Union of India vs Girish Chandranath

Hrishikesh Roy, J. - Heard Ms. U. Das, the learned Railway Advocate representing the petitioners. The respondent is represented by the learned counsel Mr. S. Dutta.

The subject matter of this case is a disciplinary proceeding which the respondent faced, while he was serving as the Assistant Station Master in the Kamakhya Railway Station. Following the averted collision of two trains running on the same track from the opposite direction on 12.12.2001, the respondent was placed under suspension and disciplinary proceeding was drawn up on charge of negligence of duty. When the charges were found proved in the enquiry, the disciplinary authority through the order dated 18.2.2003(Page-21) imposed the penalty of removal from railway services, on the delinquent. The appellate authority after due consideration approved the penalty through the order dated 29.7.2003. This led to filing the OA No. 248/2005 by the delinquent in the Central Administrative Tribunal, Guwahati (hereinafter referred to as the ''Tribunal'').

After due consideration of the case of both sides, the learned Tribunal noted that the Railway safety system was faulty and therefore full blame for the averred collision cannot be attributed wholly to the applicant. The Tribunal also observed that only because the delinquent was alert, the head-on collision of the two trains could be averted. Thus, the punishment was considered to be disproportionate and accordingly the matter was remanded back to the disciplinary authority for imposition of lesser punishment of withholding of 3 increments with no promotion for 5 years, without any back wages.

Following the verdict of the learned Tribunal rendered on 2.3.2007 (Annexure-3), the delinquent was re-instated in service w.e.f. 17.5.2007 under the office order dated 27.8.2009( Annexure-6) with the formal order of modification of penalty (page-43 and Page 45). This original penalty of service termination was modified by ordering withholding of increments and promotion for the Assistant Station Master, for a period of 3 and 5 years respectively. Following this order, the pay of the reinstated employee was re-determined in the modified scale on 15.10.2009 and in part modification of 15.10.2009 order, another order was later passed on 10.5.2010 (Annexure-8) whereby, the suspension period was regularized and the period when the delinquent was not in service, was treated as leave without pay.

Aggrieved by the manner of inflicting substituted penalty, the delinquent re-approached the Tribunal through OA No. 370 of 2012. In this case, the learned Tribunal on 9.7.2013 (Annexure-10) held that when the original penalty of removal was substituted with the lesser penalty of withholding increment and promotion, the effect of the substituted penalty will have to relate back to the original penalty order i.e. 18.2.2003. Accordingly, the employer was directed to re-fix the wages of the delinquent, with reference to the substituted penalty.

6.1. Assailing the legality of Tribunal''s verdict of 9.7.2013 (Annexure-10) in the OA No. 370 of 2012, Ms. U. Das, learned Railway counsel submits that if the substituted penalty of withholding of increment and promotion is given effect from the date of original penalty (18.2.2003), the impact of the substituted penalty will be nominal and will have little consequence, in the career of the delinquent.

6.2 The petitioner contends that when the Tribunal itself suggested the lesser penalty in the OA No. 248 of 2005 in the first round, the period of absence of the delinquent will have to be considered by the employer under the FR -54 and invoking this power only, the emoluments payable to the delinquent was determined by the employer, upon the reinstatement of the employee.

7.1. On the other hand, Mr. S. Dutta, learned counsel for the respondent submits that FR-54 is only an enabling provision whereby employer can decide on the payable amount for an employee facing disciplinary proceeding. He refers to the Tribunal''s verdict of 2.3.2007 in the first round to project that, when the Tribunal ordered for lesser punishment without any back wages, the enabling provision under FR-54 will have no application as even on reinstatement, the delinquent will not be entitled to back wages.

7.2. In so far as impact of the substituted penalty is concerned, Mr. Dutta submits that the lesser penalty must relate back to 18.2.2003 when the service of the delinquent was terminated and upon reinstatement, the substituted penalty will relate back to 18.2.2003 and w.e.f. from this date, the delinquent will not be entitled increments for a period of 3 years and his promotion be withheld for a period of 5 years, from the date of removal.

The submissions made by the learned counsel for the parties have received our attentive consideration.

In disciplinary proceeding, when the original penalty is found to be disproportionate and a lesser penalty is imposed on account of a lawful verdict, the substituted penalty must relate back to the date of the original penalty. Otherwise many incongruities may result. In a case of dismissal of a workman under the Industrial Dispute Act, the Hon''ble Supreme Court in Punjab Diary Development Corporation Ltd. & Ors. v. Kala Singh & Ors. reported in (1997) 6 SCC 159 observed that when the Labour Court records the finding that dismissal was valid, the court''s order would relate back to the date of original dismissal order and not from the judgment of the Labour court.

The Himachal Pradesh High Court in L.S. Thakur v. Punjab National Bank reported in 2011 (3) SLR 383 similarly observed that when the original order of removal was modified and changed to an order of compulsory retirement, the substituted order passed on 11.11.1997 would relate back to the 26.12.1989 when the original order of termination of service was passed.

The issue of date of effect of the substituted penalty is now set at rest by the ratio in Union of India & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610 where the Supreme Court was considering the substitution of original penalty of dismissal ordered on 10.6.1997 through the lesser penalty of compulsory retirement ordered on 28.2.2000. In that context, an authoritative pronouncement was made by the Apex Court to the effect that the substituted punishment has to take effect from the date of the original punishment.

The discussion in the preceding paragraphs makes it clear that the substituted penalty of withholding of increments and promotion in the present case must take effect from the date of the termination i.e. 18.2.2003. When the substituted penalty of withholding increment and promotion must relate back to 18.2.2003, it is clear enough that there is no severance of employer -employee relationship, between the delinquent and the employer. Thus, the penalty of withholding of increments for 3 years and denying promotion for a period of 5 years must take effect from 18.2.2003 (original penalty order) and not from the date when the substituted penalty was inflicted on 27.8.2009 w.e..f 17.5.2007, in pursuance to the verdict of the learned Tribunal in OA No. 248 of 2005.

As regards the power conferred on the employer under FR-54, the delinquent on account of the unchallenged verdict of the Tribunal in OA No. 248 of 2005, is dis entitled to any back wages and therefore the employer is not required to deal with the issue of back wages, while ordering re-instatement of the employee. Therefore, declaration of certain days as leave without pay period during which the delinquent was kept out of office on account of the removal order, is found to be unwarranted exercise done by the employer.

In consequence of above discussion, we find no merit in the challenge of the employer to the Tribunal''s verdict in the OA No. 370 of 2012 and finding is given accordingly. There is no severance of relationship of employer and employee in the present case on account of the substitution of the original penalty of removal through the lesser penalty of withholding of increment and promotion since the substituted penalty will relate back to the date when the original penalty order was imposed. But all this is only for notional service benefit and not for any back wages, as this issue was settled by the Tribunal in the OA No. 248 of 2005 itself. We must also observe to lend clarity that the penalty of withholding of increment and promotion for the ordered period, will be reckoned from 18.2.2003.

With the above declaration, the case stands disposed of by leaving the parties to bear their respective cost.