Union of India v. P. Rajagopalan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** ## **OP (CAT).No.148 OF 2017(Z)** **AGAINST THE ORDER/JUDGMENT IN OA 180/539/2016 DATED 02-12-2016 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS:** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER,SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O, CHENNAI 600 003** - **2 THE DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY,PALAKKAD DIVISION,PALAKKAD 678 002** - **3 THE ADDITIONAL DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY,PALAKKAD DIVISION,PALAKKAD 678 002** - **4 SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHEERN RAILWAY,PALGHAT DIVISION,PALGHAT 678 002** **BY ADV. SRI.JAMES KURIAN, SENIOR PANEL, RAILWAYS** ## **RESPONDENT/S:** **P.RAJAGOPALAN AGED 60 YEARS,S/O. K.G PADMANABHA MENON,(RETIRED CHIEF COMMERCIAL INSPECTOR,SOUTHERN RAILWAY, PALAKKAD DIVISION PERMANENT ADDRESS: SREEMURUGALAYAM,KADAVATH HOUSE, KADAVATH ROAD,NORTH PARUR,ERNAKULAM 683513** **R1 BY ADV. SRI.T.C.GOVINDA SWAMY R1 BY ADV. SMT.T.N.SREEKALA** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12-03-2020, THE COURT ON 20-03-2020 DELIVERED THE FOLLOWING:** **O.P(CAT) No.148 of 2017** **- 2 -** ## **JUDGMENT** **Dated, this the 20[th] day of March, 2020** ## **Vinod Chandran, J.** **The Railways challenge the order of the Tribunal allowing the O.A filed by the applicant/respondent granting the retirement** **benefits as also the arrears of pay in terms of Annexure A3. On facts, it is to be noticed that the applicant was involved in a trap case, as set by the Central Bureau of Investigation (for short “CBI”) on a complaint of a supplier of Breads and Biscuits to the licensed vendors in the Erode Railway station. The applicant at that time was working as Chief Commercial Inspector, Southern Railway, Erode. The allegation was that the applicant demanded bribe from the supplier, upon which a complaint was made to the CBI. The CBI, set the trap by making the supplier pass on the marked currency notes to the applicant, in the** **O.P(CAT) No.148 of 2017** **- 3 -** **presence of witnesses.** **2. The applicant was booked under the Prevention of Corruption Act and eventually the trial Court by order dated 31.05.2004 convicted and sentenced him. After the conviction was entered, the Railways issued a charge memorandum dated 23.09.2005 proposing to impose the penalty of removal from service in exercise of powers conferred by Rule 14(i) of the Railway Servants (Discipline and Appeal) Rules, 1968, for the sole reason of the conviction of the appellant. A representation from the employee was received and an order was issued on 21.11.2005 imposing a penalty of compulsory retirement from service.** **3. Later to this, in an appeal filed by the applicant, the High Court of Madras by Annexure A11 dated 22.08.2011 set aside the conviction of the applicant and acquitted him. The applicant then made a request for reinstatement which was not conceded to by the** **O.P(CAT) No.148 of 2017** **- 4 -** **Railways on the ground that there was an SLP filed against the said order. Subsequently, the applicant moved the Tribunal for reinstatement which was considered and allowed as per Annexure A2 dated 15.02.2013. By Annexure A3 the Railways complied with the order directing the applicant to reimburse the entire amounts received by him on compulsory retirement such as Gratuity, Commutation of Pension, Cash equivalent of leave salary, GIS etc. The applicant remitted the entire amounts as sought for by the Railways. The applicant was reinstated by Annexure A8 dated 10.09.2013 with retrospective effect from 25.05.2013. The applicant continued in service and retired on 31.05.2016. The SLP filed by the Railways was dismissed as per Annexure A16 dated 08.03.2016. The applicant has not been paid any retirement benefits, upon which he approached the Tribunal.** ## **4. Learned Standing Counsel for the** **O.P(CAT) No.148 of 2017** **- 5 -** **Railways produced before us the penalty order issued by the Railways on 21.11.2005 on our specifically directing it to be produced. It is argued that the Railways has shown maximum indulgence in considering the explanation of the applicant and had imposed a lesser punishment of compulsory retirement than that proposed of removal from service. It is submitted that there is no ground for granting the entire service benefits during the period he was kept out of employment. Reliance is placed on** _**(1996) 11 SCC 603 [Thakore R.C v. Superintendent Engineer, Gujarat Electricity Board]**_ **,** _**(2004) 1 SCC 121 [Union of India and others v. Jailpal Singh]**_ **and** _**(2019)5 SCC 809 [Raj Narain v. Union of India and others]**_ **.** **5. The learned Counsel urged that entire back wages can be granted only if there is malicious or vexatious proceedings initiated by the Department. In the present case,no such** **O.P(CAT) No.148 of 2017** ## **- 6 -** **allegation can be raised since the criminal proceedings was by reason of a complaint of a 3[rd] party on which CBI took action, by setting a trap and catching the applicant red handed. The allegation being one under the Prevention of Corruption Act, when conviction was entered, the Railways was perfectly within their rights to dismiss the applicant from service. Only considering the representation, a lenient view was taken. When an order of acquittal was passed by the higher court, he can only claim reinstatement and not wages during the interregnum when he was dismissed and the appeal against the conviction and sentence was pending before the higher court. The applicant has been reinstated and there can be no further relief granted, is the submission.** **6. The learned Counsel for the applicant/respondent would seek to uphold the order of the Tribunal. It is the submission of** **O.P(CAT) No.148 of 2017** ## **- 7 -** **the learned Counsel that looking at Annexure A3 and A8, reinstatement was made subject to the pay and allowances, during the period he was kept out of employment, being decided in accordance with Sub-rule3,4 and 5 of Rule 1344 (FR 54 A) of Indian Railways Establishment Code Vol.II. Such consideration was stated to be possible only after the disposal of the SLP before the Hon'ble Supreme Court. The SLP having been rejected the acquittal of the accused has acquired finality. In such circumstances, going by sub-rule3,4 and 5 the applicant has to be reinstated in service and his entire pay and allowances paid for the period he was kept out of employment.** **7. We would first look at the decision of the Hon'ble Supreme Court.** _**Thakore R C and Jaipal Singh**_ **were instances which the employee was accused of offence under the Indian Penal Code specifically Section 302. The Hon'ble Supreme Court found that the employee having** **O.P(CAT) No.148 of 2017** ## **- 8 -** **involved himself in a crime even if he is acquitted later, he is not entitled for back wages for the period of absence; which absence was also by reason of dismissal from service due to conviction entered by the Trial Court; later reversed by the appellate Court.** _**Raj Narain**_ **was a case in which FIR was launched and disciplinary proceeding was initiated. The disciplinary proceedings were later dropped. In the criminal case there was a conviction entered based on which he was dismissed from service. The employee was later acquitted of the charges by the Appellate Court. The appellant who claimed the entire back wages sought to distinguish the prosecution launched by the police which was the issue in** _**Thakore R.C**_ **and** _**Jaipal Singh**_ **as against a criminal proceeding initiated at the behest of the employer. It was in such circumstance that it was found that the observations made in** _**Thakore R C**_ **and** _**Jaipal Singh**_ **has to be understood** **O.P(CAT) No.148 of 2017** **- 9 -** **in a manner in which “the department would become liable for back wages in the event of a finding that the initiation of the criminal proceedings was mala fide or with vexatious intent”(sic).** **8. In the present case, it cannot be said that it is identical to any of the facts as disclosed from the cited judgments. The offence charged was not under the Indian Penal Code and even an involvement in a crime cannot be alleged against the applicant. The prosecution was also not initiated by the department but by another agency-the CBI. The offence alleged was on the basis of a trap set by the CBI on a complaint raised by a 3[rd] party. We are hence placed with a situation quite distinct from that arising from the cited decisions; which dictum does not have application in the facts of this case.** **9. The applicant cannot be accused of having conducted in a manner resulting in** **O.P(CAT) No.148 of 2017** ## **- 10 -** **involvement in an activity, which could be defined as criminal in nature, in the ordinary sense of the term. The Department also is not responsible for the proceedings taken against the applicant; who was convicted in the criminal proceedings launched.** **10. In this context we look into the Rules placed before us. The show cause notice issued, specifically invokes the power conferred under Rule 14(i) of the Railway Servants (Discipline and Appeal) Rules, 1968. Rule 14 is extracted** ## **hereunder:-** _**Rule 14: Special Procedure in certain cases: Notwithstanding anything contained in Rules 9 to 13.**_ _**(i) Where any penalty is imposed on a Railway servant on the ground of conduct which has led to his conviction on a criminal charge: or (ii) where the disciplinary authority is satisfied, for reasons to be recorded by it in writing, that it is not reasonably practicable to hold a enquiry in the manner provided in these rules: or (iii) where the President is satisfied**_ **- 11 -** **O.P(CAT) No.148 of 2017** _**that in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules:**_ _**The disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit:**_ _**Provided that the Railway servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case falling under clause(i) above.**_ _**Provided further that the Commission shall be consulted where such consultation is necessary before any orders are made in any case under this rule.**_ **Rule 3, 4 and 5 of Rule 1344 (FR 54A) of IREC are also extracted herein:** _**“(3)If the dismissal, removal or compulsory retirement of a railway servant is set aside by court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding, such dismissal, removal or compulsory retirement as the case may be and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances**_ **- 12 -** **O.P(CAT) No.148 of 2017** _**for the period, to which he would have been entitled, had he not been dismissed, removed or compulsory retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.**_ _**(4) The payment of allowances under sub-rule (2) of sub-rule(3) shall be subject to all other conditions under which such allowances are admissible.**_ _**(5) Any payment made under this rule to a railway servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere nothing shall be paid to the Government servant.”**_ **11. Sub-rule 3 of Rule 1344 (FR 54 A) of** **IREC makes it clear that where dismissal,** **removal or compulsory retirement of railway servant is set aside by the Court on the merits of the case, the period intervening, between the date of termination, including the period of** **O.P(CAT) No.148 of 2017** ## **- 13 -** **suspension, and the date of reinstatement shall be treated as duty for all purposes and the employee paid the full pay and allowances for the period. We cannot accept the contention of the Railways that this provision applies only in the case of disciplinary proceedings initiated. The rule itself does not draw any distinction insofar as the dismissal, removal or compulsory retirement being made pursuant to the conviction in a criminal case and a penalty imposed following disciplinary proceedings. We say so especially looking at Rule 14 (i) as extracted herein above.** **12. Rule 14(i) is not a mandate to dismiss an employee on a conviction being entered. When a conviction on a criminal charge is entered, the disciplinary authority has to consider the circumstances of the case and make such order thereon as it deems fit, after considering a representation. It does not speak** **O.P(CAT) No.148 of 2017** ## **- 14 -** **of there being a mandate for removal from service, termination or compulsory retirement. In this context we have to look at the consideration made by the disciplinary authority on the basis of the conviction entered. We extract herein the operative portion of the penalty order dated 21.11.2005.** _**"On careful consideration of records on file, the above contentions of you in your said representation are not tenable and cannot be sustained on the basis of facts. Hon'ble II[nd] Additional District Judge, Coimbatore, in his conviction order has considered in detail various points raised by you and given a clear speaking order for arriving at his conclusion. The Hon'ble High Court of Madras, although admitted your appeal petition C.A No.760 of 2004 and suspended the operation of sentence as stated by you in your representation, it is pertinent to highlight the fact that your conviction by the District Judge is not set aside by the Hon'ble High Court and hence stands. Therefore, the proposal of the undersigned in exercise of power conferred by Rule 14(i) of the Railway Servants**_ **- 15 -** **O.P(CAT) No.148 of 2017** _**(Discipline & Appeal) Rules 1968 to proceed against you on your conviction with departmental action is in order.**_ _**In view of the above, the undersigned on careful consideration of the circumstances of the case in which you were convicted on 31.05.2004 on the said criminal charge, the undersigned considers that your conduct which has led to your conviction, is such as to render your retention in public service undesirable.**_ _**However, having regard to the circumstances of your family explained in your representation and to the numerous awards that you have received during your service from the Railway Administration, purely on humanitarian consideration, the undersigned imposes a penalty of “COMPULSORY RETIREMENT FROM SERVICE” on you from the date of receipt of penalty order.”**_ ## **13. The penalty order makes it clear that** **the penalty imposed of a compulsory retirement from service is only based on the conviction. Hence when the conviction is set aside, the order of penalty would also have to be set aside. We looked at Annexure A1 judgment of the Madras High** **O.P(CAT) No.148 of 2017** ## **- 16 -** **Court. The Madras High Court has found that it was not proved that the accused had demanded a bribe and in all probability the complainant had only given a loan to the applicant. The witnesses employed in the trap categorically denied having heard any demand of bribe from the applicant. The specific plea put forward by the applicant on being apprehended by the CBI officials, immediately after the exchange of money was that he had sought a loan from the supplier. Coupled with the fact that there was no demand, the High Court acquitted the applicant. On merits, the conviction and sentence have been set aside. The penalty order also would, as a consequence stand set aside on merits in which event, consideration of pay and allowances during the period he was kept out of service, by way of suspension or termination has to be under rule 1344(3) of the IREC.** **14. We cannot also ignore the fact that** **O.P(CAT) No.148 of 2017** **- 17 -** **despite the applicant having been acquitted on 22.08.2011 the reinstatement was by Annexure A8 with retrospective effect from 25.05.2013. There can be no doubt that the applicant is entitled to the back wages from the date of acquittal, ie, 22.08.2011 and even during the previous period that is from the date of his compulsory retirement to the date of acquittal. We also make it clear that the applicant would be entitled to the time bound increments and allowances applicable to him during the period he was kept out of service as also after his reinstatement; till his superannuation. The entire amount due to the petitioner by way of back wages, with due fixation of increments and allowances shall be computed by the petitioners; showing the amounts due in each year. This written communication shall be issued to the petitioner and the amounts therein paid along with such communication.** **O.P(CAT) No.148 of 2017** ## **- 18 -** **15. It is made clear that the pension received by the applicant on compulsory retirement, till his reinstatement shall be set off as against the emoluments computed during the period he was kept out of service. The salary paid on reinstatement shall also be set off. The applicants pension shall also be fixed reckoning the last pay drawn, as per the computation herein above directed and the arrears due up to date shall be paid and the regular pension too commenced. The applicant shall be entitled to the entire retirement benefits including the leave surrender, commutation of pension and the like. Such exercise shall be carried out at any rate within four months from the date of receipt of a certified copy of this judgment and the amounts disbursed to the respondent/applicant; failing which the Railways shall be liable to pay the said amounts with 7% interest from the date of retirement.** **O.P(CAT) No.148 of 2017** **- 19 -** **The Original petition would stand dismissed with the above observations. No order as to costs.** **Sd/K. Vinod Chandran, Judge** **Sd/-** **P.V.Kunhikrishnan,** **Judge** **jma** **O.P(CAT) No.148 of 2017** - **20 -** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **EXHIBIT P1** - **COPY OF THE O.A NO 180/00539/2016 WITH ANNEXURES FILED BEFORE THE CENTRAL ADMINISTRAIVE TRIBUNAL, ERNAKULAM BENCH** - **EXHIBIT P2 COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENT IN O.A NO 180/00539/2016 WITH ANNEXURES FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **EXHIBIT P3 COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A NO 180.00539/2016 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **EXHIBIT P4 COPY OF THE ORDER IN O.A NO 180/00539/20078 DATED 2-12-2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **ANNEXURE A1 COPY OF THE JUDGMENT DATED 22.08.2011 RENDERED BY THE HONOURABLE HIGH COURT OF JUDICATURE AT MADRAS.** - **ANNEXURE A2 COPY OF THE ORDER IN O.A.NO.410 OF 2012 DATED 15.2.2013, RENDERED BY THIS HONOURABLE TRIBUNAL.** - **ANNEXURE A3 TRUE COPY OF MEMORANDUM BEARING NO.CON/3/V/486 (PR) DATED 10.5.2013, ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A4 TRUE COPY OF COMMUNICATION ADDRESSED TO THE 4TH RESPONDENT, BY THE APPLICANT DATED 16.5.2013.** - **ANNEXURE A5 TRUE COPY OF THE LETTER BEARING NO.J/P.626/SETT/12/05 DATED 20.5.2013** **O.P(CAT) No.148 of 2017** ## **- 21 -** **ADDRESSED TO THE DIVISIONAL CASHIER (PAY)** **ANNEXURE A6 TRUE COPY OF CASH RECEIPT BEARING NO.836221 DATED 21.5.2013 ISSUED BY THE DIVISIONAL CASHIER (PAY)** - **ANNEXURE A7 TRUE COPY OF LETTER DATED 27.5.2013 ADDRESSED TO THE 4TH RESPONDENT.** - **ANNEXURE A8 TRUE COPY OF THE OFFICE ORDER NO.J/P.524/II/CCS/PAY FIXATION/VOL.3 DATED 10.9.2013 ISSUED BY THE 4TH RESPONDENT.** - **ANNEXURE A9 TRUE EXTRACT OF RULE 1344 (FR 54 A) AS CONTAINED IN INDIAN RAILWAY ESTABLISHMENT CODE VOL.II.** - **ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 20.9.2013 ADDRESSED TO THE 3RD RESPONDENT.** - **ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED 3.9.2013 ADDRESSED TO THE 4TH RESPONDENT.** - **ANNEXURE A12 TRUE COPY OF THE LETTER FROM THE 3RD RESPONDENT UNDER NO.CON/J/V/486(PR) DATED 4.4.2014.** - **ANNEXURE A13 TRUE COPY OF DECLARATION DATED 7.5.2014 SUBMITTED BY THE APPLICANT.** - **ANNEXURE A14 TRUE COPY OF THE LETTER BEARING NO.J/P.524/II/CCS/PAY FIXATION/VOL.3 DATED 28.10.2014 ADDRESSED TO THE DEPUTY GENERAL MANAGER (LAW) MADRAS.** - **ANNEXURE A15 TRUE COPY OF ORDER DATED 24.2.2016 IN O.A.NO.180/00370/2015 RENDERED BY THIS HONOURABLE TRIBUNAL.** - **ANNEXURE A16 TRUE COPY OF THE JUDGMENT DATED 8.3.2016 IN SPECIAL LEAVE PETITION (CRL) NO.2820/2012, RENDERED BY THE HONOURABLE APEX COURT.** **O.P(CAT) No.148 of 2017 - 22 -** |**ANNEXURE A17**|**TRUE COPY OF THE REPRESENTATION DATED**| |---|---| ||**21.3.2016, ADDRESSED TO THE 3RD**| ||**RESPONDENT.**| |**ANNEXURE A18**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**NIL ADDRESSED TO THE 2ND RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF THE LETTER DATED**| ||**28.02.2017.**| |**EXHIBIT P6**|**TRUE COPY OF WORKING SHEET.**|