Central Administrative Tribunal - Cuttack
Prafulla Kumar Guru vs Department Of Post on 10 February, 2025
1 O.A.No. 260/0001 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/0001 of 2023
Reserved on 07.02.2025 Pronounced on 10.02.2025
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Prafulla Kumar Guru, aged about 58 years, S/O Late
Sadhu Guru, At- Jharada, P.O.: Sadangi, P.S- Gondia,
Dist: Dhenkanal Pin-759016.
......Applicant
VERSUS
1. Union of India, represented through its Director
General of Posts, Dak Bhawan, Sansad Marg, New
Delhi-110001.
2. The Chief Post Master General, Odisha Circle,
At/Po Bhubaneswar, District- Khurda.
3. The. Post Master General, Sambalpur Region,
AT/PO/Dist.- Sambalpur-768001.
4. Director of Postal Services, O/o The Postmaster
General, Sambalpur Region, AT/PO/Dist.-
Sambalpur-768001.
5. The Superintendent of Post Offices, Dhenkanal
Division, Dhenkanal-759001.
......Respondents
For the applicant : Mr. T.P.Tripathy , Counsel
For the respondents : Mr. J.K.Nayak, Counsel
2 O.A.No. 260/0001 of 2023
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
It reveals from the record that the applicant, while working as GDS Sub Postmaster in Sadangi PO under Dhenkanal HO, was placed on put off duty on 10.11.2003. Disciplinary proceeding was started against him. The order of put off duty was revoked on 23.4.2004. The proceedings ended with imposition of punishment of removal from service vide order dated 22.8.2006. He challenged the aforesaid order of punishment in OA No. 312/2008. This Bench vide order dated 21.4.2010 quashed the charge sheet as well as disciplinary proceeding with liberty to the respondents to start fresh proceedings. Thereafter, a fresh charge sheet dated 31.5.2010 was issued. Again, the applicant filed OA No. 667/2010 challenging the proceedings, which was dismissed. On conclusion of the disciplinary proceedings, he was imposed with the punishment of removal from service vide order dated 16.03.2011. Appeal preferred by the applicant was rejected vide order dated 01.06.2012 so also the revision on 21.12.2012. The applicant challenged the order of punishment dated 16.03.2011, order of Appellate Authority dated 01.06.2012 and the order of Revisional Authority dated 21.12.2012 3 O.A.No. 260/0001 of 2023 before this Bench in OA No. 148/2013, which was disposed of on 11.09.2019 with the observations and directions as under:
"17. In such factual circumstances as discussed above, we have no hesitation to hold that the punishment of removal of the applicant from engagement as GDS Sub Postmaster is shockingly disproportionate to the charges against the applicant. Hence, the impugned orders dated 16.3.2011 (Annexure A/4), 1.6.2012 (Annexure A/5) and 21.12.2012 (Annexure A/6) passed by the respondents are set aside and quashed and the matter is remitted to the appellate authority (Respondent No.4) to reconsider the appeal of the applicant in accordance with law and pass an appropriate speaking order by imposing a punishment other than removal or dismissal in case the applicant is held guilty of charges after reconsideration of his appeal. The appellate authority will pass a speaking and reasoned accordingly to dispose of the applicant's appeal and communicate a copy of the order to the applicant within two months from the date of receipt of a copy of this order. Pending reconsideration of the appeal as stated above, the respondents are directed to reinstate the applicant in his previous post within one month from the date of receipt of a copy of this order".
2. The respondents carried the matter to Hon'ble High Court of Orissa in W.P(C) No. 20964/2019, which was dismissed on 22.02.2021.
3. In compliance of the aforesaid order, the applicant was reinstated to the post of EDDA, Sadangi (which post was redesignated as ABPM, Sadangi BO) vide order dated 23.03.2021. 4 O.A.No. 260/0001 of 2023
4. The Appellate Authority after giving fresh consideration of the matter in its entirety, passed the order dated 18.05.2021 inter alia directed as under:
"NOW, THEREFORE, in exercise the statutory Disciplinary powers of DPS, Sambalpur Region, Sambalpur and after due consideration of the grounds of appeal dated 08.06.2011 preferred by Sri Prafulla Kumar Guru, Ex. EDDA-cum-ED Packer, Sadangi EDSO under Dhenkanal Division, I Shri Aditya Kumar Nayak, Director Postal Services (HQ), o/o the Chief Postmaster General, Odisha Circle, Bhubaneswar hereby order that the punishment of 'Removal from Employment' vide SPOs, Dhenkanal Division memo No. B/ED-387 dtd. 16.03.2011, which was upheld by the Appellate Authority earlier, be modified to that of Reduction to lower stage of Rs.10,000/- (Rupees Ten thousand only) (minimum to the slab) in the TRCA slab Rs.10,000/- - Rs. 24,470/- for a period of 37 (Thirty seven) months, i.e. from the month of June-2021 to June-2024 with further direction as to the sevak will not earn annual increase during the period of reduction and on expiry of such period, the reduction will have the effect of postponing the future increases of his Time Related Continuity Allowance (TRCA). Accordingly the order dated 11.09.2019 of the Hon'ble CAT Cuttack Bench, Cuttack passed in OA No. 148/2013 and orders dated 22.02.2021 of the Hon'ble High Court of Orissa passed in W.P.(c) No. 20964/2019 are complied with."
5. Thereafter, vide order dated 24.05.2022, the AA/Director Postal Services, Sambalpur Region passed orders inter alia stating as under:
"Whereas, in obedience of order dated 11.09.2019 of Hon'ble CAT, Cuttack Bench, Cuttack in OA. No. 148 of 2013 the Appellate Authority, i.e. DPS Sambalpur Region, Sambalpur vide memo no. ST/RO/12-5/2011 dated 18.05.2021 reduced the penalty of 5 O.A.No. 260/0001 of 2023 removal from engagement imposed on the said Shri Guru by the SPOs, Dhenkanal Division, Dhenkanal vide Memo No. B/ED-387 dated 16.03.2011 to that of reduction to lower stage of Rs. 10000/- in the TRCA slab of Rs. 10000/- to Rs 24470/- for a period of 37 (thirty seven months i.e. from June-2021 to June- 2024 with further direction as to the Sevak will not earn annual increase during the period of reduction and on expiry of such period the reduction will have the effect of postponing the future increases of his TRCA.
Whereas, as per order dated 11.09.2019 of Hon'ble CAT, Cuttack Bench, Cuttack in OA No. 148 of 2013, the penalty of removal from engagement has been reduced to reduction in TRCA slab and Shri Guru has been reinstated in GDS engagement w.e.f. 24.03.2021. Thus, in accordance with Rule-12(5) of GDS (Conduct and Engagement) Rules, 2020 Shri Guru would be deemed to have been put off duty from the date of removal from engagement to the date of reinstatement i.e. from 16.03.2011 to 23.03.2021.
Now therefore, I, S. C. Barik, Director Postal Services Sambalpur Region, Sambalpur order that Sri Prafulla Kumar Guru, GDSABPM, Sadangi BO Law Gondiapatna SO under Dhenkanal Division is deemed to have been under put off duty for the period from 16.03.2011 to 103-2021. Shri Guru is entitled for the ex-gratia payment for the said period to be decided by the Appointing Authority.
6. Consequent to the aforesaid order, the DA/Suptd. of Post Offices, Dhenkanal issued order dated 03.06.2022 directing as under:
"Whereas, Shri Prafulla Kumar Guru was reinstated into his previous post ( now re-designated as GDS ABPM) on 23.03.2021 A/N vide this office Memo of even No. dated 23.03.2021.
Whereas the appeal of Shri Prafulla Kumar Guru has been finalized by the competent authority, i.e. Director, Postal Services, Sambalpur Region with punishment of Reduction to lower stage of Rs.10,000/- (Rupees Ten thousand only) 6 O.A.No. 260/0001 of 2023 (minimum to the slab) in the TRCA slab Rs.10,000/- - Rs.24,470/- for a period of 37 (Thirty seven) months i.e. from the month of June-2021 to June-2024 with further direction as to the sevak will not earn annual increase during the period of reduction and on expiry of such period, the reduction will have the effect of postponing the future increases of his Time Related Continuity Allowance (TRCA) vide R.O. Sambalpur ST/RO/12-5/2021 dated 18th May 2021.
Whereas, it has been decided by the competent authority, i.e. Director, Postal Services, Sambalpur Region that Shri Prafulla Kumar Guru is deemed to have been put off duty from the date of removal from engagement to the date of reinstatement i.e. from 16.03.2011 to 23.03.2021 as conveyed vide R.O. Sambalpur Memo No. ST/RO/147-17/2013 dated 24.05.2022.
Now, it is hereby ordered that the ex-gratia compensation @ 25% of TRCA is admissible to Shri Guru for the period from 16.03.2011 till reinstatement in GDs post."
7. The applicant in this OA did not question the modified punishment imposed on him by the AA, quoted above. He has raised his grievance in this OA insofar treating the period from the date of his removal (16.03.2011) to his reinstatement (23.03.2021) as put off duty. He has also challenged the decision of the authorities in not regularizing and paying him full TRCA during his off duty period. His prayer in this OA is as under:
"i. This Honorable tribunal may kindly be pleased to partially quash the order dated 24.05.2022 & 03.06.2022 respectively vide Annexure-6 & Annexure-7. ii. This Honorable tribunal may further be pleased to direct the respondents, particularly to respondent No.5 to allow the applicant to draw the Time Rated Cash Allowance 7 O.A.No. 260/0001 of 2023 (TRCA) at the rate of 100% for the period from 10.1.2003 to 23.03.2021.
iii. This Honorable Tribunal may also be pleased to pass any other further order............."
8. According to Ld. Counsel for the applicant when the orders of punishment of removal dated 16.03.2011, which was upheld by the AA vide order dated 01.06.2012 and the RA vide order dated 21.12.2012 were quashed by this Tribunal and the said order of this Bench was upheld by the Hon'ble High Court of Orissa, in compliance of which, he was reinstated vide order dated 23.03.2021 and the punishment was modified to that of reduction of TRCA , the period from the date of removal from service (16.03.2011) till date of his reinstatement (23.03.2021) ought to have been treated as duty entitling him full TRCA. Further, it is stated that the respondents ought to have regularized his put off duty period from 10.11.2003 when he was reinstated into service and having not done so, the applicant is entitled to full TRCA during is off duty period. In this regard, Ld. Counsel for the applicant has placed reliance on the OM No. 17-31/2016-GDS dated 26.06.2019. Further, Ld. Counsel for the applicant has submitted that the respondents treated the period from 16.03.2011 to 23.03.2021 as deemed off duty without giving 8 O.A.No. 260/0001 of 2023 him any opportunity and, therefore, the orders passed by the authorities concerned to the extent stated above are liable to be quashed.
9. We find that in the counter filed by the respondents, they have opposed the relief sought by the applicant in this OA by reiterating the circumstances: the applicant was placed under off duty and proceedings were initiated against him and the stages of happenings during the interregnum period. This was also reiterated by Ld. Counsel for the respondents in course of hearing. In the entire counter, no whisper has been made by the respondents as to why applicant is not entitled to full TRCA or stating the date of his put off duty, reinstatement etc.
10. We have considered the submissions of the parties and perused the records.
11. From the earlier order of this Tribunal dated 11.09.2019 in OA 148/2013, we find that the applicant was placed under off duty on 10.11.2003, which order was revoked on 23.04.2004 thereby implying that the applicant was back to active duty. The disciplinary proceedings initiated earlier ended with the punishment of removal 9 O.A.No. 260/0001 of 2023 from service on 22.08.2006. Hence, the applicant was on active duty till 22.08.2006. We fail to understand as to why he did not raise the issue of regularization of his put off duty period from 10.11.2003 to 23.04.2004 at that time nor even in the succeeding OAs filed by him. Admittedly, the order of punishment was quashed by this Bench vide order dated 21.04.2010 in OA 312/2008 and the applicant was deemed to be in service for which a fresh charge sheet was issued to the applicant in 31.05.2010, which he challenged in OA 667/2010 and that was disposed of directing the respondents to complete the proceedings within a specific time frame. The proceeding was completed and the applicant was removed from service vide order dated 16.03.2011. Hence, as per implication of court order, he was on duty from 22.08.2006 till 16.03.2011. Nothing is borne out of the record as to whether upon issuance of fresh charge sheet the applicant was placed under put off duty. After being unsuccessful in appeal and revision, he challenged the orders before this Tribunal in OA No. 148/2013 and this Bench quashed the orders of punishment dated 16.03.2011 and all other consequential orders of AA and RA vide order dated 11.09.2019. The said order of this Bench was 10 O.A.No. 260/0001 of 2023 challenged before the Hon'ble High court of Orissa in W.P(C) No. 20964/2019, which was dismissed on 22.02.2021 and, resultantly, the applicant was taken back to service vide order dated 23.03.2021.
12. The prayer of the applicant in this OA is to partially quash the order dated 24.05.2022 & 03.06.2022 and to direct the respondents to allow him to draw the Time Rated Cash Allowance (TRCA) at the rate of 100% for the period from 10.1.2003 to 23.03.2021. We find that the part of the orders dated 24.05.2022 & 03.06.2022, which the applicant seeks to quash, relates to treating the period from 16.03.2011 to 23.03.2021 as deemed put off duty. In terms of the rules and common knowledge, an employee is "deemed" to have been placed under put off duty or suspension as the case may be, in the event of remaining 48 hours in judicial custody in connection with criminal case but in normal parlance there is no provision under the rules for treating the employees under "deemed" put off duty. In the instant case we find that the applicant was removed from service vide order dated 16.03.2011, which was quashed by this Tribunal, which order was also upheld by the Hon'ble High Court of Orissa. Thereafter, the applicant was reinstated into service vide order dated 11 O.A.No. 260/0001 of 2023 23.03.2021. It is also notable that the respondents treated the period as "deemed suspension" without giving any opportunity to the applicant. Further, under the rules, when one is placed under put off duty or suspension or deemed suspension as the case may be, the said period ought to have been decided by the authority concerned. If the period is treated as deemed suspension, it remains as it is, i.e. undecided how the period of deemed put off duty was treated. Therefore, treating the period as deemed suspension is not only contrary to rules/law but also shows lack of application of mind and knowledge in the field of the authorities concerned. In Hindustan Tin Works Pvt. Ltd v. Employees of Hindustan Tin works Pvt. Ltd [(1979) 2 SCC 80], the Apex court held thus:
Ordinarily, therefore. a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigating activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case, viz., to resist the workman's demand for revision of wages. the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages.
13. In Deepali Gundu Surwase vs Kranti Junior Adhyapak & 12 O.A.No. 260/0001 of 2023 Ors, (2013) 10 SCC 324], the Hon'ble Apex Court was pleased to hold as under:
17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter's source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments."13 O.A.No. 260/0001 of 2023
14. In view of the facts and law discussed above, we do not find any force on the submission of the applicant relating to grant of TRCA w.e.f. 10.01.2003 till 15.03.2011 and, therefore, the said prayer is hereby rejected. However, we find force on the submission of the Ld. Counsel for the applicant that treating the period from 16.03.2011 to 23.03.2021 as deemed suspension is bad in law and hold that the applicant is entitled to full back wages/TRCA from 16.03.2011 till his reinstatement/23.03.2021, of course, subject to furnishing undertaking that he was not gainfully employed during the interregnum period. The consequential action be taken by the respondents to the above effect within a period of 60 days from the date of receipt of a copy of this order.
15. In the result this OA stands allowed to the extent stated above.
No costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS