Central Administrative Tribunal - Ernakulam
I.S. Antony Cleetus vs Union Of India on 1 December, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 712 of 2011
Thursday, this the 01st day of December, 2011
CORAM:
Hon'ble Justice Mr. P.R. Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
I.S. Antony Cleetus,
S/o. Sandhyavu,
Deputy Office Superintendent,
Retired from Central Excise,
Customs and Service Tax Department,
Residing at Irumpanath House,
Ochanthuruthu, Cochin-682 508. ..... Applicant
(By Advocate - Mr. Babu Cherukara)
V e r s u s
1. Union of India, represented by the Secretary,
Central Board of Excise & Customs,
Department of Revenue, Ministry of Finance,
New Delhi.
2. The Chief Commissioner,
Central Excise, Customs & Service Tax,
Central Revenue Building,
I.S. Press Road, Cochin-18.
3. The Commissioner,
Central Excise Customs and Service Tax Deptt.,
Central Revenue Building,
I.S. Press Road, Cochin-18.
4. The Additional Commissioner of
Central Excise (P&V), Central Revenue Building,
I.S. Press Road, Cochin-18.
5. Joint Commissioner (P&V) Central Excise,
Central Revenue Building,
I.S. Press Road, Cochin-18. ..... Respondents
(By Advocate - Mr. Thomas Mathew Nellimoottil)
This application having been heard on 17.11.2011, the Tribunal on
01.12.11 delivered the following:
O R D E R
Hon'ble Mr. K. George Joseph, Administrative Member -
This is the 3rd round of litigation by the applicant who was by-passed on account of sealed cover procedure for promotion to the post of Senior Tax Assistant/Inspector and then as Deputy Office Superintendent owing to a criminal case which was finally disposed of allowing the benefit under Section 3 of the Probation of Offenders Act,, vide order dated 28.02.2005. He was suspended on 19.11.2004 consequent on the judgement on the same date in C.C. 779/2002. The judgement was stayed by the Sessions Court, Ernakulam, and the suspension was revoked on 04.01.2005. Although the appeal was disposed of under Sections 3, 5 and 12 of the Probation of Offenders Act by judgement dated 28.02.2005, the recommendation of the DPC was continued to be kept in sealed cover and the applicant had to retire on 30.06.2010 without promotion. The O.A. No. 378/2010 filed by the applicant was disposed of by this Tribunal directing the respondents to dispose of the representation dated 11.03.2010 (Annexure A-8). Aggrieved by the disposal of his representation, the applicant filed O.A. No. 694/2010 which was disposed of again directing the respondents to reconsider the case of the applicant, vide order dated 18.11.2010. In compliance, the 4th respondent passed orders dated 24.01.2011 and 25.01.2011 promoting the applicant as Senior Tax Assistant and Deputy Office Superintendent respectively with effect from the date of promotion of his juniors. The 5th respondent vide order dated 23.02.2011 decided that the applicant is entitled to the benefit of fixation of pay on notional promotion and not entitled to arrears of pay on notional promotion. Aggrieved the applicant has filed this O.A. for the following reliefs:
(i) Set aside Annexure A-1 order to the extent the same denies arrears of salary to the applicant;
(ii)Order directing the respondents to pay the applicant arrears of salary being a Senior Tax Assistant with effect from 11.02.2005 and Deputy Office Superintendent with effect from 01.10.2009 till his retirement on 30.06.2010;
(iii) Any other orders as this Hon'ble Tribunal deems fit and proper in the facts and circumstances in the case and also those are prayed for during the pendency of the O.A;
(iv) Order for the entire costs.
2. The applicant submitted that he was not granted promotion without sufficient reason. Annexure A-5 judgement passed by the Sessions Court did not disqualify him from getting promotion. He is entitled for all service benefits on granting due promotion upto the Deputy Office Superintendent. He was given the benefit under the Probation of Offenders Act which amounted to acquittal. The alleged offence is not in any way connected with his official duties. The applicant was all the time available for work on promotion. The respondents unnecessarily continued to keep sealed cover unopened even on the date of the retirement of the applicant so as to deny him promotion. The denial of arrears of pay to him as per Annexure A-1 order is illegal and is liable to be set aside.
3. In the reply statement, the respondents submitted that complying with the directions of this Tribunal in O.A. Nos. 378/2010 and 694/2010, they have considered the representation of the applicant and exonerated him of all charges levelled in the disciplinary proceedings against him and granted notional promotions. The appointing authority has directed to grant him only the fixation benefit on notional promotion applying the principle of 'no work no pay'. Vide orders dated 14.01.2010 in O.A. No. 320/2009 and 22.11.2010 in O.A. No. 906/2009, this Tribunal had made clear that wherever the promotion is antedated, it will be notional and there will not be any arrears of pay since there is no shouldering of higher responsibility.
4. We have heard Mr. Babu Cherukara, learned counsel for the applicant and Mr. Thomas Mathew Nellimoottil, learned counsel appearing for the respondents and perused the records.
5. The short question to be decided is whether the applicant is entitled to arrears of salary for the notional period of promotion or not. In O.A 320/2009, the main question was the eligibility for promotion of the applicants therein. In O.A. No. 906/2009, this Tribunal observed that "Since he had not worked in any promoted post and taking note of his inability to seek consequences thereof, we hold that such monetary consequences are not available to him on the basis of no work no pay." In facts of the case, this O.A is distinguishable from O.A. Nos. 320/2009 and O.A. 906/2009. If there is any laches on the part of the employee and he did not work, evidently he is not entitled to wages for the work not done. In the instant case, the applicant was all the time ready to work on the promotion post. As per the submission of the applicant he was very much doing the work of Senior Tax Assistant and that the Deputy Office Superintendent. The respondents have not contested it. The applicant was pleading all the time for promotion he was entitled to. There was no legally tenable ground for not opening the sealed cover immediately after disposal of his criminal appeal No. 1093/2004 by the learned Additional Sessions Judge on 28.02.2005. The relevant part of the said judgement is extracted as under:
"8. As already mentioned above the lower court has awarded punishments of various terms of imprisonment ranging upto three months to the appellants with direction to suffer concurrently and also sentenced them to pay fine with default sentence. The counsel for the appellants submitted that the appellants are Central Government employees and if they are sentenced to imprisonment, fine etc. they would loss their jobs. When all the available facts and circumstances are considered it appears that the appellants have not acted with extreme cruelty. Their brother was allegedly attacked by PW.1 in the evening and on account of rage of revenge due to that the appellants have committed the above offences. No previous conviction is proved against the appellants. They are youngsters also. In these circumstances this court is of the view that instead of sentencing the appellants to any punishment if they are released under section 3 of the Probation of Offenders Act and also if they are ordered under section 5 of the Probation of Offenders Act to pay Rs. 1,000/- each as compensation to PW.1 and Rs. 300/- each as compensation to PW.2 with default sentence it will serve the ends of justice and the appellants will not loose their government jobs by virtue of the provisions of section 12 of the Probation of Offenders Act.
In the result maintaining the conviction of the appellants by the lower court for offences under section 323, 448 and 427 read with section 34 IPC, the appeal is allowed in part and the sentence of imprisonment and fine awarded by the lower court to the appellants and set aside and instead the appellants are directed to be released by the lower court after due admonition under Section 3 of the Probation of Offenders Act and also under section 5 of the Probation of Offenders Act, the appellants are ordered to pay Rs. 1,000/- (Rupees Thousand only) each as compensation to PW.1 and Rs. 300/- (Rupees Three Hundred only) each as compensation to PW.2 with default sentence of simple imprisonment for one month each. The conviction and sentence of the appellants for offence under section 506(1) IPC are set aside."
6. Clause 12 of the Probation of Offenders Act, 1958 , reads as under:
"12. Removal of disqualification attaching to conviction - Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence."
As per Section 12 of the Probation of Offenders Act, 1958, a person found guilty of an offence and dealt with under the provisions of section 3 of the said Act as in the instant case, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Therefore, the judgement of the learned Additional Sessions Judge as quoted above, amounts to acquittal of the applicant. Hence, it was the duty of the department to consider the case of the applicant for promotion as per the recommendation of the DPC by opening the sealed cover without any delay. Not doing so in time is arbitrary and illegal. The DPC had recommended him for promotion. The promotion post was readily available in the same office where the applicant worked since 2005. There was no reason for the delay on the part of the respondents in opening the sealed cover and granting him promotion he was entitled to. In the facts and circumstances of the case, the blame for not allowing the applicant to work is on the respondents. The delay on the part of the respondents in granting promotion to the applicant should not recoil on him. Besides, the respondents have made the applicant discharge the functions and responsibilities of Senior Tax Assistant and Deputy Office Superintendent. Therefore, in the interest of justice and fair play, the arrears of salary for the notional period of promotion should be paid to the applicant.
7. However, the relief relating to arrears has to be restricted to only three years before 17.05.2010, i.e. the date of filing the O.A. No. 378/2010 by which he approached this Tribunal for redressal of a grievance which arose in the year 2005. The respondents have already granted benefits of fixation of pay on notional promotion. Accordingly, it is ordered as under.
8. Annexure A-1 order dated 23.02.2011 is set aside to the extent the same denies arrears of salary to the applicant but payment of arrears of salary will be limited to the period from 3 years prior to 17.05.2010 till the date of retirement.
9. The O.A is allowed as above with no order as to costs.
(Dated, the 01st December, 2011)
(K. GEORGE JOSEPH) (JUSTICE P.R. RAMAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.