RAMBILASH MAHATO Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) Applicant, Shri Rambilash Mahato filed a writ application in the Hon'ble High Court at Calcutta which by operation of Sec. 29 of the Administrative Tribunals Act, 1985 came to this Tribunal by way of transfer for disposal.

(2.) In 1944 the applicant was appointed as a Pointsman within the Sealdah Division of the Eastern Railway. On 19.7.71 he was posted as a Pointsman at Berhampore Court Railway Station. On 20.7.71 he was arrested in a criminal case on the charge of committing theft of wheat and rice from railway wagons on 19.7.71. The applicant states that the charge was false as on that date he was sick and was under medical treatment of a doctor at Berhampore. However, on production before the Magistrate the applicant was granted bail. By an order issued by the Competent Authority he was placed under suspension with effect from 19.7.71. The police investigated the case and submitted final report and on its basis the Learned Sub -divisional Magistrate, Berhampore discharged the applicant. On 16.8.71 when he was on bail he was arrested under MISA on the same allegation. Ultimately, on 16.8.72 the applicant was released from jail. On being released the applicant made an application to respondent No. 2 permitting him to resume his duty. Thereafter, he renewed his prayer. Suddenly, on 21.9.74 he received an order passed by the Divisional Operating Superintendent, Sealdah by which he was dismissed from service with effect from 22.9.74 under Rule 14(1) of the Railway Servants (Discipline & Appeal) Rules, 1968. Challenging that order of dismissal the applicant filed a writ application in the Hon'ble High Court at Calcutta. In an identical case the Calcutta High Court held that detention of such nature could not be treated as conviction in a court of law. The applicant citing the said judgment of the Calcutta High Court made a prayer for his reinstatement. The Senior Divisional Operating Superintendent, Sealdah passed an order on 18.8.77 setting aside the order of dismissal passed against the applicant and directed for his reinstatement to his former post as Pointsman. The applicant resumed his duties on 19,8.77. After that the applicant made prayers for payment of his full salary and allowances from 19.7.71 to 21.9.74, i.e., the period he was kept under suspension and for the period from 22.9.74 to 18.8.77, i.e., from the date of his dismissal from service till the date of his reinstatement. In reply respondent No. 2 issued a memo on 23.9.77 informing him that the period from 19.7.71 to 21.9.74 had been treated as on suspension and the latter period had been treated as leave due and as such the applicant's prayer could not be acceded to. The applicant challenges that order as illegal. In filing this application the applicant has prayed for setting aside Annexure -D and for issuing direction upon the respondents so that they may give his full salary and allowances for the entire period.

(3.) The application has been contested by the respondents. The facts of the case as narrated in the application are admitted by the respondents. They have justified the order shown in Annexure -D to the application on the ground that as the applicant could not be said to have been fully exonerated from the charge the period from 10.7.71 to 21.9.74 was treated as on suspension and the latter period was adjusted against leave due. The period from 22.9,74 to 1.10.74 was adjusted against leave on average pay, from 2.10.74 to 21.10.74, against leave on half average pay and from 22.10.74 to 18.8.77 against leave without pay. According to the respondents, the applicant cannot get any arrears of salary or allowances for any of the aforesaid period.