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Jharkhand High Court · body

2020 DIGILAW 1019 (JHR)

P. K. Abraham v. Union of India

2020-10-20

DEEPAK ROSHAN

body2020
JUDGMENT : Heard learned counsel for the parties through V.C. 2. The instant application has been preferred by the petitioner for following reliefs:- (i) For quashing the order as contained in Memo No.V-15014/CCL(K)/CISF/MAJ-16/DISC/2002-14/2304 dated 31.03.2014, issued by Commandant, CISF Unit CCL Kargali (Annexure-7), whereby major punishment from removal of service has only been modified by imposing another and more harsh punishment which has far reaching consequences to the petitioner’s pension for rest of his life. It has also been mentioned that since the petitioner has already attained the age of superannuation retirement w.e.f 30.11.12 (A/N) as such he is struck off from the strength of this unit as well as from CISF w.e.f 01.12.2012(F/N). (ii) For quashing the show-cause notice issued to the petitioner vide Memo No.V-15014/CCL(K)/CISF/MAJ-16/DISC/2002-14/2643 dated 11.04.2014 issued by Commandant, CISF Unit CCL Kargali, (Annexure-8) by which the respondent has proposed to treat the intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation retirement i.e. 30.11.2012, to be regularized as Dies-Non. (iii) For commanding upon the respondents to regularize the services of the petitioner from 31.05.2003 to 30.11.2012 (the period for which the petitioner has now been treated to be under suspension). (iv) For commanding upon the respondents to pay all the post retiral dues including full salary for the period of his suspension as he had only been paid subsistence allowance, whereas the respondents have decided that the petitioner shall not be paid anything more than what he had already been paid i.e. subsistence allowance. Thereafter, during pendency of the writ petition an amendment application being I.A. No.3633 of 2019 has been preferred for quashing the Dies-non order as contained in Memo No. V-15014/CCL(K)/CISF/MAJ-16/DISC/2002-14/4934, dated 22.07.2014 (Annexure-A to the supplementary affidavit filed on behalf of the Union of India) whereby, the intervening period has been treated as Dies-non, which was allowed vide order dated 08.05.2019 and thereafter amended writ petition has been filed. 3. This is second round of litigation. 3. This is second round of litigation. The petitioner had earlier moved before this Court by filing a writ application being W.P.(S) No.4662 of 2004, which was disposed of by this Court vide its order dated 12.12.2013, whereby impugned order of punishment, the petitioner was removed from service, was quashed along with the subsequent appellate and revisional orders and the matter was remitted back to the disciplinary authority for taking a decision in so far as quantum of punishment is concerned. 4. The brief facts as it appears from the writ application are that the petitioner was appointed on 27.12.1973 in Indian Army and after his superannuation from service in the Indian Army; he joined the Central Industrial Security Force as a constable on 04.03.1994. A charge Memo dated 30.12.2002 was served upon the petitioner on the allegation that he demanded and accepted illegal gratification of Rs.10/-from one Jogeshwar Singh, who was a truck driver and also for violation of the company rules as he has kept with himself more than Rs.15/-while on duty. By order dated 24.12.2002, the petitioner was put under suspension and a preliminary enquiry was conducted into the matter and after considering the reply of the petitioner a regular departmental proceeding was initiated against him. The enquiry report dated 11.04.2003 was submitted and the petitioner was issued a second show-cause notice on 03.05.2003. The petitioner submitted his representation on 15.05.2003 and the penalty order, removing the petitioner from service was passed on 31.05.2003. 5. On the question of charge no.1 with respect to demanding and accepting of illegal gratification of Rs.10 from the truck driver namely, Jogeshwar Singh, this Court held that this charge leveled against the petitioner that he demanded and accepted Rs.10 from the truck driver is clouded with suspicion. For the other charge with respect to keeping 20/-rupees cash in his pocket, this Court observed that the defense of the petitioner has been rejected on the ground that he did not produce the medicine slip on 23.12.2002 and the medicine slip is dated 22.12.2002, he could not have purchased medicines on 22.12.2002 itself. This Court held that the defense taken by the petitioner and the conduct of the petitioner cannot be said to be unnatural or improbable. Thereafter, by observing and giving specific finding, the case was remanded only on the question of quantum of punishment. 6. This Court held that the defense taken by the petitioner and the conduct of the petitioner cannot be said to be unnatural or improbable. Thereafter, by observing and giving specific finding, the case was remanded only on the question of quantum of punishment. 6. At the outset, this Court clarifies that it is not going on the findings given in the enquiry proceedings as in the earlier writ application the merits of the case has already been discussed at length and the case was remanded for passing a fresh order on quantum of punishment. 7. Pursuant to the order dated 12.12.2013, passed in W.P.(S) No.4662 of 2004, fresh order has been passed by the disciplinary authority whereby, the order of removal from service is modified to the extent of reduction of pay by four stages; from Rs.3350/-to Rs.3050/-in the time scale of pay Rs.3050-75-3950-80-4590/ for five years. It was further directed that during the period of reduction the petitioner will not earn his increment and also on expiry of the punishment, the reduction of increment will have effect of postponing his future increment on pay. For better appreciation, the operative portion of the order dated 31.03.2014 (Annexure-7) passed by the disciplinary authority is quoted herein below:- “NOW THEREFORE, after careful consideration of the facts and evidences available in the case file, I find that as per judgment order dated 12.12.2013 passed by the Hon’ble High Court of Jharkhand at Ranchi, I tend to take a decision in so far as quantum of punishment is concerned for the impugned order dated 31.05.2003 (final order), 02.07.2003 (appellate order) & 09.06.2004 (revision order). However, keeping in view of the fact that the individual has already attained 60 years of age on dated 09.11.2012 (DOB is 10.11.1952) i.e. prior to the issue of the judgment order, the punishment of “REMOVAL FROM SERVICE” awarded to him vide above order is modified to the extent of “Reduction of pay by four stages from Rs.3350/-to Rs.3050/-in the time scale of pay Rs.3050-75-3950-80-4590/- for five years with further direction that during the period of reduction, he will not earn his increment and that on expiry of the punishment this will have the effect of postponing his future increments of pay”. Since he has already attained the age of superannuation retirement w.e.f. 30.11.2012 (A/N) as such he is struck off from the strength of this unit as well as from CISF w.e.f. 01.12.2012(F/N). The period of suspension from 24.12.2002 to 31.05.2003 is treated as such and he will not get anything more than what he has already been paid as subsistence allowances.” It was further ordered that the intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation will be regularized separately. Thereafter, a fresh order was passed on 22.07.2014, whereby the intervening period from date of award of the punishment dated 31.05.2003 to the date of superannuation i.e. 30.11.2012, was regularized by the respondent as Dies-non in accordance with Rule 55 of C.I.S.F Rules, 2001. 8. After perusing the aforesaid order, it clearly transpires that the order after remand was modified to the effect that: (a) There will be reduction of pay by four stages from Rs.3350/-to Rs.3050/-in the time scale of pay Rs.3050-75-3950-80-4590/ for five years. (b) During period of reduction the petitioner will not earn his increment. (c) On expiry of the punishment the effect of non getting increment will have effect of postponing in future increment of pay. (d) For suspension period, the petitioner will not get anything extra apart from the subsistence allowance already paid to him. 9. From bare reading of the operative portion of the impugned order (Annexure-7), it is crystal clear that for the first five years i.e. from the date of termination i.e. 31.05.2003 he will be getting reduced pay as per the order. Further, his increment will be freezed for the next five years i.e. from 31.05.2003 to 31.05.2008 which will have effect of postponing his future increments of pay. Nowhere in the impugned order has it been indicated that the petitioner will not get any salary from the date of earlier termination till the date of retirement. 10. However, the last two lines of the modified impugned order had far reaching effect whereby it was ordered that the “intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation will be regularized separately”. 10. However, the last two lines of the modified impugned order had far reaching effect whereby it was ordered that the “intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation will be regularized separately”. Thereafter, by issuing notice to the petitioner, a separate order dated 22.07.2014 has been passed wherein it has been ordered that the intervening period from date of award of the punishment dated 31.05.2003 to the date of superannuation i.e. 30.11.2012, was regularized by the respondent as dies-non in accordance with Rule 55 of C.I.S.F Rules, 2001. 11. In the backdrop of the aforesaid facts, the following questions have emerged to be decided by this Court: (a) Whether the order dated 22.07.2014, whereby the intervening period from date of award of the punishment dated 31.05.2003 to the date of superannuation was regularized by the respondent as Dies-non in accordance with Rule 55 of C.I.S.F Rules, 2001, was necessarily required to be passed when a detailed order was already passed by the respondent authority pursuant to the High Court’s Order ? (b) Whether under Rule 55 of C.I.S.F Rules, 2001, passing of Dies-non order is mandatory or discretionary ? (c) Whether the order dated 22.07.2014 (hereinafter to be referred as Dies-non order) has been passed mala-fide just to grab the entire benefits of the petitioner when the case was remanded by this Court on the quantum of punishment ? 12. To decide the aforesaid questions, it is necessary to refer the judgment of the Gauhati High Court given in the case of Vijay Laxmi & Ors. Vs Union of India & Ors. reported in 2013 SCC Online Gau 238 wherein the Gauhati High Court has dealt in details with respect to Dies-non. Paragraph -27 to 31 is reproduced herein below:- 27. The expression ‘dies-non’ originated from the Latin phrase “Dies-non juridicum” which literally means “a day when Courts do not sit or carry on business”. As per dictionary meaning, the expression “dies-non” is used to define a day which is not a Court day or a day on which no legal business can be done or which does not count for legal purpose. 28. The doctrine of “no work no pay” is invoked while applying the concept of “dies-non”. As per dictionary meaning, the expression “dies-non” is used to define a day which is not a Court day or a day on which no legal business can be done or which does not count for legal purpose. 28. The doctrine of “no work no pay” is invoked while applying the concept of “dies-non”. The doctrine of “no work no pay” is based on the principle that when a person is employed, it is expected that the work assigned will be carried out by the person employed. But when this work is not done, the employee would not be eligible for payment of any remuneration preassigned for such work. When an employee expends his energy and effort in an assigned productive task, a pre-determined remuneration rewards his work. Employees are compensated for contributing their labour. When there is no contribution, there is no compensation in return. Thus there is a quid pro quo between the employer and the employee that provides for equal and reciprocal responsibility. Viewed in the above context, the principle of “no work no pay” is not a punishment in service jurisprudence. 29. In service law, the expression “dies-non” is widely used by the disciplinary authorities to denote unauthorized absence by delinquent employees. “Dies-non” is used to define a period which is neither counted as part of service nor considered as break in service. A period of service can be marked as “diesnon” if, (a) the employee is absent without proper permission, (b) the employee, though on duty, leaves without proper permission, (c) the employee is in office but refuses to perform duties. In other words, it must be a case of willful and unauthorized absence from work. In such a case, the days on which the work is not performed may be treated as “dies-non” based on the principle of “no work no pay”. Such a course of action may be resorted to without prejudice to such disciplinary action the competent authority may contemplate. 30. Therefore, in service law, “dies-non” means a day or a period which cannot be treated as spent on duty for any purpose. Though it does not constitute break in service but such a day or a period treated as “dies-non” would not qualify as part of the employee’s service for pensionary benefits or increments. 31. 30. Therefore, in service law, “dies-non” means a day or a period which cannot be treated as spent on duty for any purpose. Though it does not constitute break in service but such a day or a period treated as “dies-non” would not qualify as part of the employee’s service for pensionary benefits or increments. 31. Thus, to attract the concept of “dies-non”, it must be established that the absence from duty by the employee was willful and unauthorized. 13. Thus, it appears that in service law, “dies-non” means a day or a period which cannot be treated as spent on duty for any purpose. Though it does not constitute break in service but such a day or a period treated as “dies-non” would not qualify as part of the employee’s service for pensionary benefits or increments. In the case in hand, the absence from active duty by the petitioner was not willful or unauthorized but is a forced one, at the instance of the employer. At this stage it is pertinent to mention here that this Court cannot ignore the specific finding given by this Court in the earlier writ application filed by the petitioner against the order of removal before remanding the matter back to the concerned respondent. At the cost of repetition; on the question of charge no.1 with respect to demanding and accepting of illegal gratification of Rs.10 from the truck driver namely, Jogeshwar Singh, this Court held that this charge leveled against the petitioner that he demanded and accepted Rs.10 from the truck driver is clouded with suspicion. For the 2nd charge; with respect to keeping Rs.20/-rupees cash in his pocket, this Court observed that the defense of the petitioner has been rejected on the ground that he did not produce the medicine slip on 23.12.2002 and the medicine slip is dated 22.12.2002, he could not have purchased medicines on 22.12.2002 itself. This Court held that the defense taken by the petitioner and the conduct of the petitioner cannot be said to be unnatural or improbable. By observing and giving specific finding, the case was remanded only on the question of quantum of punishment. In this background, a fresh order of punishment was passed, whereby lesser punishment was imposed upon the petitioner. This Court held that the defense taken by the petitioner and the conduct of the petitioner cannot be said to be unnatural or improbable. By observing and giving specific finding, the case was remanded only on the question of quantum of punishment. In this background, a fresh order of punishment was passed, whereby lesser punishment was imposed upon the petitioner. However, by passing the Dies Non Order dated 22.07.2014, the effect and spirit of the Order passed by this Court in earlier writ application has been frustrated inasmuch as, though the Dies Non period does not constitute break in service but such a day or a period treated as “dies-non” would not qualify as part of the employee’s service for pensionary benefits or increments. This was never the spirit of the Order of remand; rather the order of remand was very specific that since the punishment is not proportionate to the offence charged; the case was remitted back to the authority to pass a fresh order only on the quantum of punishment. The Disciplinary Authority did pass an order on remand with lesser punishment but by passing a separate Order declaring the intervening period as Dies Non has ultimately frustrated the direction and spirit of the order. 14. In this view of the matter this Court holds that the Dies Non Order dated 22.07.2014 has been passed just to defeat the effect and spirit of the order passed earlier by this Court. At the cost of repetition, the Disciplinary Authority did pass an order on remand pursuant to the direction of this Court in earlier writ application with lesser punishment but by passing a separate Order declaring the intervening period as Dies Non has ultimately frustrated the direction and spirit of the order. In the garb of regularizing the service by the Dies-non order, the intent of the order passed by this Court has been nullified and the relief granted by the disciplinary authority in its own order on remand has been snatched away by subsequent order of Dies-Non. 15. There is another aspect of the matter. Passing of Dies Non Order is not mandatory. For better appreciation of this issue, Rule 55 of CISF Rule 2001 is quoted herein below:- “55. 15. There is another aspect of the matter. Passing of Dies Non Order is not mandatory. For better appreciation of this issue, Rule 55 of CISF Rule 2001 is quoted herein below:- “55. Dies-non-Notwithstanding anything contained in these rules a disciplinary authority while passing final order to impose a penalty upon an enrolled member of the Force or an appellate authority or a revising authority may, on reinstatement of an enrolled member of the Force in service after setting aside a penalty of dismissal, removal or compulsory retirement without exonerating such enrolled member of the Force of the charges which resulted in any of these penalties, after giving an opportunity to the enrolled member of the Force concerned to show cause against such action and for reasons to be recorded in writing, order that the intervening period between the date of dismissal, removal or compulsory retirement as the case may be and the date of reinstatement be treated as dies-non for purposes of service”. Emphasis supplied 16. The expression ‘may’ implies that the Court has got discretion. As per the Black Law Dictionary ‘may’ means an auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility. Word “may” usually is employed to imply permissive, optional or discretional, and not mandatory action or conduct. 17. Thus, by going through the provision as enshrined in Rule 55 of CISF Rule 2001, this Court hold that passing of Dies Non Order is not mandatory; rather it is optional or discretional, which ought not to have been exercised only to frustrate the order of this Court passed in earlier writ application. 18. At this stage, it is pertinent to mention here that the department accepted that order passed by this Court in the earlier writ application and never filed any appeal and passed the impugned order whereby his pay was reduced by four stages for five years and allied punishment, but the impugned order never states that the petitioner will not get any salary or the petitioner is not entitled for any salary on the principal of ‘no work no pay’ rather the impugned order of punishment is very clear. As such, there was no requirement for passing a separate order U/s Rule-55 of the CISF Rules. As aforesaid, passing of Dies Non Order is not mandatory. 19. As such, there was no requirement for passing a separate order U/s Rule-55 of the CISF Rules. As aforesaid, passing of Dies Non Order is not mandatory. 19. In view of the aforesaid findings all the questions have been decided in favour of the petitioner in the facts and circumstances of this case. Consequently, the impugned order on remand dated 31.03.2014 passed by Commandant, CISF, Unit CCL Kargali whereby the petitioner has been awarded lesser punishment, is hereby, sustained with modification only to the extent that the last two line i.e. “the intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation will be regularized separately” stands quashed. Further, the Dies Non Order as contained in Memo No. V-15014/CCL(K)/CISF/MAJ-16/DISC/2002-14/4934, dated 22.07.2014 (Annexure-A to the supplementary affidavit filed on behalf of the Union of India), whereby it has been ordered that the intervening period from date of award of the punishment dated 31.05.2003 to the date of superannuation i.e. 30.11.2012, was regularized by the respondent as dies-non in accordance with Rule 55 of C.I.S.F Rules, 2001 is quashed and set-aside. 20. The respondent authorities are directed to pass an order to the effect of payment of monetary/pensionary benefits to the petitioner strictly in compliance to their own order dated 31.03.2014 passed by Commandant, CISF, Unit CCL Kargali by ignoring the last two line i.e. “the intervening period from the date of award of above punishment i.e. 31.05.2003 to the date of superannuation will be regularized separately” as the same stands quashed. The entire exercise shall be completed within a period of three months from the date of receipt/production of copy of this order. 21. With the aforesaid observation and direction, the instant writ application stands allowed and disposed of.