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Satya NaraIn Lal Vs. Divisional Superintendent, Northern Railway and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1970)ILLJ381All
AppellantSatya NaraIn Lal
RespondentDivisional Superintendent, Northern Railway and anr.
Excerpt:
- - there can be little doubt that the jurisdiction conferred on the authority by proviso 2 to section 15(2) of the act clearly shows that if the authority is satisfied that there was sufficient cause for the delay, the decision of the authority in such a discretionary matter could not have been questioned by the appellant before the high court in its revisional jurisdiction. 6): the order of suspension made against the appellant was clearly one made pending an inquiry. that clearly was the position between the government of the, united provinces and the appellant......274. the facts of that case were similar to the one in question. pushkar datt was dismissed from railway service 23 december 1917. he then challenged the validity of his dismissal by civil suit, which was decreed on 31 march 1951, declaring that his dimissal was illegal. on appeal by the divisional superitendent;, the said decree was set aside on 14 august 19b2 with the result that the employees' suit stood dismissal. pushkar datt then went up in second appeal to the high court, which was allowed, so that the decree passed by the trial court, in his favour was, restored on 9 january 1962. on 7 july 1962. pushkar datt filed an application under section 15 of the payment of wages act claiming past wages due to him from 24 december 1947 to 6 july 1962 regarding limitation, the employee's.....
Judgment:

Gyanendra Kumar, J.

1. This revision has been referred to a Division Bench toy the order of Verma, J., dated 4 November 1968, on account of difference of opinion between two single Judge decisions of this Court, which will be adverted to later on.

2. The facts giving rise to the revision are that in 1969, the applicant, Satya Narain Lal, was working as assistant station-master, West Cabin Chheoki, on the Northern Railway. On 2 August 1959, a train collision took place at West Cabin Chekki, with the result that the applicant was suspended that very day (2 August 1959) and, after enquiry, was removed from service on 22 April 1961. His departmental appeal was dismissed on 3 February 1962, whereafter he filed Suit No. 36 of 1962 in the Court of the Civil Judge, Allahabad, for a declaration that his dismissal was illegal and that he continued to be in service By his judgment and decree dated 7 November 1963, the Civil Judge decreed the suit in these terms:

The suit is decreed and it is hereby declared that the order of removal of plaintiff from service by the order of defendant 2 with effect from 22 April 1961 is invalid and illegal and the plaintiff 1b still continuing in service.

3. After obtaining the above declaratory decree from the Court of the Civil Judge Allahabad, the application sported for duty and made various application to the rail way authorities concerned from 9 November 1963 to 13 January 1964 praying for his posting and payment of the balance of his accumulated salary, after adjustment of the subsistence allowance already received by him, but there was no response from the railway authorities..

4. On 16 April 1964, the revisionist moved an application under Section 15 of the Payment of Wages Act claiming Rs. 11,723.46 on account of past wages, after deducting the amount of subsistence allowance already received by him, for the period 2 August 1959 to 15 April 1964. Ha also claimed a sum of Rs. 1,17,234.60 by way of compensation, being ten times the amount of delayed wages. In his aforesaid application under Section 15 of the. Payment, of Wages Acts the revisionist had also prayed for condolation of delay, if any. The railway administration filed a written statement on 3 July 1964 and, inter ulia, challenged the maintainability ability of the application on the ground of limitation.

5. The City Magistrate, Allahabad, in his capacity as the authority under the Payment of Wages Act, gave his award on 13 July 1965, treating the application as within time and granting a sum of Rs. 11,723.48 by way of delayed wages and Rs. 10 as compensation..

6. During the pendency of the above proceedings under the Payment of wages Act, the applicant was again suspended retrospectively with effect from 22 April 1961, the date of his original removal from service and after certain enquiries, he was dismissed from service on 25 December 1964. Thereafter the applicant filed a writ petition in the High Court which was dismissed on the ground that a suit was the proper remedy. Thereafter. the revisionist served a notice under Section 80 of the Code of Civil Procedure on the railway authorities, but has not yet filed the contemplated suit.

7. Against the aforesaid award of the authority dated 13 July 1965, the Divisional Superintendent and the Divisional Personnel Offices, Northern Railway, Allahabad, filed an appeal before the District Judge who allowed who allowed the same and set aside the award by his judgment and order dated 25 May 1966; hence, this revision by the employee, Satya Narain, applicant.

8. It may be stated at the outset that in Union of India v. Babu Ram 1961-II L.L J. 708, Dhavan, J., had held that where a claimant asks for his wages for wrongful dismissal, the authority under the Payment of Wages Act could decide the legality of the order purporting to remove the claimant from service is order to determine whether any wages are due and therefore as employee could claim his wages under Section 15(2) of the Payment of Wages Act on the ground that he continued to be in service of the employers, in spite of the alleged order of his removal, without obtaining a decree from the civil Court declaring the order of removal to be illegal. In this view of the matter the claim must be filed within six months from the date on which the payment of wages was due to be made. On the other hand, S.N. Singh, J., in Satya Narain Lal Bhat v. Divisional Superintendent, Northern Railway, Allahabad [Civil Revision No. 91 of 1967] took a contrary view in his judgment dated 5 September 1967 to the effect that the cause of action for relief under Section 15 of the Payment; of Wages Act accrued when the order of dismissal of an employee was set aside by a Court and therefore he could file an application under Section 15 within six months of the civil Court decree The controversy appears to have been set at rest by the decision of the Supreme Court in Divisional Superintendent, Allahabad v. Pushkar Datt Sharma 1985 A.W.R 274. The facts of that case were similar to the one in question. Pushkar Datt was dismissed from railway service 23 December 1917. He then challenged the validity of his dismissal by civil suit, which was decreed on 31 March 1951, declaring that his dimissal was illegal. On appeal by the Divisional Superitendent;, the said decree was set aside on 14 August 19B2 with the result that the employees' suit stood dismissal. Pushkar Datt then went up in second appeal to the High Court, which was allowed, so that the decree passed by the trial Court, in his favour was, restored on 9 January 1962. On 7 July 1962. Pushkar Datt filed an application under Section 15 of the Payment of Wages Act claiming past wages due to him from 24 December 1947 to 6 July 1962 Regarding limitation, the employee's case was that his dismissal had been finally pronounced by the High Court to be illegal and void on 9 January 1962, which gave rise to his claim for wages over the period from the date of his dismissal until the date of his application under the Payment of Wages Act.The authority condoned the delay under Section 15(2) of the Payment of Wages Act. Gajendragadkar, C.J. delivering the Judgment of the Supreme Court, expressed himself as under:

There can be little doubt that the jurisdiction conferred on the authority by proviso 2 to Section 15(2) of the Act clearly shows that if the authority is satisfied that there was sufficient cause for the delay, the decision of the authority in such a discretionary matter could not have been questioned by the appellant before the High Court in its revisional jurisdiction.... It may be that a claim for payment of wages had to be made within six month from the date when the wages fell due and in that sense, an application under Section 15(2) must be made within six month of the accrual of the cause of action from month to month; but in the present case when the appellate Court dismissed the respondent's suit on 14 August 1952, it was not open to the respondent to apply under Section 15(2), because the appellate Court had held that his dismissal was justified and valid. It was only when the second appeal was allowed on 9 January 1962, that the respondent had a cause of action.... It is plainly the duty of the appellant to pay the respondent all wages due to him.

9. In this instant case, the suit of the claimant was decreed by the Civil Judge, Allahabad, on 7 November 1963 declaring that the order of his removal was illegal. It was only then that the employee ' had a cause of action ' to file an application under Section 15 of the Payment of Wages Act which was duly lodged on 16 April 1964 within six months of the aforesaid decree granted by the Civil Judge. That being so, the view taken by the learned Additional Judge in his appellate judgment dated 25 May 1966 is wholly erroneous and illegal when he held that

the petition accept for six months prior to 15 April 1964 is also not within time.

10. Coming to the merits of the case, Sri Gur Pratap Singh, learned Counsel for the railway administration ( opposite party ), has raised a preliminary objection saying that during the pendency of the proceedings under the Payment of Wages Act, the applicant was again suspended on 1 July 1964, with effect from 22 April 1961, and was removed from service for the second time on 25 December 1964; as such this court is not competent to adjudicate the claim regarding the applicants wages for the period 22 April 1961 to 15 April 1964 (i.e., from the date of his first removal from service up to a day immediately proceeding the presentation of the petition fur payment of wages). In view of the above objection raised on behalf of the railway administration Sri N. Sahai, appearing for the applicant, stated on 7 January 1969 that the question of the applicant's wages for the period 22 April 1961 to 15 April 1964 may be left open and the same be not adjudicated upon by us in these proceedings, inasmuch as the applicant will take such legal action with regard thereto as he may be advised. In this revision, therefore, we shall refrain from adjudicating upon the Question of the applicant's wages for the period 22 April 1961 to 15 April 1964 and shall confine our finding to the applicant's claim for past wages for the period 2 August 1959 to 21 April 1961 (i.e., from the date of his original suspension up to a date immediately before the order of his first removal from service).

11. In this connexion, reference may be made to the provisions of Rule 1706 of the Conduct and Discipline Rules for Railway Servants, relating to suspension, the relevant portion whereof runs as under:

1706. (1) a railway servant may be placed under suspension-

(a) where a disciplinary proceeding against all him is contemplated or is pending ; or

(b) * * *(2) * * *(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant under suspension is set aside in appeal or on review Under these rules and the case is remitted for further inquiry or action ...the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a railway servant is set aside or declared or rendered void in consequence of or by a decision of a Court of law and the disciplinary authority on consideration of the circumstances of the case, decides to hold a further inquiry against him in respect of the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, it can do so where the Court has expressed doubts regarding their correctness or in respect of allegations which are proved bat do not constitute criminal offence, or any fresh allegations not examined by the Court and the railway servant shall be deemed to have been placed under suspension by the authority ...from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

12. The learned Counsel for the applicant has, in the first place, argued that the original order of suspension dated 2 August 1959 had merged in the order of dismissal dated 22 April 1961 and once the order of dismissal was set aside by the civil Court on 7 November 1963 and it was held that the employee continued in service, the order of suspension would be deemed to have lapsed and would stand automatically vacated because the order of dismissal replaced the order of suspension, which then ceased to have an independent existence. He further contends that the subsequent declaration by a civil Court that the order of dismissal was illegal, could not revive the order of suspension which did not exist any more. And inasmuch as the applicant could no longer be deemed to be under suspension from 2 August 1959 to 21 April 1961, he would be entitled to his full wages for that period. In support of his contention, Sri S.N. Banal places reliance on the following observations of the Supreme Court in Om Prakash Gupta v. State of Uttar Pradesh 1956-I L.L.J. 1. (at p. 6):. The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an inquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant. With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the, United Provinces and the appellant. The subsequent declaration by a civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist....

It is true that the order of suspension culminates in the order of dismissal and gets merged with it, if the latter order remains valid and effective. But the converse is not true, viz., if the order of dismissal is set aside and the employee is declared to have continued in service, it does not follow that the order of suspension also disappears automatically, because even when an employee remains under suspension, he continues in service, unless and until the order of suspension has also been specifically get aside by the higher domestic tribunal or a Court of law, particularly when even after the order of dismissal is set aside by a Court or a higher departmental authority, a further inquiry is launched against him and he is again placed under suspension.

13. Om Prakash Gupta case 1956-I L.L.J. 1 (vide supra) is plainly distinguishable from the Present case. There the employee had given up his claim for arrears of salary, less subsistence allowance paid to him, from the date of the order of suspension until the date of the order of dismissal. be their lordships of the Supreme Court were required to give their decision regarding the arrears of salary for the period of suspention. Moreover no further departmental inquiry was made against Om Prakash Gupta, after his order of dismissal had been set aside by the civil Court nor was he placed under suspension again pending any fresh departmental inquiry. The above case of Om Prakash Gupta 1956-I L.L J. 1 was explained by a Division Bench of the Calcutta High Court in Profulla Mohan Mukheriee v. Inspector-General of Police and Ors. 1958-II L.L.J. 705. Chakravarti, C.J. pointed out (at p. 716):.It appears, however, that before the Supreme Court the civil servant concerned gave up his claim with respect to the period between the date of the order of suspension end the date of the order of (dismissal and, consequently, the Court was not called upon to make any pronouncement as regards his claim to his salary for that period. The claim made for the subsequent period was allowed in the view that upon an order for dismissal being set aside as illegal an order for suspension previously made, pending the enquiry, could not survive.

14. Reverting to Clause (3) of Rule 1706 of the Conduct and Discipline Rules for Railway Servants, we find that where a penalty of dismissal or removal imposed upon a railway servant under suspension is set aside in departmental appeal and the case is remitted for further inquiry,

the order of suspension shall be deemed to have continued in force on and from the date of the original order of dismissal or removal ...and shall remain in force until further orders.

In such a case, the original order of suspension shall be deemed to have remained effective both on and from the date of the first order of dismissal till the final order is passed in a fresh inquiry. In other words, the order of suspension continued in force right from the date when it was originally passed up to the date of the final order made on further inquiry. Such is not the position in a case governed by Sub-rule (4), where a penalty of dismissal or removal imposed upon a railway servant, not under suspension, is declared void in consequence of or by a decision of a Court of law, but; the disciplinary authority, on consideration of the circumstances of the case, decides to hold a further inquiry against him, the railway servant shall be deemed to have been placed under suspension by the authority only

from the date of the original order of dismissal or removal ...and shall continue to remain under suspension until further orders.

15. It is noteworthy that Sub-rule (4) does not contemplate a case where a railway servant has already been placed under suspension culminating in his dismissal or removal and the order of his dismissal or removal is set aside by a Court of law, but the railway authority still decides to hold a further inquiry against him, In such a case the railway servant will automatically be deemed to have been placed under suspension by the authority concerned only from the date of the original order of dismissal or removal, which has since been set aside by a Court of law. To put it differently, Sub-rule (4) does not relate to a case where a railway servant was first placed under suspension and was then dismissed or removed from service, after departmental Inquiry and the order of his dismissal or removal was later on set aside by a Court of law, and thereafter the railway authority again considered it expedient to launch another inquiry against him. It is obvious that in such a case the second order of suspension should be deemed to run retrospectively from the date of the original order of suspension, because the first order of suspension had continued up to the date of the order of dismissal or removal, and, under Sub-rule (4), the second suspension shall be 'deemed' to commence from the date of the original order of dismissal or removal.

16. An almost identical matter relating to the interpretation of Rules 12(3) and 12(4) of the Central Civil Service (Classification, Control and Appeal) Rules, 1957 [respectively corresponding to Sub-rules (3) and (4) of Rule 1706 in question] came up for consideration before the Supreme Court in Khem Chand v. Union of India and Ors. 1963-I L.L.J. 665. In p-670 of this ruling their lordships observed as under:.Where the appellate authority after setting aside a penalty of dismissal, or removal ...makes an order ...remitting the case to the authority which Imposed the penalty, for further inquiry, Rule 12(3) will coma into operation and so the order of suspension which, In almost all cases, is likely to be made where a disciplinary proceeding is contemplated or is pending shall be deemed to have continued in force on and from the date of the original order of dismissal and shall remain in forces until further orders. There is, therefore, no difference worth the name between the effect of Rule 12(4) on a Government servant, the penalty of dismissal, or removal ...on whom is set aside by a decision of a Court of law and a further inquiry is decided upon and the effect of Rule 12(4) on another Government servant a similar penalty on whom is set aside in appeal or on review by the departmental authority and a farther Inquiry is decided upon. In both cases the Government servant will be deemed to be under suspension from the date of the original order of dismissal, except that where in a departmental inquiry a Government servant was not placed under suspension prior to the date when the penalty was Imposed, this result will not follow, as Rule 12.(3) would not then have any operation, it is entirely unlikely however that ordinarily a Government servant will not be placed under suspension prior to the date of his dismissal....

17. From the above enunciation of law it will follow that if a railway servant has already been placed under suspension before or during departmental inquiry, culminating in his dismissal and his dismissal has been set aside by a Court of law and a fresh inquiry is then launched by the railway authority, his automatic suspension contemplated in Rule 1706(4) would relate back to the date of his original order of suspension and would continue in force till the Goal decision of the second inquiry. That being so, the applicant, in the instant case, will be deemed to have remained under suspension right from the date of his original order of suspension, i.e., 2 August 1959 up to 21 April 1961, i.e., a date immediately preceding the order of his first removal or dismissal from service. It may be mentioned that upon second inquiry the applicant was finally removed from service on 25 December 1964. But in terms of the statement made by the learned Counsel for the applicant on 7 January 1969, we are only concerned with the past wages of the applicant from 2 August 1959 to 21 April 1961. It is conceded by Sri S.N. Sahai that the applicant has already received the prescribed subsistence allowance for the said period. In our judgment, therefore, the applicant is not entitled to any additional back-wages for the period of suspension in question.

18. Accordingly, we dismiss the revision, though on grounds different from those which had weighed with the learned Additional District Judge. In the circumstances of the case, we make no order as to costs.


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