The Court set aside an order treating the petitioner's absence between dismissal and reinstatement as 'dies-non', directing that the period be counted for pay fixation and MACP benefits, while denying back-wages.
The impugned order treating 5154 days as 'dies-non' is quashed; respondents to re-fix pay and grant MACP benefits; no back-wages granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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CHANDAN SINGH ..... Petitioner
Through: Mr. Ankur Chibber, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents Through: Mr. Bhagwan Swaroop Shukla, CGSC with Mr. Syed Husain Adil Taqvi, G.P., Mr. Gokul Sharma, Mr. Shravan and Ms. Naghma Siddiqui, Advocates for UOI.
CORAM: JUSTICE S.MURALIDHAR JUSTICE TALWANT SINGH
O R D E R % 13.02.2020
Dr. S. Muralidhar, J. :
W.P.(C) 1557/2019 Page 1 of 10
“12. Briefly noted, with respect to the testimony of Ex.HC Puran Singh who had superannuated as a Head Constable from BSF, the petitioner and Nk. Raj Kumar became friendly with him and started visiting his house in spite of the i.e. Ex.HC Puran Singh cautioning them that being out of bound area, the two should not visit his house. On 30.6.1997 when he i.e. Ex. HC Puran Singh, his wife and children were sleeping, his wife heard sound from the adjoining room where-from business of selling tea was being carried out by him and as he entered the room he saw a man lying on the floor, who he struck with a stick and as the person screamed, from the voice he could recognize that it was Nk. Raj Kumar. At that very moment somebody poked a bamboo from the door and called out the name of Nk. Raj Kumar, he could recognize from the voice that the said person calling for Nk. Raj Kumar was Chandan Singh, the petitioner.”
W.P.(C) 1557/2019 Page 2 of 10
“18. Accordingly, we dispose of the writ petition declaring that petitioner would be entitled to parity with Nk.Raj Kumar, whose role in the episode was graver than that of the petitioner. The technical error in the trial as determined by the Appellate Authority which has resulted in Nk.Raj Kumar being reinstated without being subjected to a re-trial, must enure to the benefit of the petitioner as well. We quash the impugned order dated 12.7.1997 and direct that petitioner should be reinstated in service, but without any back-wages. We deny back-wages for the reason the pleadings in the writ petition are useless, as conceded to by learned counsel for the petitioner. The petitioner never took the plea in the writ petition on which he is succeeding. He never availed the remedy of appeal. He has contributed to the mess.”
“2. Further as per Court order, the above individual is required to be reinstated in service, but without any back wages during the intervening period from 12/07/1997(AN) to 24/ll/2011(AN) i.e. for a period of 5,248 days. Hence, the intervening absence period of 5248 days in respect of the petitioner is hereby regularized in terms of FR-54 as under and his re-instatement
W.P.(C) 1557/2019 Page 3 of 10
will be subject to verification of character/antecedent from' concerned civil authorities: -
i) 13/07/97 to 09/08/97 (28 days) by granting 28 days E/L due to him.
ii) 10/08/97 to 14/10/97 (66 days) by granting 133 days HPL due to him.
iii) Remaining period of absence w.e.f. 15/10/1997 to 24/11/2011 (total 5154 days) shall be treated as 'Dies-non'.”
“(i) His seniority retrospective from 10/10/1997 hence he will be entitled for financial benefits from said date. However, clarification regarding grant of MACP to him sought from Comn & IT Dte and necessary action will be taken on due course.
(ii) Regarding previous GPF and other financial benefits/arrear etc, direct indvl to approach his previous unit i.e. 151 Bn BSF by giving application through proper channel because indvl was on the posted strength of 151 Bn that time.
(iii) Indvl promotion case considered by DPC but rejected due to bad entry in year 2012.”
W.P.(C) 1557/2019 Page 4 of 10
Deputy Commandant, BSF, the Petitioner was informed that he “is not eligible for the grant of the first financial upgradation under MACP Scheme due to non-completion of 10 years of regular service”. The said communication attributed this to a period of his service having been treated as “dies non”, which as per the Department of Personnel and Training could not count towards the required period of “regular service”, for the purpose of grant of benefits under the ACP or MACP scheme. Aggrieved by the communications dated 21st and 30th May, 2014, as also the order dated 16th January, 2012, the Petitioner filed the present petition.
“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the
W.P.(C) 1557/2019 Page 5 of 10
settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”
W.P.(C) 1557/2019 Page 6 of 10
Fundamental Rules („FRs‟) 54 (5).
“(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject, to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on-which the notice has been served) as may be specified in the notice:
(ii) 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 judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.”
W.P.(C) 1557/2019 Page 7 of 10
however, Article 311 of the Constitution has not been invoked to terminate the services of the Petitioner.
“(2) Where the authority competent to order reinstatement is of the that the Government servant who had been dismissed, removed or compulsorily retired has been fully exonerated, the Government servant shall, subject to the provisions of sub-rule (6), be paid the full pay and allowances to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons, directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7) be paid for the period of such delay, only such amount (not being the whole) of such pay and allowances as it may determine.”
W.P.(C) 1557/2019 Page 8 of 10
employee were delayed “due to reasons, directly attributable to the Government servant”. There can be no manner of doubt that the present case is not an instance where the proviso to FR 54 (2) would be attracted.
W.P.(C) 1557/2019 Page 9 of 10
S. MURALIDHAR, J.
TALWANT SINGH, J. FEBRUARY 13, 2020 A
W.P.(C) 1557/2019 Page 10 of 10
3 issues framed by the court
Whether a reinstated government employee can be deprived of benefits by treating the interregnum period between dismissal and reinstatement as 'dies-non'.
Whether Fundamental Rules 54 and 54-A apply where an employee was reinstated due to a court order setting aside a charge-sheet without invoking Article 311.
Whether the treating of the absence as 'dies-non' violates the entitlements of an employee who has been exonerated.
Colour shows how this judgement treated each authority
Union of India v. Tarsem SinghExplained¶34
Union of India v. Tarsem Singh (2008) 8 SCC 648 · Who else cites this
Union of India v. Ex. SI Jeewan LalExplained¶55
Union of India v. Ex. SI Jeewan Lal (2009) 112 DRT 589 (DB)
NK Nirmal Lakra v. Union of IndiaApplied¶56
W.P.(C) No.2993/2014 (L/NK Nirmal Lakra v. Union of India)
3 provisions across 2 enactments
CHANDAN SINGH
UNION OF INDIA
S.Muralidhar
TALWANT SINGH
As recorded by the court registry
A petition under Article 226 of the Constitution asking a High Court to issue a writ against the State or a public authority in a civil matter.
Judgements on the same questions, provisions and authorities, from every court
