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2021 Supreme(Jhk) 398
IN THE HIGH COURT OF JHARKHAND AT RANCHI
DEEPAK ROSHAN, J.
Akhilesh Kumar – Petitioner
Versus
Union of India – Respondent
W.P. (S) No. 4358 of 2014, I.A. No. 2408 of 2015
Decided On : 19-08-2021
Advocate Appeared:
For the Petitioner: Mr. Krishna Murari.
For the Respondent: Ms. Nitu Sinha.
Headnote:
Constitution of India.,1950 - Article 20(2) - Writ Application - Posted at Dum-dum Airport - Period not spent on duty - Instant writ application has been preferred by petitioner praying for quashing and setting aside order passed by respondent whereby concerned respondent has forfeited salary of intervening period from date of dismissal to date of reinstatement from on ground that period not spent on duty - Petitioner was posted at Dum-dum Airport, Kolkata as LNK he was served with a charge sheet - Petitioner was exonerated from second charge by Inquiry Officer - However, charge was proved and disciplinary authority dismissed petitioner from his service besides forfeiture of medals and decorations earned by him – Whether review can be done in absence of statutory provision - Held, Respondents strenuously contended that primarily is not a review order further since an illegal payment was being made to petitioner under different provision as such, same was corrected and due process of law was followed by giving show cause notice - learned counsel for respondents strenuously contended that primarily is not a review order further since an illegal payment was being made to petitioner under different provision, as such, same was corrected and due process of law was followed by giving show cause notice - Said proposition of law was reiterated in case of Advertising Hon’ble Apex Court has held as under –Court have considered rival submissions made by both parties and perused record - In other words, in absence of any provision in Act/Rules granting excess power of review no officer is empowered to review - In a case in which after Government officials duly competent and duly authorized in that behalf have arrived at one decision their successors in office after decision has been acted upon and is in effective operation, cannot reconsider matter and arrive at a different conclusion - Even otherwise, change of opinion in passing any quasi-judicial order is always reprimanded - Writ Application allowed.
JUDGMENT :
DEEPAK ROSHAN, J.
1. Heard through Video Conferencing.
2. The instant writ application has been preferred by the petitioner praying for quashing and setting aside the order dated 18.07.2014, passed by respondent No. 4, whereby the concerned respondent has forfeited the salary of intervening period from the date of dismissal to date of reinstatement i.e. from 01.09.1998 to 30.03.2011 on the ground that “period not spent on duty.”
3. The fact of the case has a checkered history. On 21.05.1998, while the petitioner was posted at Dum-dum Airport, Kolkata as LNK (Lance Naik), he was served with a charge sheet. The petitioner was exonerated from the second charge by the Inquiry Officer. However, charge No. 1 was proved and the disciplinary authority dismissed the petitioner from his service w.e.f. 01.09.1998 besides forfeiture of medals and decorations earned by him.
The petitioner assailed the aforesaid order of termination before the Kolkata High Court in W.P. No. 11317(W) of 1999. The said writ petition was allowed in favour of the petitioner and he was directed to be reinstated in service with all back wages.
4. The respondent authorities challenged the order of the Writ Court in F.M.A. No. 1509 of 2003. The Division Bench of Kolkata High Court has observed that since the petitioner was exonerated from charge No. 2 he should not have been dismissed from service. However, the Division Bench further observed that since one charge is proved which is minor in nature; a liberty was given to the respondent to impose minor punishment.
5. The fact further transpires that a Special Leave Petition was also filed by the respondents being Special Leave to Appeal (Civil) No. 17197 of 2008 which was also dismissed. Pursuant thereto; the D.I.G.P. (Law), Directorate General, CRPF (HQ), New Delhi vide its letter dated 23.11.2010 communicated to the I.G.P. Bihar Sector, CRPF to implement the Court’s order passed by the Division Bench of the High Court of Kolkata in F.M.A. No. 1509/2003. Consequently, the I.G.P. Bihar Sector Patna directed the Commandant-94 Bn, CRPF to reinstate the petitioner and regularize the intervening period from the date of dismissal and pay wages under FR 54 (A) (3).
Pursuant thereto; the Commandant has passed the order and the petitioner was reinstated in service w.e.f. 30.03.2011 and the intervening period from the date of dismissal to date of reinstatement was regularized as duty for all purpose under FR 54 (A) (3).
6. Thereafter, on 21.05.2011 petitioner was put on show cause as to why not a minor punishment be imposed upon him and vide order dated 02.01.2012, minor punishment was imposed by way of 30 days confinement to lines with forfeiture of pay and allowance and 2 hours pack drill.
7. At this stage, it is pertinent to mention here that after the aforesaid order the direction of appellate court of the Kolkata High Court has been fully complied with.
8. Subsequently, about 9 months thereafter; pursuant to the letter dated 13.06.14 of the Special D.G. a show cause notice was issued to this petitioner about regularization of the intervening period from the date of dismissal to the date of reinstatement and finally, after receiving the show cause reply the respondent authorities has passed the impugned order dated 18.07.2014, whereby the intervening period between the date of dismissal till the date of reinstatement i.e. from 01.09.1998 to 30.03.2011 was regularized as “PERIOD NOT SPENT ON DUTY” under the provision of FR 54(A) (2) (ii) read with FR 54 (5). This impugned order was further modified vide order dated 21.02.2015 which was consequential in nature.
9. It was ordered that during this period an amount equivalent to the leave salary which he would have drawn, if he had been on leave on half average pay or on half pay and in addition, dearness allowance, if admissible on the basis of such leave salary, shall be paid to him.
10. Mr. Krishna Murari, learned counsel for the petitioner apart from arguments on merits of
