Central Administrative Tribunal - Ernakulam
K T Muralee Mohanan Nair vs Bharat Sanchar Nigam Limited on 21 November, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00002/2014
Monday, this the 21st day of November, 2022
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
K.T. Muralee Mohanan Nair,
aged 51 years, S/o. Late P. Thankappan Nair,
Sarath Gardens, Pada North,
Karunagappilly-690518, Kollam District,
Now working as Junior Telecom Officer,
Office of SDE Switching Installation,
BSNL, Kadappakkada, Near BSNL Quarters,
Kollam - 695001. ..... Applicant
(By Advocate : Mrs. Rekha Vasudevan)
Versus
1. Union of India, represented by the Secretary,
Ministry of Communications & Information Technology,
Department of Telecommunications, New Delhi.
2. Bharath Sanchar Nigam Ltd.,
represented by Managing Director,
Bharath Sanchar Nigam Ltd.,
H.C. Mathur Lane, Ganpath,
New Delhi - 110 001.
3. Chief General Manager (Telecom), Kerala Circle,
Thiruvananthapuram, HR III Section,
2nd Floor, Door Sanchar\
Bhavan, PMG Junction - 695 0333.
4. General Manager, Telecom District,
BSNL Bhavan,
Vellayittambalam, Kollam-695001. ..... Respondents
[By Advocates : Mr. N. Anil Kumar, Sr. PCGC (R1) and
Mrs. Girija K. Gopal (R2-4)]
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This Original Application having been heard on 19.10.2022, the
Tribunal on 21.11.2022 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant joined as a Junior Telecom Officer in the Thiruvananthapuram Telecom District under the 3rd respondent after undergoing training. Thereafter, he was promoted as Sub Division Engineer (Phones), Karunagapally. While so, CBI launched two criminal cases under the Prevention of Corruption Act against him, which resulted in RC 28/A/196 and CC No. 21 of 1998. After trial, he was found guilty and convicted in the year 2002. The conviction sentence was challenged by him in two separate appeals before the Hon'ble High Court. The appeals were allowed and he was acquitted in the year 2011.
2. On conviction, he was removed from service by order of the competent authority dated 22.8.2003. He filed an appeal challenging the order of removal, which was dismissed. After the acquittal in the criminal appeal, he was reinstated by order of Member (Services) Telecom Commission dated 9.2.2012, a copy of which was produced as Annexure A1. In Annexure A1 order, it was specified that "the entire period of absence from duty from the date of his removal to the date of his reinstatement/joining duty, shall be treated as duty for all purposes". He was given posting by Annexure A2. Claiming that in spite of Annexure A2, he was not given due promotion and benefits, arrears of salary and time bound 3 upgradation in salary and further that his juniors were promoted, he submitted Annexures A6 to A9 and A12 representations before the competent authorities. Since no favourable orders were passed, the applicant, claiming that he was working as a junior most basic cadre officer without promotion, has approached this Tribunal. He claimed that he is entitled to promotion as Sub Divisional Engineer at the first instance w.e.f. July, 2013, as other similar appointees. The relief sought in the OA mainly are as follows:
"a) To declare that the applicant is entitled for promotion as Sub Divisional Engineer with effect from October, 1998 as per order dated 28.10.1998 (Annexure A1 and Annexure A2) in the first instance and as Divisional Engineer from 19.7.2013 as the other similar appointees who got appointment along with Applicant are now working in that post on officiating capacity and that the denial of the same to the applicant is violation of Article 14, 16 and 21 of the Constitution of India.
b) To direct the respondent to promote the applicant to the post of regular Sub Divisional Engineer and allow him to work as Divisional Engineer on officiating capacity along with the other similarly appointed persons who joined along with the applicant.
c) To direct the respondents to disburse the arrears of the salary during the suspension period from 22.6.2000 to 22.8.2003 and salary due for the period of removal from service from 23.8.2003 to 7.8.2012 and balance subsistence payable with interest for the delayed.
d) To direct the respondent to pay the salary on the basis of promotion post of applicant from the year 1998 and time bound upgradation in pay scale made in 2004 and 2009."
3. On behalf of the 2nd to 4th respondent a separate reply statement was filed. 1st respondent also filed reply statement. The order of the Advisor (HRD) of Telecom Commission, Department of Telecommunications, Vigilance-II Section, dated 22.8.2003 by which he was removed from service was produced as Annexure R3(a). It was stated that pursuant to Annexure A1 he was reinstated. By Annexure A2, he was permitted to join 4 BSNL as JTO and he accordingly joined on 8.8.2012. He was permitted to join BSNL as a Department of Telecom employee. He was paid pay and allowances granted at CDA rates. Pursuant to his option to join BSNL, by Annexure R3(h) order of the Director, Telecom, he was permanently absorbed in BSNL. He was also granted IDA pay scale benefits in the cadre of JTO from the date of absorption including arrears. It was claimed that it was not correct to say that the promotion due to him was not given. Kerala Circle had already taken up the matter with BSNL, for granting promotion due to him.
4. Pursuant to direction of this Tribunal a detailed statement dated 27.11.2018 was filed by the applicant clarifying the benefits, which he was claiming.
5. A separate reply statement was filed by the 2nd respondent to 4th respondent. It was stated that to claim arrears of salary, the applicant has to specifically plead and prove that he was not gainfully employed during the period following his termination and before Annexure A1 was issued and had no earning. There was no pleading to that effect in the Original Application. It was stated that on promotion of applicant to the posts of SDE and DE on notional basis, he was not entitled for salary. It was clarified in the order of reinstatement issued as Annexure A2, which was not challenged. It was also stated that since he was acquitted by giving benefit of doubt, he was not entitled to claim back wages.
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6. Traversing the entire above allegations, a rejoinder was filed. A detailed additional reply was filed by respondents Nos. 2 to 4 in answer to the rejoinder. In it, it was inter alia contended that, by virtue of FR 54B(1) to (9) there ought to have been separate order by the competent authority clarifying how the suspension order would be treated. To claim the benefits, during the above period, there should have been a separate order passed by the competent authority which was not made. In the above circumstances, Annexure A1 order based on which the claim was made, does not entitle him to claim all the benefits. In Annexure A1, the competent authority was bound to issue specific order regarding the pay and allowances, by virtue of FR 54B. Relying on authorities, it was contended that in case of reinstatement consequent to an initial conviction and acquittal in appeal, the establishment is entitled to pass appropriate orders regarding the pay and allowances.
7. Heard both sides and examined the records.
8. The applicant is essentially relying on Annexure A1 order. Annexure A1 was issued by the Member (Services) of Telecom Commission of the Department of Telecommunications, Ministry of Communications & IT, Government of India. By Annexure A1 it was ordered that the imposition of penalty of removal from service on the applicant has been withdrawn and that he was reinstated in service with immediate effect. It was further stated that the entire period of absence from duty from the date of his removal from 6 service to the date of his reinstatement/joining duty, shall be treated as duty for all purposes. The grievance of the applicant is that he was not given the benefits due to him, by virtue of Annexure A1.
9. Vehemently contending that the applicant is not entitled to claim the reliefs sought in the OA on the strength of Annexure A1, the learned Central Government Standing Counsel and the learned counsel for BSNL contended that Annexure A1 was issued by an authority who was not competent to issue such an order. The learned Standing Counsel placed reliance on Annexure R3(a) order, by which the applicant was removed from service. It was contended that only an authority who was competent to remove the applicant from service alone was entitled to order his reinstatement. It was pointed out that Annexure R3(a) was issued by the Advisor (HRD) of Telecom Commission whereas Annexure A1 was not issued by that authority nor an authority equal in rank or above the appointing authority. The competence of that authority has not been established, it was contended.
10. It is pertinent to note that contention as above is not seen set up in the reply affidavit. On the other hand, Annexure A2 order by which the applicant was posted was consequent to Annexure A1. Further in paragraphs 5 and 13 of the reply statement of respondents 2 to 4, it was specifically stated that the competent authority who issued Annexure A1 did not pass detailed order as to how his service during the period of suspension should be reckoned, virtually admitting that it was issued by the competent 7 authority. Further it is to be noted that Annexures A6 to A9 and A11 and A24 representations were submitted to various authorities of the Telecommunication as well as BSNL and it seems that files were moved pursuant to the representations submitted by the applicant. Essentially it indicates that at no point of time, the competency of the authority who issued Annexure A1 was challenged. Hence, the specific contention of the respondents that Annexure A1 was issued by an authority who was not competent to issue such an order is only to be negatived.
11. It was contended by the learned counsel for BSNL that the claim raised by the applicant was not legally and factually admissible in the context of FR 54B. FR 54B(1), (2) & (3) states as follows:
"(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order:-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the Court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would .have been entitled, had he not been suspended:8
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 be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine."
12. According to the Standing Counsel for BSNL, while issuing the orders of reinstatement, the competent authority was bound to issue specific order regularizing the period of suspension as also the period of absence from duty on account of dismissal, removal or compulsory retirement. FR 54B mandatorily requires that when a Government servant who has been dismissed, removed or suspended is ordered to be reinstated, the authority competent to order reinstatement has to make a specific order on two counts
a) regarding the pay and allowances for the period of absence and b) whether or not the period of absence should be treated as duty. According to the counsel, FR 54 B(3) indicates that the Government servant is entitled to full pay and allowances to which he would have been entitled, had he not been suspended, only when the authority competent to order reinstatement was of the opinion that the suspension was wholly unjustified. In that event, the period of suspension can be treated as period spent on duty for all purposes, as provided under FR 54B(1)(b). Further, according to the counsel, as per FR 54B(5), in a case other than falling under Sub Rule (2) and (3), the Government servant shall, subject to the provisions of sub-rule (8) and (9), be paid such amount of pay and allowances, he would have been entitled to, had he not been suspended.
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13. Accordingly, the contention of the Central Government Standing Counsel was that a Government servant on reinstatement in service after revoking suspension has no right to be paid the full pay and allowances for the period of suspension or to treat the period of suspension as period spent on duty for all purposes, unless the period of suspension is regularized by the competent authority in accordance with the provisions of FR 54B, on a specific finding by the competent authority that the suspension was wholly unjustified. Only then he would be entitled to be paid the full pay and allowances during the period of suspension had he not been suspended, it was contended.
14. According to the learned counsel, as evident from Annexure A1 order of reinstatement, it was the Member (Services) Telecom Commission who was the competent authority who has reinstated the applicant in service and he was the authority who could issue orders in respect of regularizing the period of applicant's suspension and also the period of absence from duty on account of removal from service. It was pointed out that in Annexure A1, the competent authority has not issued any order either regarding pay and allowances for the period of applicant's absence from service as to how the applicant's period of suspension has to be treated. The authority competent to issue reinstatement order has not issued any specific order for payment of salary for the period of absence. However, considering the fact that the competent authority had directed that the entire period of absence from duty 10 from the date of his removal from service to the date of reinstatement/joining duty shall be treated as duty for all purposes, the applicant was granted the posts of SDE and DE on notional basis with effect from 21.10.1998 as per Annexure A17.
15. Annexure A18 is the order issued by the Advisor (O), Department of Telecommunication Vigilance-I Section, Ministry of Communications, Government of India dated 3.10.2018. It was stated therein that the competent authority, after having taken note of the judicial pronouncement and on an objective assessment of the facts and circumstances of the case, the suspension period of the applicant from 21.6.2000 to 21.8.2003 was required to be treated as wholly unjustified and consequently the said suspension period was required to be treated as a period spent on duty for all purposes and full pay and allowances under FR 54B(3) shall be paid to the applicant. Accordingly, the period of suspension of the applicant from 21.6.2000, the date of suspension, to 21.8.2003, the date on which his order of termination was revoked was declared to be wholly unjustified and suspension was ordered to be treated as the period spent on duty for all purposes and payment of full pay and allowances under the provisions of FR54B(3) ordered to be paid to him.
16. The sustainability of the contention of the learned Standing Counsel, in the light of Annexures A1 and A18 has to be analyzed. FR 54B (3) specifically provides that the authority competent to order reinstatement is 11 entitled to declare that the suspension was wholly unjustified and consequently the applicant will be entitled for the entire pay and arrears. It is seen that Annexure A18 was issued by Advisor (O) of Department of Telecommunications. However, Annexure A1, the order of reinstatement was issued by Member (Service), Department of Telecommunications. With regard to the change of authority who had exercised the authority on behalf of the Department, the applicant in the statement dated 27.11.2018, has explained how the files pertaining to suspension period and absence from duty have been dealt with in the Department. According to the applicant, files pertaining to suspension period and absence from duty due to removal from service are dealt with in two different sections of the Vigilance, in the office of the 1st respondent. Clarifications sought by the office of the 3rd respondent from the 1st respondent was further put up for disposal before the Vigilance-I section, which dealt with the suspension period, and before Vigilance-II section, which dealt with the period of removal from service. Both the sections accorded their sanction to treat the said period of absence due to the suspension as well as due to removal from service as duty for all the purposes. Corresponding file notings are seen on Annexure A17. Annexure A18, coupled with Annexure A17 and Annexure A19 clearly shows that the order was issued by the Vigilance Wing of the 1st respondent on 3.10.2018, directing that the period of suspension will be treated as period spent on duty for all purposes for full pay and allowances, invoking FR 54B(3).
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17. The above file notings clearly show that the respondents had received necessary clarification on the point that the applicant was fully entitled for the pay and allowances for the period. Hence, it is absolutely clear that the authorities who had issued Annexures A1 and A18 were competent authorities to pass the respective orders and that orders were issued after proper and due deliberations. Hence, legally justifiable orders have been issued, holding that the period of suspension was unjustified and consequently the applicant was entitled for the entire pay and allowances for the period during which he was kept out of service. In the light of Annexure A1 which declared that the applicant was entitled for reinstatement and that his entire service from the period of termination till he was ordered to be reinstated, will be deemed as duty for all practical purpose clearly shows that the applicant was entitled for the entire wages and consequential benefits. Hence, the contention of the Central Government counsel in the light of FR 54B is only to be negatived. BSNL cannot now turn round and contend that the authority which issued order was incompetent to pass such orders.
18. According to the learned counsel for the BSNL, FR 54B(3) cast the discretion on the competent authority to form an opinion whether the suspension of the Government servant was wholly unjustified. According to it, under FR54, when a Government servant who has been dismissed, removed or compulsory retired is reinstated in service as a result of review or appeal, while regularizing the period of absence from duty what the authority should consider is whether the officer has been fully exonerated. 13 On the other hand when a Government servant is reinstated in service after suspension, while regularizing the period of suspension what is to be considered by the authority under FR54B is whether the suspension was wholly unjustified. It was contended that the nature of exoneration of acquittal can be relevant for regularizing the period of absence only, when a Government officer who was dismissed, removed or compulsorily retired was reinstated in service and not when a Government officer was reinstated in service on revoking the suspension. It was contended that the question whether or not the suspension of the officer was wholly unjustified can be determined only with reference to time when he was placed under suspension and when he continued under suspension. The counsel further contended that the authority was justified in placing the applicant under suspension in exercise of the powers under Rule 10(1) of the CCS (CCA) Rules, 1965. A criminal case was charged and that entered in a conviction. It was only thereafter in appeal he was acquitted. Hence, it was specifically contended that in the absence of specific formal order by the competent authority who is the Member (Services) Telecom in the instant case regarding the pay and allowance for the period of the applicant's absence from duty, be it for the suspension considering whether the order of suspension was wholly unjustified or not, for the period from removal to reinstatement considering whether the officer has been fully exonerated, the applicant's claim for pay and allowance for the period during which he was kept out of the office was totally without any legal basis. 14
19. It is pertinent to note that Annexure A1 was issued by an authority of the respondent. The contention now raised that the competent authority has not passed such an order does not appear to be available to the respondents at this stage. It is pertinent to note that several representations have been made by the applicant thereafter and he has been pursuing his remedy throughout the proceedings. All the representations were addressed to various authorities, under both BSNL as well as Telecom Department. It is too late at this stage to contend that the authority who issued the order was not competent to pass an order under FR 54B. It is all the more so, since pursuant to Annexure A1, the respondents have acted on the order reinstating him and had granted him notional benefits. The present contention is highly belated, and set up only when the entire benefits due under Annexures A1 and A18 to the applicant are claimed.
20. To further buttress the contention that the respondents never had a contention regarding the competency of the authority and that even a challenge about the competency of the authority is not available at this stage and further that the authority who had issued Annexure A1 order was the competent authority to issue such an order, the applicant had specifically relied on the various file notings produced before this authority as Annexure A17. Those are the file notings of BSNL issued to the applicant in an application filed under the provisions of the RTI Act. It clearly discloses that the interdepartmental and intra-departmental communications were being moved on the assumption that Annexure A1 was issued by the competent 15 authority and the modality for payment of benefits, if any, due to the applicant. At that point of time the BSNL never seems to have raised a contention regarding the validity of orders and evidently, this belated contention has been set up only to deny the benefits due to the applicant. It is all the more so, since it is for the respondents to establish by cogent materials that the authority who signed the order was not the competent authority and competent authority during the relevant time was another authority.
21. The reliance placed on file notings was resisted by the learned counsel for the BSNL on the ground that the file notings, unless they result in an order, cannot have any relevance in an adjudication process. To substantiate that contention, the learned counsel relied on the Laxminarayan R. Bhattad & Ors. v. State of Maharashtra & Anr. [2003 KHC 1040 at paragraph 52] wherein it was held that the correspondences exchanged between the parties do not show that the minutes drawn fructified in an order conferring any legal right upon the appellant. It is now well known that a right created under an order of the statutory authority must be communicated so as to confirm and enforce the right. The same view was reiterated in Shanti Sports Club & Anr. v. Union of India & Ors. [2010 KHC 6158], which was also heavily relied on by the learned counsel for the BSNL. The Supreme Court had therein held that noting recorded in the official files by the officers of the Government at different levels and even by the Ministers, do not become the decision of the Government, unless the same is sanctified and 16 acted upon by issuing an order in the name of the President or Governor. The decision of the Government must be authenticated and communicated to the affected parties by due procedure of law.
22. We are not attracted by the above arguments, in the facts of the present case. It is to be noted that the file notings is not relied by the applicant to establish any claim. It was relied on only for the limited purposes of contending that the respondents proceeded as if they correctly understood Annexure A1 and that it was issued by the competent authority. It was pressed into service only for the limited purpose of establishing that the contention which has now been taken up by the respondents was set up only to deny the due benefits to the applicant and that Annexure A1 was issued by a competent authority.
23. The learned Counsel for BSNL advanced a further argument that in the light of the serious allegations alleged against the accused and that the consequent acquittal was not an honourable acquittal, but on the ground of benefit of doubt, the applicant was not entitled for pay and arrears and hence Annexures A1 and A18 could not be construed as one intended to completely erase the stigma and that they meant a full restoration of all benefits with timely promotions with continuity of service as if he was on duty. To support it, the learned counsel relied on the decisions reported in Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board & 17 Anr. [(1996) 11 SCC 603], Union of India & Ors. v. Jaipal Singh [(2004) 1 SCC 121] and in Baldev Singh v. Union of India & Ors. [2005 KHC 1954].
24. In the first decision, regarding the question whether the applicant was entitled to back wages, it was held by the Supreme Court that the conduct of the applicant involving himself in the crime has to be taken into account for his not being in service of the respondent. Consequent upon his acquittal, he was entitled to reinstatement for the reason that his service was terminated on the basis of conviction by operation of the proviso to the Rules. However, the question of back wages could be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties.
25. In the latter decision, it was held that if a public servant get involved in a criminal case and if after initial conviction by the Trial Court he gets acquittal on appeal, subsequently, the Department cannot in any manner be found fault with for having kept him out of service. However, the management/establishment cannot be made liable to pay for the period for which they could not avail the service of the respondent. It was held that High Court committed an error in allowing back wages without adverting to all such relevant aspects and considerations. In Baldev Singh's case (supra) it was held that merely because there has been acquittal of an employee in criminal case, it does not automatically entitle him to get salary for the 18 period he was in custody. Principle of no work no pay was applicable, it was held.
26. The above decisions cannot come to the rescue of the respondents. In all those cases the respective employees were terminated consequent to their conviction in criminal cases. They were later acquitted in appeal. All the above cases arose when each of the employee claimed reinstatement with continuity of service and full back wages. Decisions were rendered by the respective High Courts when, consequent to the reinstatement, the question of granting backwages were at large before the concerned courts itself. Hence, in all the above cases the courts were called upon to decide the question whether the respective applicants were entitled to backwages, consequent to their reinstatement on an acquittal in the criminal case. It was in that background, the Supreme Court considered the question of entitlement of back wages, all emoluments and all other service benefits. However, in the case at hand by Annexures A1 and A18 orders the competent authority while ordering reinstatement had specifically held that he was entitled to be treated as continuing in service and on duty from the period when he was terminated till he took charge. In Annexure A18, the competent authority had specifically ordered that the suspension order was wholly unjustified and that suspension period would be treated as period spent on duty for all purposes and full pay and allowances be paid to him. Consequently by virtue of FR 54B(3) the applicant is entitled to the entire pay as specifically ordered in Annexure A18. Annexures A1 and A18 have 19 become final and were never disputed by BSNL earlier. In the light of the orders of the competent authority holding that the applicant is entitled for the entire pay from the date of his suspension till the date of termination and from the date of termination till he joined duty on consequent reinstatement have to be treated as on duty is binding on the BSNL, the consequences are inescapable. Hence, the orders granting all benefits to the applicant are not justiciable, either directly or even collaterally at the instance of the establishment, that too, in an application filed by the applicant for implementation of Annexures A1 and A18. Evidently, Annexures A1 and A18 have come into existence and have become final. A collateral challenge to the proceedings of BSNL itself in Annexures A1 and A18, cannot be made at the instance of the establishment who not only did not challenge Annexures A1 and A18, but partly implemented it.
27. To substantiate the contention that such a collateral challenge is not available to the respondents, the learned counsel for the applicant has rightly placed reliance on the decision in Cochin College v. Ajith Kumar K. & Ors. [(2014) 4 KLJ 443 at paragraphs 81 to 84]. We are convinced that in the case at hand, the question of entitlement of the applicant for above benefits cannot be re-agitated in the teeth of Annexures A1 and A18. Hence, the applicant is entitled for the entire benefits flowing from Annexures A1 and A18. Hence, the service period of the applicant during period of suspension cannot be treated as a notional one and has to be treated as on duty for all practical purpose.
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28. This Tribunal, in this proceedings is called upon to adjudicate only on the question whether in the light of Annexures A1 and A18 the applicant is entitled for all benefits including the seniority and all other benefits, during the period of suspension. Our emphatic answer is that by virtue of Annexures A1 and A18 the applicant will be deemed to be in service during the entire period of suspension for all practical purposes and that he is entitled to continuity of service as if he was continuing in service with all consequential benefits.
29. Though an argument was advanced by the respondents that the applicant, at the most is entitled only to notional promotion and the benefits thereupon cannot be drawn from Annexure A1 and it does not clothe him with any other right including continuity in service, emoluments and promotion reckoning the entire period as on duty, we feel that the entire issue has to be looked from the angle of Annexures A1 and A18. The words used in Annexure A1 is that consequent to the reinstatement "the entire period of absence from duty from the date of removal from service to the date of his reinstatement/joining duty, shall be treated as duty for all purposes". It is evident that the competent authority has evaluated the entire factual premise and has decided to treat the entire period of suspension as duty for "all purposes". This is re-confirmed in Annexure A18 also. 21
30. The prejudice caused to the applicant due to promotion given to the juniors during the above period is explained in paragraphs 8 to 11of the Original Application. Evidently substantial prejudice has been caused to him. It is to be noted that the allegation against him was one of acquiring disproportionate assets. There is nothing on record to show that he was detained in jail consequent to the conviction. Having considered this we are inclined to grant the reliefs to the applicant.
31. The respondents had objected to granting of back wages and other benefits on the specific ground that the applicant has not established that he was not gainfully employed during the relevant period. The respondents have a specific case that they got reliable information that the applicant was employed abroad. However, it is sought to be denied by producing Annexures A24 to A30. The copy of the passport was produced as Annexure A30. The relevant pages show that he had gone abroad to United Arab Emirates for three months. In the rejoinder filed by the applicant as well as in his representation produced as Annexure A24 he has specifically confirmed that he was not gainfully employed during the relevant period. Hence, the applicant is entitled for the benefits and the principle of no work no pay cannot be extended in this case.
32. The benefits due to the applicant have been specifically quantified and mentioned in a statement filed by applicant dated 27.11.2018. We are inclined to grant the benefits sought by him as follows: 22
a) He is entitled to arrears of pay and allowances for the period from 22.6.2000 to 7.8.2012 considering the applicant to be on duty during the above period.
b) He will also be entitled to all consequential benefits and the pay and arrears reckoning that the he has been duly promoted in the post of SDE.
c) The entire amount due, less any amount already paid to him shall be quantified and paid to the applicant within a period of three months from the date of receipt of a copy of this order.
d) Though interest is sought for the above period, in the facts of the case, we are not inclined to grant it.
33. The Original Application is allowed to the above extent. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00002/2014
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the order of Government of India, Ministry
of Communications and Information Technology,
Department of Telecommunications, Sanchar Bhavan, 20 Asoka Road, New Delhi - 110001 dated 9.2.2012 reinstating the applicant in service.
Annexure A2 - True copy of the order No. Q-117/JTO/2012-13/19 dated 7.8.2012 by the Deputy General Manager of GMTD, BSNL, Kollam reinstating and posting applicant as JTO under SDE (Installation), Kollam.
Annexure A3 - True copy of the order No. STD/3-GO/97-98/I/95 dated 5.6.1998 showing reversion and posting of officiating SDE and giving additional charge of SDE.
Annexure A4 - True copy of the order from the office of the Chief General Manager Telecommunication dated 22.10.1998 showing promotion and posting in TES Group-B. Annexure A5 - True copy of the request for promotion of applicant with letter No. EIV/DE IDT/12-13/6 dated 20.9.2012 send by the Divisional Engineer, Transmission Installation. Annexure A6 - True copy of the request submitted by the applicant to the Member (Service) Telecom Commission, New Delhi dated 27.12.2012 for the promotion, pending salary and grade fixation.
Annexure A7 - True copy of the request for regular promotion with letter No. HR-III/JTO-GC/2011/KTMM Nair/47 dated 2.9.2013 by the Assistant General Manager (HR), Thiruvananthapuram forwarding the representation submitted by the applicant.
Annexure A8 - True copy of the request submitted by the applicant dated 30.12.2013 to the Director, HR, BSNL, Corporate Office, New Delhi requesting for promotion to the cadre of SDE/DE.
Annexure A9 - True copy of the request submitted by the applicant to the Chief General Manager, Kerala Telecom Circle, Thiruvananthapuram dated 1.8.2013 requesting time bound upgradation.
24Annexure A10 - True copy of the pay fixation memo from office of the General Manager, Telecom, Kollam dated 29.7.2013. Annexure A11 - True copy of the pay fixation memo from the office of the General Manager, Telecom District Kollam dated 23.9.2013 for the pay fixation on consequent of revision of IDA pay scale effective from 1.1.2007.
Annexure A12 - True copy of request submitted by the applicant to the General Manager Telecom, Telecom District, Kollam dated 1.8.2013 requesting for the pay arrears.
Annexure A13 - True copy of the order No. E-63/JTOs/37 dated 28.4.1990 from the office of the Telecom District Manager, Kollam stating the confirmation of official including applicant in the cadre of JTO.
Annexure A14 - True copy of the order No. ST7/Tfr/VI/89 dated 29.5.1984 from the office of the District Manager Telecom, Thiruvananthapuram showing transfer and posting of the applicant and others in the cadre of Junior Engineers.
Annexure MA1- Copy of the order dated 7.4.2011 in CRL.A No. 1225 of 2002 by the Hon'ble High Court of Kerala.
Annexure MA2 -Copy of the order dated 24.5.2011 in CRL.A. No. 2070 of 2003 by the Hon'ble High Court of Kerala.
Annexure MA1- True copy of the judgment dated 5.12.2002 in CC No. 20 of 1998 of the Special Judge (SPE/CBI-II) Ernakulam. Annexure MA2- Certified of t he judgment dated 10.12.2000 in CC No. 21 of 1998 of the Special Judge (SPE/CBI-II) Ernakulam. Annexure A15 - True copy of the office order No. 51-16/2013- Pers(DPC)/17 dated 15.10.2014 issued by the Assistant General Manager (DPC).
Annexure A16 - True copy of the order No. 412-16/2014-Pers-I dated 9.10.2015 issued by the DGM.
Annexure A17 - True copy of the filing noting availed under the Right to Information Act as per letter No. ES/98-13/RTI/CO/2016-
17/XI/43 dated 18.11.2017 issued by the
GM(HR/Admn)&CPIO.
25
Annexure A18 - True copy of the order No. 9-33/98-Vig.I(I.N98/3) dated 3.10.2018 issued by the Vigilance I Section of the 1st respondent along with the forwarding letter No. VIG/INV/ALP/2016-18/34 dated 9.10.2018 issued from the office of the 3rd respondent.
Annexure A19 - True copy of the letter No. CPIO/BDNL-ALP/2-17-18/99 dated 9.11.2018 issued from the office of the General Manager Telecom, Alappuzha along with the enclosures thereof.
Annexure A20 - True copy of the application dated 17.6.2019 submitted by the applicant to the CPIO office of the GM TD Kollam.
Annexure A21 - True copy of the letter NO. CPIO/KLM/RTI Act/2019/18 dated 9.7.2019 issued from the office of the 4th respondent.
Annexure A22 - True copy of the representation dated 1.8.2013 submitted by the applicant to the 4th respondent.
Annexure A23 - True copy of the application dated 19.6.2019 submitted by the applicant to the APIO in the office of the AGM (Adm).
Annexure A24 - True copy of the letter No. CPIO/KLM/RTI Act/2019/21 dated 9.7.2019 issued from the office of the 4th respondent.
Annexure A25 - True copy of the forwarding letter dated nil addressed by the SDI (Installation) to the AGM (Adm) office of the GMTD, Kollam.
Annexure A26 - True copy of the letter No. Q-7117/II/2 dated 9.4.2015 issued by the 4th respondent.
Annexure A29 - True copy of the Organizational chart as downloaded from the website of the Department of Telecom.
Annexure A30 - True copy of the relevant pages of passport of the applicant.
RESPONDENTS' ANNEXURES Annexure R3(a) -True copy of order No. 8-64/2003-Vig-II dated 22.8.2003 of the 1st respondent.
26Annexure R3(b)- True copy of letter No. HR-III/JTO-GC/2011/KTMM Nair/11 dated 19.3.2012 of the 3rd respondent.
Annexure R3(c) - True copy of the order dated 26.7.2012 of the 2nd respondent.
Annexure R3(d)- True copy of letter No. 5-19/2012/Pers-IV dated 26.7.2012 of the Department of Telecommunication. Annexure R3(e) - True copy of the letter dated 9.8.2012 of the 1st respondent.
Annexure R3(f) - True copy of the letter dated 11.4.2013 of the 1st respondent.
Annexure R3(g) -True copy of the letter addressed to the 3rd respondent from the 2nd respondent No. 5-19/2013/Pers-IV dated 25.4.2013.
Annexure R3(h)- True copy of the order No. 27- 1/Dir(Estt)/DOT/KRL/2009/45 dated 24.6.2013 of the 1st respondent.
Annexure R3(i) - True copy of the letter dated 22.5.2014 of the 1st respondent.
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