CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH order 05.4.017
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH
ORIGINAL APPLICATION NO.180/01006 of 2014 Wednesday this the 5th day of April, 2017
CORAM Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
ORIGINAL APPLICATION NO.180/01006 of 2014 Wednesday this the 5th day of April, 2017
CORAM Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
P.V. Mohandas S/o Sri Vava, aged 62 years,Post Master (in the cadre of Assistant Superintendent of Post Offices (Retired), Thrissur Head Post Office, residing at Revathy, CC No.59/1874, Thevara, Cochin-682013, Ernakulam District.
... Applicant
... Applicant
(By Advocates Mr. OV Radhakrishnan (Senior Advocate)
Mrs. Radhamani Amma, Mr. Antony Mukkath and Mr.Ranjith KP)
Versus
1 Chief Postmaster General, Kerala Circle, Thiruvananthapuram-695033.
2 The Director of Accounts (Postal) General Post Office Building, Thiruvananthapuram.1.
3 Postmaster, Head Post Office, Ernakulam, Cochin-11.
4 Union of India, represented by its Secretary, Ministry of Communications, Department of Posts, Dak Bhavan, New Delhi-110001.
... Respondents
(By Advocate Mr. K. Kesavankutty, ACGSC)
This application having been finally heard on 30.03.2017, the Tribunal on 05.04.2017 delivered the following:
Mrs. Radhamani Amma, Mr. Antony Mukkath and Mr.Ranjith KP)
Versus
1 Chief Postmaster General, Kerala Circle, Thiruvananthapuram-695033.
2 The Director of Accounts (Postal) General Post Office Building, Thiruvananthapuram.1.
3 Postmaster, Head Post Office, Ernakulam, Cochin-11.
4 Union of India, represented by its Secretary, Ministry of Communications, Department of Posts, Dak Bhavan, New Delhi-110001.
... Respondents
(By Advocate Mr. K. Kesavankutty, ACGSC)
This application having been finally heard on 30.03.2017, the Tribunal on 05.04.2017 delivered the following:
ORDER
Per: Justice N.K.Balakrishnan, Judicial Member
Annexure A26 order to the extent it denies or restricts the benefits of treating the period from the date of compulsory retirement to the date of applicant's retirement from service is under challenge in this case. The applicant seeks to set aside that part of the order which according to the applicant is against Annexure A17 order. The applicant also seeks to set aside the order to recover/adjust an amount of Rs. 1,59,393/- towards commutation of pension wrongly determined as recoverable from the DCRG and for a further direction to refund the commuted value of Rs.1,28,151/- which was stated to have been illegally recovered or adjusted from the DCRG of the applicant. Further the applicant seeks a direction to be issued to the respondents to grant annual increments accrued to the applicant during the period of his compulsory retirement and the date of his reinstatement and to refix the last pay drawn as on the date of superannuation and for other consequential benefits.
2. Here is the gist of the case pleaded by the applicant. The applicant entered the service as Time Scale Clerk on 7.9.1979. That post was subsequently re-designated as Postal Assistant. He was promoted to the cadre of Inspector Post Offices on 6.11.1989 and again to the cadre of Assistant Supdt. of Post Offices on 4.1.1995. A disciplinary action was initiated against the applicant alleging that while functioning as the Asst. Supdt. Of Post Offices (ASP) Ernakulam Postal Division on 7.2.1997 he selected one KE Pushkaran who had secured only 265 marks in the SSLC ignoring another candidate Mr. MK Balan who had secured 276 marks. Similarly he had also on 31.3.1997 while functioning as ASP selected one MA Jessy who had secured only 264 marks while NK Bhadran had secured 267 marks in the SSLC examination was ignored. Theselection was purely based on the marks obtained in the SSLC. After conducting the inquiry, he was ordered to be compulsorily retired from service vide Annexure A1 order. That was challenged in Appeal. Annexure A1 order was confirmed in appeal by Annexure A2. The revision filed against the same was rejected vide Annexure A3. Challenging the same he filed Original Application before this Tribunal as OA 789/2003 which was
Per: Justice N.K.Balakrishnan, Judicial Member
Annexure A26 order to the extent it denies or restricts the benefits of treating the period from the date of compulsory retirement to the date of applicant's retirement from service is under challenge in this case. The applicant seeks to set aside that part of the order which according to the applicant is against Annexure A17 order. The applicant also seeks to set aside the order to recover/adjust an amount of Rs. 1,59,393/- towards commutation of pension wrongly determined as recoverable from the DCRG and for a further direction to refund the commuted value of Rs.1,28,151/- which was stated to have been illegally recovered or adjusted from the DCRG of the applicant. Further the applicant seeks a direction to be issued to the respondents to grant annual increments accrued to the applicant during the period of his compulsory retirement and the date of his reinstatement and to refix the last pay drawn as on the date of superannuation and for other consequential benefits.
2. Here is the gist of the case pleaded by the applicant. The applicant entered the service as Time Scale Clerk on 7.9.1979. That post was subsequently re-designated as Postal Assistant. He was promoted to the cadre of Inspector Post Offices on 6.11.1989 and again to the cadre of Assistant Supdt. of Post Offices on 4.1.1995. A disciplinary action was initiated against the applicant alleging that while functioning as the Asst. Supdt. Of Post Offices (ASP) Ernakulam Postal Division on 7.2.1997 he selected one KE Pushkaran who had secured only 265 marks in the SSLC ignoring another candidate Mr. MK Balan who had secured 276 marks. Similarly he had also on 31.3.1997 while functioning as ASP selected one MA Jessy who had secured only 264 marks while NK Bhadran had secured 267 marks in the SSLC examination was ignored. Theselection was purely based on the marks obtained in the SSLC. After conducting the inquiry, he was ordered to be compulsorily retired from service vide Annexure A1 order. That was challenged in Appeal. Annexure A1 order was confirmed in appeal by Annexure A2. The revision filed against the same was rejected vide Annexure A3. Challenging the same he filed Original Application before this Tribunal as OA 789/2003 which was
dismissed by this Tribunal as per order dated 13.3.2006. That was challenged by the applicant by filing WP No. 35435/2007. It is stated that the Hon'ble High Court disposed of the said Writ Petition by judgment dated 16.1.2009 setting side the order passed by the Tribunal on 13.3.2006. That order has not been produced by the applicant. Similarly the subsequent judgment of the Hon'ble High Court dated 16.1.2009 has also not been produced. However, it is stated that the order passed by the Tribunal on 13.3.2006 was set aside and the matter was remanded back to the Tribunal consequent whereto an order was passed by the Tribunal afresh. That order is Annexure A4. By Annexure A4 dated 28.7.2009 the Tribunal directed the appellate authority to reconsider the case of the applicant in the light of the discussion made therein. It was in that case (Annexure A4) the Tribunal held that since it was an omission on the part of the applicant, it should be treated as one of negligence simplicitor. Then the question was whether the penalty imposed is commensurate with the gravity of misconduct. Since the Tribunal was not competent to substitute any punishment, the matter was remanded to the appellate authority to consider that lone aspect whether the applicant deserves any other penalty other than termination from service. That was challenged before the Hon'ble High Court in WP No. 23275/2010. Annexure A7 is the judgment dated 1.11.2010 passed by the Hon'ble High Court in that case. The Hon'ble High court held that the department should consider a lesser punishment to the respondent (applicant herein) as suggested by the Tribunal. It was made clear that no further inquiry is required and based on the inquiry report which has become final by virtue of Tribunal's order confirmed by the Hon'ble High Court and in accordance with the rules and norms followed by the department, punishment will be considered. In purported implementation of Annexure A7 judgment the applicant was served with Annexure A8 Memo dated 13.12.2010 informing him that the appellate authority proposed to award a punishment of reduction to a lower grade to which A11 representation dated 7.12.2010 was submitted by the applicant requesting to impose a minor penalty with the least possible loss considering his loss and suffering on account of major penalty of compulsory retirement imposed on him. Annexure A12 is the consequent order passed by the respondents on 23.12.2010 as per which it was ordered that the applicant be reinstated in service with immediate effect reverting to the cadre of Postal Assistant carrying pay scale of Rs. 5200-20200 with Grade Pay of Rs. 2400/- at the stage of Rs. 5200/- for a period of two years with cumulative effect. It was further held that the period spent by the applicant in between date of compulsory retirement and reinstatement will not be eligible for any amount for the period he has not worked for which he has received pension during those period as by the High Court. Annexure A12 is the consequential order dated 23.12.2010 issued by the respondents whereby the applicant was reinstated in service with immediate effect and reverted the applicant to the cadre of Postal Assistant and posted him as Postal Assistant, Ernakulam HO in the pay scale Rs. 5200-20200 with Grade Pay Rs. 2400/- at the stage of Rs. 5200/- for a period of two years with cumulative effect. It was further ordered that the period spent in between the date of compulsory retirement and reinstatement will not be eligible for any amount for the period he has not worked since he had received pension during those period as ordered by the Hon'ble High Court of Kerala. The applicant then filed a Contempt Petition before the Hon'ble High Court contending that Annexure A12 Memo dated 23.12.2010 issued by the respondents reverting the applicant to the post of Postal Assistant which is two ranks below in hierarchy and four grades below the post of ASP which the applicant was holding. That Contempt Petition No. 73/2011 was dismissed leaving open to the applicant to take appropriate steps to challenge Annexure A12 order before the appropriate forum. It was directed by the Hon'ble High Court by Annexure A14 judgment that what is the distinction between a lesser punishment and a harsh punishment is to be decided on consideration of various factors including the economic effect of the punishment and if such a consideration is required it cannot be said that the respondents are guilty of contempt of courts in passing such an order.The Contempt Petition was dismissed but it was left open to the applicant to take appropriate steps for challenging the proceedings before appropriate forum.
3. Since the contempt petition was dismissed, the applicant was given liberty to challenge the impugned orders, he filed OA 83/2011 challenging Annexures A12 and A13 orders. Annexure A17 is the order dated 7.3.2012 passed by the Tribunal which directed the respondents to reinstate the applicant as Assistant Superintendent of Post Offices within sixty days from the date of that order but it was stated that as directed by the Hon'ble High Court no back wages are to be paid. It is further ordered that as the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered but be adjusted against the payment on his retirement on superannuation. Annexure A19 representation dated 19.7.2012 was then given by the applicant requesting regularization of the period of compulsory retirement and to fix his pay on reinstatement. He later retired on superannuation on 31.10.2012.
4. The applicant was thereafter served with Annexure A25 memo dated 28.3.2013 proposing to treat the period between the date of compulsory retirement (15.2.2001) and the date of his reinstatement on (20.6.2012) as non-duty which will not count for any purpose and also proposed to restrict the pay and allowances for the above period to the pension already drawn and paid to the applicant, explaining the position that his period of compulsory retirement should be treated as non-duty for all purposes in accordance with FR 54(A)(1). On 28.5.2013 the first respondent issued Annexure A26 Memo dated 28.5.2013 claiming increments to the applicant during the period of compulsory retirement as duty solely for pension purpose. The applicant was sanctioned with provisional pension as per Annexure A27 Memo dated 17.5.2013.Thereafter the applicant was served with Annexure A28 Pension Payment Order, Commuted Value of Pension (CVP) authority and intimation of gratuity as per PPO forwarding entries dated 12.9.2003. Thereafter Annexure A29 representation dated 18.11.2013 was submitted by the applicant to the 2nd respondent requesting not to recover or adjust the commuted value of Rs. 1,59,393/- from the CVP. Annexure A30 letter was sent by the 2nd respondent to the Senior Supdt. of Post Offices, Trichur for providing calculation of amount of recovery, commuted value etc. In reply to Annexure A30 letter the Supdt. of Post Offices, Trichur Division forwarded the details of excess commuted value recovered from the applicant vide Annexure A31 letter dated 25.3.2014. It is stated therein that Rs. 1,28,151/- was recovered from the applicant in excess. It is stated that
3. Since the contempt petition was dismissed, the applicant was given liberty to challenge the impugned orders, he filed OA 83/2011 challenging Annexures A12 and A13 orders. Annexure A17 is the order dated 7.3.2012 passed by the Tribunal which directed the respondents to reinstate the applicant as Assistant Superintendent of Post Offices within sixty days from the date of that order but it was stated that as directed by the Hon'ble High Court no back wages are to be paid. It is further ordered that as the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered but be adjusted against the payment on his retirement on superannuation. Annexure A19 representation dated 19.7.2012 was then given by the applicant requesting regularization of the period of compulsory retirement and to fix his pay on reinstatement. He later retired on superannuation on 31.10.2012.
4. The applicant was thereafter served with Annexure A25 memo dated 28.3.2013 proposing to treat the period between the date of compulsory retirement (15.2.2001) and the date of his reinstatement on (20.6.2012) as non-duty which will not count for any purpose and also proposed to restrict the pay and allowances for the above period to the pension already drawn and paid to the applicant, explaining the position that his period of compulsory retirement should be treated as non-duty for all purposes in accordance with FR 54(A)(1). On 28.5.2013 the first respondent issued Annexure A26 Memo dated 28.5.2013 claiming increments to the applicant during the period of compulsory retirement as duty solely for pension purpose. The applicant was sanctioned with provisional pension as per Annexure A27 Memo dated 17.5.2013.Thereafter the applicant was served with Annexure A28 Pension Payment Order, Commuted Value of Pension (CVP) authority and intimation of gratuity as per PPO forwarding entries dated 12.9.2003. Thereafter Annexure A29 representation dated 18.11.2013 was submitted by the applicant to the 2nd respondent requesting not to recover or adjust the commuted value of Rs. 1,59,393/- from the CVP. Annexure A30 letter was sent by the 2nd respondent to the Senior Supdt. of Post Offices, Trichur for providing calculation of amount of recovery, commuted value etc. In reply to Annexure A30 letter the Supdt. of Post Offices, Trichur Division forwarded the details of excess commuted value recovered from the applicant vide Annexure A31 letter dated 25.3.2014. It is stated therein that Rs. 1,28,151/- was recovered from the applicant in excess. It is stated that
even after the lapse of more than seven months the excess amount recovered from the applicant was not refunded to him. Inaction on the part of the respondents to refund the excess amount is arbitrary and illegal. As on the date of compulsory retirement on 15.2.2001 the applicant has received Rs.7700/-. On reinstatement the applicant is legally entitled to receive the due from 1.1.2002 onwards and as such the applicant is entitled to get his pay fixed at Rs. 21420/- as on 1.7.2006 and on the date of retirement the applicant was entitled to get Rs. 25620/-. Hence the basic pension of the applicant would be Rs. 12810/-. Annexure A32 is the tabular statement prepared by the applicant showing the details as aforesaid but the applicant was granted only Rs. 14330/- as against Rs. 25620/- on reinstatement as evidenced by the pay fixation statement dated 25.7.2012 vide Annexure A33. Thus the applicant was granted the basic pension of Rs. 9465/- as against Rs. 12810/-. Consequently the retirement benefits of the applicant was calculated on a reduced rate. The applicant was denied his legitimate due towards retirement benefits. Thus the applicant has approached this Tribunal seeking the relief as aforesaid.
5. The application is stoutly resisted by the respondents contending as follows:
As per the order passed in OA 83/2011 the applicant was reinstated in service as Post Master, Thrissur HO. The applicant joined back in service on 19.6.2012 as Post Master, Thrissur Head Post Office and on rejoining, his pay was fixed at the pre-revised pay of Rs. 7700/- and corresponding pay in the Pay Band Rs. 9300-34800 plus Grade Pay Rs.4600/- at Rs. 18930/-. Later the applicant retired from service on superannuation on 31.10.2012. His provisional pension at the rate of Rs..9465/-was sanctioned to him vide memo/order dated 27.11.2012. Details have been made regrading the payments effected towards retiral benefits. In the inquiry the applicant was not exonerated on merits. FR 54-A(2)(ii) states that the intervening period shall be regularized in accordance with the provisions contained in sub rule (5) of Rule 54. The applicant was not fully exonerated by the Tribunal. It is admitted that the applicant received reduced value of pension at the rate of Rs. 1472/-. The original pension was Rs. 2453/- from which Rs. 981/- towards commutation was deducted and thus the reduced pension was worked to Rs. 1472/- from August, 2001 to 19.6.2012. The petitioner was holding Rs. 31242/- till the amount was recovered on superannuation on 1.10.2013. According to the OMs dated 24.12.1976 and 30.3.1978 issued by the Government of India - Ministry of Finance retirement benefits paid to the officials can be allowed to be retained on payment of simple interest as prescribed for GPF for the corresponding period. Thus the interest calculated for the period 1.8.2001 to 31.10.2013 on the DCRG amount works out to Rs. 1,13,054/-. The applicant was informed that the period between the date of compulsory retirement and the date of reinstatement as non-duty will not count for any purpose and it was also informed that the respondents proposed to restrict the pay and allowances for the said period to the pension already drawn and paid to the applicant. The period between 15.2.2001 and the date of reinstatement was reckoned as duty solely for the purpose of pension. The respondents have every right to effect recovery of the excess payment made. Hence the respondents prayed for dismissal of the OA.
6. A rejoinder was filed by the applicant refuting the averments contained in the reply statement. FR 54-A(1) provides that where dismissal, removal or compulsory retirement of a government servant is set aside by a court of law and such government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the government servant shall be paid pay and allowances in accordance with provisions in Sub Rule (2) or Sub Rule (3). In Annexure A7 it was directed by the Hon'ble High Court that as the applicant was already receiving pension, he need not be given the wages during the period of compulsory retirement. Therefore, the period of compulsory retirement has to be treated as duty for all purposes except for pay and allowances for that period as the applicant had already received pension during that period. Hence Annexure A26 treating the period of compulsory retirement as duty only for the purpose of pension is illegal. Charging interest on the DCRG and the balance commutation portion of pension are against the directions issued by the Hon'ble High Court in Annexures A7 and A17 order of this Tribunal.
7. An additional reply statement has been filed refuting the
averments made in the rejoinder. Another additional rejoinder is also seen filed by the applicant almost reiterating the same contentions which have been raised earlier. A 2nd additional reply statement is also seen filed refuting the averments contained in the rejoinder. It is contended that FR 54(A)(2)(ii) states that the intervening period shall be regularized in accordance with provisions contained in Sub Rule 5 of Rule 54. The applicant was not fully exonerated by the Tribunal. Paragraphs 12 and 13 of A17 order indicate that the punishment was not set aside on the merits of the case. It is only stated that the applicant who had already suffered adequate punishment commensurate with the gravity of the misconduct by being out of service during the operation of compulsory retirement and so he should not have to suffer by inflicting another punishment. It was also held that the applicant is not entitled to any arrears of pay and allowances. Hence the applicant is not entitled to draw increment for the period from the date of compulsorily retirement till the date of reinstatement as claimed by him.
8. We have heard the learned counsel on either side and have alsogone through the pleadings and documents on record.
9. It is the admitted case that in the disciplinary inquiry conducted against the applicant, the applicant was found guilty and a penalty of compulsory retirement for such a misconduct was passed. That was challenged by him before the Tribunal filing OA 789/2003. Annexure A4 is the order passed therein. Holding that the Tribunal cannot substitute any punishment the matter was remanded to the appellate authority to consider the case of the lone applicant as to whether the applicant can be awarded any other penalty other than compulsory retirement from service. The appellate authority was directed to consider the case of the applicant in the light of the discussions made in Annexure A4 and to arrive at a judicious conclusion and communicate the same to the applicant. Pursuant thereto the appellate authority considered the matter again but it was held that the imposition of any other penalty would be inappropriate and so the penalty imposed by the Disciplinary Authority was confirmed. However that order was subsequently withdrawn as per Annexure A6 dated 4.8.2010 since at
that time the Writ Petition (C) No.23275/2010 filed by the respondent was pending. Annexure A7 is the judgment of the Hon'ble High Court in the above Writ Petition passed on 1.11.2010 where it was held:
5. The application is stoutly resisted by the respondents contending as follows:
As per the order passed in OA 83/2011 the applicant was reinstated in service as Post Master, Thrissur HO. The applicant joined back in service on 19.6.2012 as Post Master, Thrissur Head Post Office and on rejoining, his pay was fixed at the pre-revised pay of Rs. 7700/- and corresponding pay in the Pay Band Rs. 9300-34800 plus Grade Pay Rs.4600/- at Rs. 18930/-. Later the applicant retired from service on superannuation on 31.10.2012. His provisional pension at the rate of Rs..9465/-was sanctioned to him vide memo/order dated 27.11.2012. Details have been made regrading the payments effected towards retiral benefits. In the inquiry the applicant was not exonerated on merits. FR 54-A(2)(ii) states that the intervening period shall be regularized in accordance with the provisions contained in sub rule (5) of Rule 54. The applicant was not fully exonerated by the Tribunal. It is admitted that the applicant received reduced value of pension at the rate of Rs. 1472/-. The original pension was Rs. 2453/- from which Rs. 981/- towards commutation was deducted and thus the reduced pension was worked to Rs. 1472/- from August, 2001 to 19.6.2012. The petitioner was holding Rs. 31242/- till the amount was recovered on superannuation on 1.10.2013. According to the OMs dated 24.12.1976 and 30.3.1978 issued by the Government of India - Ministry of Finance retirement benefits paid to the officials can be allowed to be retained on payment of simple interest as prescribed for GPF for the corresponding period. Thus the interest calculated for the period 1.8.2001 to 31.10.2013 on the DCRG amount works out to Rs. 1,13,054/-. The applicant was informed that the period between the date of compulsory retirement and the date of reinstatement as non-duty will not count for any purpose and it was also informed that the respondents proposed to restrict the pay and allowances for the said period to the pension already drawn and paid to the applicant. The period between 15.2.2001 and the date of reinstatement was reckoned as duty solely for the purpose of pension. The respondents have every right to effect recovery of the excess payment made. Hence the respondents prayed for dismissal of the OA.
6. A rejoinder was filed by the applicant refuting the averments contained in the reply statement. FR 54-A(1) provides that where dismissal, removal or compulsory retirement of a government servant is set aside by a court of law and such government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the government servant shall be paid pay and allowances in accordance with provisions in Sub Rule (2) or Sub Rule (3). In Annexure A7 it was directed by the Hon'ble High Court that as the applicant was already receiving pension, he need not be given the wages during the period of compulsory retirement. Therefore, the period of compulsory retirement has to be treated as duty for all purposes except for pay and allowances for that period as the applicant had already received pension during that period. Hence Annexure A26 treating the period of compulsory retirement as duty only for the purpose of pension is illegal. Charging interest on the DCRG and the balance commutation portion of pension are against the directions issued by the Hon'ble High Court in Annexures A7 and A17 order of this Tribunal.
7. An additional reply statement has been filed refuting the
averments made in the rejoinder. Another additional rejoinder is also seen filed by the applicant almost reiterating the same contentions which have been raised earlier. A 2nd additional reply statement is also seen filed refuting the averments contained in the rejoinder. It is contended that FR 54(A)(2)(ii) states that the intervening period shall be regularized in accordance with provisions contained in Sub Rule 5 of Rule 54. The applicant was not fully exonerated by the Tribunal. Paragraphs 12 and 13 of A17 order indicate that the punishment was not set aside on the merits of the case. It is only stated that the applicant who had already suffered adequate punishment commensurate with the gravity of the misconduct by being out of service during the operation of compulsory retirement and so he should not have to suffer by inflicting another punishment. It was also held that the applicant is not entitled to any arrears of pay and allowances. Hence the applicant is not entitled to draw increment for the period from the date of compulsorily retirement till the date of reinstatement as claimed by him.
8. We have heard the learned counsel on either side and have alsogone through the pleadings and documents on record.
9. It is the admitted case that in the disciplinary inquiry conducted against the applicant, the applicant was found guilty and a penalty of compulsory retirement for such a misconduct was passed. That was challenged by him before the Tribunal filing OA 789/2003. Annexure A4 is the order passed therein. Holding that the Tribunal cannot substitute any punishment the matter was remanded to the appellate authority to consider the case of the lone applicant as to whether the applicant can be awarded any other penalty other than compulsory retirement from service. The appellate authority was directed to consider the case of the applicant in the light of the discussions made in Annexure A4 and to arrive at a judicious conclusion and communicate the same to the applicant. Pursuant thereto the appellate authority considered the matter again but it was held that the imposition of any other penalty would be inappropriate and so the penalty imposed by the Disciplinary Authority was confirmed. However that order was subsequently withdrawn as per Annexure A6 dated 4.8.2010 since at
that time the Writ Petition (C) No.23275/2010 filed by the respondent was pending. Annexure A7 is the judgment of the Hon'ble High Court in the above Writ Petition passed on 1.11.2010 where it was held:
'...We do not find any ground to interfere with the finding of the Tribunal because in our view, the respondent is already kept out of service for nine years and he is stated to have another three years of service for retirement. Therefore, we feel the department should consider a lesser punishment to the respondent as suggested by the Tribunal. Of course we do not think respondent should be given wages for the period he has worked because he is already receiving pension. The department is absolutely free to exercise their discretion in awarding suitable punishment to the respondent after giving opportunity to him....'
It was made clear by the Hon'ble High Court that no further inquiry was required and based on the findings in the inquiry which has become final by virtue of Annexure A7 the Tribunal's order confirmed by the Hon'ble High Court and in accordance with the rules and norms followed by the department punishment will be considered. Subsequently Annexure A8 order dated 3.12.2010 was passed. It was informed that the Post Master General (PMG) proposed to award a lesser punishment of reduction to a lower grade. Annexure A11 reply was given by the applicant on 7.12.2010.The PMG passed Annexure A12 order dated 23.12.2010 reverting the applicant to the cadre of Postal Assistant carrying pay scale of Rs. 5200-20200 with GP of Rs. 2400/- at the stage of Rs. 5200/- for a period of twoyears with cumulative effect. It was further ordered that the period spent by the applicant in between the date of compulsory retirement and reinstatement will not be eligible for any amount for the period he has worked since he had received pension during those period as ordered by the Hon'ble High Court. Annexure A13 is the consequential order dated 27.12.2010. Complaining of flouting of the order passed by the Hon'ble High Court Contempt Petition was filed before the Hon'ble High Court.Annexure A14 is the judgment dated 19.1.2011 passed by the Hon'ble High Court in that case. It was observed by the Hon'ble High Court that the direction of this Tribunal by judgment dated 1.11.2010 is to provide a lesser punishment than the punishment of compulsory retirement. What is the distinction between a lesser punishment and harsher punishment is to be decided on consideration of various factors including the economic effect of the punishment and if such a consideration is required it cannot be said that the respondent is guilty of contempt of court in passing such an order. It was observed that at the worst there can be an error in law in reaching the conclusion. Therefore, the contempt petition was dismissed. However it was left to the petitioner to take appropriate steps to challenge the proceedings namely Annexures A12 and A13. Annexures A12 and A13 orders were challenged before this Tribunal filing OA No.83/2011. Annexure A17 is the order passed by the Tribunal in that case.
10. The learned counsel for the applicant would submit that since Annexure A17 is the last order passed in the matter the parities are bound by this inter-party order passed by the Tribunal. This Tribunal set aside Annexure A13 order dated 23.12.2010 mentioned above and directed the respondents to reinstate the applicant as Assistant Superintendent of Post Offices within a period of 60 days from the date of receipt of a copy of the order. It was held that no back wages are to be paid. It is further stated that as the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered, but be adjusted against the payment on his retirement on superannuation. The relevant portion is quoted below for a better understanding of the case now projected by the applicant:
'13. Annexure A13 order dated 23.12.2010 is set side. The respondents are directed to reinstate the applicant as Assistant Superintendent of Post Offices within a period of 60 days, from the date of receipt of a copy of this order. As directed by the Hon'ble High Court, no backwages are to be paid. As the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered, but be adjusted against the payment on his retirement on superannuation. No costs.'
The learned counsel for the respondents would submit that Annexure A17
order passed by the Tribunal is contrary to the direction issued by the
Hon'ble High Court in Annexure A7 judgment. Since Annexure A7 judgment was passed by the Hon'ble High Court and since that has become final, the Tribunal cannot bye pass the direction contained therein. The only direction issued by the Hon'ble High Court in Annexure A7 is to consider a lesser punishment to be imposed on the applicant which would mean that the finding entered against the applicant that he is guilty of the charges levelled against him stood confirmed and as such the reinstatement was not the order that could be passed in the light of Annexure A7. What was directed by the Hon'ble High Court as per Annexure A7 is only to consider awarding of a lesser punishment. Reinstatement is not a lesser punishment. Even if there was anything wrong in Annexure A13 order that cannot be set at naught altogether but it could have been modified by the Tribunal in Annexure A17 in tune with Annexure A7 but on the other hand this Tribunal by Annexure A17 has virtually superseded Annexure A7 judgment of the High court. There is force in the submission so made by the learned counsel for the respondents. It is also true that the Annexure A17 order is not in conformity with the direction issued by the Hon'ble High Court in Annexure A7. The finding of guilt against the applicant stood confirmed by Annexure A7 judgment though the gravity of the same was turned down. As such appropriate punishment should have been imposed, the respondents counsel submits. The direction contained in Annexure A7 is seen to be sidelined or bye-passed by the Tribunal by ordering reinstatement, the respondents contend. But the fact remains that A17 order of the Tribunal was not challenged before the High Court. Therefore, even if Annexure A17 order is wrong, since it is an inter-party order and since that has become final the respondents cannot ignore Annexure A17 order stating that earlier the Hon'ble High Court in Annexure A7 held otherwise. Though the respondents now contend that Annexure A17 is actually against the spirit of the judgment (Annexure A7), for reasons best known to them, Annexure A17 was not challenged and allowed it to become final. Therefore, what remains is virtually the implementation of Annexure A17 order.
It was made clear by the Hon'ble High Court that no further inquiry was required and based on the findings in the inquiry which has become final by virtue of Annexure A7 the Tribunal's order confirmed by the Hon'ble High Court and in accordance with the rules and norms followed by the department punishment will be considered. Subsequently Annexure A8 order dated 3.12.2010 was passed. It was informed that the Post Master General (PMG) proposed to award a lesser punishment of reduction to a lower grade. Annexure A11 reply was given by the applicant on 7.12.2010.The PMG passed Annexure A12 order dated 23.12.2010 reverting the applicant to the cadre of Postal Assistant carrying pay scale of Rs. 5200-20200 with GP of Rs. 2400/- at the stage of Rs. 5200/- for a period of twoyears with cumulative effect. It was further ordered that the period spent by the applicant in between the date of compulsory retirement and reinstatement will not be eligible for any amount for the period he has worked since he had received pension during those period as ordered by the Hon'ble High Court. Annexure A13 is the consequential order dated 27.12.2010. Complaining of flouting of the order passed by the Hon'ble High Court Contempt Petition was filed before the Hon'ble High Court.Annexure A14 is the judgment dated 19.1.2011 passed by the Hon'ble High Court in that case. It was observed by the Hon'ble High Court that the direction of this Tribunal by judgment dated 1.11.2010 is to provide a lesser punishment than the punishment of compulsory retirement. What is the distinction between a lesser punishment and harsher punishment is to be decided on consideration of various factors including the economic effect of the punishment and if such a consideration is required it cannot be said that the respondent is guilty of contempt of court in passing such an order. It was observed that at the worst there can be an error in law in reaching the conclusion. Therefore, the contempt petition was dismissed. However it was left to the petitioner to take appropriate steps to challenge the proceedings namely Annexures A12 and A13. Annexures A12 and A13 orders were challenged before this Tribunal filing OA No.83/2011. Annexure A17 is the order passed by the Tribunal in that case.
10. The learned counsel for the applicant would submit that since Annexure A17 is the last order passed in the matter the parities are bound by this inter-party order passed by the Tribunal. This Tribunal set aside Annexure A13 order dated 23.12.2010 mentioned above and directed the respondents to reinstate the applicant as Assistant Superintendent of Post Offices within a period of 60 days from the date of receipt of a copy of the order. It was held that no back wages are to be paid. It is further stated that as the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered, but be adjusted against the payment on his retirement on superannuation. The relevant portion is quoted below for a better understanding of the case now projected by the applicant:
'13. Annexure A13 order dated 23.12.2010 is set side. The respondents are directed to reinstate the applicant as Assistant Superintendent of Post Offices within a period of 60 days, from the date of receipt of a copy of this order. As directed by the Hon'ble High Court, no backwages are to be paid. As the applicant is to retire on 31.10.2012 the retirement benefits already paid, if any, should not be recovered, but be adjusted against the payment on his retirement on superannuation. No costs.'
The learned counsel for the respondents would submit that Annexure A17
order passed by the Tribunal is contrary to the direction issued by the
Hon'ble High Court in Annexure A7 judgment. Since Annexure A7 judgment was passed by the Hon'ble High Court and since that has become final, the Tribunal cannot bye pass the direction contained therein. The only direction issued by the Hon'ble High Court in Annexure A7 is to consider a lesser punishment to be imposed on the applicant which would mean that the finding entered against the applicant that he is guilty of the charges levelled against him stood confirmed and as such the reinstatement was not the order that could be passed in the light of Annexure A7. What was directed by the Hon'ble High Court as per Annexure A7 is only to consider awarding of a lesser punishment. Reinstatement is not a lesser punishment. Even if there was anything wrong in Annexure A13 order that cannot be set at naught altogether but it could have been modified by the Tribunal in Annexure A17 in tune with Annexure A7 but on the other hand this Tribunal by Annexure A17 has virtually superseded Annexure A7 judgment of the High court. There is force in the submission so made by the learned counsel for the respondents. It is also true that the Annexure A17 order is not in conformity with the direction issued by the Hon'ble High Court in Annexure A7. The finding of guilt against the applicant stood confirmed by Annexure A7 judgment though the gravity of the same was turned down. As such appropriate punishment should have been imposed, the respondents counsel submits. The direction contained in Annexure A7 is seen to be sidelined or bye-passed by the Tribunal by ordering reinstatement, the respondents contend. But the fact remains that A17 order of the Tribunal was not challenged before the High Court. Therefore, even if Annexure A17 order is wrong, since it is an inter-party order and since that has become final the respondents cannot ignore Annexure A17 order stating that earlier the Hon'ble High Court in Annexure A7 held otherwise. Though the respondents now contend that Annexure A17 is actually against the spirit of the judgment (Annexure A7), for reasons best known to them, Annexure A17 was not challenged and allowed it to become final. Therefore, what remains is virtually the implementation of Annexure A17 order.
11. The learned Senior Counsel appearing for the applicant would submit that the order impugned in this case (Annexure 26) issued on 28.5.2013 is not in tune with Annexure A17. In Annexure A12 the CPMG has stated that the applicant was not fully exonerated by the Tribunal and that para 12 and 13 would clearly indicate that the punishment was not set aside on merits of the case but it was only indicated that the applicant who had already suffered adequate punishment commensurate with the gravity of misconduct by being out of service, due to the operation of the order of compulsory retirement, should not be made to suffer by inflicting another punishment. Therefore, it was held by the CPMG that FR 54-A(3) can be applied only if he is fully exonerated based on the merits of the case. It may be true that the applicant was not fully exonerated, but still there is a snag.Annexure A17 order is binding on the respondents. In Annexure A26 the CPMG has further held that the punishment of compulsory retirement inflicted on the applicant was for a grave misconduct committed by him and that in Annexure A17 the Tribunal only found that the punishment was excessive and ordered to reinstate him into service in the cadre of Assistant Superintendent of Post Offices which was the cadre in which he was working at the time of compulsory retirement. It is further stated that the applicant is not entitled to arrears of pay and allowances as the applicant was out of service during the period of compulsory retirement from 15.2.2001 to 20.6.2012 and so the benefit of increment claimed by the applicant cannot be allowed. It may be true that the applicant was not fully exonerated by the Tribunal. The order passed in Annexure A26 is that the aforesaid period can be treated as duty solely for pension purpose. In other words, according to the respondents the applicant is not entitled to get notional increment for the period from 15.2.2001 to 20.6.2012. It was further observed in Annexure A26 that the pay and allowances for the period of compulsory retirement will be restricted to pension already drawn and paid.
12. It may be correct that the applicant was not fully exonerated and that only the punishment of compulsory retirement was substituted and since it was also held that the applicant is not entitled to back wages it has to be held that the applicant is not entitled to get the increment as claimed in the OA, the respondents counsel vehemently argues.
12. It may be correct that the applicant was not fully exonerated and that only the punishment of compulsory retirement was substituted and since it was also held that the applicant is not entitled to back wages it has to be held that the applicant is not entitled to get the increment as claimed in the OA, the respondents counsel vehemently argues.
13. Since Annexure A17 has become final it is not necessary to delvedeep into other aspects. The applicant has already been reinstated in service. The only question that remains for consideration is regarding the consequential benefits the applicant is entitled to get. It was already held in Annexure A17 that the applicant is not entitled to back wages for the period till the date of his reinstatement. Hence the only other question that falls for consideration is whether the applicant is entitled to notional increment.Since there is an order of reinstatement and what has been prohibited is only the payment of back wages, the contention that the applicant is not entitled to get notional increment cannot be sustained. If the respondents had any objection to the direction issued under Annexure A17 that should have been challenged before the Hon'ble High Court or a review application should have been filed. That was not done. Therefore, though the applicant is not entitled to get back wages for the period in question till the date of reinstatement, he cannot be denied the benefit of notional increment. When there is a binding order passed by the Tribunal (Annexure A17) the respondents cannot deny the same quoting the rule position stating that the applicant was not totally exonerated. Whether the applicant was exonerated or not or whether FR 54-A(3) applies or not, so far as the parties are concerned, Annexure A17 is binding on them. Though for the period between 15.2.2001 to 20.6.2012, the date of reinstatement the applicant is not entitled to back wages he is entitled to get notional increment and fixation of pay as it is only notional, the applicant will not get any arrears of pay and allowances. Grant of notional increment would certainly lead to the re fixation of pay, based on which the retirement benefits also may have to be re-calculated. The amount of pension and gratuity, if any, already disbursed to the applicant shall be adjusted against the amount that may become due to the applicant on re-fixation of pay/pension based on which quantum of the DCRG and commuted value of pension also have to beworked out. In the facts and circumstances of the case and in view of Annexure A17 the direction issued by the respondents that the applicant should pay interest on the amount of DCRG etc., received by the applicant also cannot be sustained. It was not an amount illegally retained by the applicant. He was not instrumental for grant of that amount. It is only the amount towards the pay and allowances, DCRG or Commuted Value of Pension as the case may be which it was ordered to be paid to the applicant.
14. Applicant has retried from service on 31.10.2012. The retirement benefits shall be re-fixed and paid to the applicant, after making such adjustments of the amount already drawn and which had been paid to the applicant towards DCRG and Commuted Value of Pension, after re-fixation of pay and pension in the light of what have been directed above. This shall be done within two months from the date of receipt of a copy of this order.
15. OA is disposed of as above. No order as to costs.
14. Applicant has retried from service on 31.10.2012. The retirement benefits shall be re-fixed and paid to the applicant, after making such adjustments of the amount already drawn and which had been paid to the applicant towards DCRG and Commuted Value of Pension, after re-fixation of pay and pension in the light of what have been directed above. This shall be done within two months from the date of receipt of a copy of this order.
15. OA is disposed of as above. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan)
Administrative Member Judicial Member
Administrative Member Judicial Member
Comments