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2014 DIGILAW 472 (ALL)

RAMESH TIWARI v. STATE OF U. P.

2014-02-12

MANOJ KUMAR GUPTA

body2014
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard counsel for the petitioner and learned standing counsel on behalf of respondent No. 1 and Sri Ajay Singh on behalf of respondent Nos. 2 to 5. 2. With the consent of learned counsel for the parties, this writ petition is being decided finally at the admission stage as per the Rules of the Court. 3. The petitioner is working as junior foreman with the respondent-Corporation. On certain charges of indiscipline and irregularities, he was subjected to disciplinary proceedings and by order dated 17.6.2004, a minor punishment was imposed on him reverting him to the basic pay for five years, as well as adverse entry in the service book. Challenging the said order, the petitioner had filed writ petition No. 26168 of 2004 before this Court, which was allowed by order dated 21.2.2005 holding that regulation 63 of the U.P. State Road Transport Corporation Employees (other than officers) Service, Regulations, 1981, does not contemplate imposition of punishment whereby a delinquent can be reverted to the basic pay scale. Consequently, the order of punishment was set aside leaving it open to the respondent - Corporation to pass a fresh order. Thereafter, fresh order was passed on 20.8.2007, whereby, the petitioner was removed from service. The petitioner filed an appeal before the Chief General Manager, which was dismissed by order dated 15.7.2008. The petitioner carried the matter in revision before the Chairman as contemplated under Regulation 69A. The Chairman, vide it’s order dated 27.11.2008 being of the opinion that the order of removal is not justified had set-aside the same and had directed for reinstatement of the petitioner, but denied back wages for the period, the petitioner remained out of service. The aforesaid order of the Chairman was not challenged by the Corporation and had attained finality. The petitioner was reinstated in service. 4. The grievance of the petitioner is that after his reinstatement, the respondents have started paying him the basic pay of Rs. 4500/- treating him to be a new incumbent. The case of the petitioner is that prior to passing of the orders by the disciplinary authorities, he was getting basic pay of Rs. The petitioner was reinstated in service. 4. The grievance of the petitioner is that after his reinstatement, the respondents have started paying him the basic pay of Rs. 4500/- treating him to be a new incumbent. The case of the petitioner is that prior to passing of the orders by the disciplinary authorities, he was getting basic pay of Rs. 6375/- It is contended that firstly no such punishment has been awarded to the petitioner by the revisional authority and secondly, such a punishment amounts to reverting the petitioner to the basis pay scale, which was inflicted on to him earlier, but was set-aside by order of this Court dated 21.2.2005 holding that such a punishment is not contemplated under Regulation 63. It is thus contended that the action of the respondents, in this regard is manifestly illegal. 5. Sri A.B. Singh, counsel for the petitioner further submits that though a challenge has also been made to the order passed by the Chairman in revision dated 27.11.2008 but the petitioner is not pressing the said relief. 6. Sri Ajay Singh, appearing on behalf of respondent Nos. 2 to 4 tried to justify the action of the respondent authority in reverting the petitioner to the basic pay scale by relying on the earlier order of punishment dated 17.6.2004. He also placed reliance on the order of the Chairman passed in revision dated 27.11.2008 in contending that it would amount to a new appointment and, therefore, the petitioner has been placed in the basic pay scale. He has placed reliance on the use of following words in the order of the Chairman dated 27.11.2008 : ^^,d uohu volj iznku djrs gq, cjsyh {ks= esa rSukr fd;k tkrk gSA** 7. I have considered the rival submissions of the learned counsel for the parties and have perused the record. 8. After carefully going through the order of the Chairman dated 27.11.2008, I am unable to find that any order for placing the petitioner in the basic pay scale has been passed against him. The order of reinstatement only denies back-wages to the petitioner during the period he had not worked. The aforesaid order does not have the effect of depriving the benefit of past services of more than 15 years rendered by the petitioner, though he would not be entitled to back-wages. The order of reinstatement only denies back-wages to the petitioner during the period he had not worked. The aforesaid order does not have the effect of depriving the benefit of past services of more than 15 years rendered by the petitioner, though he would not be entitled to back-wages. As such, the interpretation which is being made by the respondents, is not acceptable. 9. There is another aspect of the matter. 10. Earlier by order dated 17.6.2004, one of the punishment given to the petitioner was reversion to the basic pay. Admittedly, said order was subject-matter of challenge in Writ Petition No. 26186 of 2004, which was allowed by this Court vide order dated 21.2.2005 after recording a categorical finding that under Regulation 63, no such punishment is contemplated. The aforesaid order of this Court had attained finality as it was not challenged by the Corporation. In view of the above, it was not open to the respondent Corporation to revert the petitioner to the basic pay scale, as such action would not only be illegal, for the reasons already spelt out in the previous judgment and order of this Court dated 21.2.2005, but would be in teeth of the said judgment. 11. The use of the phrase “,d uohu volj” in the order of the Chairman only means that a fresh opportunity is given to the petitioner to come back in service; it does not tantamount to a fresh appointment so as to place the petitioner in the basic pay scale, as held by Apex Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 (Para 38.7). 12. In view of the above, the action of the respondents in placing the petitioner in the basic pay scale from the date of reinstatement is wholly unwarranted and cannot be sustained in law. Accordingly, this writ petition is allowed in part. The respondents are directed to fix the salary of the petitioner by taking into consideration the salary he was drawing before his removal, albeit, without back wages. The entire arrears in this regard shall be calculated and paid to the petitioner within a period of three months from the date of production of certified copy of this order before the respondent No. 4. 13. No other point has been pressed by the learned counsel for the parties. 14. No order as to costs.