Supreme Court of India
DIVISIONAL PERSONNEL OFFICER, WESTERN RAILWAY, KOTAversusSUNDAR DASS
- Citation
- 1981 INSC 180
- Decided
- 16 October 1981
- Disposal
- Appeal(s) allowed
- Bench
- Y V CHANDRACHUD
Holding
Rule 1706(4) is attracted and the employee is deemed to have remained under suspension from the date of the original dismissal, entitling him only to subsistence allowance.
Summary
Sundar Dass, a former railway clerk, was suspended on 17 February 1949 after it was discovered that he had concealed a prior discharge from railway service in 1944. He was dismissed on 14 May 1949, but the Rajasthan High Court later set aside that dismissal on grounds of natural justice, directing fresh disciplinary proceedings. A fresh charge sheet was issued in 1963 without a new suspension order, and a subsequent inquiry again found him guilty, leading to a dismissal effective from the original 1949 date. The question before the Supreme Court was whether Rule 1706(4) of the Indian Railway Establishment Code applied, thereby deeming him to have remained under suspension from the original dismissal date and limiting his entitlement to subsistence allowance only. The Court held that the rule was squarely attracted because the fresh inquiry dealt with the same charge, and thus the employee remained under suspension, qualifying only for a 50% subsistence allowance, not full wages. Consequently, the appeal by the railway authority was allowed.
Issues considered
- Whether Rule 1706(4) of the Indian Railway Establishment Code applies when a dismissal order is set aside and a fresh departmental inquiry is conducted on the same charge.
- Whether the employee is deemed to have been under suspension from the date of the original dismissal, thereby limiting his wage entitlement to subsistence allowance.
- Whether the fresh charge constitutes a new charge or merely a continuation of the original charge for the purpose of Rule 1706(4).
Legislation cited
- Code of Civil Procedure, 1908s. Order 2 Rule 2
- Payment of Wages Act, 1936s. 15(2)
Subjects
Railway lawDisciplinary proceedingsSuspensionDismissalRule 1706(4)Payment of Wages ActSubsistence allowanceNatural justiceFresh charge sheetDepartmental inquiry
Judgment
937 A
DIVISIONAL PERSONNEL OFFICER, WESTERN
RAILWAY, KOTA
v.
B
SUNDAR DASS
October 16, 198 I
IY.V. CllANDRACHUD, C.J., A. VARADARAJAN AND
AMARENDRA NATH SEN, JJ.]
c
Indian Railway Establishment Code, Rule 1706 (4)-Rai/way servant dismis-
sed after departmental enquiry-dismis1al order set aside by court-Fresh charge
sheet issuPd-No fresh order of suspension however issued-Railway servant eventu-
h..--..!,. ally dismissed-Railway servant-Whether deemed to have continued to be under
suspension.
D
Clause (1) of Rule 1706 of the Indian Railway Establishment Code provi-
des for a railway servant being placed under suspension where a disciplinary
proceeding against him is contemplated or pending.
Clause (4) of the same Rules provides that wr.ere a penalty of dismissal,
removal or compulsory retirement from service imposed upon a railway servant E
is set aside by a decision of a Court of Law and the disciplinary authority deci-
des to hold a further enquiry, the railway servant shall be deemed to have been
placed under suspension by the competent authority from the date of the original
order of dismissal, removal or compulsory retirement.
The Respondent was employed as an Assistant Sub Divisional Clerk in the
North Western Railway. He wa'i discharged from service by an order F
dated 12.4.44. On the partition of India, he migrated to India and was taken as
a clerk in the Western Railway. When the fact that the Respondent had already
been discharged from Railway se1\.ke on 12.4.44 can1e to light, the Respondent
_, • was suspended from service on 17.2.49 and a charge sheet was issued to him for
the misconduct of conceahncnt of lhe order of discharge, and after an enquiry he
was dismissed from service on 14.5.59. The Respondent filed a suit for a decla·
ration that the order of discharge was void. The High Court in Second Appeal G
held that the Respondent was entitled to a declaration that the order of his dis-
missal from service was illegal on the ground that there was a breach of
the principles of natural justice and that it was open to the railway adminis-
tration to take fresh disciplinary proceedings from the stage at which the illega-
lity crept in.
H
In pursuance to the order of the High Court the department issued a fresh
charge sheet against hi111 on 14.1!.63 and held an inquirr. No fresh order of
938 SUPREME COURT REPORTS [1982] I S.C.R.
A suspension was however issued to the respondent. The respondent was even~
tually dismissed from service by an order dated 23.12.66 with efiect from 14.5.59,
the date of his original dismissal. The respondent's writ petition challenging the
order of dismi~sal was dismissed by the High Court.
After the dismissal of the Second Appeal by the High Court, the Respondent
moved the Payment of Wages Authority on 25.3.63 by a petition under section
B 15 (2) of the Act claiming wages for the period from 17.2.49, the date of the
original suspension, to 22.2.63 less subsistence allowance. He also filed (seven)
petitions once in every six months claiming wages for the period from 1.3.63
to 31.8.66. The Authority held that the Respondent was entitled to wages for
the period from 17.2.49 to 14.5.49 but the District Judge in appeal held that
the Respondent was entitled to wages for a period of six months prior to 25.6.63
and also for the period of six months in respect of each one of the seven petitions
c filed by him. The High Court, howeveri dismissed the appellant's Civil Revi-
sion Petition and allowed the respondent's revision petition and held that the
respondent was entitled to receive the arrears of wages from 17.2.49 to 31.8.66.
---
In the appeal to this Court it was contended on behalf of the Appellant
that the Respondent had been suspended from service on 17.2.49 before he was
originally dismissed from service on 14.5.49 pursuant to the finding of guilt
D recorded in the departmental inquiry and that in the subsequent departmental
inquiry he was found guilty and was therefore dismissed from service and by vir-
tue of the provisions of Rule 1706(4) he must be deemed to have been under sus-
pension right from 17.2.49 and he was only entitled to subsistence allowance and
not to full wages for the period from 17.2.49. The Respondent, however, conten-
•
ded that the original order of dismissal dated 14.5.49 was based on the finding
of guilt recorded in respect of a single charge and that as a second allegation
E had been made in the fresh inquiry, the provisions of Rule 1706(4) were not
attracted.
Allowing the appeal
HELD : I. Rule 1706 (4) of the Indian Railway Establishment Code is
F squarely attracted to the case of the Respondent. [945 F]
In the instant case the Respondent had been suspended on 17.2 49 pending
inquiry and had not reported for duty after the original order of dismissal dated
14.5.49 had been declared to be illegal by the High Court, in the second appeals
filed by both the parties. The Respondent must be deemed to ha·;e continued
to be under suspension by virtue of the provisions of Rule 1706 (4) in view of
G the fresh inquiry and he would be entitled only to subsistence allowance, being
50% of his wages for the period of suspension until the final order of dismissal
and not to full wages. [945 Gj
2. The subsequent inquiry was in respect of the same charge namely, that
the respondent had suppressed the fact that he had been discharged from railway
H service on 12.4.44 while he secured employment in 1948 after the partition of
India. The fresh ch.arge dated 22.3.65 was only a single charge and the second
allegation, namely, the declaration dated 26.1.48 made by the respondent after
DIVISIONAL PERSONNEL OFFICER v. SUNDAR DAS> ( Varad1'1}1n, !.) 939
he joined the Ex. B.B. and Central Indian Railway was only intended to be A
relied upon for proving that charge. [945 E, D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1085
of 1981.
Appeal by special leave from the judgment and order dated the B
28th February, 1979 of the Rajasthan High Court (Jaipur B:a;h)
at Jaipur in S.B. Civil Revn. No. 63 and 158 of 1973.
N.C. Ta/uqdar and R.N. Poddar for the Appellant.
Respondent in person.
c
The Judgment of the Court was delivered by
VARADARAJAN, J. In this appeal by special leave the respJn-
dent Sunder Dass appears in person. The appeal by the Divisional
Officer, Western Railway, Kota is against the Judgment of Dwarka D
Prasad, J. of the Rajasthan High Court at Jaipur in Civil Revision
Nos. 63 and 158 of 1973. The learned Judge allowed Civil Revi-
sion No. 63 of 1973 filed by Sundar Dass and dismissed Civil Revi-
sion No. 158 of 1973 filed by the Divisional Personnel Officer with
costs in both.
E
The two rev1swn pet1twns were filed against the order
dated 18.9.1972 passed by the learned District Judge, Kota under
the Payment of Wages Act (hereinafter referred to as "the Act").
The respondent filed petitions under s. 15 (2) of toe Act before the
Authority under the Act, the Special Judicial (Railways) Magistrate,
Kota who held by his order dated 30-10-1967 that the respondent is
F
entitled to get his salary for the period from 17.2.1949 to 14.5.1949
after adjustment of any amount which might have been paid to him
for that period. Both parties filed appeals against that order before
_, the District Judge, Kota who by order dated 18.9.1972 held that the
' . respondent should have been paid wages for the period of six months
prior to 25.3.1963, the date of his application under the Act and
G
also for a period of six months in respect of each one of his subse-
quent seven applications filed under the Act. The learned District
Judge directed the Authority under the Act to calculate the amJunt
of salary and dearness allowance payable to the respondent as per
his direction on the basis of the respondent's basic salary as on
H
14.5.1949, the date of his original dismissal from service, after
deducting the usual Provident Fund deduction and other permissible
940 SUPREME COURT REPORTS [1982) l s.c.R.
deductions, if any. Both parties filed revision petitions in the High
Crurt against the Order of the learned District Judge.
...._.
The respondent was employed as an Assistant Sub·Divisional
Clerk at Sukkar in the Karachi Division of the North Western
Railway. While he was working in that capacity at Nawabshah, he
B was discharged from service by order dated 12.4.1944 issued by the
Divisional Engineer. The respondent instituted a suit in the Court
of Judicial Commissioner, Karachi for declaration that the order of
discharge was invalid. During the pendency of that suit there
was partition of India and he migrated to India and reported
c for duty to the Transfer Officer (India) at Ambala Canton-
ment on 8.1.1948. On the basis of the respondent's declara- '
tion, he was taken as a Clerk in the former B.B. & C.I.
Railway, which eventually became the Western Railway. But
when the fact that the respondent had already been dis-
charged from railway service on 12.4.1944 before the partition of
India took place came to light, the respondent was suspended from
D service on 17.2.1949 and a charge-sheet was issued to him by
the Chief Engineer of the Railway for the misconduct of conceal·
ment of the order of discharge from service and he was dismissed
from service on 14.5.1949 in pursuance of the finding of guilt
recorded in the inquiry. The respondent's appeal against the order
of discharge was dismissed by the General Manager of the Rail way.
E
The respondent thereafter filed a suit on 10.1.1950 for declaration
that the order of discharge was void and obtained decree in the
Trial Court, which was modified by the District Judge on appeal.
Both par'.ies filed Second Appeals in the High Court, which dismis-
sed the same on 6.3.196J by holding that the respondent is entitled
F to a declaration that the order of his dismissal from service
dated 14.5.1949 is illegal on the ground that there was breach of the
principles of natural justice and that it was, however, open to the
Railway Administration to take fresh disciplinary proceedings
against him from the stage at which the illegality crept in. ,_
G Subsequently, the Chief Engineer, Western Railway started
fresh disciplinary proceedings against the respondent and issued a
fresh charge-sheet with a statement of allegations against him on
4.11.1963. No fresh order of suspension was issued to the respon-
dent on this occasion. The departmental inquiry was held and an
H inquiry report dated 29.11.1965 was made holding the respondent
guilty of the charge. The Chief Engineer accepted the report of
DIVISIONAL PERSONNEL OFFICER v. SUNDAR DASS ( Varadarajan, J.) 941
the Inquiry Officer and issued a notice to the respondent calling upon A
him to show cause against the punishment proposed to be awarded
to him and eventually dismissed him from service by his order
dated 23.12.1966 with effect from 14.5.1949, the date of his original
dismissal. This order of dismissal was confirmed by the General
Manager, Western Railways in the respondent's appeal
which was dismissed on 10.5.1967. The respondent challenge:! the 8
order of dismissal by filing Writ Petition No, 558 of 1967 which
was dismissed by the Rajasthan High Court on 2 l.11.l 97 l
• holding that the departmental inquiry was properly conducted .
and that the dismissal is valid but not retrospectively from
14.5.1949. The respondent's Review Petition was dismissed by
the learned Judge of the High Court on 7.3.1972. c
After the dismissal of second appeals on 6.3.1963 the petitioner
moved the Payment of Wages Authority on 25.3.1963 by a petition
filed under section 15 (2) of the Act claiming wages for the period
from 17.2.1949, the date of the original suspension, to 28.2.1953
less subsistance allowance, namely, Rs. 24,792. 70 and thereafter
D
• filed seven more petitions once in every six months claiming in all
wages of Rs. 34,096.07 for the period from 1.3.1963 to 31.8.1966.
As stated earlier, the Authority under the Act held that the res-
pondent is entitled to wages for the period from 17.2.1949 to
14.5.1949 and in the appeals filed before the learned District Judge
it wa< held that the respondent is entitled to wages for a period of E
six months prior to 25.6.1963 and also for the period of six months
in respect of each one of the seven petitions filed by him and the
District Judge directed the Authority under the Act to calculate the
amount payable to the respondent after making the necessary deduc-
tions on the basis of the respondent's basic wages as on 14.5.1949.
Both the parties filed revision petitions against the order of the F
learned District Judge.
The plea of limitation which appears to have been raised in
the revision petitions before the learned Single Judge of the
Rajasthan High Court at Jaipur, has been held to be no longer
available in view of the decisions of this Court referred to in the
G
Judgment of the High Court in the Civil Revision cases under appeal
in this case. The other objection raised under Order 2 Rule 2 of
the Code of Civil Procedure in view of the fact that the claim for
wages had not been put forward in the civil suit and connected
H
appeal and second appeal has also been rejected by the High Court.
The learned Single Judge held that if the order of dismissal is set
942 SUPREME COURT REPORTS !1982] I S.C.R.
A aside, it is not necessary to give a further declaration that the
employee continues to remain m service in view of the fact that
it follows as a consequence of that order of dismissal having been
set aside.
It was contended befon the learned Single Judge of the High
B Court that since after the original order of dismissal had been set
aside by the High Court, the disciplinary authority had decided to
hold a fresh inquiry and had dismissed the respondent pursuant to
the finding of guilt recorded by the Inquiry Officer in the fresh in-
quiry and accepted by the disciplinary authority, in view of the pro-
visions of Rule 1706(4) of the Indian Railway Establishment Code,
c the respondent must be deemed to have been placed under suspen-
sion f1om the date of the original order of dismissal. The learned
Single Judge did not allow that contention to be raised before him
on the ground that it was not raised either before the Authority
under the Act or before the learned District Judge in the appeals.
The Ieanied Judge dismissed the Divisional Personnel Officer's revi-
D
sion petition and allowed the respondent's revision petition with
costs and held that the respondent is entitled to receive arrears of
wages from 17-2-1949 to 31-8-1966. The Divisional Personnel Offi-
cer had filed this Civil Appeal by special leave against those orders
of the learned Single Judge of the High Court.
E
The fact that the respondent had been dismissed from service
pursuant to the finding of guilt recorded in the fresh inquiry has not
been disputed before us by the respondent who has appeared in
person though the appellant in this appeal had been directed by this
Court while ordering show cause notice in the special leave petition
F to deposit a sum of Rs. 1,000/- to enable the respondent to engage
a counsel to appear for him in this Court and that amount had been
deposited by the appellant and withdrawn by the respondent. We
perused the record of the fresh inquiry and are satisfied that the ~·
.,; .
respondent has admitted the fact of his discharge from service on
12-4-1944 while securing fresh employment under B.B. & C.I. Rail-
G
way. Mr. Taluqdar, Senior Counsel, appearing for the appellant
submitted that the respondent had been suspended from service on
17-2-1949 before he was originally dismissed from service on
14-5-1949 pursuant to a finding of guilt recorded in the departmen-
tal inquiry and that in the subsequent departmental inquiry also, he
H
had been found guilty and was subsequently dismissed from service
and therefore, by virtue of the provisions of Rule 1706(4) of the
1:1' ISJCl'AL PERWNl'EL OFFICER v. SUNDAR DASS (Varadarajan, J.) 943
Indian Railway Establishment Code, he must be deemed to have A
been under suspension right through from 17-2-1949 and he would
be entitled only to subsistance allowance and not to full wages for
the period from 17-2-1949. Clause (l) of Rule 1706 provides for a
railway servant being placed under suspension inter a/ia where a
disciplinary proceeding against him is contemplated or pending.
Clause (4) of that rule reads thus : B
"Where a penalty of dismissal, removal or cc>mpulsory
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 c
case, decides to hold a further inquiry against him on the
allegations on which the penalty of dismissal, removal or
compulsory retirement was originally imposed, the railway
servant shall be deemed to have been placed under suspen-
sion by the competent authority, mentioned in Rule 1705,
from the date of the original order of dismissal, removal or D
compulsory retirement and shall continue to remain under
suspension until further orders".
We are of the opinion that this sub-clause will be attracted in cases
where there had been a suspension of a railway servant due to a
contemplated or pending disciplinary proceeding and the order of
E
dismissal pursuant to the finding recorded in the disciplinary procee-
ding 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, as in the present
case, decides to hold a fresh inquiry against him on the allegations
on which the penalty of dismissal, removal or compulsory retirement
F
was originally imposed. It is not the case of the respondent that he
had resumed duty after the original order of dismissal dated
14-5-1949 was set aside and that he continued to be in service until
he was subsequently dismissed from service by the order dated
23.12.1966. It is seen from the original order of oismissal dated
G
14.5.1949 that the respondent had been informed by the instruction
appended to that order that he would be given subsistance allowance
at the rate of 50% of his pay for the period from 17.2.1949 to
14.5.1949, both days inclusive, when he remained under suspension.
The respondent did not dispute before us the fact that he was placed
under suspension from 17.2.1949 pending the inquiry resulting in his
H
944 SUPREME COURT REPORTS f1982] 1 S.C.R.
A dismissal by the order dated 14.5.1949. But what the respondent
contended before us is that the original order of dismissal dated
14.5.1949 is based on the finding of guilt recorded in respect of a
single charge and that a second allegation bas been made in the
charge framed in the fresh inquiry and therefore, the provisions of
Rule 1706(4) of the Indian Railways Establishment Code are not
B attracted. The respondent invited our attention to the fact that in
the first suspension order dated 17.2.1949, he has been described as
a Clerk, Executive Engineer's Office, Kata Division and in the
charge framed in the fresh inquiry on 22-3-1965 as ex-Clerk of the
Office of the Executive Engineer, Kata Division and also to the fact
that he had been informed by the Chief Engineer's letter dated
c 9-9-1965 that he has not placed under suspension by the adminis-
tration and only fresh proceedings have been taken against him in
view of the judgment of the Rajasthan High Court and therefore, the
question of the administration granting him permission to leave his
residence or Kata Railway Station does not arise-in support of his
contention that he could not be deemed to have been under suspen-
D
sion after his original order of dismissal had been set aside by the
High Court. The respondent appears to have been conscious of the
fact that the order of suspension dated 17-2-1949 had not been revo-
•
ked when be applied for permission to absent from his headquarters.
The Chief Engineer appears to have stated in his letter dated
9·9-1965 that the respondent had not been placed under suspension
E
and therefore, he did not require the permission of the Railway ad-
ministration to leave Kata only on the basis that there was no fresh
order of suspension after the original order of dismissal dated
14-5-1949 had been set aside by the High Court. As stated earlier,
the respondent has not disputed the fact that he bad been placed
nnder suspension by the order 17·2-1949, and it is clear that he was
F
nnder suspension thereafter throughout and he had attained the age
of superannuation in I 963, his year of birth being 1908. The charge
framed against respondent in the first inquiry was this :
"Obtaining employment by concealment of his antece-
G
dents which would have prevented his employment in
railway service, had they been known before his appoint-
ment, to the authority appointing him."
H
The reasons for that charge given were that he obtained employ-
ment in the Western Railway by giving false intimation to the Trans-
DIVISIONAL PERSONNEL OFFICER v. SUNDAR DASS (Varadarajan, J.) 945
A
fer Officer (India), Ambala Cantonment to the effect that he was in
service on the North Western Railway at the time of partition. In
the fresh charge dated 22.3.1965 framed against the respondent, it is
stated that:
B
"Fresh proceedings are being taken against him in
view of the judgment of the Rajasthan High Court that his
dismissal from service was illegal and be has been informed
that the charge is based on (1) the declaration of 8.1.1948
... made by respondent to the Assistant Transfer Officer,
Ambala Cant!. that he was working on the ex-North Wes- c
tern Railway and was in receipt of substantive pay of
Rs. 98/- plus Rs. 4.50 and has been confirmed in that post
on 1.11.1943 and (2) the declaration dated 26.1.1948 after
he joined the Ex-B.B. & C.I. Railway."
D
On a perusal of the two charges, we are of the opinion that the
fresh charge dated 22.3.1965 is only a single charge and that the
• second allegation, namely, the declaration dated 26.1.1948 made by
the respondent after he joined the Ex-B.B. & CJ. Railway, was only
intended to be relied upon for proving that charge. We are, there-
fore, unable to accept the submission of the respondent that any
different or additional charge was framed against him in the fresh
inquiry. The subsequent inquiry was in respect of the same charge,
namely, that the respondent had suppressed the fact that he had
been discharged from railway service on 12.4.1944 while he secured
employment in 1948 after the µartition oflndia. Rule 1706(4) of
the Indian Railway Establishment Code is squarely attracted to F
the case of the respondent. In these circumstances, we hold that
the respondent who had been suspended on 17.2.1949 pending
inquiry and had not reported for duty after the original order of
dismissal dated 14.5.1949 had been declared to be illegal by the
> '- High Court of Rajasthan m the second appeals filed by both the
parties, must be deemed to have continued to be under suspension G
by virtue of the provisions of Rule 1706(4) in view of the fresh in-
quiry and would be entitled only to subsistance allowance being
50% of his wages for the period of suspension until the final order
of dismissal and not to full wages. The appeal is accordingly
allowed, but in the circumstances of the case without costs. The H
appellant had deposited m this Court a sum of Rs. 16,000 being
subsistance allowance for the said period as directed by this Court
946 SUPREME COURT REPORTS [ 1982) I S.C.R.
A on 2.12.1980 when notice to show cause was ordered in the special
leave petition and it has been withdrawn by the respondent. We,
therefore, add that nothing more remains to be paid to the respon-
dent towards his subsistance allowance.
B Appeal allowed.
N.V.K.
•
.
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