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PETITIONER: RAJ BAHADUR SHARMA (DEAD) THR.L.RS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT:       20/01/1998

BENCH: S.P. BHARUCHA, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K. Venkataswani, j .      Special leave granted.      The short  question   that arises for our consideration in this  appeal is  whether the respondents are justified in depriving the  appellant (who  has died  pending appeal) the salary for  the period  from 20.2.81  to 17.5.88.  The legal representatives of  the deceased  appellant are  prosecuting this appeal.  For the  sake  of  convenience,  the  deceased appellant will be referred to herein as the appellant.      To appreciate the  question, brief facts are necessary, which are as follows :-      The  deceased   appellant  was  n  a  employee  in  the Railways. By  an order  dated 28.6.77,  he was  placed under suspension with  effect  from  1.7.77.  The  suspension  was revoked b  y another  order  on  28.1.81.  He  preferred  an application successfully under the provisions of the payment of Wages  Act claiming  wages for  the   period he  was kept under suspension. The respondents preferred an appeal to the learned District  judge against  the order  of the Authority under the  Payment of  Wages Act  the  appeal  was  allowed. Against that, the appellant preferred a Writ Peittion before the High Court at Allahabad and that was allowed by the High Court on 5.9.84.      In the  meanwhile, the  appellant was  transferred from Izatnagar to  Kashipur. However, according to the appellant, since no  relieving order was given and relevant passes were not made  available, he  could not  join at  the transferred place. Therefore,  he continued  to occupy  the  quarter  at Izatnagar. For  the  said  unauthorised  occupation  of  the quarter after  orders of  transfer, departmental proceedings were initiated  against the appellant and ultimately on that count, he was removed from service on 31.5.84.      The appeal  filed against  the removal from service was rejected in  limine on  2.11.84. Challenging  the  order  of removal  as   confirmed  by   the  Appellate  Authority,  he preferred a  Writ Petition  in  the  High  Court  which  was subsequently  transferred   to  the  Central  Administrative Tribunal. The  Tribunal by  an order  dated 8.9.87 set aside the  order   of  removal   as  confirmed  by  the  Appellate

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Authority, with  a direction to dispose of the appeal afresh with a reasoned order.      The Appellate Authority, after remand b y the Tribunal, ser  aside   the  order  of  removal  and  imposed  a  minor punishment  of   withholding  increments  for  three  years. However, the  Appellate Authority  declined  the  relief  of salary for  the period from the date of transfer till he was allowed to join duty.      In the meanwhile, the appellant also initiated parallel proceedings in  the Civil  Court challenging  the  order  of transfer  itself  and  the  Trial  Court  decreed  the  suit quashing the  order of  transfer. The  appeals filed  by the Railways before  the Appellate Court and the High Court were dismissed. The result was the order of transfer was quashed. Since  the   order  of  transfer  itself  was  quashed,  the appellant claimed  his salary from the date of transfer till he was permitted to joint duty.      The appellant  again preferred  an   application before the Central  Administrative, Tribunal  challenging the order of the  Appellate Authority  imposing minor  punishment  and declining to  pay salary  from the  date of transfer till he was allowed  to join  the duty.  The contention  before  the Tribunal was  that the  order of transfer itself having been quashed by  the Trial  Court and  its judgment  having  been upheld   by the  High Court,  the  disciplinary  proceedings arising amount  of such illegal order could not stand in the way of the appellant getting his salary for the said period. It was  also contended  that his stay in the quarter at  the original place  (Izatnagar) after  the  transfer  order  was quashed cannot   be treated as unauthorised one. It was also the specific  case of the appellant that he was not at fault in not  joining at the transferred place as he was not given the relieving  order and  necessary passes  to enable him to join at  the transferred place. Therefore, the initiation of disciplinary proceedings  itself must  be held  to b  e bad. According to  t he  appellant,  even  the  minor  punishment imposed by  the Appellate Authority in the place of order of removal must  also be set aside and he must be given all the continuity of service with full b ack salary.      The Tribunal held that though the order of transfer was quashed ultimately  his stay at the original place after the order of transfer till the transfer order was quashed cannot be  construed   as  authorised  one.  Therefore,  the  minor punishment imposed  by the  Appellate  Authority  cannot  be interfered with.  On the  question of  continuity of service and full  salary,  the  Tribunal  held  that  the  appellant factually did  not work  after the transfer order was served upon him,  and by  setting aside  the order of transfer, the appellant will not be entitled to pay and allowances fro the period during  which he  did not  work. On  that ground, the Tribunal while  allowing the consequential benefits from the date of  his  removal  from  service  to  the  date  of  his reinstatement, directed  the  payment  of  salary  one  from 17.5.88, the date of reinstatement.      Learned counsel  appearing for  the appellant submitted that thought  it was  brought to the notice of the  Tribunal that the  appellant was  not at  fault in not joining at the transferred place,  without giving  any finding on that, the Tribunal has  deprived the  appellant of  the salary for the period in question. He also brought to our notice that there was a  specific plea,  namely, that  the appellant could not join at  the transferred  place in  the absence of relieving order and  necessary  passes.  The  respondents  never  came forward to  deny that  assertion of  the appellant. In other words, while  the appellant was prepared to join the duty it

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was the  administration which disabled the appellant to join the duty and, therefore, the appellant cannot be blamed.      Learned counsel appearing for the respondents could not deny the  position and  as matter  of fact,  in the  Counter Affidavit filed  instead of  directly replaying the point it is stated as follows:-      "That in  reply to para 2(ix) it is      submitted that there is no material      on record  to show  that  the  pass      etc,  were   not  issued   to   the      petitioner."      There is  no plea  positively denying  the averments of the appellant in para 2(ix) in the appeal.      In the  circumstances, we  hold that  the appellant was not at  fault in  not  joining  at  the  transferred  place. Therefore, when  he was not at fault he cannot be blamed for the consequences  entirely. It  is also  a fact that h e did not work factually for the period in question.      Taking all  these factors into consideration, we are of the view  that the ends of justice would be met by directing the respondents  to pay 50% of the salary and allowances for the period  in question  to the legal representatives of the deceased  appellant   within  six   months.  The  appeal  is accordingly allowed in part with no order as to costs.