originally dismissed from service on 14-5-1949 pursuant to  a finding of guilt recorded in the departmental inquiry and  that in  the  subsequent  departmental  inquiry also,  he   had  been  found  guilty  and  was  subsequently dismissed from  service and  therefore,  by  virtue  of  the provisions of Rule 1706(4) of the 943 Indian Railway Establishment Code, he must be deemed to have A been  under suspension right through from 17-2-1949 and he would be  entitled only  to subsistence allowance and not to full wages for the period from 17-2-1949. Clause (1) of Rule 1706 provides  for a  railway  servant  being  placed  under suspension  inter   alia  where  a  disciplinary  proceeding against him  is contemplated  or pending. Clause (4) of that

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rule reads thus:           "Where  a   penalty  of   dismissal,  removal   or      compulsory  retirement  from  service  imposed  upon  a      railway servant  is set  aside or  declared or rendered      void in  consequence of  or by a decision of a court of      law and  the disciplinary authority, on a consideration      of the  circumstances of  the case,  decides to  hold a      further inquiry against him on the allegations on which      the  penalty   of  dismissal,   removal  or  compulsory      retirement was  originally imposed, the railway servant      shall be deemed to have been placed under suspension by      the competent  authority, mentioned  in Rule 1705, from      the date of the original order of dismissal. removal or      compulsory retirement  and  shall  continue  to  remain      under suspension until further orders". We are of the opinion that this sub-clause will be attracted in cases  where there  had been  a suspension  of a  railway servant  due  to  a  contemplated  or  pending  disciplinary proceeding and  the  order  of  dismissal  pursuant  to  the finding recorded in the disciplinary proceeding is set aside or declared  or rendered  void in  consequence of  or  by  a decision of  a court  of law and the disciplinary authority, on a  consideration of  the circumstances of the case, as in the present  case, decides  to hold  a fresh inquiry against him on  the allegations  on which  the penalty of dismissal, removal or  compulsory retirement was originally imposed. It is not  the case  of the respondent that he had resumed duty after the  original order  of dismissal  dated 14-S-1949 was set aside  and that  he continued  to be in service until he was subsequently  dismissed from  service by the order dated 23.12.1966. It  is seen from the original order of Dismissal dated 14.5.1949 that the respondent had been informed by the instruction appended  to that  order that  he would be given subsistence allowance  at the rate of 50% of his pay for the period from  17.2.1949 to  14.5.1949, both  days  inclusive, when he  remained under  suspension. The  respondent did not dispute  before  us  the  fact  that  he  was  placed  under suspension from  17.2.1949 pending  the inquiry resulting in his 944 dismissal  by  the  order  dated  14.5.1949.  But  what  the respondent contended before us is that the original order of dismissal dated  14.5.1949 is  based on the finding of guilt recorded in  respect of  a single  charge and  that a second allegation has  been made  in the charge framed in the fresh inquiry and therefore, the provisions of Rule 1706(4) of the Indian Railways  Establishment Code  are not  attracted. The respondent invited  our attention  to the  fact that  in the first  suspension   order  dated   17.2.1949,  he  has  been described as  a Clerk,  Executive  Engineer’s  Office,  Kota Division and  in the  charge framed  in the fresh inquiry on 22-3-1965  as  ex-Clerk  of  the  office  of  the  Executive Engineer, Kota  Division and  also to  the fact  that he had been informed  by the Chief Engineer’s letter dated 9-9-1965 that he  has not  placed under suspension by the administra- tion and  only fresh proceedings have been taken against him in view  of the  judgment of  the Rajasthan  High Court  and therefore, the  question of  the administration granting him permission to  leave his  residence or  Kota Railway Station does not  arise-in support  of his  contention that he could not be  deemed to  have  been  under  suspension  after  his original order  of dismissal  had been set aside by the High Court. The  respondent appears to have been conscious of the fact that  the order  of suspension  dated 17-2-1949 had not been revoked  when he  applied for permission to absent from

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his headquarters.  The Chief Engineer appears to have stated in his  letter dated  9-9-1965 that  the respondent  had not been placed  under suspension  and  therefore,  he  did  not require the  permission of  the Railway  ad ministration  to leave Kota  only on  the basis that there was no fresh order of suspension  after the  original order  of dismissal dated 14-S-1949 had  been set  aside by  the High Court. As stated earlier, the  respondent has  not disputed  the fact that he had been placed under suspension by the order 17-2-1949, and it  is   clear  that  he  was  under  suspension  thereafter throughout and  he had attained the age of superannuation in 1963, his  year of  birth  being  1908.  The  charge  framed against respondent in the first inquiry was this:           "Obtaining  employment   by  concealment   of  his      antecedents which  would have  prevented his employment      in railway  service, had  they been  known  before  his      appointment, to the authority appointing him."      The reasons for that charge given were that he obtained employment in the Western Railway by giving false intimation to the Trans- 945 fer officer (India), Ambala Cantonment to the effect that he was in  service on  the North Western Railway at the time of partition.  In  the  fresh  charge  dated  22.3.1965  framed against the respondent, it is stated that:           " Fresh proceedings are being taken against him in      view of  the judgment  of the Rajasthan High Court that      his dismissal  from service was illegal and he has been      informed  that   the  charge   is  based   on  (1)  the      declaration of  8.1.1948  made  by  respondent  to  the      Assistant Transfer  officer, Ambala  Cantt. that he was      working on  the ex-North  Western Railway  and  was  in      receipt of  substantive pay  of Rs.  98/- plus Rs. 4.50      and has  been confirmed  in that  post on 1.11.1943 and      (2) the declaration dated 26.1.1948 after he joined the      Ex-B.B. & C.I. Railway." On a  perusal of the two charges, we are of the opinion that the fresh charge dated 22.3.1965 is only a single charge and that the  second allegation,  namely, the  declaration dated 26.1.1948 made by the respondent after he joined the Ex-B.B. & C.I.  Railway, was  only intended  to be  relied upon  for proving that charge. We are, therefore, unable to accept the submission  of   the  respondent   that  any   different  or additional charge  was  framed  against  him  in  the  fresh inquiry. The  subsequent inquiry  was in respect of the same charge, namely,  that the respondent had suppressed the fact that  he   had  been  discharged  from  railway  service  on 12.4.1944 while  he secured  employment in  1948  after  the partition of  India. Rule  1706(4)  of  the  Indian  Railway Establishment Code  is squarely attracted to the case of the respondent.  In   these  circumstances,  we  hold  that  the respondent who  had  been  suspended  on  17.2.1949  pending inquiry and  had not  reported for  duty after  the original order of  dismissal dated  14.5.1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by  both the parties, must be deemed to have continued to be  under suspension  by virtue of the provisions of Rule 1706(4) in  view of  the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of  suspension until the final order of dismissal and not to full wages. The appeal is accordingly allowed, but in the circumstances  of the  case without costs. The appellant had deposited  In this  Court a  sum  of  Rs.  16,000  being subsistence allowance  for the  said period  as directed  by this Court

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946 on 2.12.1980  when notice  to show  cause was ordered in the special leave  petition and  it has  been withdrawn  by  the respondent. We,  therefore, add that nothing more remains to be paid to the respondent towards his subsistence allowance.                                              Appeal allowed. N.V.K 947