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2005 DIGILAW 284 (CAL)

BRAJ BHUSAN SAHAY SRIVASTAVA v. UNION OF INDIA

2005-04-29

J.K.KAUSHIK

body2005
J. K. Kaushik ( 1 ) SHRI B. B. S. Srivastava has filed this Original Application with the following prayer :-a) Direct the respondents to cancel and/or set aside the impugned order dated 12. 6. 2003 and 18. 2. 2004 as set out in Annexure a-6 and Annexure A-10 respectively. b) Direct the respondents to pay the applicant gratuity money immediately along with interest from the date of such accrual till the date of actual payment. c) Direct the respondents to pay the applicant actual retirement benefits and arrear benefits, the amount of balance arrear pension and current rate of pension from the date of his retirement till today and so on the amount of pension alike his junior such as shri A. N. Seal who retired from service on April, 2004. d) Any order and/or further order or orders as the Hon'ble Tribunal may deem fit and proper. ( 2 ) THE factual matrix of this case is that the applicant, while holding the post of Junior Engineer-l in the respondent department, came to be removed from service vide order dated 21. 9. 1992 for the alleged unauthorised absence from duty since 18. 1. 1988. The said removal order was set aside vide the judgement dated 12. 6. 2001 passed by this bench of the Tribunal in o. A. No. 928/1998. The directions were given to regularise the services of the applicant till the date of removal from service by granting him admissible leave and other leave for the period of unathorised absence from 1988. Thereafter, the applicant was reinstated in service vide order dated 12. 6. 2001 and posted against the post of Junior Engineer-l at Asansol. The period of absence from 18. 1. 1988 to 21. 9. 1992 equal to 1709 days has been sanctioned as leave without pay by the competent authority vide order dated 16. 10. 2001 at Annexure A/4. ( 3 ) THE further facts of the case are that during the intervening period, since the applicant was removed from service, no salary was paid, the normal rent of the Government accommodation was not deducted, although he continued to hold the resident during the said period. 10. 2001 at Annexure A/4. ( 3 ) THE further facts of the case are that during the intervening period, since the applicant was removed from service, no salary was paid, the normal rent of the Government accommodation was not deducted, although he continued to hold the resident during the said period. It is also averred that in view of his reinstatement in service and after setting aside the disciplinary proceedings as well as removal order, he became entitled to stay in Railway quarter in which he was staying after the reinstatement of service. Further on his reinstatement, he is deemed to be in continuous service. The Railway authorities should have deducted the normal rent of the said period since the quarter was duly allotted to him, which has not been cancelled. The impugned order dated 12. 6. 2003 has been passed on his appeal stating therein that the applicant was removed from service and the holding of the accommodation was unauthorised. Even on reinstatement the intervening period has not been treated as duty. Hence he cannot claim for the retention of quarter. His total amount of gratuity has been withheld. His junior is getting a higher amount of pension than the applicant. The Original Application has been filed on number of grounds mentioned in para 5 and its sub paras, which shall be dealt with in later part of this order. ( 4 ) THE respondents have resisted the claim of the applicant and have filed a detailed and exhaustive counter reply. It has been averred that the settlements dues of the applicant have been released except the amount of DCRG. It has been further averred that the no Railway quarter rent was recovered from the applicant from 18. 1. 1988 till his retirement on 31. 1. 2004 which include normal rent and damage rent resulting in huge amount and will be more than the DCRG amount that is Rs. 1,45,008/- for which he is otherwise eligible. The Estate Officer has approached to assess the amount of Railway quarter damage rent for recovery withheld the gratuity of the applicant. The damage rent as calculated by the Estate Officer amounts to Rs. 10,20,034/ -. Hence DCRG amount cannot be released. The further defense of respondents set out in the reply is that the period of absence was regularised as per the orders of this Bench of the Tribunal. The damage rent as calculated by the Estate Officer amounts to Rs. 10,20,034/ -. Hence DCRG amount cannot be released. The further defense of respondents set out in the reply is that the period of absence was regularised as per the orders of this Bench of the Tribunal. The applicant was holding the accommodation unauthorisedly till his removal from service. After removal from service, he was retaining the quarter unauthorisedly. The intervening period has not been treated as duty. The period of extraordinary leave was not to be counted as qualifying service and the same was not treated on duty and period will have attributes of dies non. As per rules in force, the applicant is liable to pay rent in excess of normal rent, as he did not vacate the railway quarter after his removal from service and his retention of railway quarter was unauthorized. The defense of the respondents has been repeated and the grounds raised in the Original Application have been generally denied. ( 5 ) A short rejoinder has been filed almost reiterating the facts and grounds mentioned in the Original Application as well as refuting the defense version of the respondents in the reply. It has been stated that the Tribunal was pleased to hold that the applicant will not get any back wages for the period from date of removal from service till the date of the reinstatement in service but he cannot be entitled to lump sum amount of Rs. 50,000/- from the date of removal from service till the date of reinstatement in services. Certain citations regarding the judicial pronouncements have been mentioned in Para D of the rejoinder. ( 6 ) BOTH the learned Counsel for the contesting parties have reiterated the facts and grounds enunciated in the respective pleadings of the parties as noticed above. The learned Counsel for the applicant has contended that the applicant was inflicted the penalty of removal from service which came to be set aside by this bench of the Tribunal with payment of a lump sum of Rs. 50,000/- and ordered his reinstatement in service. The relationships of master and servant subsisted and therefore, the applicant became entitled to continue to hold the Railway accommodation. He has submitted that the applicant is not claiming any benefits of salary or allowances, which have not been granted by this tribunal. 50,000/- and ordered his reinstatement in service. The relationships of master and servant subsisted and therefore, the applicant became entitled to continue to hold the Railway accommodation. He has submitted that the applicant is not claiming any benefits of salary or allowances, which have not been granted by this tribunal. He has made me to traverse through the decision in earlier OA. On the other hand, the learned Counsel for the respondents has submitted that the applicant was in unauthorised occupation of Railway Quarter since he was removed from service and no fault can be fastened to the action of the respondents. He has tried to persuade me that on his reinstatement there was no change in the situation since the intervening period has to been treated as spent on duty for all the purposes and the same has been treated as leave without pay which may be termed as extraordinary leave without pay. He was confronted with a specific query as to under which rules such proposition is provided and as to once leave of any kind is granted, could one be asked to vacate the government accommodation. He was at difficulty to answer the same and did not produce any rule relating to the controversy. ( 7 ) I have considered the rival submission put forth on behalf of both the parties. As far as factual aspect of the case is concerned, there is hardly any dispute except that of quashing of disciplinary proceedings and removal order on merits or on technical grounds. I have waded the decision of this bench of Tribunal at Annexure A/1 whereby the removal order came to be set aside. On close analysis of the same it is revealed that the reasons mentioned therein clearly indicate the second inquiry by another inquiry officer was held to be incompetent since a decision was taken at higher level to drop the disciplinary case itself. Otherwise also there is no provision for de novo inquiry under the rules and that too by another inquiry officer, in such situation it would not sound well to hold that the removal order was set aside on technical grounds; rather the Tribunal has given due sanctity to the decision of higher authority which has in fact been kept intact. Otherwise also there is no provision for de novo inquiry under the rules and that too by another inquiry officer, in such situation it would not sound well to hold that the removal order was set aside on technical grounds; rather the Tribunal has given due sanctity to the decision of higher authority which has in fact been kept intact. I am not impressed with the submission of the learned Counsel for the respondents that it was a case of setting aside the order of penalty on technical grounds; it was clearly set-aside on merits. This position is also fortified from the very order of this tribunal that it was not considered expedient to give any liberty to the competent authority to proceed in the matter from the stage of alleged technicality, which is normally allowed in case of setting aside of penalty orders on technical grounds. ( 8 ) ON reinstatement, one is required to be placed in the position on which he was prior to the time of imposition of penalty of removal from service. As per Oxford dictionary the word reinstate means 1. Bring or put back (a person etc.) into a former position or condition; reinstall, reestablish, (in office etc. ). 2. Restore (a thing) to a proper state; replace. 3. Restore to health, reinstatement n. (a) the action of reinstating a person or thing; restoration, re-establishment, replacement; (b ). reestablishment of a serviceman in a previously held civilian job after demobilization. Thus the relationships of master and servant get restored as they stood on the date of severing this relationship I. e. on the date of order of removal from service. On reinstatement, the applicant would also be entitled to Government accommodation as well since he was in authorised occupation of the same at the relevant time. If such is the position, where is the question of unauthorised occupation of accommodation ? And therefore the theory being put forward by the respondents is misconceived as well illogical. ( 9 ) EXAMINING the matter from yet another angle, once the very removal order has been quashed and the decision has attained the finality, the applicant was required to be brought to the position, in which he would have been, had such removal order not been in existence minus the benefits which have been curtailed by the Tribunal i. e. back wages in the instant case. The ancillary question arises as to had he been in the employment of the respondents without any interruption, could he be ousted from the Railway quarter in case he were on extraordinary leave. I would also make it clear that one is also entitled for grant of HRA during the period of any kind of leave at the rate applicable before proceeding on leave for the first 180 days of leave and beyond this period allowances can be claimed by furnishing prescribed certificates as per rules. (Page 65 item No. 4 of topic 2. HRA and CCA swamy's Handbook 2005 refers ). The HRA is a compensation for the accommodation i. e. in lieu of Government accommodation and when such allowance is admissible it is not understood as to how the holding of government accommodation for such period would become unauthorised. ( 10 ) THERE is yet another facet of this case, even after the period of removal, despite its setting aside, the respondents did not consider it expedient to treat the applicant as in authorised occupant of the accommodation in question and have treated the same as unauthorised one without any reason or rhythm. This clearly shows that the authorities were adamant and the heat of likeness did not cool down despite the fact that this bench of the tribunal held that the action of the respondents was quite unfair; perhaps the observation did not cause any sensation of regret and improve the situation and the respondents chosen to aggravate the misery of the applicant, which was the outcome of misdeeds of respondents themselves. After all, after setting aside the removal order, he could not be treated as unauthorised occupant of the said quarter. ( 11 ) I am little sad; rather it pains me to mention that the removal order cannot be said to be existence after its setting aside. The legal proposition is quite clear that an order can either be legal or illegal, but for all times. It can not be said to be legal for some times and illegal for other time or otherwise, in other words, an order cannot be said to be legal till it declared as illegal by a Court of law and legal after it is so declared as illegal. It can not be said to be legal for some times and illegal for other time or otherwise, in other words, an order cannot be said to be legal till it declared as illegal by a Court of law and legal after it is so declared as illegal. It is trite to say that an illegal has no existence from the day it was issued and therefore treating the applicant as in unauthorised occupant of Government accommodation for the period i. e. from the date of removal order or after its setting aside in nothing by an ipse dixit of the respondents and the same cannot be sustained in law. If that were so, the whole action of the respondents shall have to be declared as whimsical and arbitrary. ( 12 ) THE learned Counsel for the applicant was fair enough to submit that the applicant never refused for charging and paying of the normal rent and even now the same could be adjusted from the due amount of his gratuity. The submission of the learned Counsel for the respondents that they are doing a favour to the applicant by limiting the liability to the extent of amount of gratuity by not insisting the recovery of damage rent which come to over 10 lakh rupees is amazing. The assertion is very attractive but in fact deceptive in substance. Firstly, why the respondents should be so generous to the applicant and how can they compromise with the Government revenue and under which rule such power has been given to them. Secondly, can there be premium on the wrong, which is committed by respondents themselves. One side they have issued an illegal order of removal and ousted the applicant from service, due to which he was prevented for continue in the employment and the same had to be set right by this Bench of the Tribunal. Merely, because the tribunal has restricted the relief in respect of back wages, it cannot mean that the relationships of master and servant was severed with the respondents. The minimum that can be said at this juncture is the respondents have proceeded on line proving morale indicated in one of aescop's Fable of the lamb and the wolf when the complaint was that the stream was being polluted by the lamb and if not by it, by any of its forefathers. The minimum that can be said at this juncture is the respondents have proceeded on line proving morale indicated in one of aescop's Fable of the lamb and the wolf when the complaint was that the stream was being polluted by the lamb and if not by it, by any of its forefathers. Therefore, the action of the respondents cannot be held to be justified on any count. ( 13 ) THE upshot of the aforesaid discussion is that there is ample force and substance in this Original Application and the same stands allowed accordingly in following terms : (i) The impugned orders dated 12. 8. 2003 (A/6) and order dated 18. 2. 2004 (A/10) are hereby quashed and set aside. (ii) The respondents are directed to treat the applicant, as is an authorised occupant of the railway quarter in question for all the period ever since the date of removal order till the date of his retirement on attaining the age of superannuating and charge the normal rent for the same. (iii) The due amount of DCRG i. e. Gratuity shall be paid to the applicant after adjusting/deducting the amount of said normal rent. However, no interest shall be charged or payable on the amount of said rent or on the amount of gratuity. (iv) The respondents shall pay an amount Rs. 5,000/- as costs to the applicant, which may be recovered from the official (s)who may be responsible for the episode. (v) This order shall be complied with within a period of three months from the date of communication of the same.