IREC Rule No.1343: (FR-54) Pay On Re-instatement In Appeal
- (FR-54) Pay On Re-instatement In Appeal:-
(1) When a railway servant who has been dismissed, removed or compulsorily retired is re-instated as a result of appeal or review or would have been so reinstated but for his retirement on superannuation while under suspension preceding the dismissal, removal or compulsory retirement, the authority competent to order reinstatement shall consider and make a specific order-
(a) Regarding the pay and allowances to be paid to the railway servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and,
(b) Whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order re-instatement is of opinion that the railway servant who had been dismissed, removed or compulsorily retired has been fully exonerated the railway 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 opinion that the termination of the proceedings instituted against the railway servant had been delayed due to reasons directly attributable to the railway servant, it may, after giving him an opportunity to make his representation and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the railway servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay only such amount of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In cases other than those covered by sub-rule (2) (including cases where the order of dismissal, removal or compulsory retirement from service is set aside by the appellate or reviewing authority solely on the ground of non-compliance with the requirements of clause (2) of Article-311 of the Constitution and no further inquiry is proposed to be held) the railway servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount 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 railway 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 60 days from the date on which the notice has been served as may be specified in the notice.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding the dismissal, removal or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specific purpose; provided that if the railway servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the railway servant.
Note: The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of;
(a) Extraordinary leave in excess of 3 months in the case of temporary railway servant; and
(b) Leave of any kind in excess of 5 years in the case of permanent railway servant.
(6) The payment of allowances under Sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7) The amount determined under the proviso of sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 1342 (FR-53).
(8) Any payment made under this rule to a railway servant on his re-instatement shall be subject to adjustment of the amount, if any earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under this rule are equal to or less than the amounts earned during the employment elsewhere, nothing shall be paid to the railway servant.
Government Of India’s Decisions:
(1) No condition of lien to be satisfied for applying FR-54 (1343): A Government servant was dismissed from service on 08.03.1927 and on appeal, was reinstated with effect from 27.10.1927. The appellate authority declared, under FR-54 (1343) that the period of unemployment between the dates of dismissal and reinstatement should be treated as spent on duty and allowed to count for leave and increments. As there was no post against which the lien of the Government servant could be shown for the period of dismissal, the question arose whether in the absence of lien on a permanent post the period of unemployment could count for leave or increments. It was decided that FR- 54 (1343), is absolute and unconditional and that it could not be absolute if the condition of ‘Lien’ had first to be satisfied.
[Authority: Government Of India, Finance Department No.F/28-RI/28, 05.04.1928]
(2) A question having arisen whether in cases where the period of suspension is ordered to be treated as one spent on leave and when on conversion it is found that the greater part of the period is to be treated as extraordinary leave for which no leave salary is admissible, the recovery of the subsistence allowance already paid would be in order, it has been decided that there is no bar to the conversion of any portion of a period of suspension into extraordinary leave. In the case of person who are not fully exonerated the conversion of the period of suspension into leave with or without allowances has the effect of removing the stigma of suspension and all the adverse consequences following there from. The moment the period of suspension is converted into leave, it has the effect of vacating the order of suspension and it will be deemed not to have been passed at all. Therefore, if it is found that the total amount of suspension exceeds the amount of leave salary and allowances, the excess will have to be refunded and there is no escape from this conclusion.
(3) When the period of suspension after re-instatement is not treated as duty by the competent authority nor as leave at the request of the employee, it will not be deemed to cause an interruption/break in service. It shall be counted as ‘service’ for the purpose of special contribution to Provident Fund, leave on average / half average pay under the State Railway Leave Rules contained in Chapter-V.
[Authority: No.F(E)52SPN(1), 29.02.1960]