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The General Manager, Northern Railway Vs. Swaroopraj and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 90 of 1957 and Civil Misc. Revn. No. 91 of 1957
Judge
Reported inAIR1959Raj55
ActsRailway Establishment Code - Rules 2043 and 2044; Payment of Wages Act, 1936 - Sections 7(2) and 15
AppellantThe General Manager, Northern Railway
RespondentSwaroopraj and ors.
Appellant Advocate Magraj, Adv.
Respondent Advocate Zorawarmal, Adv. for Non-petitioner No. 1
DispositionRevision allowed
Cases ReferredUnion of India v. Kundan Lal
Excerpt:
.....the district judge, which failed. it was held that their re-instatement clearly implied that the authority deducted their wages wholly or in part for the period between dismissal and re-instatement, and the case was covered by the provisions of the act. we do not think it necessary, however, for present purposes to decide whether the view taken by the punjab high court is the better of the two, for we are of opinion that these cases can be disposed of on the other points arising in them. therefore, where the prosecution is for an offence which is connected with official duties, there seems to be nothing in these instructions which debar the application of rule 2044. but we would like to leave this question open in the present case to be decided finally in a proper case and would like..........allowances other than any subsistence allowance that may be granted on the principles laid down in rule 2043. paragraph 1 of section 111 deals with the period where the employee is under arrest, while paragraph 2 deals with the period where the employee is actually under arrest, but there is a criminal charge pending against him.under paragraph 2 also it is provided that thepay and allowances shall be governed by the sameprovisions which are contained in paragraph 1. it is,therefore, clear that where an employee is suspended and the suspension is followed either by departmental proceedings or by prosecution in court, rule 2043 applies so far as pay and allowances for the period of suspension are concerned.10. then comes rule 2044. that rule lays down what is to happen when a railway.....
Judgment:

K.N. Wanchoo, C.J.

1. These are two connected revisions arising out of proceedings under the Payment of Wages Act (hereinafter called the Act). They were laid before a learned Single Judge of this Court and he has referred them to a Divisional Bench because of the far reaching importance of the points of law arising in them.

2. Before we deal with the points of law raised at the Bar, we should like to set down briefly the facts. One Swaroopraj (Civil Revision No. 90) was an employee of the Northern Railway and was posted as Assistant Station Master at Railway Station Mundwa. He was suspended on charges of corruption on 29-1-1953. Later he was prosecuted in Court and was acquitted by the Special Judge on 30-4-1955. Thereafter he was reinstated on 9-5-1955.

He claimed the full salary for the period from 29-1-1953 to 9-5-1955 and also other benefits. This claim was rejected by the Divisional Personnel Officer, Jodhpur on the ground that Swaroopraj had not beenhonourably acquitted. Thereupon he made an application under Section 15 of the Act before the authority appointed to hear such applications. The application was opposed on behalf of the railway. The Authority, however, allowed the application in part and ordered that a sum of Rs. 1,605/- be paid to Swaroopraj as wages. There was then an appeal by the railway to the District Judge which failed. Hence the revision.

3. The facts of the other case (Civil Revision No. 91) are similar. This case relates to Daulal who was a peon in the Northern Railway Workshop at Jodhpur. The charge against him was that he was caught stealing some paper belonging to the railway on 4-10-1951. He was thereupon prosecuted under Section 381 of the Indian Penal Code and convicted by a Magistrate of the First Class. On appeal, however, he was acquitted by the Sessions Judge on 3-6-1955. After his acquittal, he was reinstated with effect from 13-2-1956 by the Works Manager.

That officer, however, ordered that the period of suspension would not be treated as spent on duty, with the result that Daulal was only allowed suspension allowance for the whole period up to 13-2-1956. He, therefore, made an application under Section 15 of the Act. This application was opposed by the Railway, but the Authority under the Act allowed it in part and ordered a sum of Rs. 1,072/- to be paid to Daulal. There was an appeal to the District Judge, which failed. Consequently, this revision.

4. It will be seen from a perusal of these facts that the points involved in the two revisions are exactly the same. The contention of the Railway before the Authority under the Act was that it had no jurisdiction to near these applications. The case was put before the Authority in this manner. It was said that, in the first place, as the two employees had been suspended and had been paid wages for the suspension period in accordance with Rule 2043 of the Railway Establishment Code, there was no question of any deduction from their wages which could be agitated before the Authority.

In the alternative, it was urged that even if it be held that there was deduction in wages in these circumstances, the Authority had no jurisdiction to pass any orders on these applications as orders had been passed in the two cases under Rule 2044 and those orders were not open to review by the Authority under the Act.

5. It was, on the other hand, contended on behalf of Swaroopraj and Daulal that Rule 2044 did not apply to their cases and that it was Section 111 of Appendix XXXI which applied. It was also urged that in view of the provisions contained in the said section, the Divisional Personnel Officer or the Works Manager had no option but to allow full wages to Swaroopraj and Daulal after their acquittal by the Court.

It was also urged that in the case of Swaroopraj, the Divisional Personnel Officer did not pass any order as to his wages on 9-5-1955 when the order of reinstatement was passed. It was, therefore, not open to him later on to pass any order whether under Rule 2044 or under Section 111 of Appendix XXXI.

6. We shall first consider the contention on behalf of the railway that the Authority under the Act had no jurisdiction in this matter as there was no deduction from wages with which the Authority could deal under Section 15 of the Act. Reliance in this connection was placed on Divisional Superintendent, Northern Rly., Delhi Division v. Mukandlal, (S) AIR 1957 Punj 130 (FB).

On the other hand, learned counsel for Daulal and Swaroopraj has relied on Anant Ram v. District Magistrate, Jodhpur, 1956 Raj LW 288: ((S) AIR 1956 Raj 145), to which one of us was a party. The Punjab case was also with respect to wages to bepaid to a railway servant during the period of suspension, though in that case it does not appear that there was reinstatement afterwards as happened in the cases before us.

The view taken by the Punjab High Court was that when the employee goes to the Authority under the Act, he can only recover the subsistence allowance because that is what falls under the definition of 'wages'. The reason given was that the whole contract covered suspension and subsistence allowance payable to the employee during suspension and the employee must enforce the whole contract and not a part of the contract.

7. In Anantram's case ((S) AIR 1956 Raj 145) the facts were that the employees were dismissed on one day and they were reinstated on a later day. They were not paid their full wages between the period of dismissal and reinstatement and made a claim before the Authority under the Act for wages for this period. It was held that their re-instatement clearly implied that the authority deducted their wages wholly or in part for the period between dismissal and re-instatement, and the case was covered by the provisions of the Act.

8. It does seem to us that there is a difference between the view taken by this Court in Anantram's case ((S) AIR 1956 Raj 145) and the view taken by the Punjab High Court in the case cited above. We do not think it necessary, however, for present purposes to decide whether the view taken by the Punjab High Court is the better of the two, for we are of opinion that these cases can be disposed of on the other points arising in them. All that we need say is that if it becomes necessary to review the view expressed on this point in Anantram's case, ((S) AIR 1956 Raj 145), a Full Bench will have to be constituted to consider the point.

For the present, we will proceed on the assumption that the view taken in Anantram's case, ((S) AIR 1956 Raj 145), should be followed in this Court. We, therefore, proceed to consider the alternative argument raised on behalf of the Railway.

9. The argument is that even if there are cased of deduction or wages inasmuch as Daulal and Swaroopraj were not paid full wages for the period of their suspension and before their reinstatement, the cases are covered by Rule 2044 of the Railway Establishment Code and as there is an order of a competent authority as required by that rule against these two persons, it was not open to the Authority under the Act to review that order.

The first question that arises, therefore, is whether cases of this kind where departmental proceedings were not taken and the charge against the employees were, preferred in the criminal Court, Rules 2043 and 2044 will apply. In this connection, it is enough to say that so far as Rule 2043 is concerned, it applies in both cases. In the case of departmental proceedings, it will apply by its own force and in those cases where the case is sent to Court, it will apply by virtue of Section II of Appendix XXXI.

It is laid down there that a railway servant against whom criminal proceedings have been taken on a criminal charge should be considered under suspension and should not be allowed to draw any pay and allowances other than any subsistence allowance that may be granted on the principles laid down in Rule 2043. Paragraph 1 of Section 111 deals with the period where the employee is under arrest, while paragraph 2 deals with the period where the employee is actually under arrest, but there is a criminal charge pending against him.

Under paragraph 2 also it is provided that thepay and allowances shall be governed by the sameprovisions which are contained in paragraph 1. It is,therefore, clear that where an employee is suspended and the suspension is followed either by departmental proceedings or by prosecution in Court, Rule 2043 applies so far as pay and allowances for the period of suspension are concerned.

10. Then comes Rule 2044. That rule lays down what is to happen when a railway servant, who has been dismissed, removed or suspended, is re-instated. The rule itself says nothing as to whether it applies to re-instatement after departmental proceedings only or also to reinstatement after a criminal prosecution resulting in an acquittal. But certain instructions were issued by the Government of India with the concurrence of the Auditor General and it was said in those instructions that Rule 2044 applied to departmental punishment and not to cases of punishment by a Court of law for an alleged offence which has nothing to do with his official duties,

These instructions, however, only apply to offences which have nothing to do with his official duties. Therefore, where the prosecution is for an offence which is connected with official duties, there seems to be nothing in these instructions which debar the application of Rule 2044. But we would like to leave this question open in the present case to be decided finally in a proper case and would like to base our judgment on the provisions contained in Section 111, Appendix XXXI which undoubtedly applies to this case.

11., Now the relevant portion of Section 111, paragraph 1 with which we are concerned is this. After speaking of a railway servant against whom criminal proceedings on a criminal charge are taken and after providing for subsistence allowance to him under Rule 2043, Section 11l, paragraph 1, which applies also to paragraph 2 goes on as follows :

'An adjustment of his allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame.'

12. It is obvious that this provision gives an option to the competent railway officer to deal with each case on the merits according to the circumstances except that it lays down that the full salary or allowance should be given in a case where the railway servant is acquitted of blame. The question then arises as to what is the meaning of the words 'acquitted of blame'.

We may point out that in Rule 2044 which also provides for payment of full salary and allowances, the words are that if the competent authority should be of opinion that 'the railway servant has been fully exonerated', the railway servant shall be given the full pay and allowances. In Section 111, paragraph I, however, the words 'fully exonerated' have not been used. Instead, we find that the words used are 'acquitted of blame.'

What we have to see is whether these words, namely 'acquitted of blame' mean something really different from the words 'fully exonerated' which appear in Rule 2044 which provides that in case of full exoneration, a railway servant must be paid his full pay and allowances. Now the words 'acquitted of blame' cannot mean the same thing as the word'acquitted.' The officer who has to make the adjustment under this paragraph has to satisfy him that the employee has been 'acquitted of blame' and not merely 'acquitted' by the Court

A mere 'acquittal' would not, in our opinion, entitle a railway servant to full salary and allowances for the suspension period. He must have been 'ad-emitted of blame' by the Court before he can askthe railway to pay him full salary and allowances forthe period of suspension. Now what does this expression 'acquitted of blame' mean in the circumstances with which we are dealing? Does it merely mean, as it has been contended on behalf of Daulal and Swaroopraj, that there should have been a full trial after evidence and acquittal and if there is such an acquittal, the employee is acquitted of blame.

It is also urged that it is only where the employee is acquitted on some technical ground that it may be said that he has not been 'acquitted of blame.' We are of opinion that this is not the meaning to be attached to these words in paragraph 1 of Section III. What we are going to say will be clear from an example which follows. Take the case where the Court while acquitting the man says that there is the gravest suspicion of dishonesty against the employee concerned, but it is of opinion that the evidence is not of that standard which would satisfy the conscience of a criminal Court for a conviction.

It, therefore, gives the benefit of the doubt to the accused and orders his acquittal. In those circumstances, can it be ever said that the Court acquitted the man of blame? It seems to us, therefore, that when the words 'acquitted of blame' were used in paragraph 1 of Section 111, the intention was that if the Court found that there was no blame attaching to the accused before it, the authority passing the order under this provision would hold that the man was 'acquitted of blame' and was, therefore, entitled to full salary and allowances.

But if the Court has not acquitted the man of blame and has, for example, given him the benefit of the doubt, it would be possible for the officer who has to decide questions of adjustment of wages to consider the judgment of the Court and to come to the conclusion, if necessary, that the employee has not been 'acquitted of blame' by the Court. If the officer comes to that conclusion, he is not bound to allow full salary and allowances to the employee and can pass such order as to salary and allowances as may be just according to the circumstances of the case.

We have, therefore, no hesitation in coming to the conclusion that when the words 'acquitted of blame' were used in paragraph 1 of Section 111 of Appendix XXXI, the intention was not anything different from 'full exoneration' which is mentioned in Rule 2044 of the Railway Establishment Code. In this view of the meaning of these words, we have now to judge the action taken in these two cases.

13. It is not in dispute that in neither of the judgments of acquittal has it been said by the Court that the accused is being honourably acquitted as the case against him is false. Three contingencies can always arise in such cases of acquittal by Courts. In the first place, the Court may say that it is acquitting the man honourably having found that the case against him is false.

In such a case the man is acquitted of blame by the Court itself and it is the duty of the officer makiny adjustment to allow him the full amount of his salary and allowances. Secondly, there may be a case where the Court says that it is only giving the benefit of the doubt to the accused. In such a case when the officer, who has to make adjustment, conies to the conclusion that the man has not been acquitted of blame his view can admit of no doubt. There may, however be a third case in which the Court may neither say that the case against him is false, nor does it say that the man has been acquitted on the ground of benefit of the doubt.

In such a case again it is for the officer making the adjustment to read the judgment and come to his own conclusion whether it is a case of honourable acquittal or acquittal of blame or not. If he comesto the conclusion that it is a case of acquittal of blame, he must allow the full salary and allowances. 'If on the other hand, he conies to the conclusion that it is not a case of acquittal of blame, he has discretion to pass such orders as seem to him to be just in the circumstances of the case.

14. In the present case, the Court did not record honourable acquittal in either of these cases. In these circumstances, it was open to the officer who had to make adjustment of wages to come to his own conclusion. He came to a certain conclusion and passed an order to the effect that no further amount would be paid to these two persons besides what had been allowed already under Rule 2043.

That order having been made under paragraph 1 of Section 111 of Appendix XXXI by a competent officer, the question arises whether it was open to the Authority under the Act to go against that order. We are of opinion that it was not open to the Authority under the Act to go against that order. We may in this connection refer to Anantram's case, ((S) AIR 1956 Raj 145), where it was held that if there is an order under E. 2044 (and on the same analogy under Section 111, paragraph 1 of Appendix XXX) which directs either that the wages for this period would not be paid, or only a certain portion of the wages would be paid, that order is an order of the competent authority directing deductions to be made from the wages and would be in accordance with Section 7(2)(h) of the Act.

Once such order exists, it is not open to the Authority under the Act to go against that order. We 'may in this connection refer to Union of India v. Kundan Lal, (S) AIR 1957 All 363, where it was held that the authority under the Payment of Wages Act had no right to set aside an order which was covered by Clause (h) of Section 7(2)' provided the rules applicabie to the case had been followed. The order contemplated in Clause (h) is an order by a Court or other authority, and the mere passing of an order of deduction by a Court or other authority is sufficient for enabling the employer to make the deduction. We respectfully agree with this view.

15. So far as Daulal's case is concerned, the order was passed by the Works Manager and it comes properly under Section 111, paragraph 1 of Appendix XXXI, This order was passed at the same time as the order of reinstatement and the Authority under the Act could not go against that order.

16. In the case of Swaroopraj, the order as to salary and allowances was not passed at the same time as the order of reinstatement and it is urged that once the order of reinstatement was passed,, it was not open to the officer to pass another order with respect to salary and allowances. It is enough to say that there is no force in this contention. There is nothing in Section 111, paragraph 1 of Appendix XXXI which says that the order as to salary and allowances must be passed at the time of reinstatement and that if it is not passed simultaneously with the order of reinstatement, it cannot be passed afterwards.

Nor do we see any just reason why if, for example, the order was not passed by oversight at the time the reinstatement was made, it should not be passed later even on the application of the employee for payment of full wages. We are therefore of opinion that in the case of Swaroopraj also there is an order of a competent officer under Section 111, paragraph 1 of Appendix XXXI and it was not open to the Authority under the Act to go against that order,

17. We, therefore, allow the revisions, set asidethe order of the Authority under the Payment ofWages Act and dismiss the applications of Swaroopraj and Daulal. In the circumstances of the case, weorder parties to bear their own costs.


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