Bhagwandeen Choudhary vs State of M.P. and others

Hon''ble Shri Justice Rajendra Menon

Challenging the order passed by the respondents as contained in Annexure P/6 dated 25.2.2005 and refusing payment of back wages to the petitioner for various periods, petitioner has filed this writ petition.

Facts that have come on record indicate that petitioner was holding the post of Forester in Khairatpur Depot, Garhi Production Range, District Raisen. It is alleged against the petitioner that on 20.3.1980, he is said to have misbehaved with his superior officer, for which a charge-sheet was issued to the petitioner and after departmental enquiry, his services were terminated. It was the case of the petitioner that he did not misbehave with the superior officer, instead it was the superior officer one Mr. S.N. Sharma, who instigated the petitioner and, therefore, imposition of penalty of termination was said to be unsustainable. When the appeal and representation against the termination was rejected, petitioner filed a petition before this Court and on formation of State Administrative Tribunal the matter was transferred to SAT, was registered as T.A.No.874/1988 and by an order passed on 23.11.1998 vide Annexure P/1, a Bench of the Tribunal found that the punishment of termination from service was not proper. It was held that interest of justice would be met if termination is quashed and instead a penalty of withholding of two increments without cumulative effect is awarded to the petitioner. Accordingly, the disciplinary authority was directed to impose the said penalty.

With regard to regularization of the intervening period and with regard to payment of backwages no direction was issued by the Tribunal instead in paragraph 16 the following orders were passed:

In view of the said situation, it cannot be said that the petitioner was also not responsible for the said incident. Enquiry Officer also has given a finding that the petitioner as well as Shri Sharma were equally responsible for the said incident. Therefore, regarding backwages, it is ordered that the disciplinary authority shall take a decision regard the said aspect of payment of backwages in accordance with the provisions contained in Rule 54 and 54-A of Fundamental Rules of the State of Madhya Pradesh.

In accordance to the aforesaid directions, claim of the petitioner was decided by the competent authority. It was the case of the petitioner that the decision was not taken properly, he was not heard and, therefore, the petitioner again filed a writ petition before this Court being W.P.No.14863/2003 and on 23.6.2004 vide order - Annexure P/4, the said writ petition was disposed of directing the respondents to decide the claim of the petitioner for regularization of the intervening period in accordance to the directions issued by the Tribunal in paragraph 16, within a period of three months. Claim of the petitioner having been decided by the impugned order-dated 25.2.2006 - Annexure P/6, petitioner has now filed this writ petition.

Shri R.C. Tiwari, learned counsel for the petitioner, argues that for the alleged misconduct, petitioner has been imposed with three punishments - (1) confirmation of the period of suspension of petitioner by paying him only subsistence allowance; (2) penalty of stoppage of two increments without cumulative effect; and, (3) non-payment of salary for the period from 9.11.1984 to 28.12.1998, on the principle of ''no work no wage''. Inviting my attention to the provisions of Fundamental Rules 54 and 54-A and the stipulations contained in Fundamental Rule 54(A-3), Shri R.C. Tiwari, learned counsel for the petitioner, argued that for the intervening period the petitioner is entitled to full pay and allowances. Accordingly, it is the case of the petitioner that full pay and allowances for the period from 9.11.1984 i.e... the date of termination, till the date of reinstatement i.e... 28.12.1998, after imposing minor penalty of stoppage of two increments without cumulative effect, be paid to the petitioner.

Even though in the writ petition, in the grounds canvassed, it is stated that the claim of the petitioner should have been settled in accordance to the requirement of sub-rule (7) of Rule 54, during the course of hearing of the writ petition, it was argued by learned counsel for the petitioner that in view of the provisions of Rule 54(A-3), the petitioner is entitled to full salary and allowances as the impugned action amounts to imposing three penalty for one act of misconduct.

Respondents have refuted the aforesaid and it is pointed out by them that for the purpose of imposing the penalty the contention of the petitioner that he has been visited with three penalties is not correct. It is the case of the respondents that the petitioner has been punished with only one punishment of stoppage of two increments without cumulative effect. The confirmation of the period of suspension and denial of backwages on the principle of ''no work no wage'' is in accordance to the requirement of FR 54 and 54-A, it amounts to regularization of the intervening period as per the statutory rule and, therefore, it is not punishment. According to the respondents, the claim of the petitioner does not warrant any consideration.

Having heard learned counsel for the parties and on a perusal of the records, it is clear that when the petitioner challenged his initial termination and when a Division Bench of the Tribunal on 23.11.1998, interfered into the matter of imposing the extreme penalty of termination, no direction was given for payment of salary for the intervening period. Instead, as is evident from the directions issued in paragraph 16 above, the direction was only to regularize the period in accordance to FR 54 and FR 54-A. That being so, it would be appropriate to take note of the provisions of Rule 54 and 54-A of the Fundamental Rules. Both these Rules pertain to payment of pay and allowances to an employee on his reinstatement when the termination, removal or dismissal is set aside either by the appellate or reviewing authority or by a Court of law.

As far as FR-54 is concerned, it pertains to regularization of the period after reinstatement with regard to pay and allowances when the government servant -who is dismissed, removed or compulsorily retired, is reinstated as a result of his appeal, review being allowed. In such cases, the period intervening has to be regularized as per sub-rule (2) or sub-rule (4) to (7) of the aforesaid Rule.

Similarly, when the dismissal, removal or compulsory retirement is set aside by a Court of law then the matter is to be decided as per FR 54-A. FR 54-A, therefore, is more relevant for the present case and is reproduced hereinunder:

FR 54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a court of law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the court.

(2)

(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the court solely on the ground of non-compliance with the requirements of clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub rule (7) of rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled to had he not been dismissed, removed or compulsorily retired, 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:

Provided that any payment under this sub-rule to a Government servant shall be restricted to a period of three years immediately preceding the date on which the judgment of the court was passed, or the date of retirement on superannuation of such Government servant, as the case may be.

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the court shall be regularized in accordance with the provisions contained in sub-rule (5) of rule 54.

(3) If the dismissal, removal or compulsory retirement of a Government Servant is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be.

(4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.

(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant.

If the aforesaid provision is taken note of, it would be seen that when the dismissal, removal or compulsory retirement of a government servant is set aside by a Court of law and when the government servant is reinstated without holding any further inquiry, the period has to be regularized in accordance to the provisions of sub-rule (2) and (3). As far as sub-rule (2) is concerned, it pertains to a case where the dismissal, removal or compulsory retirement is set aside by the Court due to non-compliance with the requirement of Clause (2) of Article 311 and where the employee concerned is not exonerated on merits. Sub-rule (3) pertains to regularization of the period when the employee is exonerated on all counts and is directed to be reinstated. It is, therefore, clear that both sub-rule (2) and sub-rule (3), of FR 54-A, deal with two different eventualities. Whereas sub-rule (2) pertains to the government servant''s dismissal, removal etc being set aside on the ground of non-compliance with the requirement of Article 311 and where he is not exonerated on merits, sub-rule (3) deals with cases where the entire action of dismissal, removal are set aside on merits.

In the present case, if the order passed by the State Administrative Tribunal on 23.11.1998 is taken note of, it would be seen that the petitioner is not exonerated on merits of all the charges levelled against him. Instead, it is a case where he is directed to be reinstated after setting aside the order of punishment holding him guilty of the charges and an alternate punishment of stoppage of increment is inflicted, therefore, the provisions of sub-rule (3) of FR 54-A will not be applicable, but the period has to be regularized as per sub-rule (2) of Rule 54-A. A perusal of the aforesaid Rule, which is reproduced hereinabove would show that when the employee is not exonerated on merits, the government servant is entitled to pay and allowances subject to the provisions of sub-rule (7) of Rule 54, which he would have been entitled to had he not been dismissed, removed or compulsorily retired. Sub-rule (7) of Rule 54 speaks about payment of amount which shall not be less than the subsistence allowance and other allowances admissible under Rule 53. That apart, the mandate of sub-rule (2) of Rule 54-A is that the matter has to be settled after notice to the government servant about the quantum proposed and considering the representation. The proposal for quantum of payment to be made for the intervening period has to be strictly in accordance made in accordance with the requirement of sub-rule (7) of Rule 54.

In the present case, without taking note of the requirement of sub-rule (2) of Rule 54-A and the mandate of sub-rule (7) of Rule 54, the entire period is treated on the principle of ''no work no wage'', this cannot be done. Even though the State Government may be right in denying full pay and allowance, which would be applicable only if the case falls under sub-rule (3) of Rule 54-A, but as the petitioner is not exonerated on merits and is visited with an alternate minor penalty, his claim has to be settled in accordance to the requirement of sub-rule (7) of Rule 54, which is made applicable to him by virtue of the provisions of sub-rule (2) of Rule 54-A. That is why in the body of the petition and in the grounds raised the petitioner has come out with a case that his claim has not been settled in accordance to Rule 54(7), to that extent petitioner has a grievance, which has to be considered.

Keeping in view the aforesaid, this petition is allowed in part. Even though the claim of the petitioner for payment of full salary and allowance for the period from 9.11.1984 to 23.12.1998 is rejected, respondents are directed to settle the claim of the petitioner in accordance to the requirement of FR 54-A(2) and the mandate of Rule 54(7). Necessary orders in accordance to these Rules be passed within a period of three month and after determining the amount payable in accordance to Rule 54(7), the amount be paid to the petitioner within a period of three months.

With the aforesaid observations, the petition stands allowed and disposed of.