(i) set aside and quash the impugned orders dated 01.02.2007, Annexure A-2, along with orders dated 15.3.2007, Annexure A-10, so far they relate to the DIES-NON and penalty of reduction to the initial stage in the same time scale for a period of 4 years with cumulative effect.
(ii) direct/command the respondents to fix the applicant's pay taking into account the increments earned by the applicant prior to his dismissal from service and make payment of the resultant arrears with 24% p.a. interest.
2. It is sated by the applicant that he was appointed as loco cleaner in the loco/Mechanical Depot of Railway on 01.09.1976 and posted at Diesel Shed Tughlakabad. On 26.8.1983, he was falsely roped in a staff agitation. He was served with a show cause notice on 1.8.1983 and simultaneously, dismissed in September 1983 under Rule 14 (11) of Railway Servant (Discipline and Appeal) Rules (page 17). Without holding an enquiry or giving any opportunity to the applicant, to defend himself by observing it is not possible to hold enquiry. Being aggrieved, he filed appeal dated 25.9.1983, but no reply was given.
3. Number of other persons were also dismissed including Bhagwan Singh.
Criminal case was also filed against all of them regarding said incident. All the persons were acquitted in October, 1985. Applicant gave representation dated 21.1.1986 for reviewing his case (page 20).
Since no reply was given, so he went to Orissa.
4. Bhagwan Singh filed O.A. and succeeded. Respondents were directed to reinstate him with all consequential benefits by treating the intervening period as duty. In lieu of wages, respondents were directed to pay him Rs. 40,000/-. The said judgment was implemented without giving him any other penalty.
5. On coming to know about it, applicant gave representation on 5.6.2004 that he should also be given same benefit. However, since no reply was given, he filed O.A. No. 191/2006. It was disposed off on 31.10.2006 (page 14) by directing the respondents to consider his appeal in view of treatment meted out to Bhagwan Singh and pass a reasoned order. It was also held that on reinstatement, applicant would be entitled to same benefits as provided to Bhagwan Singh. Pursuant to it applicant gave representation on 14.11.2006 for reinstatement and other benefits.
6. Respondents then passed order dated 1.2.2007 reinstating the applicant but treated intervening period as dies non and gave penalty of reduction to the initial stage in the same time scale for a period of 4 years with cumulative effect from the date of his joining the service on reinstatement (page 15 ). On 16.3.2007, applicant was ordered to be posted in Running/Electric Section (page 25).
7. It is this order which has been challenged by the applicant on the ground that no penalty could have been passed as no enquiry has been held and intervening period could not have been treated as dies non. On the contrary, he ought to have been given the same benefit as given to Bhagwan Singh. No penalty was given to Bhawan Singh and relief of Rs. 40,000/- was granted to him. Applicant has also stated that his pay has been fixed at the lowest at Rs. 2550/- by ignoring the increments already earned by him that too without giving him a charge-sheet, even though it is a major penalty. Counsel for the applicant also strenuously argued that two similarly situated persons cannot be treated differently, otherwise it would amount to violation of Article 14 of the Constitution.
8. Respondents on the other hand have opposed this O.A. They have submitted that on 26.8.1983, a worker was killed in an accident in the Diesel Shed, Tughlakabad, Delhi. The applicant herein then incited and gathered the fellow workers, he organized 'Ghero' of all the officers present in the shed premises and along with some fellow workers, he also physically assaulted some senior officers of the Railways and they were confined in the said Diesel Shed from 7.00 P.M. of 26.8.1983 to 01.30 A.M. on 27.8.1983, which caused interruption and disruption of normal traffic of the trains passing through the Tughlakabad Railway Station. He along with his co-workers caused considerable damages to the railway properties like Signal Equipment and cabin installations which are essential and vital for smooth running of trains through that section thereby endangered public safety. They were accordingly given show cause notice dated 1.9.1983 calling their explanation within 7 days. Despite several attempts of serving the said show cause notice, the same could not be served upon the applicant as the railway officials who had gone to serve the said show cause notice upon the applicant, herein, were threatened with dire consequences. In such a situation the answering respondents had no other option but to take a decision to dispense with the enquiry under Rule 14 (2) of the Railway Servants (Disciplinary & Appeal) Rules, 1968 in case of the delinquents including the applicant herein. Accordingly, delinquent employees including the applicant herein were dismissed from service by attracting Rule 14(ii) of the Railway Servants (Discipline & Appeal) Rules 1968 vide office order No. 758/11/DSL/P-7 dated 9.9.1983.
9. Applicant did not challenge his dismissal order at all. He filed O.A. No. 191/2006 for the first time after 23 years, which was disposed off by directing the respondents to consider his appeal and pass a reasoned order. A lenient view was taken by the appellate authority and another opportunity was given to the applicant to mend his ways.
Accordingly, he was reinstated but intervening period was decided as dies non on the principle of no work no pay as he had not worked at all during the said period.
10. As far as Bhagwan Singh is concerned, he pursued his case throughout while applicant never challenged his dismissal. They have further stated that applicant was dealt with in departmental enquiry for unauthorized absence earlier also in 1981, 1983 and also for smoking in shed premises in 1983, therefore, it is working to suggest he had unblemished service. They have categorically stated that no appeal against dismissal was received either by hand or by post, therefore, applicant cannot compare himself with Bhagwan Singh because in his case there were definite direction whereas applicant sat idle for 23 years and even now no positive directions were given by the Tribunal but respondents were directed to consider his appeal.
Admittedly, he had gone to Orissa. Even now he has not challenged order dated 1.1.2007 before the next authority since he has not filed any appeal or representation, it cannot be stated he has availed all the remedies. They have clarified that dies non would not be treated as break in service. They have thus prayed that there is no merit in the O.A. The same may be dismissed.
12. Admittedly, applicant was dismissed vide order dated September, 1983 by attracting Rule 14 (ii) of Railway Servants (Discipline and Appeal) Rules, 1968 by recording, it is not possible to hold enquiry as applicant had even refused to accept show cause notice dated 01.09.1983 and had threatened the bearer of show cause notice. Applicant never challenged order of dismissal. On the contrary, as per his own averment in para 4.9, he went to Orissa meaning thereby he had accepted the penalty and had acquiesced to the situation. After acquittal in criminal case in October, 1985, though applicant has stated he had represented but perusal of representation dated 21.1.1986 shows there is no acknowledgement and respondents have specifically denied having received any appeal/representation, therefore, it is wrong to suggest he had given any representation. Even if it is accepted for the sake of argument that representation was given by him, he should at best have approached the Tribunal within 18 months thereafter.
13. Applicant had admittedly filed the Ist O.A. No. 191/2006 in the year 2006 i.e. after over 23 years after his dismissal, whereas perusal of judgment in the case of Bhagwan Singh itself shows that Bhagwan Singh had immediately challenged his order of dismissal dated 08.9.1983 before Hon'ble High Court of Delhi by filing Writ Petition No. 96/1984, which was withdrawn on 31.7.1985. OA was thereafter filed on 06.8.1988 before the Tribunal. OA was dismissed being barred by Section 21(2)(b) of Administrative Tribunals Act, 1985. Being aggrieved, he filed SLP before Hon'ble Supreme Court. That too was dismissed. He then filed Review Petition before the department on 18.8.1988. Not finding any response, he filed second OA No. 687/1999, which was disposed of on 13.9.1989 by directing the respondents to dispose of applicant's review. His review was rejected by department on 01.2.1990, which was again challenged by Bhagwan Singh by filing third OA No. 2102/1990.
This OA was disposed of on 16.3.1993 by remitting the matter back to the authority with liberty to hold departmental enquiry, if possible, even at that stage provided it is completed within six months. It was also ordered that if the Revisional Authority after assessing the situation concludes that it was not reasonably practicable to hold an enquiry, at that distance of time, the reasons of such decision should be recorded in the order. The Revisional Authority held that as the incident had occurred more than a decade ago and majority of the witnesses had since retired from service, it was not possible to recollect details of the events of that time, in a manner required for a proper D&AR enquiry. Moreover, the possible available witnesses would not depose due to the fear of being intimidated even now, it would not be possible to hold an enquiry against the applicant. Review petition was accordingly rejected. At this stage Bhagwan Singh again filed yet another fourth OA No. 426/1995. This OA was partly allowed on ---------- by quashing the order of dismissal and directing the respondents to reinstate him in service. It was further held that since applicant had also been guilty of delay and laches, it would not be proper to grant entire back wages. However, in the interest of justice, respondents were directed to pay him Rs. 40000/- in lieu of back wages.
Respondents were also directed to grant him consequential benefits like seniority and consideration for promotion, as per his turn.
14. From above, two things are absolutely clear (i) Bhagwan Singh had challenged his order of dismissal immediately thereafter and kept pursuing it till his order of dismissal was quashed and set aside.
Secondly, Tribunal had given positive directions as to what relief he would be entitled to.
15. In this backdrop, if we examine the facts of applicant before us, we find he had neither challenged his dismissal before the department nor he had challenged it in any court of law initially. On the contrary, he had gone to his native State Orissa. He approached Tribunal for the first time in the year 2006 by filing OA 191/2006 i.e.
after over 23 years. The said OA was disposed of vide order dated 31.10.2006 (page-12). Perusal of same shows, contentions raised by the parties were not even adjudicated upon nor any finding was returned that applicant is similarly situated as Bhagwan Singh. On the contrary, OA was disposed of because applicant's appeal was stated to be pending with the respondents with a direction to consider his appeal and pass reasoned order. It would be relevant to quote the relevant portion form above said judgment: 3. We have carefully considered the rival contentions of the parties and perused the material on record.Constitution Bench of Union of India v. Tulsiram Patel passed entailing dismissal of a government servant on dispensation of enquiry as not reasonably practicable, nothing precludes, as a right to the concerned, to assail practicability of enquiry and the reasons recorded therein before the Appellate Authority who will not only apply his mind to the reasoning recorded but also explore the possibility of holding an enquiry at the appellate stages as well.
5. It is also trite that when two persons are similarly circumstanced, differential treatment cannot be meted out which would not only be invidious but would also be anti thesis to principle of equality enshrined under Article 14 and 16 of the Constitution of India.
6. In the light of the fact that appeal preferred by the applicant is yet to be disposed of, this OA stands disposed of with a direction to the respondents to consider the appeal of the applicant on merit in the light of the reasoning recorded by the Disciplinary Authority and also in view of the treatment meted out to Bhagwan Singh and Ors. as referred to above. The aforesaid circumstances would culminate into a reasoned order to be passed by the respondents, within three months from the date of receipt of a cop of this order. If further goes without saying that on reinstatement, the applicant would be entitled to the same benefit as has been provided to Sh. Bhagwan Singh and Ors. similarly circumstanced employees. No costs.
16. Since in this OA order of dismissal was not even quashed, it cannot be said that any positive directions were given for relief nor could it have been given because OA was disposed off with a direction to dispose off pending appeal, therefore, at that stage right of authority could not have been pre-emptied. IN para 4 & 5 only principle of law were recorded but no finding was recorded that applicant was similarly situated. It was left to be decided by respondents. The last sentence of para 6 cannot be taken as a positive direction because O.A was not even decided on merits. Had the intention been to grant him all the benefits as that of Bhagwan Singh, Tribunal could have straightaway quashed the dismissal order and directed the respondents to give him the same relief as given to Bhagwan Singh but no such orders were passed and rightly so because contentions of both parties were not adjudicated upon including limitation. Therefore, it cannot be stated that applicant was similarly situated as Bhagwan Singh.
17. In view of above background, if respondents have taken a view that applicant is not similarly situated, we cannot find fault with them because applicant had approached respondents after 23 years while Bhagwan Singh had been pursuing his case regularly and in his case positive directions were given whereas in case of applicant herein, respondents were only directed to consider his appeal in view of treatment meted out to Bhagwan Singh. According to us respondents have rightly treated the intervening period as dies non because he had neither challenged his dismissal nor had worked during the said period.
Accordingly, we reject the prayer of applicant for grant of Rs. 40000/- in lieu of back wages. However it needs to be recorded here that respondents have specifically stated that dies non would not amount to break in service in para-28, therefore, this needs to be clarified.
18. We would agree with the 2nd contention of Learned Counsel for applicant viz. that respondents could not have imposed the punishment of reduction to the initial stage in the same time scale for a period of four years with cumulative effect in the impugned order because it is one of the major penalties under Rule 6(v) of Railway Servants (Disciplinary & Appeal) Rules, therefore, definitely it could not have been imposed without following the procedure laid down under Rule 9 of the above said Rules. In the instant case admittedly neither any charge-sheet was served on him for major penalty nor any enquiry has been held. Moreover earlier also dismissal order was passed by recording enquiry is not practicable. Therefore, major penalty could not have been imposed on the applicant. To this extent order dated 01.2.2007 is not sustainable in law. Accordingly, penalty now imposed is quashed and set aside.
19. Perusal of order dated 01.2.2007 shows that appellate authority had observed though applicant had rightly been dismissed due to his misconduct but on his assurance given to the authorities, a lenient view has been taken and applicant has been reinstated in service by treating intervening period as dies non. Now respondents have themselves clarified that dies non would not mean break in service, therefore, fresh order needs to be passed.
20. In view of above, order dated 1.2.2007 is quashed and set aside.
Respondents are directed to pass fresh order reinstating the applicant in service by treating the intervening period as dies non but by clarifying that dies non would not be treated as break in service for computing his earlier service for the purposes of pension benefits.
21. Respondents shall also fix his pay in the revised pay scale with reference to what he was getting at the time of dismissal and pay him arrears on account of refixation of pay. This shall be done within a period of 3 months from the date of receipt of a copy of this order.
Applicant shall not be entitled to Rs. 40,000/- as given to Bhagwan Singh as already explained above.