Central Administrative Tribunal - Hyderabad
A Somaiah vs Dept Of Posts on 30 January, 2023
OA No.21/359/2020 & 366/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/021/00359/2020 & OA/021/00366/2020
Reserved on: 31.10.2022
Pronounced on: 30.01.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
A.Somaiah, S/o. late Narayana,
Aged about 57 years, Occ: Postal Assistant,
Khairatabad Head Post Office, Hyderabad,
R/o. Flat No. 503, A-Block, SNR,
Sri Sri Kalakuteer's Apartment, Chintal Kunta,
LB Nagar, Hyderabad - 500 074.
...Applicant
(By Advocate: Dr. A. Raghu Kumar)
Vs.
1. Union of India,
Rep. by its Director General,
Department of Posts, Dak Bhavan,
Sansad Marg, New Delhi - 1.
2. The Chief Postmaster General,
Telangana Circle, Hyderabad-1.
3. The Director of Postal Services,
O/o. Postmaster General,
Hyderabad Head Quarters Region,
Dak Sadan, Abids, Hyderabad -1.
4. The Sr. Superintendent Post Offices,
Hyderabad City Division, Hyderabad -1.
5. The Senior Postmaster,
Khairatabad Head Post Office,
Khairatabad, Hyderabad - 500 004.
....Respondents
(By Advocate: Mrs. B. Gayatri Varma, Sr. CGSC in OA 359/2020
Mrs. K. Rajitha, Sr. PC for CG in OA 366/2020)
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OA No.21/359/2020 & 366/2020
COMMON ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed these two OAs viz., OA 359/2020 & 366/2020 challenging the very same impugned order dt. 11.06.2020, but for different reliefs. The concluding para of the said impugned order is extracted hereunder:
"10. Accordingly, as per the orders of the Hon'ble CAT in OA No.021/1071/2019 dated 14.02.2020 the appellant is reinstated in Service with immediate effect and the entire pensionary benefits i.e. Gratuity, CGEGIS, EL Encashment, Commutation of Pension etc. (any other payments paid on compulsory retirement etc) and also the monthly pension paid with effect from 25.05.2005 to till date of reinstatement to be recovered as per Hon'ble CAT order dated 14.02.2020 in OA No. 021/1071/2019 and as per rules along with the applicable interest from the pay and allowances of the official or from any other benefits due to be paid to the official. The official is not entitled for any back wages for the intervening period from the date of compulsory retirement to the date of reinstatement to the service, and also this period will not count for length of service except for seniority. The Pension Payment Order issued to the applicant vide PPO No. AP-30533 stands cancelled, from the date of reinstatement into service. "
2. In OA 359/2020, the impugned order dt. 11.06.2020 is challenged to the extent of proposing to recover the entire pensionary benefits i.e. Gratuity, CGEGIS, EL Encashment, Commutation of Pension etc. which were paid to the applicant on compulsory his retirement and also monthly pension paid to him w.e.f. 25.05.2005 to till the date of his reinstatement, as being illegal and violative of Articles 14, 16 and 21 of the Constitution of India and also violative of FR 54-A(3).
3. The challenge in the other case i.e. OA No. 366/2020 is against denial of consequential benefits such as pay and allowances, continuity of service etc. Page 2 of 14 OA No.21/359/2020 & 366/2020
4. As the parties are same in both the OAs and the challenge in both the OAs is against the same impugned order, both the cases were heard together and accordingly, a common order is being passed.
5. The applicant initially joined the service as Postal Assistant on 15.07.1981. He was issued with Rule 14 charge memo on 11.06.2004 alleging unauthorized absence from 16.01.2004 to which the applicant submitted representation on 08.12.2004 duly explaining the reasons for his absence. However, he was imposed the penalty of compulsory retirement vide order dt. 25.05.2005 without any inquiry solely based on the admission of the applicant. Appeal and the review preferred by the applicant were rejected vide orders dt. 07.02.2006 and 19.09.2008 respectively confirming the penalty imposed.
6. Challenging the orders of the disciplinary, appellate and the reviewing authorities, applicant filed OA 1138/2012 and this Tribunal vide order dt. 06.09.2018 set aside the penalty order dt. 25.05.2005 and the respondents were directed to reinstate the applicant forthwith and to pass the order consequential to reinstatement following the judgment in Chairman cum Managing Director, Coal India Limited & Anr. v. Mukul Kumar Choudhary & Ors. As the said order of this Tribunal was not complied with as directed, CP 41 of 2019 was filed and upon notice by this Tribunal in the said CP, the proceedings dt. 13.06.2019 emanated from the office of the 4th respondent, whereby the applicant was reinstated into service with immediate effect, subject to refunding all the pensionary benefits and monthly pension to the Department along with applicable Page 3 of 14 OA No.21/359/2020 & 366/2020 interest and he is not entitled for any back wages for the intervening period from the date of compulsory retirement to the date of reinstatement into service and the period will not count for length of service, except for seniority.
7. The applicant filed OA 1071/2019 challenging the proceedings dt. 13.06.2019 and this Tribunal, vide order dt. 14.02.2020, disposed of the OA as under:
"II) xxx Expecting him to pay the same before reinstatement is not fair, since he may not have other sources of income to make payment of a considerable amount in one go. Besides, the impugned memo dt. 13.6.2019 is violative of the order of the Tribunal cited supra. III) In view of the aforesaid circumstances, respondents are directed to reinstate the applicant immediately in accordance with the orders of this Tribunal in OA 1138/2012 dt. 6.9.2018, for effecting recovery of the retiral benefits paid to the applicant as per rules and in accordance with provisions of law from pay and allowances or from other benefits due to the applicant. Other benefits like back wages, seniority, etc. sought by the applicant be dealt with as per rules and law by the respondents. IV) With the above direction, the OA is disposed, with no order as to costs."
8. Though the Tribunal directed the respondents to reinstate the applicant immediately, respondents took 4 months time and passed the impugned orders on 11.06.2020 proposing to recover the entire pensionary benefits paid to the applicant on his compulsory retirement and denying the back wages to the applicant for the intervening period from the date of compulsory retirement to the date of reinstatement. Subsequently, they issued orders dt. 15.06.2020 posting the applicant as Postal Assistant at Khairatabad Head Post Office and the applicant accordingly joined the said post on 03.07.2020.
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9. The contentions of the applicant are that there is no provision enabling the respondents to deny both back wages from the date of compulsory retirement to the date of reinstatement and also to order recovery of pension and pensionary benefits paid to the applicant during the said period. He further contends that when this Tribunal has found the penalty to be unduly highly and shockingly disproportionate and ordered for his reinstatement by leaving it to the respondents to decide upon the benefits consequent to such reinstatement, the respondents are bound to decide about the quantum of back wages also and without deciding the same, subjecting the reinstatement to repayment of pension and pensionary benefits received by him from 25.05.2005 till the date of reinstatement obviously amounts to imposition of another severe penalty in the guise of implementing the orders of this Tribunal. The respondents can seek refund of the said amounts only when they decide the quantum of back wages not less than the subsistence allowance that could have been paid to the applicant. As the subsistence of an employee is an important factor, pension paid to him cannot be subjected to refund. The respondents cannot totally deny the back wages and service on one hand and on the other hand, they cannot subject the applicant to refund the pension and pensionary benefits that had been paid to him on his compulsory retirement. Law is settled that on reinstatement, the pay and allowances cannot be denied and recovery of pension and pensionary cannot be made without granting the back wages. On reinstatement, the benefits paid cannot be recovered but can be adjusted against the back-wages.
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10. It is further contended by the applicant that as per FR 54-A of the Fundamental Rules, where the dismissal, removal or compulsorily retirement of a Government servant is set aside by a court and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and he/she shall be paid pay and allowances under sub-rule 2 or sub-rule 3 of FR 54-A.
11. The applicant filed written arguments wherein it is stated that Sub- Rule 2 of FR 54-A provides that where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the ground of non-compliance with the requirements of Article 311(1) & (2), he shall be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement after following the due procedure of law. Sub-Rule 3 of FR 54-A provides that if the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of a case, the intervening period shall be treated as duty for all practical purposes and he shall be paid the full pay and allowances. The applicant submits that as the penalty of compulsory retirement imposed on the applicant vide order dt. 25.05.2005 was set aside by this Tribunal, he is entitled for full back wages as per FR 54-A.
12. The respondents filed reply statements in both the OAs wherein they stated that the applicant admitted the charges levelled against him vide charge memo dt. 11.06.2004, which was issued for his unauthorised Page 6 of 14 OA No.21/359/2020 & 366/2020 absence. Thereupon, the penalty of compulsory retirement was imposed on the applicant on 25.05.2005 after thorough examination of all connected records. The appeal filed by him was rejected on 08.02.2006. The applicant was paid the following pensionary benefits:
i) Retirement gratuity of Rs.1,08,957/- ii) CGEGIS for Rs.21,654/- iii) Leave Encashment of Rs.3,218/- iv) Pension has been authorized vide Memo dt. 07.08.2013. v) Commutation of Pension - Rs.2,64,093/-
The penalty of compulsory retirement was set aside by this Tribunal on 06.09.2018 in OA No. 1138 of 2012 with a direction to pass the order consequential to reinstatement by following the Supreme Court judgment i.e. judgment in Chairman cum Managing Director, Coal India Limited & Anr. v. Mukul Kumar Choudhari & Ors, reported in CDJ 2009 SC 1698. Accordingly, they issued the proceedings dt. 13.06.2019 stating that the applicant was granted all pensionary benefits long back on his compulsory retirement and he has been drawing monthly pension w.e.f. 25.05.2005 and therefore, he has to refund the pensionary benefits to the applicant. Accordingly, the applicant was reinstated into service, while refunding all the pensionary benefits and monthly pension as mentioned above and that he is not entitled for any back wages for the intervening period from the date of compulsory retirement to the date of reinstatement and the said period will not count for length of service, except for seniority. Aggrieved by the said order, the applicant once again filed OA 1071 of 2019, wherein this Tribunal observed that "True, respondents need to recover the amount paid to the applicant on being retired compulsorily. It requires no Page 7 of 14 OA No.21/359/2020 & 366/2020 reiteration that the applicant has to repay the pensionary benefits paid on being reinstated. For recovering the amount paid to the applicant towards retiral dues, from pay and allowances of the applicant, respondents can invoke FR 54 and other relevant rules after reinstatement..." Accordingly, the proceedings dt. 11.06.2020 have been issued, which are under challenge in the present OA, reinstating the applicant into service with immediate effect, while reiterating the conditions mentioned in the earlier proceedings dt. 13.06.2019 regarding recovery of pensionary benefits, back wages and counting of service. The applicant also joined the post of PA, Khairatabad on 03.07.2020.
13. The respondents further submit that the applicant was not exonerated on merits and as per FR 54(2), (5), FR 54(A) (2), FR 54(B)(7), FR 54 GID (3)(i), the official is not eligible for back wages and also required to refund the pension and pensionary benefits. They further stated that as per the said provisions, the intervening period from the date of compulsory retirement to the date of reinstatement has to be regularized and accordingly, the said period has been regularized as duty for seniority only and as non-duty for all other purposes. Further, order for recovery of pension and penionary benefits was issued in tune with the orders contained in FR 54. Since the intervening period is considered as non-duty and regularized only for seniority, applicant is required to refund all the pension and pensionary benefits paid to him. A total amount of Rs.22,94,874/- has been paid to the applicant towards pension and pensionary benefits. The respondents cited the judgment of the Hon'ble Supreme Court CDJ 2009 SC 1698 and CA No. 176/2020 in support of denial of back wages for the period when the Page 8 of 14 OA No.21/359/2020 & 366/2020 applicant has not worked and stated awarding back wages to the applicant may amount to rewarding him and punishing the respondents for taking action against the misconduct committed by him.
14. The respondents further stated that the applicant is due for superannuation on 30.09.2022 and he will be getting his pay and allowances till superannuation and pension and pensionary benefits as per VII CPC, which are at much higher rates as compared to V CPC when he was compulsorily retired.
15. The respondents filed written arguments more or less reiterating the contentions raised in the reply statement. They added that on reinstatement of the applicant, allowing him with all consequential benefits even though he did not serve the respondent for 15 years, will set a bad example for the officials who are toiling day and night for serving the public.
16. Heard learned counsel for the parties and carefully perused the pleadings and material available on record.
17. This Tribunal in earlier OA 1138/2012 set aside the penalty as it was found to be unduly harsh and shocking disproportionate. Even in OA No.1071/2019, this Tribunal directed to reinstate the applicant immediately in terms of the order in OA 1138/2012. It was further directed that, recovery of the retiral benefits paid to him and other benefits like back wages, etc. be dealt with as per rules and law. In this Order, it has been Page 9 of 14 OA No.21/359/2020 & 366/2020 observed that it is not fair to expect the applicant to re-pay the retiral benefits paid to him in one go. Pursuant thereto, the impugned order has been passed.
18. The applicant mainly relies on FR 54-A and particularly on sub-clause (3) of FR 54-A which says that if the penalty of dismissal, removal or compulsory retirement is set aside by the Court on the merits of the case, the period intervening between the date of such penalty and the date of reinstatement be treated as duty for all purposes and full pay and allowances be paid. For proper adjudication of the case, relevant clauses of FR-54A are extracted hereunder.
Sub-Rule 1, 2, 3 & 5 of FR 54-A read as under:
"FR. 54-A (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.
2 (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub- rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:Page 10 of 14
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(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54."
(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, 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. Xxx "(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. When the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant."
It is also relevant to extract sub-rule (7) of FR 54 as under:
"The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under Rule 53."
On a conspectus reading of the above provisions makes it clear that as the penalty of compulsory retirement imposed on the applicant has been set aside by this Tribunal in the earlier round of litigation upon adjudication of the merits of the case, the applicant is entitled for the benefits that flow from FR 54-A supra. Admittedly, no subsistence allowance has been paid to the applicant. It is not even the case of the respondents that the applicant Page 11 of 14 OA No.21/359/2020 & 366/2020 was gainfully employed during the intervening period between his compulsory retirement and the date of reinstatement, as envisaged under sub-rule (5) of FR 54-A.
19. On a careful reading of the judgment of the Hon'ble Supreme Court in Chairman cum Managing Director, Coal India Limited & Anr in Civil Appeal No. 5762-5763 of 2009, relied upon the respondents, it is seen that though the facts involved in the said case and in the case on hand are identical, the rules applicable to the present applicant were apparently not available before the Hon'ble Supreme Court.
20. Coming to the other judgment cited by the respondents in the case of Om Pal Singh v. Disciplinary Authority & Ors. in Civil Appeal No. 176/2020, penalty of dismissal was set aside and the appellant therein was reinstated consequent to imposition of a lesser punishment of reduction in time scale of pay and therefore, it did not result in exoneration of the appellant before the Hon'ble Supreme Court.
Whereas, in the case on hand, the penalty of compulsory reinstatement imposed on the applicant was set aside by this Tribunal and ordered reinstatement and the same was complied with without any further inquiry nor he was imposed with any lessor penalty. Therefore, this Tribunal is of the view that the above judgments cited by the respondents are apparently distinguishable.
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21. Further, recently, Hon'ble Supreme Court in State of Rajasthan & Anr v. Mangat Lal Sidana, in Civil Appeal No. 2386/2022 (Arising out of SLP (C) No. 32112 of 2016) vide judgment dt. 23.03.2022, wherein though the respondents were not completely exonerated, directed that they shall be paid 50 per cent of the pay and allowances which they would have drawn for the period of their absence. As per the above judgment of the Hon'ble Supreme Court, even assuming that the applicant is not exonerated fully, he is entitled for 50% of the pay and allowances which he would have been entitled for had he not been dismissed/ removed/ compulsorily retired. Following the said analogy, the respondents cannot totally deny the back wages and length of service on one hand and on the other hand, require the applicant to refund in one go the amount of pension and pensionary benefits that had been paid to him on his compulsory retirement. Further, even according to the impugned order, the period intervening between the compulsory retirement and the date of reinstatement of the applicant is treated as duty for seniority and as non-duty for all other purposes. Once the period is counted for seniority, it has to be counted for all other purposes as well. Therefore, this Tribunal is of the considered view that the said intervening period shall also be treated as duty for all purposes and the eligible pensionary benefits be settled accordingly. Thus, the impugned order to the extent of denying pay and allowances and other consequential benefits and proposing to recover in one go the pension and pensionary benefits that had been paid to the applicant on his compulsory retirement, is set aside.
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22. It is seen that the applicant has been pleading with the departmental authorities from 2005 onwards and thereafter, he has filed OAs before this Tribunal. Even as per the respondents, the applicant would have attained superannuation in the month of September 2022, during the pendency of these OAs before this Tribunal. Having regard to the long history of the case, it is desirable to give a quietus to the issue.
23. Consequently, the respondents are directed to consider paying at least 50% of pay and allowances to the applicant, which he would have drawn had he not been compulsorily retired till the date of his reinstatement and count the period intervening between the compulsory retirement and the date of reinstatement for all purposes, with consequential benefits. The respondents are further directed that, pension and pensionery benefits that had been paid to the applicant may be adjusted from the pay and allowances payable to him as directed above.
24. In the result, the OAs are allowed to the extent indicated above. No order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER //evr// Page 14 of 14