1. This revision arises from a claim preferred under Section 15 of the Payment of Wages Act. The authority under the Payment of Wages Act dismissed the claim. The appellate authority reversed that order and directed the revision petitioner to pay Rs. 7,570.62 to the respondent-claimant.
2. Kartar Singh, respondent, was a head train examiner, South-eastern Railway, Tatanagar. There he was allotted residential quarters. When he was transferred from Tatanagar to Bilaspur, he was asked to vacate the railway quarters in his occupation at Tatanagar, but he did not vacate them. He was allotted another accommodation at Bilaspur. Even then he did not vacate the Tatanagar quarters. By an order of the District Mechanical Engineer, Bilaspur, dated 9 January 1958 he was placed under suspension and an enquiry was instituted against him.
3. It appears that the enquiry took a chequered course. Eventually, by an order dated 15 June 1959 passed by the General Manager, the enquiry was dropped, and he was reinstated. As regards the period of suspension, the Chief Operating Superintendent decided that it should be treated as leave without allowance. Aggrieved by this order and calling it an illegal deduction, he made the claim under the Payment of Wages Act.
4. During the period of suspension (from 9 January 1958 to 14 June 1959) he was paid Rs. 77 per month only instead of his salary of Rs. 215 per month (pay Rs. 155 ; dearness allowance Rs. 55; additional dearness allowance Rs. 5).
5. The first question for determination is whether the Chief Operating Superintendent was competent to pass an order to treat the period of suspension as leave without allowance. From the provisions placed before me by Sri Mukherjee, and in the absence of anything to the contrary being placed by Sri Rao, in my opinion the question must be answered in the affirmative. The relevant rule is 1706 of the Discipline and Appeal Rules, South-eastern Railway. The subsidiary instruction 4 under the aforesaid rule reads thus:
4. Reinstatement of staff under suspension.--The suspending authorities have fall powers to revoke the orders of suspension whenever they consider it necessary. Normally, at the time of initial suspension of an employee, the suspending authorities have in their possession insufficient data relating to the charges against an employee. It is possible that in course of subsequent proceedings, further evidence is collected or fresh facts come to light which may enable the suspending authorities to form an opinion as to whether or not the case is likely to end ultimately in removal/dismissal of the employee. In cases in which the suspending authorities consider that the penalty to be imposed is not likely to be dismissal/removal, they should immediately revoke the order of suspension. The question of treatment of the period should, however, be decided after finalization of the disciplinary proceedings taken against thestaff.
[CPO's Es/44639, dated 29 December 1958, (Estt. Serial No. 342/58.)]
6. It is, therefore, clear that the suspending authority is also the authority competent to reinstate. The authorities competent to place a railway servant under suspension are described in Rule 1705:
The authorities who are competent to place a railway servant under suspension, and to impose penalties on him are specified inSuch. I, II and III appended to these rules.
7. It is common ground that under the schedule the Chief Operating Superintendent being the head of the department was an authority competent to place the non-applicant under suspension. He was, therefore, also competent to reinstate him.
8. Turning now to instruction 7 under Rule 1706, it is provided as follows:
2044-R.II- (1) When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the 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 his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
[Board's No. P (E) 62/SPN/(2)/l, dated 20 May 1963 (Eatt. Serial No. 196/63.)]
(2) Where the authority mentioned in Sub-rule (1) is of the opinion that the railway servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the railway servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or euspanded as the case may be.
(3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe....
(The rest of the rule is not material.)
9. From these provisions no other conclusion is possible than that the Chief Operating Superintendent was competent to make a specific order whether or not the period of suspension of the non-applicant would be treated as a period spent on duty. I shall have occasion to refer to Sub-rule (2) quoted above in connation with the next point.
10. From the facts already stated, and about which there is no controversy before me, it is quite clear that the enquiry instituted against the non-applicant was dropped under the orders of the General Manager without a finding being reached. Both sides have relied on the document marked Ex. A. 44 which contains the orders passed. The case having been placed before the General Manager, the foliowing decision was taken:
(a) The disciplinary proceeding against Kartar Singh should be dropped.
(b) Kartar Singh should be adviBed to vacate the railway quarters retained by him unauthorizedly at Tata by 30 September 1959, and to produce a clearance certificate to that effect.
(c) If he fails to vacate the said quarters by 30 September 1959, a fresh chargeeheet should be issued for disobedience of orders to vacate the railway quarters at Tata despite repeated instructions.
(d) Since Kartar Singh was once allotted a quarters at Bilaspur but refused to occupy the same, no out-of-turn allotment of quarters should now be made in his favour.
11. The present case has its own peculiarity. Since the General Manager did not await the culmination of the enquiry, it cannot be said whether the suspension was wholly justified or not. There is no specific rule for such a case. Where a servant is placed under suspension pending an enquiry, but the authorities withdraw the enquiry thereby depriving the servant of the opportunity to prove that the charge against him was wrong and that the suspension was wholly unjustified, the servant cannot be deprived of his full pay and allowances. In such a case it cannot be said that the servant was at fault. If that cannot be said of him, for what can he be deprived of his full pay and allowances ?
12. When Sub-rule (3) is read with sub rule (2) it seems to me clear that the former comes into play when the disciplinary proceeding or the case spoken of in Rule 1706 reaches a certain decision. In the absence of any specific rule for an abortive proceedings or enquiry, the servant cannot be denied his full pay and allowances, so that, in my opinion, the suspension in such a case must be placed under the category of 'wholly unjustified' within the meaning of Sub-rule (2)(supra). It may be mentioned that under the subsidiary instruction 2 below the same rule, i.e., Rule 1706, it is provided as follows:
In certain departmental cases, suspension of staff should not be resorted to. If an employee who has occupied railway quarters unauthorizedly and fails to vacate them when ordered to do so, should not be suspended although the offence (viz., disobedience of orders) committed by him, is such as would merit dismissal from service.
[CPO's No. Es/44639, dated 29 December 1958 (Estt. Serial No. 342/58.)]
Although this was introduced on 29 December 1958 durirg the pendency of the enquiry against the non-applicant, it Is not unlikely that the General Manager might have applied the game policy to the non-applicant's case. It is only plain that a servant is entitled to his full pay and allowances unless by way of penalty something is ordered to be deducted from them.
13. From all this, it must be held that the non-applicant was entitled to his full pay and allowances during the period of suspension.
14. The plaintiff-railway has filed a statement showing drawal particulars of subsistence allowance and the pay and other allowances which the non applicant would have drawn had he not been placed under suspension. The correctness of this statement is not questioned by Sri Rao, but I find that in this statement the difference has been calculated up to 13 May 1959, instead of up to 14 June 1959. An amount of Rs. 156.88 must be added to the amount calculated in the aforesaid statement, that is to say, Rs. 2,283.96. According to this calculation the difference payable to the non-applicant on account of pay and allowances comes to Rs. 2,440.84.
15. The only question which remains to be considered is whether the compensation has been allowed by the appellate authority arbitrarily or on any principle. The appellate authority has allowed an equal amount of compensation to the non applicant. It is urged by Sri Mukherjee that this is a case of delayed payment; while according to Sri Rao, It falls under the category of deducted wages. Under Section 7, Epln. II, Payment of Wages Act, 1936, any loss of wages on the ground of suspension cannot be deemed to be a deduction from wages. As regards ' delay' in payment, I think the claimant Is entitled to compensation by way of interest at 9 per cent per month (sic) progressive. According to Sri Mukherjee's calculations, it comes to Rs. 1,017.24 at 6 per cent. I would allow compensation so as to give the claimant interest at 9 per cent. The amount of compensation then will be Rs. 1,525.86. I see no justification in the order of the District Judge to award Rs. 3,785.31 as compensation.
16. The appeal is partly allowed. The order of the appellate authority is modified and the amount awarded to the respondent is reduced to Rs. 3,966 70. Parties shall bear their own costs.