Central Administrative Tribunal - Ernakulam
K.P. Balagopalan Nair vs Chief Postmaster General And Ors. on 17 May, 2005
Equivalent citations: 2006(1)SLJ336(CAT)
ORDER K.V. Sachidanandan, Member (J)
1. The applicant working as Sub Record Officer, HSG II (BCR) voluntarily retired from service with effect from 1.9.2000. While working as Sorting Assistant he appeared for the qualifying examination for promotion against l/3rd quota of selection grade and accordingly promoted with affect from 31.8.1979 and thereafter transferred and posted as LSG Sorter. At that it is averred that he was involved in a union activity and on account of his strike declared as illegal he was placed under suspension with effect from 15.5.82, served with memo of charges dated 13.7.82 proposing to conduct an enquiry under Rule 14 of the CCS (CCA) Rules. The enquiry was conducted and report submitted to the third respondent finding the charges against the applicant as proved. Thereafter the third respondent passed order dated 13.6.83 removing the applicant from service. Applicant challenged the order of removal before the Hon'ble High Court on the ground that it is without jurisdiction and void in O.P. No. 5185/83G. It was finally heard and dispose of as per judgment dated 19.7.83 (A1) quashing the above order with liberty to take appropriate action by the respondents. The third respondent issued order dated 28.5.82 imposing dies non and the second respondent based on the enquiry report imposed the penalty of reduction with effect from 1st October, 1983 to the lower grade of Time Scale Sorting Assistant until he is found fit after a period of four years from the date of the order to be restored to the Higher post of Lower Selection Grade vide Annexure-A.2 order. This was challenged before the Hon'ble High Court in O.P. No. 8440/83-L. The Hon'ble High Court stayed the operation of Annexure-A.2. However the applicant was not reinstated into service and was kept under suspension ignoring the interim order of stay passed by the Hon'ble High Court.
2. Thereafter the petition was transferred to the Central Administrative Tribunal, Madras Bench by force of Section 29 of the CAT Act and finally heard as per order dated 16.6.87. Quashing the order imposing dres non but finding no justification to interfere with A.2. The said order is Annexure-A.3. Therefore the applicant was reinstated into service invoking the order of suspension as per Memo dated 14.7.87 by the third respondent (A4). A2 punishment order was implemented by reducing the pay of the applicant and applicant was paid subsistence allowance at the reduced rate with effect from 1.10.83 and on reinstatement he was paid salary on the basis of the above reduction in pay. The applicant challenged Annexure-A.3 order of the CAT which was dismissed vide order dated 11.1.88 by the Hon'ble Supreme Court. The penalty imposed as per Annexure-A.2 expired by 30.9.87. The applicant submitted representation. The DPC recommended the name of the applicant for promotion after a period of one year. He again submitted a representation to the PMG to restore him to LSG Cadre. Vide A5 the PMG passed an order to the effect that the punishment could be only prospective in effect and that the punishment was effective only from the date of reinstatement of the official with effect from 17.7.87. The applicant will contend that since the order of penalty was taken effect normally from 1.10.83 it cannot be subsequently altered by any authority except on appeal or revision. His pension and the retirement benefits were granted considerably low rate on account of the belated implementation of the punishment order and also he incurred a very heavy financial loss on account of the implementation of the penalty on 18.7.87 as against 1.10.83 indicated in A3 order. The revision petition was also filed which was rejected on the ground of limitation vide A9 order dated 28.3.03. Aggrieved by the said impugned, orders of A5 and A9 the applicant has filed this O.A. seeking the following reliefs;
(i) To call for the records leading the Annexure-A5 and Annexure-A9 and to set aside the same.
(ii) To issue appropriate direction or order directing the respondents to give effect to the order of penalty ordered as per Annexure-A.2 as indicated therefrom 1.10.1983 and to work out the pay and allowances legally admissible to the applicant on that basis and to make available arrears of pay and allowances on that basis and also to revise his pension and other retrial benefits and to pay the applicant the arrears of pension and the retrial benefits expeditiously and at any rate, within a time frame that may be fixed by this Hon'ble Tribunal.
(iii) To issue appropriate direction or order which this Hon'ble Tribunal deems fit, just and proper in the circumstances of the case and (iv) to award the costs to the applicant.
3. The respondents 1 to 4 have filed a detailed reply statement contending that the original application is barred by limitation and the applicant having undergone the penalty between 18.7.87 and 18.7.91 he cannot ask for such a relief at a belated stage. The applicant was placed under suspension with effect from 15.5.82 for his failure to discharge the duties assigned to him by his involvement and instigation in the All India Postal Strike. He was charge sheeted under Rule 14 of CCS (CCA) Rules and after considering the report of the enquiry, the defence submitted by the applicant a penalty was imposed on the applicant of punishment of reduction to the stage of time scale of pay for a period of four years with effect from 1.10.83 as per Memo dated 24.9.83(A2). The appeal filed before the Hon'ble High Court transferred to CAT which was disposed of upholding A2 and then it was given effect from 18.7.87 and the applicant was promoted to the cadre of LSG with effect from 18.7.91 on the expiry period of the punishment and he was again promoted to the next higher grade with effect from 1.10.91. He filed a revision and after careful consideration this was rejected on the question of limitation since it was not within the reasonable time. The Hon'ble High Court also stayed the operation of the said order. As such the applicant who was under suspension with effect from 15.5.82 continued to remain under suspension till the O.P. which was transferred to the Madras Bench of the CAT, was disposed of Annexure-A.2 order dated 24.9.83 could not be given effect to as the operation of the order was stayed by the Hon'ble High Court of Kerala on the basis of O.P. 8440/83 and the applicant continued to remain under suspension till the case was transferred to Madras Bench of the Tribunal. The Tribunal upheld A2 order which was implemented from 18.7.87. No punishment could be given effect to during the period in which the applicant remained under suspension and since the applicant remain under suspension the pay of the applicant to stage of time scale of pay for a period of four years could not be implemented. Since the revision petition has not come within the reasonable time this was also rejected and they contended that there is no merit in the O.A. which is to be dismissed.
4. The applicant filed a rejoinder reiterating the pleadings in the O.A. and further contending that the third respondent is not competent to file a reply statement. The implementation of the order of penalty imposed on the applicant was wrongly made as it is a continuing injury which not only effected his pay but also his pension and other retiral benefits. The applicant could have been considered to be in deemed reinstatement into service on and from 25.9.83 immediately after the date of A2 order. Once A2 order has been upheld by the Tribunal the respondents are not competent to modify A2 order or to postpone the giving effect of the said order to the future date contrary to what was ordered therein. The action of the respondents in giving effect to A2 order with effect from 18.7.87 cannot be justified either in law or on facts. The revision petition can be entertained by the Revisional Authority at any time under Rule 29 of the CCS CCA Rules and that the revision petition ought not have been rejected on the ground of delay.
5. The respondents have filed an additional reply statement reiterating the contention of limitation and further contending that the applicant could have taken up the matter before the appropriate authority as to the prospective operation of the punishment which is not done in this case. Since the applicant continued under suspension the question of reinstatement of the applicant did not arise.
6. Mr. O.V. Radhakrishnan, Senior Advocate appeared for the applicant and Smt. K. Girija, ACGSC appeared for the respondents. We have heard the learned Counsel giving due consideration to the pleadings, materials, evidence on record and the arguments advanced by them. The Counsel for the applicant argued that applicant is put to double jeopardy in the sense that his subsistence allowance was reduced consequent on the imposition of the penalty as per A2 order dated 24.9.83 and the reduction of the pay was not given effect to on the ground that the applicant was continued under suspension. The fact that there was a stay of the operation of the A2 order were not valid ground for keeping the applicant under continued suspension. The applicant should have been reinstated in service immediately after A2 order i.e., 24.9.83 which could enable the respondents to give effect the order of the Tribunal. The Counsel for the respondents argued that the applicant cannot reopen the issue which was closed 14 years before and there is no continuing cause of action and therefore the claim is barred by limitation. The order of the Tribunal was on 16.6.87 upholding A2 order and he was reinstated with affect from 18.7.87 and the punishment could be only made effect prospectively.
7. Initially we will deal with the question of limitation. Admittedly the dispute involved in this case is of reduction of pay of the applicant and the applicant was suffered financial loss including his pension. The revision petition was also disposed of without considering this aspect on the question of limitation by the respondents. The ratio in the decision in M.R. Gupta v. Union of India, it is settled law that delay by itself may not defeat the claim for relief unless the position of the respondent has not been irretrievable altered or he has been put to undue hardship. Since the claim of the applicant is continuing cause of action pertaining to his pensionary and retrial benefits we are of the view that the question of limitation is not attracted in this case and the rejection of Annexure-A9 revisional order on that ground is also not in the true spirit of law.
8. The crux point for adjudication is whether A2 order has to be given only prospective effect or which could have been considered from the date of its issue. The applicant was proceeded under Rule 14 of the CCS (CCA) Rules and after the report of the enquiry was received a punishment was imposed upon the applicant vide A2 dated 24.9.83. The operative portion of which is produced herein:
I. M. Thomas Varghese, Director of Postal Services (HQ) Trivandrum therefore hereby order that Shri K.P. Balagopalan Nair, LSG(0)SA Changancherry Sorting be reduced with effect from 1st October, 1983 to the lower grade of Time Scale Sorting Assistant until he is found fit after a period of four years from the date of this order to be restored to the Higher post of Lower Selection Grade.
As per that order it will come into effect from 1.10.83 by reducing his pay to the lower grade of time scale Sorting Assistant until he is found fit after a period of four years from the date of this order to be restored. Normally the punishment could have given effect from 1.10.83. Subsequently the matter was taken up before the Hon'ble High Court of Kerala and the High Court transferred the matter to the Tribunal and the Madras Bench of the Tribunal disposed of the matter in TAK 27/87 (8440/83) vide order dated 16.6.87. The operative portion of which is as follows:
In view of this averment it cannot be held that no loss was caused to the department or inconvenience to the public. As such it cannot be said that the applicant has been awarded a punishment on trivial charge and that the punishment of reduction in time scale grade for a specified period is excessive. Though the penalty imposed is a major one, nevertheless in the circumstances of the case, it cannot be called excessive or disproportionate. As such we do not think that the case of the applicant is covered by the dictum laid down in .
In view of the foregoing discussion of facts and law, we find no jurisdiction to interfere with the punishment order Ext. P. 15 passed on 24.9.83 by the Director of postal Services in the Office of the Post Master General Circle, Trivandrum reducing the applicant to the lower grade of Time Scale Sorting Assistant. However, we quash Edt. P4 which ordered break in service of the applicant for 11.5.82 since it was not passed by a Competent Authority. The application is party allowed to that extent.
In furtherance of the said order the respondents have passed A4 order dated 14.7.87 which reads as follows:
And whereas the Honourable Central Administrative Tribunal Madras Bench has upheld the validity of the orders of the Director of Postal Services (HQ) Trivandrum as contained in Memo No. ST/A-76/82 dated 25.9.83 as per the judgment pronounced in T.A. No. 27/87 (O.P. No. 8440/83) on 16.6.87 and accordingly he is deemed to have been reduced to the cadre of Time Scale Sorting Assistant with effect from 1.10.83.
And now therefore the undersigned in exercise of the powers conferred in Clause (c) of Sub-rule 5 of Rule 10 of CCS (CCA) Rules, 1965 hereby revokes the said order of suspension with immediate effect. Shri K.P. Balagoplan Nair is transferred and posted in Time scale Sorting Assistant is SRO RMS TV Division, Tiruvalla in the existing vacancy.
Vide A4 order quoted supra the department understood the spirit of the order of the Tribunal and accordingly the punishment has been imposed with effect from 1.10.83 deeming his pay to have been reduced to the cadre of Time Scale. In A4 the date of implementation of the order is made clear from 1.10.83 as understood by the respondents in consonance with the order of this Tribunal and that of A2 order. Subsequently the impugned orders have been passed making the punishment with effect from 17.7.87 running up to 1991. The short question for consideration is whether the punishment can be run from 1983 or in 1987. It is true that the applicant was under suspension and the case of the respondents is that the suspension continued since the operation of A2 order was stayed by the Hon'ble High Court and the punishment could come into effect only prospcctively from 16.6.87 when the matter was finally disposed of by the Tribunal. On a perusal of the order of the Tribunal and the operative portion quoted supra of the order of the Honble High Court it does not indicate that the punishment will run prospectively until after disposal of the O.A. Therefore, we are of the view that A2 will stand hold good which could be operative from 1.10.83. The fact that the applicant was under suspension is not due to his own fault. Apart from that suspension is not a punishment and if such suspension culminates/result into the effect of punishment, we are of the considered view that it amounts to double jeopardy. When a specific question was put to the Counsel for the respondents she has submitted that from 1.10.83 from the dale of penalty order till the disposal of the O.A. in 1987 the applicant did not earn any increment and by virtue of the impugned order he was further directed to incur the punishment from 1987 ending in 1991. Therefore in effect the applicant is now subjected to the reduction of increment for eight years in two spells which according to us is not justified and therefore the action of the respondents cannot be said to be correct. Neither in High Court judgment nor in the judgment of the Tribunal there was any finding that the suspended period could not be reckoned for the period of punishment. The intention and the purpose of punishment after deliberations and enquiry was to reduce four increments from his salary and nothing more than that. When such is the situation the reduction of increments on prospective date from 1987 when the applicant has already undergone the punishment by the time has certain force. Then the question comes when the applicant was put under suspension, he has not challenged the order of suspension at any point of time before any authority. It is settled principles of law that suspension is not a punishment. Since it is not a punishment and since the applicant was in the best hope that will be revoked at any point of time, which is not done in this case, has justification on the part of the applicant in not challenging the same. On the other hand when the operation of A2 order was kept in abeyance by the Competent Court the respondents could have revoked the suspension and reinstated the applicant without waiting the applicant for moving the same to the appropriate authority. The respondents also did not do that but kept away the applicant from utilizing his service knowing fully well that the punishment is not dismissal nor removal from service but only reduction of four increments from the salary. In any case if the O.A. is to be allowed, at best the respondents could have expected that the Court could do only upholding A2 order. Since that being the fact the respondents are not justified in keeping the applicant under suspension under the pretext of the stay of operation of the order A2. However, we find that both the applicant and respondents were neither studious nor alert in getting the suspension order revoked. The applicant was satisfied for four years in getting subsistence allowance and continuing on suspension. That does not mean that the applicant has to suffer reduction of increments than what has been imposed in the punishment order. In an almost identical case reported in J.J. Tekwani v. Union of India and Ors. 2003(3) ATI 658 : 2004(2) SLJ (CAT) 251, it is held that penalty of reduction already suffered by a delinquent employee and another penalty of cut of pension cannot be sustained and it was a case of double jeopardy. In this case the applicant was subjected to reduction of eight increments for 8 years instead of four increments in any case is not justified and therefore the impugned orders A5 and A9 are to be set aside to that extent. In any case we are of the view the respondents could have considered the applicant to have been in deemed reinstatement from 1.10.83 and could have reduced his pay and could have given effect to the order of penalty ordered as per A2 indicated from 1.10.83.
9. Considering the entire aspect of the case as discussed above, we have no hesitation in setting aside A5 and A9 orders for the above reasons and hence we set aside A5 and A9 orders and direct the respondents to give effect to the order of penalty as per A2 as indicated from 1.10.83 on deemed reinstatement and work out the pay and allowances nationally on that basis and make available arrears of pension by revising the same and other retrial benefits within a time frame of four months from the date of receipt of a copy of this order. We make it clear that this revision of pay and allowances will be only notional and will be available for pensionary benefits alone. The O.A. is disposed of with the above findings. In the circumstances no order as to costs.