Central Administrative Tribunal - Delhi
Arun Kumar vs Union Of India Through The General ... on 9 October, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 2164/2012 Reserved On:11.09.2014 Pronounced On:09.10.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Arun Kumar S/o Shri Budhi Lal R/o 316/8, Railway Colony, Rani Bagh, Shakur Basti, New Delhi. Applicant By Advocate: Shri Yogesh Sharma. Versus 1. Union of India through the General Manager, Northern Railway, Boarda House, New Delhi. 2. Chief Material Manager ( C), Northern Railway, Headquarters Office, Stores Branch, Baroda House, New Delhi. 3. Deputy Chief Material Manager, General Stores Depot, Northern Rilway, Shakur Basti, New Delhi. Respondents By Advocate: Shri Rajinder Khatter. ORDER
G. Geroge Paracken, Member(J) Applicant in this Original Application is aggrieved by the impugned order dated 27.03.2012/11.04.2012 to the extent that he has been granted only proforma promotion with effect from 28.06.1997 and not the actual promotion with consequential benefits including arrears of pay and allowances.
2. The brief facts of the case: While working as Senior Clerk, major penalty proceedings were initiated against the Applicant vide Memorandum dated 22.12.1995. After holding an enquiry in the matter, the Disciplinary Authority, vide its order dated 04.02.2008, imposed upon him the penalty of reduction to lower stage in time scale of pay by four stages for a period of two years with cumulative effect. Against the aforesaid order, the Applicant preferred appeal dated 20.02.2008 followed by supplementary appeal dated 15.9.2009 and the Appellate Authority, vide its order dated 23.01.2009, modified the aforesaid order and reduced the penalty to that of reduction to lower stage in time scale of pay by two stages for a period of two years with cumulative effect. Accordingly, his pay was reduced from Rs.6000/-per month to Rs.5750/- per month in the scale of pay of Rs.4500-7000 for a period of 2 years with cumulative effect. Applicant filed a Revision Petition against the aforesaid order of the Appellate Authority on 19.05.2009 but the Revisional Authority rejected the same vide order dated 05.10.2009. Applicant had earlier challenged the aforesaid orders in the disciplinary proceedings in OA No.636/2010 and the same was allowed vide order dated 23.08.2010. This Tribunal held that it was a case of no evidence and quashed and set aside the aforesaid orders with all consequential benefits. The operative part of the said order reads as under:-
17. In these circumstances, we would agree with the counsel for the applicant that it is a case of no evidence as far as connivance of applicant is concerned. Prosecution witnesses have stated there was no provision of taking acknowledgment. Respondents have only relied on one sentence stated by PW3 that bungling cannot take place without assistance and connivance of staff below. This sentence does not prove the connivance of the applicant. We, therefore, hold the applicant could not have been punished.
18. Counsel for the respondents submitted that Tribunal cannot re-appreciate the evidence. The law is well settled that so long there is some evidence Courts cannot sit in appeal over the decision taken by authorities but if it is a case of no evidence, Court can interfere. Even in B.C. Chaturvedi Vs. Union of India & Ors. reported in AIR 1996 SC 484 also, Honble Supreme Court held Court can interfere in disciplinary case if conclusion or finding is based on no evidence.
19. Since we have held it is a case of no evidence, orders dated 4.2.2008, 28.4.2009 and 5.10.2009 are quashed and set aside. Applicant would be entitled to consequential benefits.
20. O.A. is accordingly allowed. No costs.
3. As the Respondents did not comply with the aforesaid order, Applicant filed Contempt Petition No.464/2011 and during its pendency, Respondents passed order dated 29.06.2011 restoring his pay. Consequently, the aforesaid Petition was closed on 16.07.2011 with the direction to the competent authority to grant him promotion and other consequential benefits including regularization of the suspension period, granting increments, promotions from due dates etc. Thereafter, the Respondents issued the impugned order dated 11.04.2012 fixing his pay at Rs.1260/- with effect from 01.11.1996, granting him notional promotion as Head Clerk with effect from 28.06.1997 but actual promotion w.e.f. 13.12.2010, the date from which he was shouldering higher responsibility of the post of Head Clerk (now Office Superintendent). They have thus denied him arrears of pay and allowances with effect from 28.06.1997. They have also not taken any decision as to how the period of his suspension from 08.07.1995 to 22.12.1995 was to be treated and about his entitlement for the third financial upgradation under the Modified Assured Career Progression Scheme (MACP Scheme for short) from due date. He has, therefore, filed this Original Application seeking a direction to the Respondents to quash the aforesaid impugned order dated 11.04.2012 to the extent that by it he was granted only proforma promotion from 28.06.1997. He has, therefore, sought a direction to the Respondents to grant him regular promotion from the aforesaid date with all monetary benefits and also to re-fix his pay after granting him increments with effect from 01.05.1995 onwards with all monetary benefits. He has also sought a direction to the Respondents to treat the period of his suspension from 08.07.1995 to 22.12.1995 as duty for all purposes including pay and allowances. Further, he has sought a direction to the Respondents to consider him for grant of third financial upgradation under the MACP Scheme with effect from 01.09.2008 with all consequential benefits including arrears of pay and allowances. As far as the benefit of MACP Scheme is concerned, he stated that his case is squarely covered by the illustration given by the Railway Board vide their letter No.PC-V/2009/ACP dated 10.06.2009 which reads as follows:-
28. Illustration:-
A. (i) If a Railway servant (LDC) in PB-1 in the Grade Pay of Rs.1900 gets his first regular promotion (UDC) in PB-1 in the Grade Pay of Rs.2400 on completion of 8 years of service and then continues in the same Grade Pay for further 10 years without any promotion then he would be eligible for 2nd financial upgradation under the MACPS in PB-1 in the Grade Pay of Rs.2800 after completion of 18 years (8+10 years).
(ii) In case he does not get any promotion thereafter, then he would get 3rd financial upgradation in PB-2 in Grade Pay of Rs.4200 on completion of further 10 years of service i.e. after 28 years (8+10+10).
(iii) However, if he gets 2nd promotion after 5 years of further service in PB-2 in the Grade Pay of Rs.4200 (Assistant Grade/Grade C) i.e. on completion of 23 years (8+10+5years) then he would get 3rd financial upgradation after completion of 30 years i.e. 10 years after the 2nd ACP in PB-2 in the Grade Pay of Rs.4600.
In the above scenario, the pay shall be raised by 3% of the total pay in the Pay Band and Grade Pay drawn before such upgradation. There shall, however, be no further fixation of pay at the time of regular promotion if it is in the same Grade Pay or in the higher Grade Pay. Only the difference of Grade Pay would be admissible at the time of promotions.
4. The Respondents in their reply have submitted that after this Tribunal has passed its order dated 16.07.2011 in CP No.464/2011 (supra), his case was considered but it was found that he was not eligible to be given promotion at the relevant time as he was facing criminal case on the basis of FIR No.165/1995 (PS RMD) filed against him. It was on that basis this Tribunal, vide order dated 16.07.2011, given him liberty to make representation against the latest development. Accordingly, Applicant filed his representation on 14.08.2011 seeking promotion and refixation of his pay. They have stated further that in the aforesaid criminal case, Applicant was acquitted of the charge by giving him the benefit of doubt, vide order dated 06.07.2011. The relevant part of the said order reads as under:-
35. In the absence of any clear evidence of dishonest misappropriation or conversion of property to their use or dishonest use or disposal of the property, this court is of the considered view that the evidence on record is not sufficient to make out a case of criminal breach of trust. In the case in hand, there is no eye-witness of the offence and mere suspicion on the basis of duty period of the accused persons would not be sufficient to convict them for a criminal offence. Merely because the consignment from which shortage was noticed was issued and dealt with the accused persons at their source, that would not be sufficient to hold that they had criminally misappropriated the goods which were found short later at the destination. There is no clear evidence that the goods were loaded short and the possibility of their loss during the transit cannot be totally ruled out, from the material on record.
36. In view of the above discussion, the court find that the prosecution has not been able to prove its case against any of the accused persons beyond a shadow of doubt to the effect that they were having custody of the property which they have misappropriate or converted to their own use. The material is short of fulfilling all the ingredients of the offence in question. The above notice missing links have made the prosecution case weak. The ingredients of the offence punishable under Section 409 IPC have remained unfulfilled.
37. Both the accused persons are thus given a benefit of doubt. Both are accordingly acquitted of the charges.
38. However, the bail bonds of the accused persons shall remain in force for next six months in terms of section 437A, Cr.PC.
39. File be consigned to the record room.
They have also stated that the aforesaid order of the Metropolitan Magistrate was challenged before the Additional Sessions Judge by the Respondents and the said judge, vide its order dated 07.02.2012, dismissed it upholding the judgment of the learned Magistrate. The relevant part of the said order reads as under:-
9. It has been mentioned in the appeal preferred by the State that it was duty of respondent to ensure that all 600 books are delivered from Shakur Basti to Old Delhi Station. However, record reveals that neither of the 12 witnesses examined by the prosecution has stated that the transportation of the said books was personal responsibility of either of the respondents. In this scenario I see no reason as to why the conclusion arrived at by the Ld. Magistrate in the impugned judgment shall be wronged.
10. In view of the above discussion, I see no merit in this aspect. The impugned judgment passed by Ld. Magistrate on 06.07.2011 is correct both legally as well as factually and same is accordingly upheld. Appeal as such stands dismissed. File be consigned to RR. TCR be sent back with copy of this order.
5. Further according to the Respondents, since the acquittal of the Applicant by the Criminal Court was on giving him the benefit of doubt, vide order dated 27.03.2012, he was promoted as Head Clerk from the due date against the reserved point for SC but the said promotion was on proforma basis. They have also stated that the aforesaid decision was taken by them in view of the Railway Ministrys letter No.E(NG) I-2002/PMI/16 dated 02.07.2003 issued after the Supreme Courts judgment dated 13.08.1997 in Civil Appeal No.8904/1994 in the case of Union of India and Others Vs. P.O. Abraham and Others ( upholding the provisions of Para 228 of IREM, Vol.I, 1989 regarding non-payment of back wages on promotion on proforma basis. The validity of those instructions has again been upheld by Honble Apex Court in its subsequent judgment dated 21.09.2006 in Civil Appeal No.4222/2006 arising out of SLP (C ) No.23021/2005 in Union of India (through General Manager, Northern Railway and Others) Vs. Shri Tarsem Lal and Others. The relevant part of the said judgment reads as under:-
Para 228 of IREM reads as follows:
"228. Erroneous Promotions (i) Sometimes due to administrative errors, staff are over looked for promotion to higher grades could either be on account or wrong assignment of relative seniority of the eligible at the time of ordering promotion or some other reasons. Broadly, loss of seniority due to the administrative errors can be of two types:-
i. Where a person has not been promoted at all because of administrative error, and ii. Where a person has been promoted but not on the date from which he would have been promoted but for the administrative error.
Each such case should be dealt with on its merits. The staff who have lost promotion on account of administrative error should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts."
This court has occasion to deal with the same issue in Union of India and Ors. v. P.O. Abraham and Ors. in C.A. 8904 of 1994 decided on 13.8.1997. In that case the appeal was filed against the order of the Ernakulam Bench of CAT. Reliance was placed by the Union of India and its Functionaries in that case on Railway Boards Circular dated 15/17 September, 1964 which inter alia provided as follows:
"No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher post. "
One Bench of CAT held that clause to be invalid. But in Virender Kumar, General Manager, Northern Railways, New Delhi v. Avinash Chandra Chadha and Others (1990(3) SCC 472) the view was held to be not correct. The order in Abrahams case (supra) reads as follows:
"This appeal is directed against the order of the Central Administrative Tribunal, Ernakulam Bench, in O.A.No. 649/90 dated 30th September, 1991. Though the appeal challenges the order in its entirety. Mr. Goswami, learned senior counsel for the appellants, fairly stated that the appeal is now confined only to the payment of back-wages ordered to be given by the Tribunal.
By the order under appeal, the Tribunal has allowed the application which challenged the Railway Board Circular dated 15/17 September, 1964. The said Circular inter alia, contains the following clause:
"No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts."
Consequent to the deletion of the above clause, further directions were given. Learned counsel submits that the clause, which has been directed to be removed, is in accordance with the judgment of this Court in Virender Kumar, General Manager, Northern Railways, New Delhi V. Avinash Chandra Chadha & Ors. (1990 (2) SCR 769). This Court, in that case, held on principle of no work no pay that the respondents will not be entitled to the higher salary as they have not actually worked in that post. The clause, which has been directed to be deleted by the Tribunal, being in consonance with the ruling of this Court, we are of the opinion that the Tribunal was not right in directing the deletion of that clause. Accordingly, to that extent this appeal is allowed. The result is that the respondents will be given deemed promotion, if any, before retirement and also the benefit in the matter of fixing pension. No costs."
In view of what has been stated in Virendras case (supra) and P.O. Abrahams case (supra), Tribunal and the High Court were not justified in granting relief to the respondent. Reliance on Harbans Singhs case (supra) was uncalled for. The orders are set aside. The appeal is allowed but in the circumstances without any orders as to costs.
6. They have also stated that during the pendency of this Original Application, vide order dated 21.09.2012, his suspension period from 08.07.1995 to 22.12.1995 has been treated as period spent on duty and thereafter his date of increment has also been revised vide order dated 14.11.2012.
7. We have heard the learned counsel for the Applicant Shri Yogesh Sharma and the learned counsel for the Respondents Shri Rajinder Khatter. No doubt, the Applicant was entitled for promotion to the post of Head Clerk in the normal course w.e.f. 28.06.1997. It was not given to him from that date as the major penalty proceedings initiated against him with the issuance of the charge sheet dated 22.12.1995 were pending and it culminated in the imposition of the penalty of reduction to lower stage in time scale of pay by two stages for a period of two years with cumulative effect. It was quashed and set aside by this Tribunal only on 23.08.2010. Meanwhile, the Applicant was also involved in a criminal case arising out of FIR/1995(PS RMD). The Metropolitan Magistrate, vide his judgment dated 06.07.2011, acquitted him giving him benefit of doubt. The said criminal case attained finality with the dismissal of appeal filed by the Respondents before Additional Sessions Judge vide judgment dated 07.02.2012. Thereafter, the Respondents promoted him as Head Clerk from the due date retrospectively w.e.f. 28.06.1997 but on proforma basis and actual benefits were given only w.e.f. 13.12.2010. The reason given by the Respondents for not granting him the actual promotion with arrears of pay and allowances from the due date is that the Applicants acquittal from the criminal case on 06.07.2011 was on giving him benefit of doubt. The Apex Court in the case of Union of India Vs. K.V. Jankiraman AIR 1991 SC 2010 has held that in a case where the employee has been acquitted in the criminal case giving him benefit of doubt, the concerned authorities are vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. The relevant part of the said judgment is reproduced as under:-
We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the, administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
To this extent we set aside the conclusion of the Tribunal on the said point.
8. Again, the Apex Court in the case of Babu Lal Vs. Haryana State Agricultural Mkt. Board 2009 (4) SCC 287 reiterated their decision in Jankiramans case (supra) and held as under:-
9. A reading of the aforesaid decision of this Court would show that the authorities are vested with power to decide whether an employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. This decision also clearly suggests that there is no inflexible rule that in every case when an employee is exonerated from disciplinary/criminal proceedings, he should be automatically entitled to salary including all benefits for the intervening period. This decision of this Court would also show that where the acquittal of an employee in a criminal proceeding was on benefit of doubt, the employer has a right to decide whether or not such an employee deserves any salary for the intervening period.
9. We, in the above facts and circumstances, do not find any merit in the submission of the Applicant that impugned order dated 11.04.2012 deserves to be quashed and set aside. Consequently, the decision of the Respondent to grant the Applicant only proforma promotion as Head Clerk (now Office Superintendent) w.e.f. 28.06.1997 and actual promotion w.e.f. 13.12.2010 cannot be faulted. However, since the Respondents have revoked the suspension of the Applicant from 08.07.1995 to 22.12.1995, he is entitled for increments from the due date, i.e., 01.05.1995 with all monetary benefits. The said benefits shall be given to the Applicant refixing his pay, if it has not already been done. As regards financial benefit under the MACP Scheme is concerned, the Respondents shall consider the same as prayed for by the Applicant and grant the same in accordance with the Rules. The aforesaid directions shall be complied with, within two months from the date of receipt of a copy of this order. Accordingly, this OA is disposed of. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh