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2020 DIGILAW 400 (GUJ)

Ushaben Janakkumar Jaiswal v. Union Of India

2020-03-04

GITA GOPI, SONIA GOKANI

body2020
ORDER : SONIA GOKANI, J. 1. The petitioner by way of this petition under Articles 226 and 227 of the Constitution of India seeks to challenge the legality and validity of the order dated 25th July, 2019 passed by the respondent no.2 – Central Administrative Tribunal, Ahmedabad Bench in Recovery Application No. 306 of 2012 filed by the petitioner, whereby, the respondent no.2 has dismissed the Original Application confirming the order of respondent no.3 dated 11th October, 2007 and the order passed by the respondent no.4 dated 11th January, 2010. 2. The brief facts leading to present petition are as follows:- 2.1. The petitioner was appointed in the respondent – Western Railway as a teacher and was promoted as a primary teacher. She was appointed in the year 1991. She served as Head Mistress in the Railway Primary School at Rajkot from the year 2003. 2.2. In the year 2003, the General Manager, Western Railway, Mumbai visited Rajkot Division and had suggested that students must come in white uniform and red sweater and also directed that immediate steps be taken for the said purpose. 2.3. The petitioner being the Head Mistress of the school, respecting the oral command of the General Manager, immediately purchased samples of uniform and had shown it to the General Manager in presence of office bearers of the school and other teachers. 2.4. In absence of any provisions of providing uniform to the students, a parent – teacher meeting was organized where the parents were informed amount and the development in respect of uniform. It was decided that the parents would be paying money for the uniform to the Head Mistress who in turn would provide uniform to the students. This was also intimated to the school management and was brought to the knowledge of General Manager, Western Railways, Mumbai. 2.5. The petitioner was issued with a memo allegedly to serf the responsibility of higher officials by the Divisional Personnel Officer vide communication dated 10th October, 2003. It was in a nature of warning to the petitioner. The petitioner was later on placed under suspension and was later also served with a charge memo pursuant to the departmental proceedings initiated against her. 2.6. Thereafter, departmental proceedings against the petitioner got concluded and the petitioner was held guilty on 8th August, 2004 for collecting Rs. 250/- per student which came to Rs. 13,900/-. The petitioner was later on placed under suspension and was later also served with a charge memo pursuant to the departmental proceedings initiated against her. 2.6. Thereafter, departmental proceedings against the petitioner got concluded and the petitioner was held guilty on 8th August, 2004 for collecting Rs. 250/- per student which came to Rs. 13,900/-. The petitioner, therefore, was reverted back on the lower pay scale of Rs. 4500-7000 permanently with cumulative effect. 2.7. This was challenged by way of preferring revision application before the respondent no.4 where she pointed out how extremely harsh punishment was imposed and requested the authority to reconsider the same. The respondent no.4 has modified the order of punishment and directed the recovery of Rs. 13,900/- from the salary of the petitioner. It further directed the penalty of reversion to the grade of Rs. 4500-7000 permanently with cumulative effect be modified to reduction of the minimum of the grade of Rs. 5500-9000 for a period of two years with cumulative effect. 2.8. The suspension of the petitioner was lifted w.e.f. 5th January, 2005. It is the say that she has already undergone the punishment of suspension for the period from 11th October, 2003 to 4th January, 2005. 2.9. Aggrieved by this, the petitioner had preferred O.A. No. 54 of 2006 before the respondent no.2. The same was disposed of on 30th November, 2006 without interfering with the order of revisional authority, however, she was permitted to prefer an appeal against the quantum of amount to be paid during the suspension and also directed the authority to pass a speaking order as to whether the period of suspension would be counted towards the qualifying service and to what extent. 2.10. A detailed representation to the revisional authority was made, making a request for treating the period of suspension from 11th October, 2003 to 4th January, 2005 as days spent on duty. 2.11. This was rejected on 11th October, 2007. The petitioner has challenged this before the respondent no.2 by way of preferring O.A.No. 47 of 2008, where the respondent no.2 on 24th August, 2009 directed the revisional authority to consider the case of the petitioner by treating the said O.A. as a Revision Application. 2.11. This was rejected on 11th October, 2007. The petitioner has challenged this before the respondent no.2 by way of preferring O.A.No. 47 of 2008, where the respondent no.2 on 24th August, 2009 directed the revisional authority to consider the case of the petitioner by treating the said O.A. as a Revision Application. The respondent no.4, thereafter, considering the case of the petitioner and pursuant to the directions of the respondent no.2, vide order dated 11th January, 2010 rejected the case of the petitioner by ordering that the period of suspension be treated as not spent on duty for all purposes. 2.12. The said order dated 11th January, 2010 was challenged before the respondent no.2 by preferring O.A. No. 306 of 2012. The Tribunal on 25th July, 2019 dismissed the said O.A. by holding that the period of suspension cannot be treated as the days spent on duty and thereby, confirmed the orders passed by the respondent nos. 3 and 4. 3. It is urged by the petitioner that her intent to provide uniforms to the children must not fetch such a harsh punishment and more particularly, when a specific request is made for a particular period of suspension to be treated as the days spent of duty, it is urged that the same could not have been refused. It is the grievance on the part of the petitioner that in absence of any findings or reasonings, much less the valid reasons given by the authorities, the orders are patently erroneous and deserves to be quashed. 4. According to the petitioner, paragraph 1345 of the Indian Railways Establishment Court would administer that there are ample powers with the authority to condone the bonafide mistake. The respondent no.2, in fact, misinterpreted such paragraph and denied such request. 4. According to the petitioner, paragraph 1345 of the Indian Railways Establishment Court would administer that there are ample powers with the authority to condone the bonafide mistake. The respondent no.2, in fact, misinterpreted such paragraph and denied such request. Therefore, the petitioner is before this Court with the following prayers:- “(A) YOUR LORDSHIPS be pleased to issue appropriate writ, order and/or direction, quashing and setting aside the impugned orders passed by authorities below, being (i) Order dated 25.07.2019 passed by Respondent no.2 in O.A. No. 306/2012 (Annexure A), (ii) order dated 11.01.2010 passed by Respondent no.4 (Annexure B) and (iii) order dated 11.10.2007 passed by Respondent no.3 (Annexure C), in the interest of justice; (B) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to stay operation, execution and implementation of impugned orders passed by authorities below, viz (i) Order dated 25.07.2019 passed by Respondent no.2 in O.A. No. 306/2012 (Annexure A), (ii) order dated 11.01.2010 passed by Respondent no.4 (Annexure B) and (iii) order dated 11.10.2007 passed by Respondent no.3 (Annexure C), in the interest of justice; (C) YOUR LORDSHIPS be pleased to grant such other and further reliefs in favour of the petitioner, as deemed fit, just and proper in the interest of justice.” 5. We have heard learned advocate Mr. Pratik Y. Jasani appearing for the petitioner, who has fervently made his submissions and urged this Court that the interpretation made by both the authorities shall require indulgence in as much as it has not only misinterpreted the rule, it has also overlooked various other set of facts. He further has urged that the petitioner was bonafide and her actions were transparent. There are no justifiable reasons given by any of the authorities while rejecting her prayers. He further has urged that considering the overall aspects, the impugned orders passed by the authorities deserve the quashment. 6. Having thus heard learned advocate Mr. Jasani and on perusal of the material on record so also on close examination of the prayers sought for, it is quite clear that the petitioner is desirous of quashing and setting aside both the orders dated 25th July, 2019 of respondent no.2 and that of 11th January, 2010 passed by the respondent no.3. Having thus heard learned advocate Mr. Jasani and on perusal of the material on record so also on close examination of the prayers sought for, it is quite clear that the petitioner is desirous of quashing and setting aside both the orders dated 25th July, 2019 of respondent no.2 and that of 11th January, 2010 passed by the respondent no.3. The only aspect that requires for the Court to consider is as to whether the period of suspension from 11th October, 2003 to 4th January, 2005 whether should be treated as a period spent by the petitioner on duty. It is not out of the context at this stage to make a specific reference that the petitioner originally was punished by reverting her back to the lower pay scale of Rs. 4500-7000 permanently with cumulative effect. She preferred a revision application and pointed out how the punishment imposed on the petitioner was harsh and requested the authority to reconsider the same. The respondent no.4 vide order dated 8th September, 2005 modified the same as under:- “(i) Rs. 13900/- to be recovered from salary of the Petitioner and to be returned to the parents. (ii) The penalty of reversion to the grade of Rs. 4500-7000 permanently with cumulative effect be modified to reduction to the minimum of the grade of Rs. 5500-9000 for a period of two years. The same will be having cumulative effect.” 7. It is not disputed by learned advocate Mr. Jasani that both the punishment, one which was originally awarded and the modified award of punishment fall under the category of the major penalty. In that view of the matter, paragraph 1345 of the Indian Railways Establishment Court would be required to be taken into consideration which speaks about the railway servant who has been suspended and later-on reinstated. It also provides as to how the suspension period should be treated. Apt would be to reproduce the said paragraph for the ready reference:- "1345. In that view of the matter, paragraph 1345 of the Indian Railways Establishment Court would be required to be taken into consideration which speaks about the railway servant who has been suspended and later-on reinstated. It also provides as to how the suspension period should be treated. Apt would be to reproduce the said paragraph for the ready reference:- "1345. (1) When a railway servant who has been suspended is reinstated (or would have been so reinstated but for his retirement (including premature retirement) while under suspension,) the authority competent to order reinstatement shall consider and make a specific order— (a) regarding the pay and allowances to be paid to the railway servant for the period of suspension ending with reinstatement or[the date of his retirement (including premature retirement), ]as the case may be; and (b) Whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in Rule 1343 where a railway servant under suspension dies before the disciplinary or the court proceeding instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the railway servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the railway servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4) In a case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. (5) In cases other than those falling under sub-rules (2) and (3) the railway servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the railway savant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the railway servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5),as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the railway servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. NOTE: - The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of – (a) extraordinary leave in excess of three months in the case of temporary railway servant; and (b) leave of any kind in excess of five years in the case of permanent or quasi-permanent railway servant. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount determined under the proviso to subrule (3) or under sub-rule(5) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342." 8. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible. (9) The amount determined under the proviso to subrule (3) or under sub-rule(5) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342." 8. Thus, it is quite apparent that if the case of the employee falls under sub-rule (3) of paragraph 1345, then the period of suspension shall be treated as spent on duty for all purposes. Sub-rule (5) also provides that in any other case, other than those falling under sub-rules (2) and (3), the railway servant shall be paid such pay and allowances to which she would be entitled had she not be suspended as the competent authority may determine, after giving notice to the railway servant of the quantum proposed and after considering the representation, if any. In a case falling under sub-rule (5), the period of suspension as per sub-rule (7) shall not be treated as spent on duty unless the competent authority specifically directs that it shall be so treated for any specific purpose. 9. We notice that opportunity had already been given for making a request to the competent authority also. It has not been countenanced. The order impugned specifies that the petitioner was awarded major penalty and there was neither procedural lapse nor legal infirmity pointed out by the learned advocate appearing before the Tribunal nor could it assign any reason as to why the period of suspension would not be treated as a period not spent on duty. In a given set of facts, the Tribunal rightly held that no fault could be found with the act of the respondent authority since there was a major penalty and on clarification of departmental proceedings no mistake was made in treating the period from 11th October, 2003 to 4th January, 2005 as the days not spent on duty. Specific purpose may lead the authority to decide otherwise and it is its discretion, however, except this limited scope, it is required to follow the rules. In absence of existence of any specific purpose, if the said period is not treated as the days spent on duty, no fault can be found. 10. Specific purpose may lead the authority to decide otherwise and it is its discretion, however, except this limited scope, it is required to follow the rules. In absence of existence of any specific purpose, if the said period is not treated as the days spent on duty, no fault can be found. 10. The order impugned being in accordance with the rules which provides for not treating the period of suspension as on duty, if the major penalty is awarded, no indulgence is required. This Court in exercise of powers under Article 226 of the Constitution of India is not sitting in a appeal. Even a different interpretation of the very set of facts would not warrant any indulgence on the part of this Court, unless it finds that the authority concerned has not acted within its bounds. It is a trite law which requires no further dilation. 11. While parting, the emphasis on the part of the learned advocate of not having been issued show cause notice as is required under the rule before deciding this aspect of treating the period of suspension on duty or not, the Court noticed that before authorities, sufficient opportunities have been made available to the petitioner. Even in the order impugned there is a categorical finding that no procedural lapse has been subjected before it. Even otherwise, the sole object of issuance of notice was to avail the best of the opportunities which, in our opinion, has been granted at every stage. Therefore, on that count also, there is no requirement for this Court to intervene. 12. Resultantly, the present petition stands dismissed in limine.