UNION OF INDIA Vs. JAGDISHBHAI V JHALA

JUDGEMENT

(1.) UNION of India and the Divisional Railway Manager, Western Railway, Rajkot have challenged the judgement and order dated 27th July 2005 of the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (hereinafter referred to as "the Tribunal") in Original Application No. 374 of 2004 by which the Tribunal interfered with the order of the Disciplinary Authority. The respondent herein was charge- sheeted for unauthorised absence for a period of three months and the Disciplinary Authority passed order dated 21. 02. 1995 resmoving the respondent from the Railway Service. The respondent challenged that order by filing Original Application No. 576 of 1998, which came to be partly allowed by the Tribunal after holding that penalty of removing the respondent from service was too harsh and disproportionate to the misconduct proved and the Tribunal remitted the matter to the Disciplinary Authority to reconsider the question of imposition of penalty on the applicant after taking into account all the factors of the case to impose an adequate and appropriate penalty except that of removal/ dismissal from service or compulsory retirement. The authority accordingly reconsidered the matter and thereafter passed order dated 04. 08. 2003 reducing the respondent's pay to one stage lower in the same time scale of pay for a period of three years with future effect. The Disciplinary Authority mentioned in the order that the intervening period from removal to reinstatement will be decided later on. Thereafter, by the impugned order dated 26. 08. 2004 the Disciplinary Authority directed that "the period from removal to the date of reinstatement is treated as 'dies non' for all the purpose. " This order of the Disciplinary Authority came to be challenged by the present respondent in Original Application No. 374 of 2004. After hearing learned counsel for the parties, the Tribunal quashed the above order dated 26. 08. 2004 insofar as the intervening period was ordered to be treated "as dies non". The Tribunal directed the respondents to pass appropriate order in terms of Rule 1344 of the Indian Railways Establishment Manual ("irem" for brevity ). The Tribunal also directed that upon completion of this exercise the amount payable, if any, shall be paid within three months, failing which interest at the rate of 9% will be payable beyond the six month period.

(2.) WHEN this petition came up for preliminary hearing on 24. 02. 2006, ad interim stay of the above order of the Tribunal was granted.

(3.) MR. RAVI Karnavat, learned advocate for the petitioner-authorities has invited our attention to the respondent's service career and submitted that in the year 1987 also the petitioner-respondent had remained absent and by order dated 16. 03. 1989 penalty of withholding of increment for one year without future effect was passed. Thereafter, the respondent again remained unauthorisedly absent for a period of three months from 01. 06. 1992 and therefore, after holding departmental inquiry the respondent was removed from service of the Railways. The respondent challenged the said order of removal and in appeal penalty imposed was reduction of pay to three stages lower in the same time scale with cumulative effect for three years. The intervening period was treated as leave due. Mr. Karnavat submits that this was the third occasion when the respondent was found to have remained unauthorisedly absent for a period of three months and therefore, the Disciplinary Authority had imposed penalty of removal from service on 21. 02. 1995. The Tribunal, however, interfered with the said order also and the Department was required to reconsider the question of penalty and therefore, penalty imposed was reduction to one stage lower in the same time scale of pay for a period of three years with future effect. Mr. Karnavat submits that in such circumstances order dated 26. 08. 2004 treating the intervening period as dies non was fully justified and the Tribunal erred in interfering with the same.