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B.N. Misra v. Union Of India & Others - WRIT - A No. 19681 of 1989  RD-AH 13720 (8 August 2007)
Court No. 26
Civil Misc. Writ Petition No. 19681 of 1989
Bashistha Narain Misrsa Vs. Union of India & others
Hon'ble Mr. Justice Vineet Saran
The petitioner was initially appointed as a Constable in the Railway Protection Force on 30.6.1957. By an order dated 10/15th October, 1968 the petitioner was discharged from service with effect from 1.8.1968 on the ground of being medically unfit. The petitioner challenged the said order in civil suit no. 560 of 1969 which was decreed in favour of the petitioner by Judgment and Order dated 17.12.1970 and the order dated 10/15th October, 1968 was set aside. The civil appeal no. 126 of 1971 filed by the respondent-Railway Administration was dismissed by the appellate court vide Judgment and Order dated 20.9.1973. The petitioner was thereafter permitted to join duties only on 7.9.1975 and was paid his salary. The dispute in the present case is with regard to payment of salary for the period 1.8.1968 to 6.9.1975 during which the petitioner remained out of service because of the order of discharged passed by the respondent authority which was later set aside by a court of law.
I have heard Sri Satish Dwivedi, learned counsel for the petitioner as well as Sri S.K.Srivastava, learned counsel for the respondents and have perused the record.
No plausible explanation for not paying the salary for the aforesaid period has been given by the respondents except for that because the petitioner did not work for the said period on having been discharged on medical ground, he would not be entitled to salary for the said period. Learned counsel for the respondents has repeatedly submitted that since discharge was on medical grounds, work was not being taken from the petitioner. The respondents also relied on Paragraphs 2044 and 2237 of the Indian Railway Establishment Code in support of his submission that the petitioner was not entitled to payment of salary. Paragraph 2044 deals with reinstatement of a dismissed employee on the dismissal order having been set aside in appeal or review. In such a case, as per the said paragraph the competent authority is obliged to, at the time of reinstatement, pass an order with regard to payment of salary and allowances for the period during which the employee remained out of job. In the present case there is no averment that the competent authority did apply his mind to this Paragraph and considered the case of the petitioner on merits for payment of salary for the period during which he remained out of job. Paragraph 2237 relates to grant of leave to a railway servant who is unlikely to be fit to return to duty. The said Paragraph will not have any relevance because it is not the case of the respondents that the petitioner was unlikely to be fit to return to his duty. In fact the order declaring him medically unfit was found by the competent court of law to have been wrongly passed.
The petitioner remained off duty because of no fault of his and on the contrary because of the wrong action of the respondents by discharging him on medical grounds which was found to be wrong and illegal by the court. As such in the aforesaid circumstances depriving the petitioner of his salary and allowances due for such period would not be sustainable in law and it is thus held that the petitioner would be entitled to payment of salary for the period 1.8.1968 to 6.9.1975.
Accordingly, the orders dated 18.2.1968 and 31.3.1989 passed by Respondents no.4 and 3 respectively are quashed. The respondents are directed to pay the arrears of salary and other benefits for the period 1.8.1968 to 6.9.1975 to the petitioner within six months from the date of filing of a certified copy of this order before the Divisional Security Commissioner, Railway Protection Force, Northern Railway, Allahabad, Respondent no.3. In case if the payment is not paid to the petitioner within the aforesaid period, the respondents shall be liable to pay interest at the rate of 9% per annum from the date it became due till the date of actual payment. However, it is clarified that if the entire payment is made within the stipulated period of six months given above, the respondents shall not be liable to pay any interest.
This writ petition stands allowed. No order as to cost.
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