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Works Manager, Northern Railway Workshop Vs. Mathuradas, Painter - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 361 of 1972
Judge
Reported in1973(6)WLN25
AppellantWorks Manager, Northern Railway Workshop
RespondentMathuradas, Painter
DispositionApplication allowed
Cases ReferredIn Hemant Kumar Bhattacherjee v. Union of India and Ors.
Excerpt:
.....by asst. works manager--held, works manager competent to revoke it and determine pay--payment of wages authority has no jurisdiction to go into legality of such order.;it now well settled that if the works manager was competent to pass the order which he did pass under rule 2044 of the indian railway establishment code, then the payment of wages authority cannot go behind it, even if it is illegal.;the assistant works manager having passed the order of suspension the work manager, who is a higher authority, was competent to pass the order of reinstatement. as has been mentioned above, it was the works manager who passed the order of reinstatement. he was, therefore, competent to pass the order determining the pay under rule 2044 of the indian railway establishment code.;the payment of..........of the district judge,, bikaner, dismissing his appeal against an order of the the payment of wages authority, passed on the application of mathuradas respondent.2. mathuradas was employed as a skilled painter in the railway workshop drawing a salary below rs. 280/-he was suspended by an order ex. n-1 dated 27-8-66 passed by the assistant works manager, the material portion of which runs as follows:whereas a disciplinary proceeding against shr mathuradas t, no. 4045, offg sk. painter is contemplated. now, therefore, the undersigned (the authority competent to placerailway servant under susoension in terms of the schedules i, ii and iii appended to the discipline and appeal rules in chapter xvii-b i; or any lower authority in exercise of the powers conferred by rule 1706 ri/ proviso.....
Judgment:

Jagat Narayan, C.J.

1. This is a revision application by the Works Manager, Northern Railway Workshop, Lalgarh, Bikaner, against an order of the District Judge,, Bikaner, dismissing his appeal against an order of the the Payment of Wages Authority, passed on the application of Mathuradas respondent.

2. Mathuradas was employed as a skilled painter in the Railway workshop drawing a salary below Rs. 280/-He was suspended by an order Ex. N-1 dated 27-8-66 passed by the Assistant Works Manager, the material portion of which runs as follows:

Whereas a disciplinary proceeding against Shr Mathuradas T, No. 4045, Offg Sk. painter is contemplated.

Now, therefore, the undersigned (the authority competent to placeRailway servant under susoension in terms of the Schedules I, II and III appended to the Discipline and Appeal Rules in Chapter XVII-B I; or any lower authority in exercise of the powers conferred by Rule 1706 RI/ Proviso to Rule 1706 (I) P.I. hereby place the said Shri Mathuradass, T.No. 4045,offg Sk. Painter under suspension with immediate effect w.e.f 27-8-66 F.N.

Sd V S. Rao

Asstt. Works Manager/BKN

3. The circumstances in which the order of suspension was made are as follows:

Serious misconduct inasmuch as you assaulted C/Man Shri U.C. Shukla T.No.2701 on 23/8/66 at 16-40 hrs, as a result of his lodging an official complaint against you for your having been detected sleeping on duty during shop working hours on 12/8/66 for which Memorandum No. 726 22S/C & N/99 dated 25/8/66 has already been issued separately.

4. The aforesaid Umesh Chand Shukla lodged a verbal report at 6.15 p.m. on 23/8/66 about the incident at Police Station, Nayashahar against Mathuradas The report was recorded and investigation was started as a result of which Mathuradas and one Bhaniram were challaned for beating Umesh Chand under Sections 332 and 323, Indian Penal Code, in the Court of the Magistrate. After trial, the Magistrate convicted Mathuradas for the offence under Section 323, Indian Penal Code. He acquitted him of the offence under Section 332, Indian Penal Code. Bhanidas was acquitted.

5. Mathuradas appealed against his conviction to the Sessions Judge who gave him the benefit of doubt and acquitted him of the offence under Section 323, Indian Penal Code, on 7/4/70 Mathuradas then applied for reinstatement and he was reinstated on 27/4/70 by order Ex. N--2 which runs as follows.

Shri Mathuradass, skilled painter T. No. 4045, who is under suspension from 27-81960 is put back on duty w.e.f 27-4-1970 FN.

Formal orders will follow.

Sd/ (Pramod Kumar)

Works Manager.

6. With regard to his pay during the period of suspension, the works Manager passed the following order:

Shri Mathuradas be put back to duty. He has been given benefit of doubt and acquitted by the learned Sessions Judge As he has not been acquitted honorably, his period of suspension will be treated as non duty and will remain as suspension period

7. On 6-10-70 Mathurades filed an application under Section 15(2) of the Payment of Wages Act before the Payment of Wages Authority, claiming a sum of Rs. 4,205.22 on the ground that unauthorised deduction was made from his wages during the period 27-8-66 to 26-4-70. He claimed full salary for the period.

8 The application was contested on behalf of the Works Manager. The basis of the claim under para 4 preferred by Mathuradas was that a false criminal case had been brought against him which had no connection with his duties and he was suspended on account of it from 27-8-66 but was acquitted by the Sessions Judge on appeal. The defence of the Works Manager was that the acquittal was not honorable but that only benefit of doubt was given to him and in view of the orders of the Works Manager he was not entitled to claim any amount under the Payment of Wages Act.

9. It is unnecessary to refer to the reasons given by the Payment of Wages Authority in its judgment. The reasons given by the learned Dist. Judge were that the order of suspension was not legal, that this order was not passed by a competent authority, that the Works Manager did not consider whether the suspension of the respondent was justified and merely passed his order on the basis of the judgment of the criminal court, that the judgment of the criminal court was in a case under Section 323, Indian Penal Code, which had nothing to do with the official duty or the official acts of the respondent and that before passing the order about the pay, which was to be given during the period of suspension, the Works Manager did not give a hearing to the respondent.

10. In the order of suspension it was no doubt mentioned that depart mental action was contemplated against Mathuradas because he had assaulted Umesh Chand for having made a report against him for sleeping during duty hours. No departmental proceedings were actually started against him presumably because a case against him in respect of the assault on Umesh Chand was under investigation by the police.

11. Rule 1706 of the Conduct and Discipline Rules for Railway Servants runs as follows:

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

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

(b) Whree a case against him in respect of any criminal offence is under investigation or trial;

Provided that where in exceptional circumstance the order of suspen: sion is made by an authority lower than the authority indicated in the schedules appended to these rules, such authority shall forthwith report to the authority indicated in such schedules the circumstances in which the order was made and obtain the confirmation of that authority

(2) A railway servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the competent authority and shall remain under suspension until further orders.

(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 or with any other directions, the order of suspension shall be deemed to have continued in force on and from the date of 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 a 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 his expressed doubts regarding their correctness or in respect of allegations which are proved but do not constitute criminal offence, or any fresh allegation not examined by the Court, and the railway servant shall be deemed to have been placed under suspension by the authority, vide Rule 1706, from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

(5) An order of suspension made or deemed to have made under this rule may at any time be revoked by the authority which made or is deemed to have made the order or by any higher authority.

12. Mathuradas being a skilled painter is an artisan falling under class III As has already been mentioned he was drawing a salary of less than Rs. 280 per month As a case under sections 332 and 323, Indian Penal Code, in respect of a criminal offence was under investigation against Mathuradas the Assistant Works Manager, who passed the order of suspension, was justified in doing sounder Rule 1706(1)(b) of the Conduct and Discipline Rules Further, the power to suspend a class III official has been delegated to the Assistant Works Manager under Rule 1706 of the Conduct and Discipline Rules, in this connection, item (19) of Schedule II of the Conduct and Discipline Rules may be referred to Column 2 contans the description of the staff who can be suspended by the Assistant Officers (Junior Scale and Class If Officers). The Assistant Works Manager belongs to this category. The order of suspension was thus passed by a competent authority, It was thus a valid order.

13. Mathuradas himself mentioned in his application that he was suspended because of the criminal case which was brought against him He also admitted in his cross examination that he was suspended because of this criminal case.

14. As has already been mentioned above, the order, of suspension Ex. N-1 specified that he was being suspended on account of serious misconduct inasmuch as he assaulted Umesh Chand on 23 8-66 as a result of his lodging an offcial complaint against him for his having been detected sleeping on duty during shop working hours on 12/8/66. Shri Umesh Chand lodged a report at the Police Station about it at 6 15 p.m. on 23/8/66 After investigation, Mathuradas was challaned under Section 332, Indian Penal Code, the relevant part of which runs as follows:

Whoever voluntarily causes hurt to any person being a public servant...in consequence of any thing done...by that person in the lawful discharge of his duty or such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.

It is therefore, quite wrong to say that the criminal case which was brought against Mathuradas had nothing to do with his official duties.

15. Another reason given by the learned District Judge for setting aside the order of the Works Manager about his pay after reinstatement was that Mathuradas was not given a hearing before that order was passed. There is no allegation either in the application of Mathuradas or in the evidence on record that no hearing was given to him before the order was passed Learned Counsel for Mathuradas relied on the following statement made by Mathuradas in Court:

No inquiry was held after my suspension before reinstating roe. I was reinstated when I was acquitted by the Court.

This statement was made by him with reference to the argument that the suspension order mentioned that he was being suspended as departmental proceeding was contemplated to be taken against him but no departmental proceeding was actually held. He did not say that before the order under Rule 2044 determining his pay after reinstatement was passed, he was not given a hearing This part of the finding of the learned District Judge is also based on no material.

16. Rules 2044 of the Indian Railway Establishment Code runs as follows:

2044 (F.R. 54) Pay after Reinstatement:

(1) When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, 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; and

(b) whether or not the said period shall be treated as a period spont on duty.

(2) Where the authority mentioned in Sub-rule (I) is of 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 suspended, 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.

Provided that the payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowances are admissible;

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (F.R.53).

(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such 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 direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Railway Servant.

The order of the Works Manager was obviously passed under the above rule. The order runs as follows:

Shri Mathuradas be put back to duty. He has been given benefit of doubt and acquitted by the learned Sessions Judge. As he has not been acquitted honorably, his period of suspension will be treated as non-duty and will remain as suspension period.

17. Section 7 of the Payment of Wages Act enumerates deductions which may be made from wages. These are authorised deductions. Other deductions are unauthorissed. Section 7(2)(h) runs as follows:

Deductions required to be made by order of a Court or other authority competent to make such order.

It is now well settled that if the Works Manager was competent to pass the order which he did pass under Rule 2044 of the Indian Railway Establishment Code, then the Payment of Wages Authority cannot go behind it, even if it is illegal. The rule lays down that 'the authority competent to pass the order of reinstatement shall pass the order under Rule 2044 In the present case, the Assistant Works Manager was competent to pass the order of suspension under Rule 1705 of the Conduct and Discipline Rules as has been mentioned above and under Rule 1706 (5) such an order of suspension could be revoked by the authority which made it or by any higher authority The Assistant Works Manager having passed the order of suspension the Works Manager, who is a higher authority, was competent to pass the order of reinstatement. As has been mentioned above, it was the Works Manager who passed the order of reinstatment. He was, therefore, competent to pass the order determining the pay under Rule 2044 of the Indian Railway Establishment Code. A perusal of the judgment of the learned Sessions Judge acquitting Mathuradas goes to show that Mathuradas was given the benefit of doubt only. He was not fully exonerated.

18. In Anant Ram v. District Magistrate, Jodhpur 1956 RLW 288 it was held that:

The Indian Railway Establishment Code is a body of statutory rules deriving its force from Article 309 read with Article 372 of the Constitution, and has made provision for conduct and discipline including imposition of the penalties on Government servants, and has indicated the persons who are authorised to inflict them. Orders passed under Rule 2044 on reinstatement with respect to pay for the period of absence from duty due to suspension, removal or dismissal are orders which come within Section 7(2)(h) as orders of a competent authority requiring deductions to be made from wages.... If, therefore, there is an order under Rule 2044, which directs either that the wages for this period would not be paid, or that 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 waged and would be in accordance with Section 7(2)(n) of the Act.

19. Sub-section (2) of Section 15 of the Payment of Wages Act tuns as follows;

Where contrary to the provisions of this Act any deduction has been made from the wages of an employed person, or any payment of wages has been delayed, such person himself, or any legal practitioner or any official of a registered trade union authorised in writing to act on his behalf, or any Inspector under this Act, or any other person acting with the permission of the authority appointed under Subsection (1). may apply to such authority for a direction under Subsection (3).

20. When a deduction has been made, which is authorised by Section 7(2)(h) of the Payment of Wages Act, it is not a deduction contrary to the provisions of the Act and no direction can be made by the Payment of Wages Authority in respect of it.

21. The above decision of this Court was affirmed by the Supreme Court in Ganeshi Ram etc. v. The District Magistrate and Anr. AIR 1967 SC 356. Learned Counsel for Mathuradas placed reliance on certain observations made in para (6) of this judgment to the following effect:

Under Section 7 certain specified deductions are permitted or authorised to be made there can be no claim under Section 15. In other words, claims for recovery of wages can be validly made under Section 15(2) and awarded under Section 16(3) only where it is shown that impugned deduction is not authorised or justified by Section 7. Thus, it is only in respect of unauthorised or illegal deductions that claims can be made before the authorities by an aggrieved workman.

Unauthorised or illegal deductions in the above paragraph mean when read in the above context deductions which are not authorised or justified by Section 7 of the Payment of Wages Act.

22. Learned Counsel for Mathuradas also relied on the following observations made in para (9):

(9) He, however, invited our attention to the fact that in the writ petition filed in the High Court it was alleged by the appellant that the finding of the learned District Magistrate that not to comply with the provisions of Article 311 is mere technical error is against the established law of the land that an order that violates the provisions of the said article is not only irregular but void and thus this error on the face of the record is not only of formal nature but goes to the root of the case. The same ground almost in identical terms is repeated in the application made by the appellant before the High Court for certificate; but the fact that some such ground was in a general way set out in the petition or the application for the certificate does not show that it was urged before the High Court. The judgment in the writ petition and the order on the application for certificate unambiguously show that this point was not mentioned to the High Court at all; and it is clear that a point the decision of which would necessitate a further enquiry in to the material questions of fact cannot be allowed to be raised for the first time in the appeal.

The above observations have no application to the present case as no proceeding was ever taken against the respondent to which Article 311 of the Constitution was applicable.

23. In Lakhpatrai v. Om Prakash 1965 RLW 441 a Division Bench of this Court held:

Where it is asserted by the employer that the services of the employee were terminated by him either by dismissal or removal or otherwise, the Payment of Wages Authority has no jurisdiction to enter into the question whether the employee's removal or dismissal or the termination of his services was lawful or not.

24. I, accordingly, hold that the Payment Wages Authority had no jurisdiction to go into the legality or otherwise of the order passed under Rule 2044 of the Indian Railway Establishment Code by the Works Manager, All that it could consider was whether he was competent to pass the order. I have already shown above that he was competent to do so.

25 Learned Counsel for Mathuradas argued some points before me which were not put forward in the Courts below. I would like to deal with them. Under Rule 2003 (5) of the Indian Railway Establishment Code, 'competent authority' in relation to the exercise of any power under the rules, means the President or any authority to which such power is delegated in appendix XXX II. It was contended that this Appendix does not lay down who is the competent authority in relation to the exercise of powers under Rule 2044 and, therefore, the President alone can pass an order under this rule. This argument has no force. The rule itself lays down that the order under Rule 2044 will be passed by the 'authority competent to order the reinstatement.' Under Rule 1706(5) of the Conduct and Discipline Rules the authority competent to pass an order of suspension is competent to revoke that order. It can also be revoked by any higher authority. When an order of suspension is revoked the official concerned is said to be reinstated.

26. In Hemant Kumar Bhattacherjee v. Union of India and Ors. AIR 1958 Cal 239 a learned Single Judge of that Court observed:

Reinstatement can only arise if a man is dismissed or removed from services or if otherwise his service terminated and he is brought back to service. If a person is merely suspended, he still continues to be in service but is in a state as it were, of suspended animation. When the period is over, he has simply to be allotted a job. The word reinstatement' if used in this respect, is only loosely used and has no legal significance.

If what the learned Judge says is correct, then it can be taken that the word reinstatement 'has been loosely used in Rule 2044 of the Indian Railway Establishment Code. This rule was amended under Railway Board's letter No F (M)UI 62 SPN/3 dated 2-8-1972. In place of Rule 2044, three rules were framed, namely, 2044, 2044-A and 2044-B. The last named rule deals with a railway servant who has been suspended and is reinstated without being dismissed or removed from service or compulsorily retired.

27. I, accordingly, allow the revision application and set aside the order passed by the courts below and dismiss the application of Mathuradas under Section 16(2) of the Payment of Wages Act. In the circumstances of the case, I leave the parties to bear their own costs throughout.


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