Avtar Singh vs Union Of India Trough

L. Narasimha Reddy, J

The applicant was working as Technician Grade III in the Northern Railway. He was tried in Sessions Case No.89/1997 by the Court of Additional Sessions Judge, Delhi. Through its judgment dated 14.08.1998, the trial court convicted the applicant for the offence punishable under Section 307 IPC and imposed sentence. Taking the same into account, the disciplinary authority passed an order dated 28.06.1999 removing the applicant from service.

The applicant filed Criminal Appeal No.332/1998 in the Hon'ble Delhi High Court. Through its judgment dated 27.07.2009, the High Court has set aside the conviction and sentence of the applicant, and remanded the matter to the trial court for fresh consideration, on certain aspects.

The applicant filed O.A. No.1805/2010 before this Tribunal stating that though he made a representation to the respondents for reinstatement, in view of the judgment of the High Court, no action has been taken thereon. The O.A. was disposed of through an order dated 01.06.2010 directing the respondents to pass order on his representation. Since there was delay in taking steps, the applicant filed C.P. No.791/2010. At that stage, the respondents passed order dated 30.11.2010, reinstating the applicant into service and placing him under suspension, notionally from the date of removal from service, i.e., 28.06.1999.

The applicant filed O.A. No.839/2011, alleging that the respondents did not pay the arrears of subsistence allowance. In pursuance of the directions issued therein, the respondents paid a sum of `6,48,000/-. The applicant felt that though the arrears were paid, neither the subsistence allowance was enhanced from time to time, nor the benefit of increments was extended to him. He made a representation in this behalf. When that was not considered, the applicant filed O.A. No.1478/2012. In compliance of the directions issued therein, the respondents passed order dated 03.07.2012 rejecting the claim. The said order is challenged in this O.A.

The applicant contends that once he was reinstated into service, he is entitled to be extended the benefit of periodical enhancement of subsistence allowance as well as increments from time to time.

In their counter affidavit, the respondents stated that the reinstatement of the applicant was contingent upon the result of the criminal case after remand, and according to para 1343 (FR 54) of IREC Volume I, a railway servant is not entitled for any increment during the period of suspension. It is also mentioned that the criminal charge continued against the applicant when he was under suspension, and accordingly, the impugned order was passed.

We heard Mrs. Meenu Mainee, learned counsel for applicant and Mr. Pramod Kumar for Mr. Kripa Shanker Prasad, learned counsel for respondents, at some length.

This is the 4th O.A. filed by the applicant after he was removed from service, consequent upon his conviction in an offence punishable under Section 307 IPC, i.e., attempt to murder. He did not feel any grievance, vis-à-vis, the order of removal from service. It was only after the High Court remanded the case to the trial court, that the applicant made efforts to get reinstated. One after the other, he filed O.As. for disposal of his representations, and that, in turn, produced tangible results. Initially, he was reinstated into service through an order dated 30.11.2010 and thereafter a sum of `6,48,000/-was paid as arrears, to the applicant.

The subject matter of this O.A. is as to whether the applicant is entitled to the benefit of periodical enhancement of the subsistence allowance and increments, ever since he was reinstated.

Here itself, it needs to be mentioned that the applicant was convicted by the trial court after remand and that he has already crossed the age of superannuation.

Whenever an employee is placed under suspension and thereafter reinstated into service, separate orders are required to be passed, as regards the manner in which the period of suspension is to be treated. Further, if the suspension is in the ordinary course, the employee is also entitled for enhancement of subsistence allowance. Further, an employee, who is placed under suspension, may face two situations, namely, (i) that he is exonerated of the charges and reinstated into service or (ii) the punishment is imposed. Depending on the outcome, the disciplinary authority or the appointing authority is required to pass orders as to the manner in which the period of suspension is to be treated.

The case on hand presents a typical situation. The applicant was removed from service on being convicted by trial court. In case he was acquitted by the High Court, he was entitled to be reinstated straightway. However, the High Court has remanded the matter to the trial court. Strictly speaking, one was required to wait till the trial court decided the matter after remand. The applicant made a representation for reinstatement soon after the High Court remanded the matter to trial court. Complaining that it was not disposed of, he filed O.A., which resulted in his being reinstated into service, through order dated 30.11.2010. The relevant portion of the order reads as under:-

"He challenged his conviction by way of a criminal appeal no.332/1998 and Cr. Rev. P. No.414/1998 in the Hon'ble High Court of Delhi, which came to be decided vide judgment dated 27.7.2009. The Hon'ble High Court has set aside the judgment/conviction order dated 14.8.1998 in case no.88/97 and remanded back the case to the trial Court with specific directions of taking further action into the matter.

Viewed above, it is evident that the said criminal case is still pending against him and although the conviction has been set aside based on technicalities. Yet the criminal charge still continue in existence against him as the case has been remanded back for independent decision by the trial court.

Since the very basis of his removal from service the conviction in criminal case has been set aside by the High Court with direction of further trial, therefore, Shri Avtar Singh is reinstated in service. However, under the provisions of Rule (3) of Railway Servants Discipline and Appeal Rules 1968, he is placed under deemed suspension from the date of his removal from service i.e. 28.06.1999 onward. He is entitled for subsistence allowance during suspension which should be released as per Rule 1342 (2) IREC Vol-II.

This is in continuation to Dy. CME/DSL/SSB's letter No.25.65.64/2010 dated 29.10.2010 vide which you have already been conveyed about the implication of the judgment in criminal case and also your deemed suspension from date of removal from service as per extant rules. Accordingly, you are reinstated in service and put on deemed suspension till further orders.

Please report to Dy. CME/DSL/SSB immediately."

The circumstances, under which the applicant came to be reinstated, are clearly mentioned therein. Since the reinstatement was almost technical in nature, and the suspension was extraordinary, there did not exist any rule that governed the situation of this nature. In compliance of the directions of this Tribunal, the respondents paid the subsistence allowance of `6,48,000/-.

For an employee, to be extended the benefit of enhanced subsistence allowance, the suspension is required to be in the ordinary course. When the very suspension was not pending inquiry but, in fact, awaiting the outcome of the case before trial court, preceded by an order of conviction, it cannot be compared with the ordinary ones.

Further, in the impugned order, the respondents have categorically stated that the relevant rule does not permit grant of any increment. Paragraph 6 thereof reads as under:-

"6. Applicant has also sought releasing the annual increments of the applicant in the subsistence allowance being paid to him in the said OA. In terms of para 1343 (FR 54) of IREC Vol. I Railway servant is not admissible for any increment during suspension period, unless specific order is passed by Disciplinary Authority while making orders for reinstating the staff on being exonerated from court of law. In this particular case, criminal case is still pending against him and although the conviction has been set aside based on technicalities, yet the criminal charge still continue existence against him, as the case has been remanded back for independent decision by the trial court. Competent Authority has simply reinstated the applicant in accordance with High Court orders dated 27.7.2009 and placed him under deemed suspension. Accordingly subsistence allowance at the normal rate is being paid to him."

Reliance is placed upon the judgment of this Tribunal in Saranjit Singh v. Director, Govt. of NCT of Delhi & another (O.A. No.1056/2010) decided on 14.12.2011. That was a case in which the employee was placed under suspension on account of his involvement in a criminal case, but was reinstated thereafter. The reinstatement was not preceded by any conviction or removal from service. In those circumstances, the Tribunal directed the extension of benefit of increments.

The judgment in P.C. Misra v. Union of India & others (O.A. No.1056/2008) decided on 07.11.2008 was also almost on the same lines. In the instant case, the facts are totally different, as mentioned in the preceding paragraphs.

We do not find any merit in this O.A. It is accordingly dismissed.

There shall be no order as to costs.