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Judgment
ORDER
Shri Rakesh Kumar Dixit, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents were present at the time of hearing.
The instant original application has been filed by the applicant seeking following relief:
“i.The Hon’ble Tribunal may graciously be pleased to quash the impugned order dated 5.6.2020 along with communication letter dated 8.6.2020 (Annexure A-1 to the OA) and treating the service of applicant is continue with all consequential benefits viz. Restoration of Pay @ Rs. 14330/-, arrears of pay, two increments due on 1.7.2013 and 1.7.2014.
ii.To issue any other suitable order or direction which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.
iii.To award the cost of the application in favour of the applicant.”
The brief facts of the case as narrated in the OA are that the applicant is working under the respondents department. Charge sheet was issued on 13.02.2012. After inquiry, the disciplinary authority awarded punishment of removal from service vide order dated 15.04.2013. Appeal preferred against the punishment was also dismissed. In the revision appeal, the revisionary authority, vide order dated 27.12.2013, reduced the punishment from removal from service to reinstatement with reduction in the lower post of ALP (Assistant Loco Pilot) for a period of one year with non-cumulative effect. Applicant has alleged that after reinstatement, the respondents started harassing him and fixed lower pay and not gave two increments. To this illegality, applicant also preferred OA No 99 of 2020 which was disposed of directing the respondents to decide representation. Respondents passed impugned order dated 05.06.2020 whereby the claim of the applicant was rejected and respondents have treated the period from 15.04.2013 to 02.01.2014 as dies non. Applicant has contended that the aforesaid action of the respondents is illegal, arbitrary and against the extant rules as well as the order passed by the revisional authority of the department. Thus, by way of this OA, the applicant has sought quashing of the impugned order dated 05.06.2020 (along with communication letter dated 08.06.2020) thereby directing the respondents to treat the service of the applicant as continued with all consequential benefits viz. restoration of pay @ Rs. 14330/-, arrears of pay and two increments due on 01.07.2013 and 01.07.2014. Counter has been filed by the respondents wherein it is stated that on 31.08.2012, the applicant while discharging his duties, overshot DN Home Signal at Solaka Station and violated rule GR & SR 3.80, 3.80/1 & 9.14. Inquiry was conducted after serving of charge sheet and punishment of removal from service was imposed upon the applicant. Although the said punishment was modified and reduced to the punishment of reinstatement with reduction in the lower post of ALP (Assistant Loco Pilot) for a period of one year with non-cumulative effect, yet, when applicant preferred representation and subsequently approached the Tribunal, in compliance of the directions of Tribunal, the respondents passed impugned order dated 05.06.2020. The said order was passed considering the punishment order passed by the revisional authority and the operation of the punishment continuing on the applicant. Thus, no illegality or infirmity can be attributed to the said order.
Rejoinder has been filed by the applicant reiterating the facts and circumstances of the case as have been narrated in the OA.
I have heard learned counsel for the parties.
Learned counsel for the applicant submitted that initially one disciplinary proceedings was started against the applicant and disciplinary authority imposed the punishment of removal from service. Later, an appeal was preferred by the applicant and it was also dismissed affirming the order passed by the disciplinary authority. Thereafter, the applicant preferred a revision. The revisional authority modified the punishment of the removal from service to the punishment of reinstatement with reduction in the lower post of ALP (Assistant Loco Pilot) for a period of one year with non-cumulative effect. After the expiry of the punishment period, the applicant preferred a representation before the respondents to restore all the benefits to him. Since the said representation was not decided, the applicant approached before this Tribunal through OA No. 99 of 2020 which was decided on 20.02.2020 directing the respondents to consider and decide the representation of the applicant dated 25.01.2019 by passing a reasoned and speaking order. It is also argued that in compliance of the direction given in the OA, the respondents passed the impugned order rejecting the prayer of the applicant and treating the intervening period from the date of removal till the date of reinstatement as dies non. Thus, argued that since punishment imposed upon the applicant was with non-cumulative effect and only for one year, all the benefits shall be restored after completion of the punishment period as it was with non-cumulative effect. Thus, argued that the impugned order is illegal and against the settled principles of law. To substantiate his claim, learned counsel for the applicant has placed reliance upon the judgment dated 28.02.2022 passed by the Hon’ble Supreme Court of India in Civil Appeal No 5036 of 2022 titled Central Bank of India and Others Vs Dragendra Singh Jadon and referring to the same, he argued that impugned order be set aside directing the respondents to restore all the benefits to the applicant after completion of the punishment period.
Learned counsel for the respondents referring to the facts disclosed in the counter affidavit argued that punishment imposed upon the applicant of removal from service was modified and converted into reinstatement with reduction in the lower post of ALP (Assistant Loco Pilot) for a period of one year with non-cumulative effect. The applicant has not worked during the intervening period till the date of reinstatement and thus the impugned order does not suffer from any illegality. It is in accordance with law as well as fundamental rules particularly Rule 54 and 54A. It is also argued that treating the intervening period as dies non is also in accordance with law and the applicant is not entitled for wages for the said period. Thus, argued to dismiss the OA. In support of his claim, the respondents’ counsel has referred and placed on record certain expositions / explanations regarding dies non service under Indian law.
I have considered the rival contentions and gone through the records including the case laws relied upon by the contesting parties and other documents as relied upon.
As the facts of the case have been narrated above in detail, the same are not reiterated for the sake of brevity. In the case of Central Bank of India (supra), the Hon’ble Supreme Court has held that:
“19.In our considered view, the learned Single Bench of the High Court rightly granted relief to the respondent. By the impugned judgment and order, the Division Bench of the High Court dismissed the Appeal of the appellants and directed that the respondents would have to be treated in service from the date of removal till the date of actual reinstatement in service and would accordingly be entitled to seniority and the right to be considered for promotion, but would not be entitled to back wages. 20. We find no infirmity with the concurrent findings of the Single Bench and the Division Bench of the High Court. There is a different between reappointment and reinstatement. Reinstatement means to return a person or thing to its previous position or status. An order or reinstatement puts a person back to the same position.”
Similar issue came up for consideration before the Hon’ble High Court of Allahabad in Writ A No 6841 of 2024 Union of India and Others Vs Binod Kumar Singh and Another and the Hon’ble Court vide its judgment dated 03.05.2024, relying upon the decision of the Apex Court in the case of Gurpreet Singh Vs State of Punjab & Others ((2002) 9 SCC 492), and that of the judgment of Delhi High Court in the case of Ram Krushna Sahu Vs Union of India & Others (2020 (1) AISLJ 297) and also discussing the provisions of Rule 1343(3) of the Indian Railway Establishment Code, affirmed the decision taken by the Tribunal whereby dies non period has been set aside and intervening period was directed to be treated for counting service without back wages. For the sake of clarity, the relevant portion of the aforesaid judgment is quoted below:
“2.The Original Application was filed by the respondent aggrieved of the order dated 16.12.2014 passed by Senior Divisional Commercial Manager, North Central Railway, Jhansi whereby while accepting his appeal against the order of compulsory retirement, while imposing penalty of censure, directions have been given for treating the period from 09.04.2014 to 21.07.2014 as dies non. The said period of 09.04.2014 to 21.07.2014 pertain to the period spend between the dates when the order of compulsory retirement was passed and he was ordered to be reinstated. After hearing the parties, the Tribunal relying on the judgment of Hon'ble Supreme Court in the case of Gurpreet Singh vs. State of Punjab & others: (2002) 9 SCC 492 and that of Delhi High Court in the case of Ram Krushna Sahu vs. Union of India & others: 2020 (1) AISLJ 297, came to the conclusion that the order, to the extent of ordering for treating the period from 09.04.2014 to 21.07.2014 as dies non, was not justified and passed the order as noticed hereinbefore.
3.Learned counsel for the petitioner, with reference to Rule 1343 (3) of the Indian Railway Establishment Code (for short 'the Code') and the clarification issued to the said Rule, made submissions that the Tribunal was not justified in passing the order impugned. Submissions have been made that as the respondent has not worked during the said period, the appellate authority was justified in directing for treating the said period as dies non.
4.We have considered the submissions made by learned counsel for the petitioner and perused the material available on record.
5.The facts are not in dispute wherein the respondent was visited with penalty of compulsory retirement, which on appeal was reduced to censure. For the period, the respondent remained out of employment on account of passing of the order of compulsory retirement, i.e., from 09.04.2014 to 21.07.2014, the competent authority passed an order for treating the same as dies non. The said order of the competent authority, on its face, was wholly unjustified. Once the order of compulsory retirement came into force, the respondent could not have worked with the respondent and once the said order was set aside by the appellate authority and was substituted with punishment of censure, the respondent came back in service and, therefore, the period from the date of compulsory retirement till his reinstatement, could not have been treated as dies non. Hon'ble Supreme Court in the case of Gurpreet Singh (Supra), as noticed by the Tribunal, had inter alia observed in similar circumstances that it failed to understand how the continuity of service could be denied once the employee was directed to be reinstated in service on setting aside the order of termination, which, in the present case, is that of compulsory retirement. The Court further observed that it is not a case of fresh appointment but that of reinstatement and, therefore, the order not to grant continuity of service, which, in the present case, is that of treating the period as dies non, could not be sustained.
6.So far as, the provisions of Rule 1343 (3) of the Code are concerned, the same inter alia reads as under :-
"In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes."
7.A perusal thereof would reveal that the same is categorical inter alia providing that the period of absence from duty including the period of suspension, preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as period spent on duty for all purposes and, therefore, the plea raised is wholly contrary to the provisions of said Rule. So far as clarification relied on by learned counsel for the petitioner is concerned, the same only provides for that the reduced penalty takes effect from the date of reinstatement, which clarification, cannot/does not provide for treating the period as dies non in any case.
8.In view of the above discussion, no case for interference in the order impugned is made out. The writ petition is, therefore, dismissed.”
If the facts of the present matter and submissions raised on behalf of the parties are compared with the law laid down in the case of Binod Kumar Singh (supra) case, it is evident that the present matter is also related to the Railway department. The applicant’s punishment of removal from service was converted and modified into the punishment of reinstatement with reduction in the lower post of ALP (Assistant Loco Pilot) for a period of one year with non-cumulative effect. Since modified punishment was only for one year, thus after completion of it, the position which was being held by the applicant at the time of imposition of punishment of removal from service will be restored. Similarly, other benefits i.e. increment etc. will also be restored which has been postponed due to currency of the modified punishment. So far as the remuneration of the intervening period is concerned, no specific direction has been given by the revisional authority while modifying the punishment. Thus, in light of the settle principle of law in Binod Kumar Singh (supra) case, I am of the view that the impugned order treating the intervening period as dies non is not sustainable and is against the provision of Rule 1343(3) of IREC and thus the OA is liable to be allowed.
Thus, the instant original application is allowed and the impugned order dated 05.06.2020 (along with communication letter dated 08.06.2020) is hereby quashed and set aside. Respondents are hereby directed to restore all the benefits to the applicant after completion of the modified punishment for example, Restoration of pay, increments etc., which would have been available to the applicant during the intervening period. It is made clear that the applicant will not be entitled for back wages of the intervening period but the aforesaid period shall be treated and taken into account for calculating qualifying service for all other benefits. This exercise must be completed within three months from the date of receipt of certified copy of this order, without fail.
All associated MAs stand disposed of accordingly. No costs.