Central Administrative Tribunal - Cuttack
Asok Kumar Nandi vs Steel Sail on 18 December, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00439 of 2021
Reserved on 17.12.2024 Pronounced on 18 .12.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Sri Asok Kumar Nandi, aged about 46 years, S/o. Sri
Bhramarabar Nandi, resident of Village/PO/PS-
Patkura, Dist. Kendrapara, Odisha-754 228 at present
working as Senior Technician S07, Department of Cold
Rolling Mill, Steel Authority of India Limited, Rourkela
Steel Plant, Rourkela-769 011, Dist. Sundargarh,
Odisha.
......Applicant
VERSUS
Steel Authority of India Limited represented through-
1. Chief Executive Officer, Steel Authority of India
Limited, Rourkela Steel Plant, Rourkela-769 011, Dist.
Sundargarh, Odisha.
2. Executive Director - P&A, Steel Authority of India
Limited, Rourkela Steel Plant, Rourkela-769 011, Dist.
Sundargarh, Odisha.
3. Chief General Manager -(P&A), Steel Authority of
India Limited, Rourkela Steel Plant, Rourkela-769
011, Dist. Sundargarh, Odisha.
4. Dy. General Manager - (CRM), at presenting as GM
(I/C)-(CRM), Steel Authority of India Limited,
Rourkela Steel Plant, Rourkela-769 011, Dist.
Sundargarh, Odisha.
For the applicant : Mr.K.C.Kanungo, Counsel
For the respondents :Mr.R.K.Kanungo,
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Mr.Diptanshu Nana,
Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The case of the Applicant is that on 01.09.2000, he joined in RSP, SAIL as a Technician S-3 Grade. Consequent upon his arrest in connection with a Criminal Case instituted against him u/s.498-A/304- B/34 IPC & Sec.4 of the DP Act, he was placed under suspension with immediate effect vide order dated 01.12.2010. Subsequently, by the order of the Hon'ble High Court of Orissa, he was released on bail, and, thereafter, submitted application dated 31.05.2011 to allow him to join his duty. On 03.02.2015, his order of suspension was revoked, and, the applicant joined in his duty on 04.02.2015. In criminal case (GR Case No. 1725/2010), the applicant was honourably acquitted vide order dated 07.09.2015 by the Learned Additional Sessions Judge, Rourkela. Thereafter, he submitted representations dated 20.10.2015, 16.05.2016 and 29.08.2016 to treat the suspension period as duty and to extend him all service and financial benefits. Respondents vide order dated 29.11.2016 rejected the claim of applicant for treating his period of suspension as duty for all purposes and grant him all consequential 3 service benefits. On 30.06.2017/10.11.2017, he was promoted to S-6 grade w.e.f. 31.12.2016 instead of w.e.f. 31.12.2011 and, thereafter, he was promoted to s-7 Grade w.e.f. 31.12.2019 though he was entitled to the said promotion w.e.f. 31.12.2015. It is in the above context, by filing the instant Original Application under section 19 of the Administrative Tribunals Act, 1985 on 28.09.2021, he has prayed for the following reliefs:
".........to quash Annexure-A/12 for the ends of justice;
And ....to direct the Respondents to modify order under Annexure-A/4 series by striking down the date of promotion to S-6 and S-7 grade w.e.f. 31.12.2011 and 31.12.2015 respectively and by directing the Respondents to extend the benefit of promotion to the Applicant by antedating the promotion w.e.f. 31.12.2011 (S-6 grade) instead of 31.12.2016 and 31.12.2015 (S-7 grade) instead of 31.12.2019 and next promotion to S-8 Grade w.e.f. 31.12.2018 with all consequential service benefits (incentives, allowances etc.) for the ends of justice;
And ......to hold that the period of suspension shall include the period w.e.f. 29.10.2010 to 30.11.2010 (taking the period of the applicant's judicial custody) and to direct the Respondents to treat the above period as duty for the ends of justice;
And ......to direct the Respondents to treat the period of suspension and custody as duty and extend all service benefits including fixation of pay and the differential amount between the salary already drawn, monthly Bonus 4 with reward, Annual Bonus, Coal Allowance, Quarter Maintenance, DPIS, differential amount of Leave Encashment, differential amount of LLTC, deposit of actual NPS and PF contributions on the revised basic pay, credit of EL and HPL in leave Account etc in terms of Annexure- A/13 with arrears and interest thereon till the actual payment is made for the ends of justice;
And .....to direct the Respondents to extend the financial benefit of ex gratia in respect of the period of suspension (29.10.2010 to 03.02.2015) which would treated as duty for the ends of justice;
And .....to issue any other/further order(s) or direction(s) as deemed fit and proper in the circumstances of the case;
And .....the cost of application may kindly be allowed;
And .....For such kind act, the applicant shall as in duty bound ever pray."
2. The Applicant has also filed MA No. 463 of 20212 seeking to condone the delay in filing this OA.
3. The representations dated 29.08.2016 submitted by the Applicant praying for regularization of his period of suspension from 29.10.2010 to 03.02.2015, after his acquittal in GR Case No. 1725/2010 vide order vide order dated 07.09.2015 was rejecting vide order dated 29.11.2016 stating therein as under:
"Your application dated 29.08.2016 regarding payment of back wages and other benefits during the suspension period was carefully examined and 5 it was found that your request cannot be acceded to."
4. Respondents have filed their counter in which it has been stated that consequent institution criminal case against the applicant and his arrest, as per the standing order of the Department, he was p laced under suspension vide order dated 01.12.2010. During his suspension, he was paid 50% of his basic pay plus DA towards subsistence allowance from 01.12.2010 to 28.02.2011 and 75% from 01.03.2011 to 31.01.2015 in terms of the provisions of the Certified Standing Order of the Company. His suspension was revoked vide order dated 03.02.2015 with specific order that his period of suspension shall be treated as such and he shall not be entitled to any financial and other benefits during the period of his suspension, in pursuance of which order, he joined duty on 04.02.2015. It is stated that as per service Rules/Standing Order of the Company, all employees are supposed to exhibit good behaviour and conduct themselves in a good manner so that reputation of the company is maintained. Involvement of applicant in criminal case itself are sufficient to place him under suspension and as such, he was rightly placed under suspension in accordance with clause 30(ii)(h) of the Standing order of the Company. It is sated that during the period of 6 suspension an employee is not available for duty as his presence at the work spot is considered not conducive to the interest of the organization. Since in the instant case, applicant instead of discharging his duties faithfully indulged in activities leading to criminal prosecution and was arrested and remained in judicial custody, as a result of which, the Respondent-Company could not avail his service during the period of his suspension. Therefore, the Respondent- Company cannot be saddled with liability of payment of differential wages and other benefits for the period he was out of duty. In order to substantiate that the action taken by the Respondents is justified and this Tribunal may not interfere with the same, they have placed reliance on the observation of the Hon'ble Apex Court in the case of Krishkant Raghunath Bibhavnekar vs State of Maharastra & Others, 1997-I- LLJ1190 (SC) as under:
'The very cause for suspension of the petitioner and taking punitive action against him was his conduct that led to the prosecution of him for the offences under the Indian Penal Code. If the conduct alleged is the foundation for prosecution, though it may end in acquittal on appreciation or lack of sufficient evidence, the question emerges: whether the Government servant prosecuted for commission of defalcation of public funds and fabrication of the records, though culminated into acquittal, is entitled to be reinstated with consequential benefits?
In our considered view, this grant of consequential benefits with all back wages etc. cannot be as a matter of course. We think that it would deleterious to the maintenance of the discipline if a person 7 suspended on valid considerations is given full back wages as a matter of course, on his acquittal, xxxxxxx xxxxxxxx xxxxxxxxx Therefore, when the suspension period was treated to be a suspension pending the trial and even after acquittal , he was reinstated into service he would not be entitled to the consequential benefits, ................ He is also not entitled to be treated as on duty from the date of suspension till the date of the acquittal for purpose of computation of pensionary benefits etc ...."
Further, Respondents have placed reliance on the observation of the Hon'ble Apex Court in the case of Union of India and Others -vs-
Jaipal Singh, 2004-LLR-1(SC) as under:
"...........On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing re-instatement cannot be sustained and the respondent has to be re-instated, in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent....."
5. In so far as delay is concerned, it has been stated that the order of rejection being dated 29.11.2016 this OA ought to have been filed by 29.11.2017. He has filed this OA on 28.09.2021. Delay of 2 years and 16 days (15.03.2020 to 31.03.2022) is liable to be excluded in compliance of the order of the Hon'ble Supreme Court issued for COVID-19 8 pandemic. Thus the remaining period of delays comes to 1 year 9 months and 14 days. The applicant could not raise his grievance within the said period was not due to intentional or deliberate but for the reason that he was undergoing mental stress and agony due to in implication falsely in the criminal case leading to his arrest and also financial constraints. Further, learned counsel for the applicant has taken the support of the decision of the Hon'ble Apex Court in the case of M.R.Gupta v Union of India and Others, AIR 1996 SC 669 to state that the grievance of applicant being related to consequential service/monetary benefits falls within the recurring cause of action and, therefore, unless the delay is condoned the matter is adjudicated ion merit, injustice caused to him in the decision making process of the matter would perpetuate eternity. This was opposed by the learned counsel appearing for the Respondents. After considering the matters with reference to facts and law explained by the learned counsel for the Applicant, we see sufficient force on the grounds in support of the prayer of the applicant to condone the delay. Accordingly the delay is condoned.
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6. Now coming to the merit of the matter, at the first instance, learned counsel for the Applicant took us through the provisions made in clause 2(e) of the Standing Orders for Rourkela Steel Plant, Orissa, copy of which placed at Annex. A/10, to state that when in the standing order it has been provided that if an employee is found not guilty of the alleged misconduct or any other misconduct, he shall be reinstated in his post and shall be paid the difference between the subsistence allowance already paid and the emoluments which he would have received if he had not been suspended, the period suspension being treated as duty. It is stated that in the instant case, the applicant was placed under suspension in connection with criminal case instituted against him. The said Criminal Case was ended in favour of the applicant honourably acquitting him from the allegation. No disciplinary proceedings have been initiated against him. In such a circumstances, the entire period of suspension should have been treated as duty thereby entitling him all consequential service and financial benefits for the said period. His argument is that exactly in similar situation, one Shri Akshya Kumar Mohanty was denied the benefit which formed the subject matter of consideration before the Learned Labour Court in ID Case No.04/2010 (Management of SAILI vs Akshaya Kumar Mohanty) 10 and Learned Labour Court awarded the matter in favour of Shri Akshaya Kumar Mohanty. It has been pleased that having faced similar situation, another employee of the SAIL namely Shri Saroj Kumar Parida approached this Tribunal in OA No. 83 of 1993; which was also allowed by this Tribunal in favour of the Shri Saroj Kumar Parida. In compliance of the order of this Tribunal in OA No. 83 of 1993, Shri Mohanty was paid all his dues by the SAIL. Learned Counsel for the applicant has also submitted that the decisions relied on by the Respondents have no application to the case in hand because, the facts and Rules in those cases are different than the present case. Hence, it has been stated that in view of the fact that the acquittal of applicant in criminal case, provision of the standing order and the decision of this Tribunal in OA No. 83 of 1993, the applicant is also entitled to the relief claimed in this OA. On the other hand, learned counsel for the Respondents, in course of hearing, has made sincere effort and endeavour to justify the action of the Respondents as just and proper by reiterating the facts and law noted above and has prayed for dismissal of this OA on merit.
7. Right to reason is an indispensable part of a sound in administrative, quasi judicial or judicial systems as the case may be. 11 Recording reason in the decision at least sufficient to indicate the authority adjudicated the grievance with due application of mind and not on whims or caprice. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made. In other words, a speaking out, the inscrutable face of the sphinx is ordinarily incongruous with a administrative quasi judicial or judicial performance. Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review. An opinion expressed or conclusion arrived at in an order without recording reasons has always been declared as illegal and unjustifiable by the Hon'ble Supreme Court and such practices have not only been deprecated over the years but such sort of orders have been judicially de-recognized, in very many cases in past [Ref. State of West Bengal v. Atul Krishna Shaw & Anr., AIR 1990 SC 2205, S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 & Ravi Yashwant Bhoir Vs. District Collector, Raigad and Ors., (2012) 4 SCC 407]. On examination of the order of rejection dated 29.11.2016 wth the well propounded law discussed above, we have no iota of doubt in 12 our mind, to hold that the order of rejection is so sketchy and unreasoned; it has no legs to stand in the eyes of law.
8. The factual aspects of the matter are not in dispute. The only dispute is that according to the applicant denying the applicant his rightful claim is unjustified in view of the express provision under 2 ( e), since he has been acquitted in the criminal case, upon his reinstatement he is entitled to all consequential service and financial benefits; especially when in similar circumstances, others have been granted the said benefit in compliance of the orders of the Learned Labour Court so also of this Bench whereas, according to the Respondents in view of the law laid down by the Hon'ble Apex Court in the cases of Krishkant Raghunath Bibhavnekar (supra) & Jaipal Singh (supra) since the applicant did not perform any duty during the period of suspension, he is not entitled to any other consequential service and financial benefits upon his reinstatement into service except the Subsistence Allowance which he had got during the period of suspension.
9. We have gone through the decisions of the Hon'ble Apex Court cited by learned counsel for the Respondents. The case of Shri Krishkant Raghunath Bibhavnekar (supra) was that he was while 13 working as compositor in the Government of India Printing Press, was charged for offences punishable, inter alia, under Section 409 of IPC. Pending trial, he was kept under suspension and was paid subsistence allowance. After his acquittal, the appellant was reinstated but the respondents did not grant the consequential benefits to him. Consequently, the appellant approached the Administrative Tribunal, The Tribunal by the impugned order dated 27th April, 1995 in OA No. 40/92, dismissed the application as against which order he approached before the Hon'ble Apex Court. The Hon'ble Apex Court dismissed the matter by holding that the authority may, on reinstatement after following the principle of natural justice, pass appropriate order including treating suspension period as period of not on duty , ( and on payment of subsistence allowance etc.) Rules 72(3), 72 (5) and 72 (7) of the Rules give a discretion to the disciplinary authority to decide as how the period of suspension shall be treated and when authority concerned took a conscious decision to limit the entitlement to the extent of payment of SA, it was held that the applicant therein was not entitled to the relief; whereas, in the present case it is found that provision under 2
(e) of Standing Order no such discretion is left to the authority. Hence, 14 the facts of the said case being different and distinct is held to be not applicable to the present case.
10. Similarly, we have gone through the decision in the case of Jaipal Singh (supra) which was a case where in the employee concerned was involved in a criminal case and he was charge-sheeted for an offence under Section 302 read with Section 34 of the IPC along with his brother and though he was convicted by the learned Additional Sessions Judge, Rewari for the same by a judgment dated 05.03.1997, on further appeal, the Division Bench of the Hon'ble Punjab and Harayana High Court returned a verdict of acquittal. As a consequence thereof, since, he was not re-instated in spite of the order of acquittal, he moved the Hon'ble High Court in CWP No. 12929 of 1999. The Division Bench of the Hon'ble High Court of Punjab and Haryana and Chandigarh dated 30.10.2001 allowed the writ petition directing re-instalment of the employee concerned with full back wages and consequential benefits. Being aggrieved, the Department preferred appeal before the Hon'ble Apex Court. The Hon'ble Apex Court interfered in the order of the Hon'ble High Court in the said case by observing that if prosecution, which ultimately resulted in acquittal of the person concerned was at the behest or by department itself, perhaps different considerations 15 may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and it after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges, a person convicted of an offence to be so kept out and not to be retained in service. In this case, the applicant was never convicted by the lower court in the criminal case and admittedly, the criminal case resulted in acquittal of the applicant. Thus, on the facts and very observation it can respectfully held that Jaipal Singh (supra) case is distinct and different and, has no application to the present case.
11. Now on examination of the cases of of Shri Akshaya Kumar Mohanty/Labour Court in ID Case No.04/2010 (Management of SAILI vs Akshaya Kumar Mohanty) and Shri Saroj Kumar Parida/OA No. 83 of 1993 with reference to the present case vis-à-vis the position of standing order we find no such justifiable ground to different from the view already taken in the aforesaid cases; which had also been implemented by SAIL granting the benefit to Shri Mohanty and Shri Sahoo. For academic point it may be stated that the grievance of the applicant finds support by the decision of the Hon'ble Apex Court in the case of Ram Lal vs State of Rajsthan & Ors, in Civil Appeal No.7935 of 16 2023 (arising out of SLP ( C) No. 33423 of 2018) disposed of on December 04, 2023. In the said case, a criminal case was instituted against the employee concerned. Following to the criminal case departmental proceeding was also initiated against him. In the departmental proceeding, he was imposed with the punishment of dismissal before conclusion of the criminal case. Later on in the criminal case, he was acquitted. He challenged the order of his dismissal and finally, the matter was set at rest by the order of the Hon'ble Apex Court, operative part of the order is quoted herein below:
"30. In view of the above, we declare that the order of termination dated 31.03.2004; the order of the Appellate Authority dated 08.10.2004; the orders dated 29.03.2008 and 25.06.2008, refusing to reconsider and review the penalty respectively, are all illegal and untenable.
31. Accordingly, we set aside the judgment of the D.B. Special Appeal (Writ) No. 484/2011 dated 05.09.2018. We direct that the appellant shall be reinstated with all consequential benefits including seniority, notional promotions, fitment of salary and all other benefits."
12. Thus, in view of the discussions made above, we find sufficient force on the submissions of the learned Counsel for the Applicant and accordingly, impugned order dated 29.11.2016 (A/12) is hereby quashed and as a consequence the Respondents are hereby directed to grant the benefits what he would have been entitled to had he not been 17 suspended, of course minus the payment made to him towards Subsistence Allowance. The Respondents are also directed to pass the consequential orders granting the benefit, as directed above, within a period of 90 (ninety) days from the date of receipt of a copy of this order.
13. In the result, this OA stands allowed to the extent stated above. There shall be no order as to costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) CS/CM