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2014 DIGILAW 450 (JHR)

Barun Kumar Neogi v. Union of India

2014-04-01

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Order Aggrieved by the order dated 27.05.2013 in O.A.No.228 of 2011(R), in and by which the original application preferred by the applicant has been dismissed, the petitioner has approached this Court by filing the present writ petition. 2. The brief facts of the case are that, the petitioner was appointed on 16.09.1987 as Shed Khalasi. Subsequently, in the year 1997 he was transferred to Chakradharpur division as Diesel Assistant and was posted as Loco DPS. On 04.01.1999 he was served a call book and he reported for duty at about 18.15 hrs in intoxicated condition. Accordingly, a charge memo was served upon the petitioner and after the departmental enquiry, penalty of removal from service was passed on 23rd of June, 1999. The petitioner submitted an appeal dated 06.12.1999 which was also rejected by the order dated 29.02.2000. Aggrieved, the petitioner approached the Central Administrative Tribunal in O.A. No. 138 of 2001 which was disposed of by order dated 28.04.2004 on the ground that though there was no charge of absentism framed against the petitioner, the disciplinary authority has taken note of said fact and passed the order of removal from service. It was ordered by the learned Tribunal that the disciplinary authority may, from the stage the impugned order was passed, “pick up the loose threads and pass a fresh order in accordance with law”. The disciplinary authority considered the matter afresh and taking note of the allegations and imputations of misconduct, again passed the order of “removal from service without any compassionate allowance”. Thereafter, the petitioner approached the appellate authority who, vide order dated 03.10.2008, took a lenient view and converted the order of “removal from service” into an order of “compulsory retirement from service with full benefits as admissible”. Still dissatisfied, the petitioner approached the Central Administrative Tribunal in O.A. No. 228 of 2011(R) seeking benefit of back wages between the period 23rd of June, 1999 and 29th of March, 2004 and also the benefit of the order of compulsory retirement to be made effective from 29th October, 2004. The learned Central Administrative Tribunal rejected the original application filed by the petitioner and in these facts the petitioner has approached this Court. 3. We have heard the learned counsel appearing for the parties and perused the documents on record. 4. Mr. The learned Central Administrative Tribunal rejected the original application filed by the petitioner and in these facts the petitioner has approached this Court. 3. We have heard the learned counsel appearing for the parties and perused the documents on record. 4. Mr. S.C. Roy, learned counsel appearing for the petitioner has submitted that once the order of removal from service has been quashed by order dated 29.04.2004, the petitioner should have been reinstated in service with effect from 23rd of June, 1999 and since the petitioner was not permitted to join duty, he would be entitled for back wages between the period 23rd of June, 1999 and 28th of April, 2004. It is further submitted that in compliance of order passed by the learned Tribunal since the order of removal from service has been converted into an order of compulsory retirement, the said order would have been given effect from 28th of April, 2004 and not from 23rd of June, 1999. 5. Mr. Ratnakar Bhengra, learned counsel appearing for the respondents submitted that since by order dated 28.04.2004 the order of punishment removing the petitioner from service was quashed with a direction to pass a fresh order and the entire departmental proceeding was not quashed by the learned Tribunal, the petitioner is not entitled for the back wages between the period 23rd June, 1999 and 28th April, 2004. It is submitted that in compliance of order passed by the learned Tribunal, the disciplinary authority vide order dated 28/29.10.2004 reiterated the penalty order of removal from service and it was only the appellate authority which took lenient view and converted the order of removal from service into compulsory retirement and therefore, in any event, since the petitioner has not contributed anything and he has not worked during this period, he cannot be granted back wages for the same period. 6. Having considered the submissions advanced by the learned counsel appearing for the parties, we find that the following charge was framed against the petitioner :- “Sri B.K. Neogi, D/Asst./L/JSG was served Call book at 17-35 hrs. on 4.1.99 to work BCN (E) WAT, T.O. 19-00 hrs along with Sri S.C. Sarangi, Sri B.K. Neogi, who turned up at 18.15 hrs in intoxicated condition. on 4.1.99 to work BCN (E) WAT, T.O. 19-00 hrs along with Sri S.C. Sarangi, Sri B.K. Neogi, who turned up at 18.15 hrs in intoxicated condition. Sri B.K. Rao, Booking Clerk, L/JSG, called LF on phone stating that Sri B.K. Neogi, was creating trouble in working train, LF & I Sri A.K. Bachi contacted with train’s Dr. Sri S.C. Sarangi who stated that Sri B.K. Neogi, D/Asstt in intoxicated condition and not in position to work on the train.” 7. On conclusion of the departmental proceeding, the charge against the petitioner was found proved and accordingly, the disciplinary authority vide order dated 23rd June, 1999 passed an order of removal from service. It further appears from the record of the case that the petitioner himself has admitted that he has consumed liquor and the explanation given by the petitioner before the departmental authorities was that he thought it would not affect his working. Relying on Rule 22(2)(C) of the Railways Service Conduct Rules, 1966 it is submitted by the learned counsel for the respondents that under the relevant Rules an employee is specifically prohibited from consuming any intoxicated drink or drugs within eight hours of commencement of his duty. We further find that by order dated 28.04.2004 the learned Tribunal has directed the disciplinary authority to pass fresh order and in compliance of the order passed by the learned Tribunal, the disciplinary authority has passed order dated 28/29.10.2004 reiterating the order of removal from service. We further find that since the allegation against the petitioner was serious and the learned Tribunal has held that since the petitioner has contributed little or nothing to the establishment, he would not be entitled for back wages. It is further seen that it was the appellate authority which took a lenient view in the matter and reduced the punishment of removal from service to compulsory retirement with full benefits with effect from 23rd of June, 1999. The charges levelled against the petitioner are grave in nature. The Assistant Loco Driver on account of his being in intoxicating condition was likely to affect the safety of the passengers. Having regard to the gravity of the charges and considering the fact that he has not worked from 23.06.1999 to 28.10.2004, the petitioner is not entitled to the back wages. 8. The Assistant Loco Driver on account of his being in intoxicating condition was likely to affect the safety of the passengers. Having regard to the gravity of the charges and considering the fact that he has not worked from 23.06.1999 to 28.10.2004, the petitioner is not entitled to the back wages. 8. The Tribunal has held that the period between the date of first removal order and second one can at best be treated as “dies non” implying that the service be treated as continuous without break. The subsequent order of removal was passed by the disciplinary authority vide speaking order dated 28/29.10.2004. Since the final order of dismissal from service was passed on 28/29.10.2004 which was subsequently modified as compulsory retirement by the appellate authority, in the facts and circumstances of the case and in the interest of justice we are of the view that the period between first dismissal order dated 23.06.1999 till the period of subsequent dismissal order i.e. 28/29.10.2004 be taken as continuity of service only for the limited purpose of calculating the pension. 9. The petitioner shall not be entitled to any other benefits for that period including the back wages. The order of Central Administrative Tribunal [Patna Bench], Circuit Bench at Ranchi dated 27.05.2013 passed in O.A.No.228 of 2011(R) is modified to the extent that the period from 23.06.1999 till 28.10.2004 be treated as continuity of service only for the limited purpose of calculating the pension. The respondent authorities are directed to process the pension papers within a period of six months. 10. The order dated 27.05.2013 of the Tribunal is modified to the extent indicated above and the writ petition is partly allowed.