This second appeal has been filed by the Union of India through General Manager, North Eastern Railway, Gorakhpur against the judgement and decree passed by IXth Addl. District Judge, Gorakhpur in Civil Appeal No.78 of 1991, arising out of original suit no.214 of 1983 Ram Narayan Prasad versus Union of India.
The brief facts relating to the case as mentioned in plaint are, that plaintiff, a constable in Railway Protection Force, hereinafter mentioned as R.P.F., fell ill on 18.7.1975 whereafter he left for his home town and was under treatment in Deoria for a period from 5.11.75 to 5.6.76; that the plaintiff returned to his duty on 19.6.76 with medical certificate, upon which he was permitted to join on 23.6.76; that Departmental enquiry was initiated against the plaintiff, who was served with the charge sheet for dereliction in duties and unauthorized absence from duty for a period of 19.7.75 to 7.6.76 and on completion of enquiry was punished with the removal from service.
In Civil Suit filed by plaintiff/respondent a decree for declaration was sought with the prayer that "it be declared that order No.E/P.R.O.-1476 dated 15.1.1977 passed by Assistant Security Officer, the order of the Assistant Security Officer, Varanasi communicated vide A.S.O. Gorakhpur No.E.PRO-1476/633 dated 13/15.9.1978 and the order dated 24.6.81 passed by the Chief Security Officer, Gorakhpur are illegal, unconstitutional and against law rules and principles of natural justice and the same is not binding upon the plaintiff and he is continuing in service". The defendant/appellant filed a written statement denying the allegations made in plaint and pleaded that the suit is not maintainable and is liable to be dismissed with costs.
Upon parties pleadings, the trial court framed as many as 8 issues out of which issue No.3 was framed regarding maintainability of suit and issue No.1 was framed with regard to validity of orders dated 15.1.77, 13.9.78 and 24.6.81.
After recording the evidence of both the parties and analysing the evidence on record, the trial court upholding the validity of the above three orders dated dated 15.1.77, 13.9.78 and 24.6.1981 decided issue No.1 against the plaintiff and holding that the suit is not maintainable decided, the issue No.3 in favour of the defendant and dismissed the suit with costs.
Feeling aggrieved, the plaintiff filed Civil Appeal No.78 of 1991 under Section 96 of C.P.C. before the District Judge, Gorakhpur, which was transferred to and was decided by IXth Additional District Judge, Gorakhpur allowing the appeal and decreeing the suit. In the impugned judgement and decree the lower appellate court confirmed the findings of the trial court on all points except one and holding that the grant of leave without pay to the plaintiff/respondent by the defendant/appellant, amounts to condoning the alleged misconduct of plaintiff, (of his remaining absent from duty without notice) and so further punishment of removal from service, for the same misconduct, which was condoned is not permissible under law.
Feeling aggrieved, the defendant/appellant has come before this Court in Second Appeal challenging the above findings of First Appellate Court.
Following 3 substantial questions of law were framed in the appeal, question no.1 on 26.8.2014 and questions no.2 and 3 on 18.5.2016.
(1) Whether the unauthorised absence from duty of a enrolled number of Disciplined Armed Forces is amount to misconduct under the R.P.F. Act 1957 and punishment of removal is justified under Rule 156(b) III, of the R.P.R., Rules, 1987?
(2) Whether the plaintiff-respondent was not allowed pay for the unauthorised period of absence from 19.7.1975 to 7.6.1976 on the basis of principle of 'no work no pay', it was open for the lower appellate court to treat the same as sanctioned leave by the competent authority without pay? If so its effect?
(3) Whether the suit is hit by the provisions of Sections 14, 34 and 41 (h) of the Specific Relief Act? And whether the suit is maintainable in civil court?
The learned counsel for defendant/appellant contended that the salary for the period of unauthorised absence of plaintiff/ respondent was refused only on the principle of "no work no pay" and it may neither be treated as sanctioning of leave without pay for the period of unauthorised absence to the plaintiff/ respondent nor may amount to condoning his misconduct by his employer the defendant/appellant; that no cross-objections have been filed by the plaintiff/respondent in this Second Appeal U/OXLI R22 CPC; that the learned trial court has rightly held that plaintiff/ respondent remained absent from duty for a considerable period from 19.7.1975 to 7.6.1976 without even any information and his absence from duty was unauthorized, amounting to dereliction in duty; that upon joining of duty by him, disciplinary departmental enquiry was initiated against him, he was served with the charge sheet and on completion of enquiry proceedings was held guilty of misconduct and dereliction in duty in the departmental enquiry and consequently was rightly removed from service; that the above order of removal from service was upheld by the higher appellate authorities in the department and the decision of disciplinary authorities/employer, may not be challenged before the Civil Courts and may not be declared invalid, illegal or unconstitutional by Civil Courts; that even if the plaintiff/ respondent was aggrieved with the order of removal from service passed by the authority, he could have challenged the order by filing writ petition but he did not do so; that the plaintiff/ respondent was refused the pay/salary for the period of his unauthorised absence on the principle of "no work no pay" and it may not be treated as sanctioning of leave without pay for the period of unauthorised absence and condoning the misconduct of plaintiff/respondent; that the learned lower appellate court has acted wrongly in treating that the plaintiff/respondent was punished by granting leave without pay for the period of unauthorised absence and so he may not be punished any further; that the Railway Protection Force Rules 1959 do not provide any punishment for non-payment of pay for any specific period of absence and due to non-payment of salary for the period of absence of plaintiff/respondent, on the principle of 'no work no pay' he may not be treated to have been pardoned condoning his misconduct to have been duly punished for such misconduct; that it is settled principle of law that even upon sanctioning of leave without pay for the period of absence, the same cannot be treated to be condoning of the misconduct so as to bar initiation of disciplinary proceedings; that after refusal of salary for the period of absence on the principle of 'no work no pay' the punishment order for removal from service, may not be held to be illegal on ground of double jeopardy.
Per contra, learned counsel for the respondents submitted that the plaintiff/respondent was granted leave without pay for the period of his absence during which he could not attend the duty because of his illness and several other circumstances beyond his control and the sanctioning of 'leave without pay' amounts to condoning of his alleged misconduct, that the plaintiff was duly punished by non-payment of salary for the period of absence, condoning his alleged misconduct; that after condoning his misconduct, no disciplinary enquiry could have been initiated against him and he could not have been punished with removal from service or otherwise; that the First Appellate Court has rightly decreed the suit; that the appeal has been filed with absolutely wrong and baseless allegations and is liable to be dismissed with costs.
Upon parties pleadings, the trial court which had framed issue no.1 to the effect that "whether orders dated 15.1.1977, 13/15.9.1978 and 24.6.1981 are wrong and illegal for the reasons given in the plaint", upon detailed discussions and analysis of evidence on record, held that "the appointing authority of plaintiff/respondent, as per his appointment letter was Assistant Security Officer and he was competent to pass impugned order dated 15.1.1977 removing the plaintiff/respondent from service due to carelessness and dereliction in performance of his duties". It has been categorically found by the trial court that the plaintiff/ respondent remained absent from duty without notice for a period from 19.7.1975 to 7.6.1976 and he was given sufficient reasonable opportunity of defence in the disciplinary inquiry, cross examined the witnesses, and that the disciplinary proceedings were conducted in accordance with principles of natural justice after affording reasonable opportunity and due to sanctioning of the leave without pay for the period of absence to the plaintiff/ respondent, it may not be said that by sanctioning leave without pay for the relevant period, the misconduct of plaintiff/respondent was condoned and he was duly punished and could not have been punished with the removal from service. On above findings, the trial court dismissed the suit.
It is pertinent to mention that in Civil Appeal No.78 of 1991 before the District Judge, Gorakhpur filed by plaintiff/respondent, the Appellate Court has come to the conclusion that Assistant Security Officer was competent to remove the plaintiff/respondent from service and that he was given reasonable opportunity of defence in the departmental inquiry, and thus affirmed the findings given by the trial court. However, considering that since in the impugned order of removal from service dated 15.1.1977 passed by Assistant Security Officer, it has been stated that for the period of his absence from duty from 19.7.1975 to 7.6.1976 he is being granted leave without pay, it held that it will be deemed that the period of his absence was condoned and the wrong done by plaintiff/respondent was pardoned and so he may not be punished again and the impugned order of punishment removing him from service is not in accordance with law. For the above reasons the Appellate Court held that the charge of absence from duty without notice had become baseless and meaningless, when he was punished with sanction of leave without pay for above period. With this finding the appeal was allowed and setting aside the judgement and decree passed by the trial court, the suit of plaintiff/ respondent was decreed with costs.
On the first substantial question of law framed on 26.8.2014, parties counsel agreed that the case of plaintiff/ respondent is governed by the Railway Protection Force Rules, 1959 and since the 1987 Rules have come in force after passing of impugned orders in disciplinary enquiry, during the pendency of suit those 1987 Rules have no applicability to the case of plaintiff/ respondent. Parties counsel also agreed that substantial question of law No.1 framed on 26.8.2014 is defective and does not exist for consideration and the appeal is required to be disposed of only on two substantial questions of law framed on 18.5.2016, which are the only substantial questions of law involved in this second appeal under Section 100 of the Code of Civil Procedure.
It is pertinent to mention that though in the impugned judgement and decree the findings are against the plaintiff/respondent on all issues except on the point that since grant of leave without pay for the period amounts to condoning the misconduct so punishment for removal from service may not be imposed (which finding has been challenged by defendant/appellant). However in order to assail the correctness of the finding of trial court which were affirmed by the Appellate Court, regarding competency of Assistant Security Officer to pass the order and giving reasonable opportunity of hearing and defence, as well as his unauthorised absence from duty without notice, the plaintiff/respondent has opted not to file any cross objections, as required under Rule 22 of Order XLI of the Code of Civil Procedure.
The above provisions of Order XLI Rule 22 of the Code of Civil Procedure are being reproduced hereunder :-
"22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.-
(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing or appearance the appeal, or within such further time as the Appellate Court may see fit to allow:
Explanation: A respondent aggrieved by a finding of the court in the judgement on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent."
In absence of any such objections, the above findings of misconduct of plaintiff/respondent in remaining unauthorisedly absent from duty for a period of about one year from 19.7.1975 to 7.6.1976, affording of reasonable opportunity of defence to him in departmental enquiry, in accordance of principles of natural justice, as well as competency of Assistant Security Officer to pass order of punishment removing him from service may not be challenged by him and the concurrent findings of two courts below on this point may not be interfered by this Court in absence of any manifest error, or perversity and are liable to be affirmed.
In respect of the substantial question no.2, admittedly, the plaintiff/respondent was member of disciplined Armed Force and he remained absent from duty for a long period from 19.7.1975 to 7.6.1976, without any information and upon service of a charge sheet for his carelessness and dereliction in duty in disciplinary proceedings, upon being held guilty of above charges, the order for his removal from service was passed by appointing authority the Assistant Security Officer, on 15.1.1977. The learned counsel for plaintiff/respondent has emphasized that since for the period of absence, the plaintiff respondent was not given salary and was sanctioned leave without pay, first of all, the alleged misconduct amounts to have been condoned and pardoned, and secondly, since plaintiff/ respondent was punished with non-payment of salary for the above period, he may not be punished any further, and the punishment of his removal from service amounts is hit by principle of "double jeopardy", as imposition of two punishments for one and same wrong is not permissible under law.
Admittedly, Railway Protection Force Rules, 1959 were applicable in this case of plaintiff/respondent. Before proceeding further it will be expedient to reproduce the provisions of punishments, which may be imposed in case of any disciplinary enquiry under the Railway Protection Force Rules, 1959 as have been prescribed under Rule 41 and 42. Rules 41 and 42, which are relevant in the case of plaintiff/respondent, are as under :-
"41. Nature of penalties.- The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a member of the Force, namely,
(a) dismissal ;
(b) removal ;
(c) compulsory retirement ;
(d) reduction to a lower class or grade or to a lower time-scale or to a lower stage in the time-scale of pay ;
(e) withholding of increment or promotion ;
(f) removal from any office of distinction or deprivation of any special emolument :
(g) fine to any amount not exceeding 7 days' pay ;
(h) censure, Explanation.- The following shall not amount to a penalty within the meaning of this rule-
(i) withholding of increment of a member of the Force for failure to pass a departmental examination in accordance with the rules, or orders governing the class or grade or rank or post or the terms of his appointment ;
(ii) stoppage of a member of the Force at the efficiency bar in a time scale on the ground of his unfitness to cross the bar ;
(iii) non-promotion, whether in a substantive or officiating capacity of a member of the Force, after consideration of his case, to a class, grade, rank or post for promotion to which he is eligible ;
(iv) reversion to a lower class, grade, rank or post of a member of the Force officiating in a higher class, grade, rank or post on the ground that he is considered after trial, to be unsuitable for such higher class, grade, rank or post or on administrative grounds unconnected with his conduct ;
(v) reversion to his permanent service, grade or post of a member of the Force appointed to the Force on probation during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing probation ;
(vi) replacement of the services of a member of the Force whose services have been borrowed from a State Government or an authority under the control of a State Government, at the disposal of the authority which had lent his services ;
(vii) compulsory retirement of a member of the Force in accordance with the provisions relating to his superannuation or retirement ;
(viii) termination of services-
(a) of a member of the Force appointed on probation, during or at the end of the period of probation, in accordance with the terms of his appointment or the rules and orders governing probation ; or
(b) of a member of the Force employed under an agreement in accordance with the terms of such agreement ;
(c) of a member of the Force appointed in a temporary capacity or for a specified period on one month's notice or on tender of pay of one month in lieu of notice on the expiry of the period.
42. Petty punishments.- Head Rakshaks, Senior Rakshaks and Rakshaks may also be punished with confinement to quarters for a term not exceeding 14 days with or without punishment drill, extra guard, fatigue or other duty."
The above provisions clearly shows that withholding the salary for the period of absence, or granting leave without pay for the period, is not a punishment provided under Railway Protection Force Rules, 1959.
In the impugned judgment and decree the first Appellate Court relying on an unreported judgement dated 7.11.1992 of this Court in the case of Union of India vs. Shiv Sharan, in Second Appeal No.316 of 1979, held that, "by grant of leave without pay for the period of absence of the plaintiff it will be deemed that the misconduct of plaintiff was condoned and so giving him punishment of removal from service may not be lawful and correct."
The above judgement in Second Appeal no.316 of 1979 was not brought before me either of by the parties. However, the learned counsel for defendant/appellant argued that the above case law by single Judge has no applicability to the facts of the case and is not good law in view of the latest case laws delivered by the Apex Court.
In the case of Union of India vs. Rajendra Singh, AIR 1993 SC 205 in the similar matter, reversing the decision of Allahabad High Court the Apex Court held that "Under Railway Protection Force Rules, 1959 power of appointment does not rest merely with Chief Security Officer and since Rule 20 gives power of appointment to Assistant Security Officer also, the Rakshak appointed by Assistant Security Officer can be dismissed by him".
Similarly in the case of Chennai Metropolitan Water Supply and Sewerage Board and others vs. T.T. Morali Babu, (2014) 4 SCC 108, the Apex Court held that "it is the duty of employee to maintain discipline, act with responsibility, perform duty with sincerity and serve institution with honesty and that the order of dismissal from service for unauthorized absence of employee for a long period, is not disproportionate to the gravity of misconduct."
The learned counsel for defendant/appellant has submitted that the salary for the period of unauthorized absence was refused on the principle of 'no work no pay' and on this principle on sanctioning of leave without pay for the period, it may neither be considered as punishment imposed for dereliction in duty nor may be treated as condoning the absence or misconduct nor imposition of punishment for removal from service may be considered as imposition of double punishment for one and the same wrong, and the first Appellate Court has acted wrongly in holding that granting of leave without pay for the period of unauthorized absence, amounts to condoning the unauthorized absence as well as misconduct.
Rules 41 and Rule 42 of the Railway Protection Force Rules, 1959 applicable in the case of plaintiff/respondent, do not provide any penalty like, "granting leave without pay for the period of unauthorised absence" and since no such punishment is provided under rules, it may not be considered that the plaintiff/ respondent was firstly punished with "no pay" for the period the period of unauthorised absence, and secondly with removal from service, rather the 'leave without pay' was sanctioned only under principle of 'no work no pay' and not by way of penalty or punishment.
In case of State of U.P. vs. Madhav Prasad Sharma, (2011) 2 SCC 212, considering the question of double punishment in the matter of Misconduct - Absenteeism, the Apex Court held that "In case of absence having been categorized as ''leave without pay', such categorization is not one of the punishments prescribed under Rules - and the denial of salary on ground of 'no work no pay' cannot be treated as a penalty. Holding the findings of single judge that delinquent employee was subjected to two punishments viz., leave without pay and termination of service for the same charge erroneous, it held that the doctrine of double jeopardy is inapplicable in such circumstances and denial of pay on the principle of 'no work no pay', is not a penalty."
In paragraphs 17, 18 and 19 of the above judgment the Apex Court held as under :-
"17. Doctrine of double jeopardy enshrined in Article 20(2) of the Constitution of India has no application in the event of there being only one punishment awarded to the respondent under the Rules on charges being proved during the course of disciplinary enquiry. The law laid down by this Court in the case of Union of India vs. Datta Linga Toshatwad (2005) 13 SCC 709 and Maan Singh vs. Union of India, (2003) 3 SCC 464 fully apply in the facts and circumstances of the present case.
18.In State of Punjab & others vs. Bakshish Singh, (1998) 8 SCC 222 this Court has dealt with a case wherein the trial court as well as the First Appellate Court and the High Court had taken the view that in case unauthorized absence from duty had been regularized by treating the period of absence as leave without pay, the charge of misconduct did not survive. However, without examining the correctness of the said legal proposition, this court allowed the appeal on other issues. As the said judgment gave an impression that this Court had laid down the law that once unauthorized absence has been regularized, the misconduct would not survive, the matter was referred to the larger bench in Maan Singh's case wherein this Court clarified that the earlier judgment in Bakshish Singh, did not affirm the said legal proposition and after following the judgment of this court in State of M.P. vs. Hari Har Gopal & Others, (1969) 3 SLR 274 (SC) disposed of the case clarifying that this court in Bakshish Singh dealt with only on the issue of remand by the High Court as well as by the Ist Appellate Court to the punishing authority for imposing the fresh punishment.
19. This Court held as under:
"Bakshish Singh's case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch as in the later part of the same order the Disciplinary Authority also regularized unauthorized absence from duty by granting an employee leave without pay."
This Court further held that the law laid down by this court in Hari Har Gopal (supra) wherein it had been held that in absence of regularization of unauthorized absence it may not be possible for the employer to continue with the disciplinary proceedings as there would be break in service and thus, regularization of such absence even without pay is justified. It is so necessary to continue with the disciplinary proceedings."
In a latest pronouncement of a Division Bench of this Court in the case of Poorvanchal Bank vs. Umesh Prasad Gupta, 2015 (4) ADJ 364 it was held that "loss of pay based on the principle of 'no work no pay' is an action quite separate and distinct from a disciplinary proceedings which may visit an employee and relying on the case law laid down by the Apex Court in the case of Madhav Prasad Sharma (supra) held that in any case, even if for the sake of arguments it is assumed that the appellant had been sanctioned leave without pay during the period of unauthorized absence, which is the subject matter of the present disciplinary proceedings, the same would neither absolve the respondent of the misconduct, nor would reduce the rigour of misconduct so as to justify interference with the order of disciplinary authority on the doctrine of double jeopardy."
On the other hand, the learned counsel for plaintiff/respondent has relied on the decision of Apex Court in the case of Krushnakant B Parmar vs. Union of India and another. 2012 CJ (SC) 525 wherein in paras 16, 17 and 18 it has been observed that "only unauthorized absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a government servant which cannot be decided without deciding the question whether the absence is willful or because of compelling circumstances and if it is a result of compelling circumstances it cannot be held to be willful".
The above case law has no application to the facts of case of the appeal in hand as the plaintiff/respondent has failed to show any such compelling circumstances to the disciplinary authority or before the two courts below, rather the disciplinary authorities as well as the two courts below have found that the plaintiff/ respondent remained unauthorisedly absent from duty without any reasonable cause or excuse or even notice, for a long period of about one year.
In view of the discussions made above, I am of the considered view that by granting leave without pay for the unauthorized period of absence of plaintiff/respondent for the period from 19.7.1975 to 7.6.1976 on the principle of 'no work no pay' neither any penalty or punishment was imposed on the plaintiff/ respondent nor his misconduct was condoned nor imposition of punishment of removal from service is hit by doctrine of double jeopardy or double punishment, for one and the same wrong. The findings of lower Appellate Court that sanction of leave without pay amounts to condoning the misconduct and holding imposition of punishment by the impugned order dated 15.1.1977, of removal of plaintiff/respondent from service, to be wrong and illegal, are absolutely wrong, erroneous, incorrect and against law. The above findings of appellate court suffers from manifest error of law and are perverse also and may not be permitted to stand, and are liable to set aside. The substantial question of law no.2 and 3 are accordingly decided in favour of defendant/appellant and against the plaintiff/respondent. Since the substantial question of law no.1, is non-existent and no arguments were advanced on that question the same is decided in negative.
In view of the discussions made above, I find that the impugned judgement and decree dated 6.1.1997 passed by IXth Additional Judge, Gorakhpur in Civil Appeal no. 78 of 1991 (Ram Narayan vs. Union of India) are wrong and illegal and are liable to be set aside and the judgement and decree dated 28.4.1986 passed by trial court, the Additional Civil Judge/J.S.C.C. Gorakhpur in Civil Suit No.214 of 1983 (Ram Narayan vs. Union of India) are liable to be affirmed and restored.
Accordingly, the Second Appeal No.442 of 1997 is allowed the impugned judgement and decree dated 6.1.1997 passed by IXth Additional Judge, Gorakhpur in Civil Appeal no. 78 of 1991 (Ram Narayan vs. Union of India) are set aside and Civil Appeal No.78/1991 stands dismissed, while the judgement and decree dated 28.4.1986 passed by trial court the Additional Civil Judge/J.S.C.C. Gorakhpur in Civil Suit No.214 of 1983 (Ram Narayan vs. Union of India) are affirmed and restored, and suit of plaintiff/respondent stands dismissed with costs.
In the circumstances of the case the parties shall bear their own costs of the Appeal.
After preparation of decree the record be sent to trial court without any unnecessary delay.
Dated :
vs