Hon'ble Rohit Ranjan Agarwal,J.
(Delivered by Rohit Ranjan Agarwal, J.)
1. Heard Shri Bashisth Tiwari, learned counsel for petitioner and Sri Rajnish Kumar Rai, learned counsel for respondents.
2. Present petition has been filed assailing the order dated 13.04.2010 passed by Central Administrative Tribunal in Original Application No.777 of 2009 as well as declaring the orders dated 23.07.2007, 30.05.2008 and 23.10.2008 being contrary to the provisions of Article 311(2) of the Constitution of India and as well as the Statutory provisions contained in Railway Servants (Discipline and Appeal) Rules, 1968 and further seeking a direction to the respondents to pay the arrears of salary with effect from 15.04.1984 to 19.08.2002 in scale of Rs.200-215/- and subsistence allowance from 19.08.2002 till 23.07.2007.
3. Case of the petitioner in nutshell is that, he was appointed as Pointman on 12.11.1976 in Nagpur Division of Central Railway. In 1980, he was transferred to Jabalpur. As petitioner remained absent for a period from 01.02.1981 to 12.03.1981 and again from 15.02.1982 to 05.06.1983, he was served with a charge-sheet dated 31.03.1983 on 20.11.1983. Petitioner submitted a representation on 06.12.1983 to Divisional Railway Manager (P), Central Railway, Jabalpur, the Disciplinary Authority had taken action and after holding ex parte enquiry, removed him vide order dated 31.03.1984, with effect from 15.04.1984. When petitioner was removed from service, he was working in the scale of Rs.200-250/- and was drawing salary of Rs.208/- per month.
4. According to petitioner, he was not served with the order of removal, as such, he could not file an appeal against the same. A revision petition was filed on 12.02.1996 before the General Manager, Central Railway, CST Mumbai, as the same remained pending, he filed Original Application No.948 of 1996 before Central Administrative Tribunal (hereinafter called as, 'Tribunal').
5. On 16.05.2001, Tribunal disposed of the original application, directing the authorities to decide the revision petition. On 30.08.2001, the General Manager rejected the revision of the petitioner.
6. The said order was challenged through Original Application No.43 of 2002 before the Tribunal. On 19.08.2002, the Tribunal quashed the order dated 30.08.2001 passed by the General Manager, as well as order dated 31.03.1984 passed by Disciplinary Authority removing the petitioner from service and, further, granting liberty to the authority concerned to complete the enquiry within three months.
7. The order of Tribunal was challenged by respondents through Writ Petition No.52322 of 2002, which was dismissed by this Court on 20.03.2007.
8. Consequently, petitioner was taken back on 23.07.2007 in service as an Assistant Pointman in Scale of 2550-3200/-, which was the lowest grade compared with scale of Rs.196-232 before the 4th Pay Commission, while he was working in Grade-B as Pointman in scale of Rs.200-250/-. Disciplinary Authority proceeded with enquiry and finally passed an order on 30.05.2008 through which earlier order dated 31.03.1984 removing the petitioner from service was modified to reduction at the initial stage, in the same time scale of pay and grade and, accordingly, pay of petitioner was fixed in scale of Rs.2550-3200/- for three years with cumulative effect.
9. Against the said order, petitioner filed an appeal which was decided on 23.10.2008 by the appellate authority, upholding the punishment so awarded by Disciplinary Authority.
10. Aggrived by the said order, a revision petition was filed before Divisional Operating Manager, North Central Railway, Jhansi, which was decided on 22.01.2009 and the punishment order was modified from three years to one year with cumulative effect with all consequential benefits.
11. Still not satisfied by the said order, petitioner filed Original Application No.777 of 2009 before the Tribunal challenging the order dated 23.07.2007 passed by D.R.M. (P), North Central Railway, Jhansi orders dated 30.05.2008, 23.10.2008 and 22.01.2009. Tribunal by order dated 13.04.2010 dismissed original application of petitioner on the ground that as the petitioner has not worked for the relevant period, when he was removed from the service, it should be treated as dies-non (non duty).
12. Counsel for petitioner submitted that while placing the petitioner in service after the judgment of this Court on 20.03.2007, the Disciplinary Authority placed the petitioner in the initial stage, in the time scale of pay and grade of Rs.2550-3200/- is not sustainable in view of Rule 5(4) of Railway Servants (Discipline and Appeal) Rules, 1968 and during the period 15.04.1984 to 25.07.2007 as dies-non (non duty), and petitioner was entitled for subsistence allowance during the said period.
13. He has relied upon the decision of the Apex Court in the case of Nelson Motis versus Union of India and another, 1992 (4) SCC 711 and submits that provision of Rule 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968 and Rule 10(4) of CCS (CCA) Rules, 1965 are para materia.
14. Submission of counsel for petitioner is that once the removal order was set aside by the Tribunal on 19.08.2002 and it was directed that disciplinary proceedings be resumed from stage of reply submitted by petitioner and the said order being confirmed by the High Court on 20.03.2007, petitioner was entitled for subsistence allowance during the period from 1984 to 2007, not as a period non duty, but according to Rule 5(4) petitioner was entitled for suspension allowance, as he was not allowed by the authorities to work.
15. Further reliance has been placed upon fundamental Rules 54 and 54-A, whereby petitioner is entitled for suspension allowance, as the Court has set aside the removal order on the ground that it was in violation of Article 311 of the Constitution of India.
16. A supplementary affidavit has been filed bringing on record, the order passed by Senior Divisional Personnel Officer, North Central Railway, Jhansi on 10.06.2008 rejecting the representation of petitioner in regard to the payment of suspension allowance.
17. Respondents contested the claim of petitioner by filing a counter affidavit stating that, as petitioner was absent from duty unauthorizedly from 01.02.1981 to 12.03.1981 and from 15.02.1982 to 5.6.1983, as such, he was removed on 31.3.1984 to be effective from 15.04.1984. It is further submitted that petitioner is neither entitled to full pay and allowance for a period from 15.4.1984 to 19.08.2002 nor subsistence allowance from 19.08.2002 till 25.07.2007 and the judgments relied upon are not applicable in the facts of the case.
18. Having heard the learned counsel for the parties and after perusing the records, it is an undisputed fact that petitioner was removed from service by the Disciplinary Authority on 31.3.1984 on basis of an ex parte enquiry report, while at that time, petitioner was working in the pay scale of Rs. 200-250/-. The said order was made effective from 15.4.1984, this order was set aside by Tribunal on 19.08.2002 on technical ground, and liberty was given to the Disciplinary Authority to reopen the enquiry from the stage of service of memo of charge and submission of reply by petitioner. The order of Tribunal was challenged before this Court and on 20.03.2007 this Court upheld the order passed by the Tribunal. It was thereafter, that respondents reinstated the petitioner on 23.07.2007 in service as Assistant Pointman in the lowest grade compared to the grade in which he was in working before order of removal. It is this period, i.e., 15.04.1984 to 23.07.2007 that he is claiming subsistence allowance on the basis of Rule, 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968.
19. Before proceeding to decide the issue, it is relevant to consider Rule 5 of Railway Servants (Discipline and Appeal) Rules, 1968 and Rule 10 of CCS (CCA) Rules, 1965 which are as under:
(i) Rule 5 of Railway Servants (Discipline and Appeal) Rules, 1968 is as under:
"5. Suspension - (1) A Railway servant may be placed under suspension -
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(b) where, in the opinion of the authority competent to place a Railway servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the state; or
(c) where a case against him in respect of any criminal offence, is under investigation, inquiry or trial;
(2) A Railway servant shall be deemed to have been placed under suspension by an order of the competent authority: -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
Explanation. The period of forty-eight hours referred to in clause (b) of this sub-rule, shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Railway servant under suspension, is set aside in appeal or on revision under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Railway servant, is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority on consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement, was originally imposed, the Railway servant shall be deemed to have been placed under suspension by the competent authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case.
(5) (a) An order of suspension made or deemed to have been made under this rule, shall continue to remain in force until it is modified or revoked by the authority competent to do so.
(b) Where a Railway servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise) and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Railway servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule, may, at any time, be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate."
(ii) Rule 10 of CCS (CCA) Rules, 1965 is as under:
10. Suspension (1) The appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-
(a) where a disciplinary proceeding against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:
Provided that, except in case of an order of suspension made by the Comptroller and Auditor - General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made.
(2) A Government servant shall be deemed to have been placed under suspension by an order of appointing authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours;
(b) with effect from the date of his conviction, if, in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.
EXPLANATION - The period of forty-eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account.
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders :
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
(5)(a) Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so."
(b) Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing, direct that the Government servant shall continue to be under suspension until the termination of all or any of such proceedings.
(c) An order of suspension made or deemed to have been made under this rule may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate.
(6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of ninety days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.
(7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later."
20. From the perusal of Rule 5(4) of the Railway Servants (Discipline and Appeal) Rules, 1968 and Rule 10(4) of CCS (CCA) Rules, 1965, it is clear that both provide that where a penalty of dismissal, removal or compulsory retirement from service is imposed upon an employee is set aside or rendered void in consequence of or by a decision of a Court of Law and Disciplinary Authority, on a consideration of circumstances of the case, decides to hold a further enquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the employee shall be deemed to have been placed under suspension by the competent Authority from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders. Meaning thereby, that once the order of dismissal or removal is set aside by the Court or Tribunal and again Disciplinary Authority initiates any further enquiry on the same charges and allegations, the employee shall be treated as a suspended employee from the date of earlier dismissal or removal.
21. In the present case, petitioner's dismissal order came into effect from 15.4.1984, while the said order of dismissal was set aside by the Tribunal on 19.08.2002, which was affirmed on 20.03.2007. The petitioner, thereafter, was reinstated by the authorities on 23.07.2007 and, thereafter, Disciplinary Authority proceeded to hold further enquiry, meaning thereby that petitioner was to be treated as a suspended employee from 15.07.1984 to 23.07.2007. Rule 1968 which is in regard to the Railway Servants, while Rule 1965 which covers the Government Servants are para materia, and are attracted in the present situation.
22. The Apex Court in case of Nelson Motis (supra) had the occasion to consider the provisions of Rule 10(4) of CCS (CCA) Rules, 1965 and held as under:
"6. The other question relating to the automatic suspension of the appellant by virtue of Rule 10(4) is a serious one and in order to appreciate the argument of the appellant it is necessary to examine both Sub-rules (3) and (4) of Rule 10, which are quoted below:
(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rules and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.
(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court, of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
7. It has been contended on behalf of the appellant that while in a case governed by Sub-rule (3), a Government servant, on the order of his punishment by way of dismissal, removal or compulsory retirement from service being set aside, stands suspended only if he had been under suspension earlier, Sub-rule (4) provides for automatic suspension of a Government servant, even if he was never under suspension at any point of time; and this invidious distinction amounts to illegal discrimination which renders Sub-rule (4) unconstitutional. The argument is that with a view to save the sub-rule, its application has to be limited to cases in which the Government servant has been, during the pendency of the disciplinary proceeding, under suspension. The learned Counsel proceeded to say that the established principle of interpretation favouring reading down of a statutory provision in order to avoid it being struck down as illegal, is applicable to this case. If this is found not possible in view of the clear language of Sub-rule (4), the same should be struck down as unconstitutional. In either event, it should be further held that the appellant, who was not under suspension earlier, cannot be treated to have been placed under suspension when his writ petition was allowed by the Tribunal. Reliance has been placed on the decision of the Central Administrative Tribunal in Shri N.V. Karwarkar v. Administrator of Goa, Daman and Diu. Reference was also made to certain observations of this Court in Khem Chand v. Union of India and Divisional Personnel Officer, Western Railway v. Sunder Dass.
8. The language of Sub-rule (4) of Rule 10 is absolutely clear and does not permit any artificial rule of interpretation to be applied. It is well established that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning, irrespective of consequences. The language of the sub-rule here is precise and unambiguous and, therefore, has to be understood in the natural and ordinary sense. As was observed in innumerable cases in India and in England, the expression used in the statute alone declares the intent of the legislature. In the words used by this Court in State of U.P v. Dr. Vijay Anand Maharaj when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the act speaks for itself. Reference was also made in the reported judgment to Maxwell stating:
"The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words."
The comparison of the language with that of Sub-rule (3) re-enforces the conclusion that Sub-rule (4) has to be understood in the natural sense. It will be observed that in Sub-rule (3) the reference is to "a Government servant under suspension" while the words "under suspension", are omitted in sub-rule (4). Also the sub-rule (3) directs that on the order of punishment being set aside, "the order of his suspension shall be deemed to have continued in force" but in Sub-rule (4) it has been said that "the Government servant shall be deemed to have been placed under suspension". The departure made by the author in the language of sub-rule (4) from that of sub-rule (3) is conscious and there is no scope for attributing the artificial and strained meaning thereto. In the circumstances it is not permissible to read down the provisions as suggested. We, therefore, hold that as a result of sub-rule (4) a Government servant, though not earlier under suspension, shall also be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, provided of course, that the other conditions mentioned therein are satisfied."
23. The Apex Court, while deciding the above case also considered the decision in case of Divisional Personnel Officer, Western Railway, Kota versus Sunder Dass, (1981) 4 SCC 563 in which the suspension and dismissal of a railway employee was under consideration and at that relevant point of time, the services of the employee were governed by Indian Railway Establishment Code, Clause 4 of Rule 1706 which was exactly the same as Rule 5(4) of the Railway Servant (Discipline and Appeal) Rules, 1968. The Apex Court while dealing with the said case held as under:
"8. The fact that the respondent had been dismissed from service pursuant to the finding of guilt recorded in the fresh inquiry has not been disputed before us by the respondent who has appeared in person though the appellant in this appeal had been directed by this Court while ordering show cause notice in the special leave petition to deposit a sum of Rs. 1,000/- to enable the respondent to engage a counsel to appear for him in this Court and that amount had been deposited by the appellant and withdrawn by the respondent. We perused the record of the fresh inquiry and are satisfied that the respondent has admitted the fact of his discharge from service on 12-4-1944 while securing fresh employment under B.B. & C.I. Rail way. Mr. Taluqdar, Senior Counsel, appearing for the appellant submitted that the respondent had been suspended from service on February 17, 1949 before he was originally dismissed from service on May 14, 1949 pursuant to a finding of guilt recorded in the departmental inquiry and that in the subsequent departmental inquiry also, he had been found guilty and was subsequently dismissed from service and therefore, by virtue of the provisions of Rule 1706(4) of the Indian Railway Establishment Code, he must be deemed to have been under suspension right through from February 17, 1949 and he would be entitled only to subsistence allowance and not to full wages for the period from February 17, 1949. Clause (1) of Rule 1706 provides for a railway servant being placed under suspension inter alia where a disciplinary proceeding against him is contemplated or pending. Clause (4) of that rule reads thus:
"Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the railway servant shall be deemed to have been placed under suspension by the competent authority, mentioned in Rule 1705, from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders".
We are of the opinion that this sub-clause will be attracted in cases where there had been a suspension of a railway servant due to a contemplated or pending disciplinary proceeding and the order of dismissal pursuant to the finding recorded in the disciplinary proceeding is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, as in the present case, decides to hold a fresh inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed. It is not the case of the respondent that he had resumed duty after the original order of dismissal dated May 14, 1949 was set aside and that he continued to be in service until he was subsequently dismissed from service by the order dated December 23, 1966. It is seen from the original order of Dismissal dated May 14, 1949 that the respondent had been informed by the instruction appended to that order that he would be given subsistence allowance at the rate of 50% of his pay for the period from May 17, 1949 to May 14, 1949, both days inclusive, when he remained under suspension. The respondent did not dispute before us the fact that he was placed under suspension from February 17, 1949 pending the inquiry resulting in his 944 dismissal by the order dated May 14, 1949. But what the respondent contended before us is that the original order of dismissal dated May 14, 1949 is based on the finding of guilt recorded in respect of a single charge and that a second allegation has been made in the charge framed in the fresh inquiry and therefore, the provisions of Rule 1706(4) of the Indian Railways Establishment Code are not attracted. The respondent invited our attention to the fact that in the first suspension order dated February 17, 1949, he has been described as a Clerk, Executive Engineer's Office, Kota Division and in the charge framed in the fresh inquiry on March 22, 1965 as ex-Clerk of the office of the Executive Engineer, Kota Division and also to the fact that he had been informed by the Chief Engineer's letter dated September 9, 1965 that he has not placed under suspension by the administra- tion and only fresh proceedings have been taken against him in view of the judgment of the Rajasthan High Court and therefore, the question of the administration granting him permission to leave his residence or Kota Railway Station does not arise-in support of his contention that he could not be deemed to have been under suspension after his original order of dismissal had been set aside by the High Court. The respondent appears to have been conscious of the fact that the order of suspension dated February 17, 1949 had not been revoked when he applied for permission to absent from his headquarters. The Chief Engineer appears to have stated in his letter dated September 9, 1965 that the respondent had not been placed under suspension and therefore, he did not require the permission of the Railway Administration to leave Kota only on the basis that there was no fresh order of suspension after the original order of dismissal dated May 14, 1949 had been set aside by the High Court. As stated earlier, the respondent has not disputed the fact that he had been placed under suspension by the order February 17, 1949, and it is clear that he was under suspension thereafter throughout and he had attained the age of superannuation in 1963, his year of birth being 1908. The charge framed against respondent in the first inquiry was this:
Obtaining employment by concealment of his antecedents which would have prevented his employment in railway service, had they been known before his appointment, to the authority appointing him.
The reasons for that charge given were that he obtained employment in the Western Railway by giving false intimation to the Transfer Officer (India), Ambala Cantonment to the effect that he was in service on the North Western Railway at the time of partition. In the fresh charge dated March 22, 1965 framed against the respondent, it is stated that:
Fresh proceedings are being taken against him in view of the judgment of the Rajasthan High Court that his dismissal from service was illegal and he has been informed that the charge is based on (1) the declaration of Januar 8, 1948 made by respondent to the Assistant Transfer officer, Ambala Cantt. that he was working on the ex-North Western Railway and was in receipt of substantive pay of Rs. 98/- plus Rs. 4.50 and has been confirmed in that post on November 1, 1943 and (2) the declaration dated 26.1.1948 after he joined the Ex-B.B. & C.I. Railway.
On a perusal of the two charges, we are of the opinion that the fresh charge dated March 22,1965 is only a single charge and that the second allegation, namely, the declaration dated January 26, 1948 made by the respondent after he joined the Ex-B.B. & C.I. Railway, was only intended to be relied upon for proving that charge. We are, therefore, unable to accept the submission of the respondent that any different or additional charge was framed against him in the fresh inquiry. The subsequent inquiry was in respect of the same charge, namely, that the respondent had suppressed the fact that he had been discharged from railway service on April 12, 1944 while he secured employment in 1948 after the partition of India. Rule 1706(4) of the Indian Railway Establishment Code is squarely attracted to the case of the respondent. In these circumstances, we hold that the respondent who had been suspended on February 17, 1949 pending inquiry and had not reported for duty after the original order of dismissal dated May 14, 1949 had been declared to be illegal by the High Court of Rajasthan in the second appeals filed by both the parties, must be deemed to have continued to be under suspension by virtue of the provisions of Rule 1706(4) in view of the fresh inquiry and would be entitled only to subsistence allowance being 50% of his wages for the period of suspension until the final order of dismissal and not to full wages. The appeal is accordingly allowed, but in the circumstances of the case without costs. The appellant had deposited In this Court a sum of Rs. 16,000 being subsistence allowance for the said period as directed by this Court 946 on December 2, 1980 when notice to show cause was ordered in the special leave petition and it has been withdrawn by the respondent. We, therefore, add that nothing more remains to be paid to the respondent towards his subsistence allowance."
24. Thus, from the perusal of judgment of the Apex Court in case of Nelson Motis (supra) and Sundar Dass (supra), it is clear that once the Disciplinary Authority again proceeds with the enquiry with the same allegation, the employee is to be treated as a suspended employee from the date of initial order of removal or dismissal and is entitled for the subsistence allowance.
25. Thus, the finding recorded by the Tribunal that the period from 15.4.1984 to 25.05.2007, treating it as dies non (non duty) is against the Rules 1968 and the law laid down by the Apex Court, as it is not in dispute that once the removal order was set aside by the Tribunal, which was upheld by this Court, the petitioner was reinstated in service on 23.07.2007 and, thereafter, the Disciplinary Authority by order dated 30.05.2008 modified the earlier punishment order and petitioner was placed at the lowest pay scale for three years with cumulative effect, which was further modified on 22.01.2009 and punishment order from 3 years to 1 year with cumulative effect with all consequential benefits was passed.
26. Thus, the claim of petitioner treating him to be a suspended employee in pursuance of the Rules 1968 for the period from 1984 to 2007 has force, as he had never objected not to work, and it was the Railway Authorities, that was not taking work from him.
27. Thus, petitioner in view of Rule 5(4) of 1968, Rules is entitled to suspension allowance from the period 15.4.1984 to 23.07.2007. The order dated 13.04.2010 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad is set aside. Further, petitioner is entitled to all the consequential benefits arising thereof.
28. The writ petition stands allowed.
Order Date :-30.05.2019 A.N. Mishra