Rule 1343(4) IREC mandates specific opportunity before treating reinstated employee's absence as dies-non.

COMMON ORDER

Justice K.Haripal

As common questions are raised, both the applications were clubbed, heard together and are being disposed of by this common order.

2. Applicants are Loco Pilot (Passenger) and Senior Assistant Loco Pilot respectively attached to the Office of the Chief Traction Loco Controller, Southern Railway. While both of them were working as Loco Pilot and Assistant Loco Pilot in Express train No.12683, on 26.11.2014 'they had passed Up Starter signal at Rd. No.3 of Idappalli Station at 'ON' ' and committed serious dereliction of duty. The charges against both the applicants are highly technical. But from the documents it appears that the allegation against them fell within the scope of SPAD (Signal Passed At Danger). It is seen from Annexure-A1 that they were performing duties as Loco Pilot and Assistant Loco Pilot respectively in Express train No.12683 and at Idappally station the train was stopped. The allegation is that 'it was actually stopped after passing the Rd.3 Up Starter No.38A at danger aspect. Train engine and two and half coaches had passed the starter'. Such an allegation normally lead to initiating departmental action and ends up with termination of service. After following procedural formalities, by order dated 11.01.2017 both the applicants were removed from service with effect from 12.01.2017.

3. Then they preferred appeal before the 2^nd respondent. Though the misconduct alleged on the part of the applicants was serious, by Annexure-A3 order dated 10.04.2018 of the 2^nd respondent - appellate authority modified the punishment and both were reinstated in service imposing the penalty of 'reduction of pay by three stages'. It will have the effect of postponing future increment of pay. It was also stated that they will not regain their seniority on completion of penalty. It was further stated that for two years they shall not be booked for running duty. On completion of two years they will have to be suitably evaluated by a team of competent officials and be posted to running duties duly including retraining and fresh psycho test for undertaking running duties on main line. During the above period they will be given stationary duty. It is further stated that the intervening period between the 'removal from service' and reinstatement is treated as dies-non. The applicants are aggrieved by this part of the order passed by the 2^nd respondent. So, they seek to quash Annexures-A3 and A5 to the extent treating the intervening period as dies-non, to direct the respondents to grant pay and allowances as provided in Rule 1343(4) of Indian Railway Establishment Code (IREC) Volume-II for the period between 12.01.2017 and 10.04.2018 and to direct the respondents to reckon the above period as duty for all purposes like pension, annual increment etc.

4. The applicants have maintained that treating the period of absence as dies-non is arbitrary, discriminatory and ultravires Rule 1343 of IREC Volume-II. Exercise of powers vested under Railway Servants (Discipline and Appeal) Rules, 1968 and passing orders regarding the quantum of pay and allowances during the absence are two independent powers. Order was passed by the 2^nd respondent treating the period of absence as dies-non, violating the principles of natural justice. There is no provision for imposing dies-non. Period of absence has to be treated either as duty or non-duty. Refusal on the part of the respondents to arrange payment in terms of sub Rules (6) and (7) of Rule 1343 of IREC is vi