9911796707
TMI Blog1980 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... o 58 years and enquiring whether the petitioner would like to continue after attaining 55 years of age which he would be attaining on 18th July, 1975. Between 12th July and 18th July, 1975, the petitioner intimated that he would like to continue in the service. After about one and half year, on 28th October, 1975, the charges against the petitioner were withdrawn. However, soon after withdrawing the charges as aforesaid, a notice dated 30th October, 1975 was served on the petitioner giving him notice of compulsory retirement under Rule 44(b) of the Pay and Allowances, Leave and Pension Rules, with the result that the petitioner was retired with effect from 1st February, 1976. 3. While in service the petitioner made an application dated 23rd January, 1976, to the Docks Manager for the salary that he would have received during the suspension period with yearly increments and allowances and other dues. The respondents did not give any reply to the said letter and the petitioner had to send a reminder on 15th May, 1976. Ultimately the Docks Manager by his letter dated 3rd July, 1976, referred to the said reminder dated 15th May, 1976 ignoring completely the original application of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d misconduct, is reinstated; the Chairman or Board may grant to him for the period of his absence from duty - (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to dismissal, removal or suspension; or (b) if otherwise, such proportion of such pay and allowance as the Chairman or the Board may prescribe. In a case falling under Clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under Clause (b), it will not be treated as a period spent on duty unless the Chairman or the Board so direct . There is no rule which specifically gives any power to the respondent to suspend. However, the employer always has a power to suspend but unless there is something in the contract or the rules the employer will be bound to pay full salary during the suspension period. In the present case a power is given by Rule 41 to give subsistence grant which is something less than the salary. In any case no complaint is made by the petitioner that the respondents were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleadings; that the petitioner cannot be said to have been honourably acquitted and that in any event, the respondents have bona fide arrived at the decision that the petitioner was not honourably discharged and therefore he is not entitled to full salary. 8. It is very difficult to define what is the meaning of the words honorable acquittal In my view it will depend on the fact and circumstances of each case as to whether a person can be said to have been discharged or acquitted honourably or not. The Judgment of Supreme Court in State of Assam v. Raghvan, (1972) S.L.R. 344, is relied on by both the sides on the meaning of honourable acquittal as well as to show whether in the facts and circumstances of the present case petitioner can be said to have been honourably acquitted. At page 347 paragraph 8 a reference is made to a note and administrative instructions appearing under the rule similar to one applicable in this case, which seem to show that the words honorably meant, acquitted of or that the Government servant has been fully exonerated. According to the Supreme Court this meaning was supported by a judgment of Calcutta High Court in Robert Stuart Wauchope v. Emper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After about 20 minutes the lock were opened and accused Nos. 1 and came out and thereafter went to the office of accused No. 1. At about 4.45 p.m. the petitioner came on his scooter and stopped in front of the office of accused No. 1. The scooter had a side car. Accused Nos. 1 and 2 talked with accused No. 3. Accused Nos. 1 and 3 then went to compartment No. 3 and accused No. 1 came out with a gunny-bag containing some articles followed by accused No. 2. Accused No. 2 locked the door and handed over the keys to accused No. 1. Accused No. 3 went slightly ahead towards them, took the hand-bag from the hand of accused No. 1 and kept it in the side car of the scooter. It appeared that on feeling suspicious that somebody was watching them, accused No. 1 took out the hand-bag from the side car and he alongwith accused No. 2 started going towards the office, In the meanwhile, accused No. 3 started scooter and went towards the yellow gate. What happened thereafter concerns only concerns only accused Nos. 1 and 2. The only allegations against accused No. 3 were that he came to the godown at 4.45 p.m., had some talk with accused Nos. 1 and 2, one bag was deposited in the side car of the sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a true account of what they have seen. They seem to be suppressing the truth and are not at all able to give proper explanation due to their unnatural conduct discussed above. It may be that having seen accused No. 1 handling the property which he admits to have done, they suspected him and were excited to find one of their officers in possession of the property, In this context, it is necessary to mention that the defence of all three accused is the same and consistent with each other. Accused No. 3 has entered in the witness-box and supported the defence. If the prosecution case regarding the two visits of accused Nos. 1 and 2 to compartment No. 3 after a talk with accused No. 3 and bringing the property openly towards the scooter be considered not probable, there is no reason to discard the defence version of the incident as untrue. As regards the alleged information, after noting that certain witnesses had not been examined, the learned Judge observes as follows, In view of the evidence on record, it is not possible to accept the case of the complainant and the other prosecution witnesses that they had any prior information that accused Nos. 1 to 3 were to remove any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Cama on the Court's power to interfere with such decision, I am of the view that the judgment clearly acquits the accused not on some technical ground or not because there was evidence both ways but the evidence of prosecution being found slightly wanting, the benefit of doubt was given to petitioner. The judgment clearly establishes that the prosecution had miserably failed to establish the case against accused No. 3 and if this is not honourable acquittal, it is difficult to say what can be said to be the honourable acquittal. The decision, if any, arrived in the face of such a judgment cannot be said to be reasonable and, therefore, cannot be said to be bona fide and it discloses non-application of mind. 13. In so far as the contention of the lack of pleadings is concerned Mr. Cama relied on the decision of the Supreme Court in Management of Hindustan Steel Ltd. v. The workman and others, (1973) I.L.I.C. 461 In that case a notice of retrenchment under S. 25F of the Industrial Disputes Act was attacked on the ground that the very notice indicated that the retrenchment compensation was not paid and was not intended to be paid before retrenchment and, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was that the acquittal is such that the petitioner should have been continued in service for the period of his suspension. This could be on the basis that he was honourably acquitted. In my view there is, therefore, no substance in the contention of Mr. Cama that the contention raised by Mr. Madnaney did not find support in the petition. 15. Mr. Cama has contended that though the petitioner was reinstated long back, the petitioner did not apply for difference in pay during the suspension period and allowances, till January, 1976 and is guilty of laches and should be deprived of the relief even if he was held entitled to it. In my view there is no such delay on the part of the petitioner so as to deprive him of the relief. It is worth nothing that, as already stated, it is the duty of the chairman of the Board to pass necessary order under Rule 42. Apart from this, a show-cause notice was issued for departmental inquiry. Not only that, but the very order asking the petitioner to assume office contemplated a departmental inquiry against him. Till 28th October, 1975 the said inquiry was kept pending. Soon thereafter the petitioner was served with a notice of compulsory retirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attend his work with requisite efficiency. Therefore, to challenge such a decision, assuming that any ground is required for compulsory retirement of employees of B.P.T., it cannot be said that the petitioner has made out any ground in the petition for holding that the order is illegal. 18. Apart from this, here in this case, there is laches and delay which would adversely affect the B.P.T. If the order was challenged soon after it was made, the B.P.T. could have decided to continue the petitioner in service and avoid the risk of paying him wages for the period during which he did not work. In these circumstances, without going into the merits of the contentions of Mr. Madnaney, I hold that the order of retirement is not liable to be set aside. 19. The next challenge is to the reduction in pension by 5%. The relevant rule is Rule 28 in the Pension Rules, 1973, which reads as follows; 28(a) The full pension or gratuity and death-cum-retirement gratuity admissible under the Rules is not to be given as a matter of course, or unless this service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound, reducing the pension by an amount which is correlated to the ground and which is reasonable considering the ground for reduction, the employee would be entitled to full pension. 21. In the present case, no reason has been given for reduction in the pension. There is nothing to show that there was any application of mind by the authority concerned in reducing the pension. No explanation has been given even in the affidavits for reduction in pension. It is found from the Appeal Rules framed by the Port Trust that though there is a right of appeal under the Pension Rules, no appellate authority was constituted. Therefore, it was not possible for the petitioner to go in appeal against the order. The contention of Mr. Cama that the petitioner is not entitled to full pension as a matter of course and that the petitioner has not preferred an appeal, though there was a provision of appeal, cannot, therefore, be accepted. 22. Mr. Cama's contention that this plea is not supported by the pleadings in the petition also cannot be accepted. It is stated that the reduction in pension is arbitrary and is without rhyme or reason and this, in my view, is enough to support the content ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
