Kerala High Court
P.Velayudhan vs Union Of India on 12 January, 2007
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
FRIDAY, THE 20TH DAY OF MAY 2016/20TH VAISAKHA 1938
WP(C).No. 21351 of 2008 (S)
----------------------------
AGAINST THE ORDER IN OA 524/2005 of CENTRALADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 12-01-2007
PETITIONER:
-----------------
P.VELAYUDHAN, S/O.SANKARAN,
POSTAL ASSISTANT (RETD), CHUNGATHARA,
POST OFFICE, CHUNGATHARA, 679 334,
MALAPPURAM DISTRICT, RESIDING AT POOVATHUNGAL HOUSE,
CHUNGATHARA - 679 334.
BY ADVS.SRI.M.R.HARIRAJ
SRI.SURAJ.S
SRI.P.A.KUMARAN
SMT.VINEETHA B.
RESPONDENT(S):
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1. UNION OF INDIA, REPRESENTED BY SECRETARY,
MINISTRY OF COMMUNICATIONS,, DEPARTMENT OF POSTS,
NEW DELHI.
2. CHIEF POST MASTER GENERAL, KERALA CIRCLE,
THIRUVANANTHAPURAM - 33.
3. POST MASTER GENERAL, NORTHERN REGION,
KOZHIKODE - 673 011.
4. THE DIRECTOR POSTAL SERVICES,
NORTHERN REGION, KOZHIKODE - 673 011.
BY ADV. SRI.N.NAGARESH,ASST.SOLICITOR GENERAL OF INDIA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-05-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN W.P.(C)No.21351/08
PETITIONER'S EXTS:
EXT.P1: COPY OF FINAL ORDER DT.12.1.07 IN O.A.NO.524/05 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXT.P2: COPY OF ORDER DT.31.7.89 IN T.A.K.472/1987 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL.
EXT.P3: COPY OF ORDER NO.STAFF 3-021/92 DT.22.10.92 ISSUED BY THE 4TH RESPONDENT.
EXT.P4: COPY OF ORDER DT.15.2.94 IN O.A.1172/93 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH
EXT.P5: COPY OF ORDER NO.1-52/92-VP DT.26.1.95 ISSUED BY MEMBER (PERSONNEL)
POSTAL SERVICES BOARD, NEW DELHI.
EXT.P6: COPY OF SHOW CAUSE NOTICE NO.STAFF/38-2/1/07/95 DT.16.11.95 ISSUED BY 4TH
RESPONDENT.
EXT.P7: COPY OF REPRESENTATION DT.2.2.96 IN RESPONSE TO SHOW CAUSE NOTICE
DT.16.11.95 MADE BY THE PETITIONER TO THE 4TH RESPONDENT.
EXT.P8: OPY OF ORDER NO.STAFF/3802/1/7/95 DT.18.3.96 ISSUED BY THE 4TH RESPONDENT.
EXT.P9: COPY OF ORDER NO.STAFF/38/2/1/OW/95 DT.17.11.97 ISSUED BY THE 3RD
RESPONDENT.
EXT.P10: COPY OF REPRESENTATION DT.3.12.97 SUBMITTED BY THE PETITIONER TO THE 4TH
RESPONDENT.
EXT.P11: COPY OF ORDER NO.STAFF/38-2/1/OW/95 DT.8.5.98 ISSUED BY THE 4TH
RESPONDENT.
EXT.P12: COPY OF APPEAL DT.17.8.98 BEFORE THE 3RD RESPONDENT.
EXT.P13: COPY OF MEMO NO.STAFF/38-3/8/98 DT.18.5.99 ISSUED BY THE 4TH RESPONDENT.
EXT.P14: COPY OF REPRESENTATION DT.21.6.99 SUBMITTED BY THE PETITIONER TO THE 4TH
RESPONDENT.
EXT.P15: COPY OF ORDER No.STAFF/38-3/8/98 DT.6.12.99 ISSUED BY THE 4TH RESPONDENT.
EXT.P16: COPY OF APPEAL DT.25.4.2000 SUBMITTED BY THE PETITIONER TO THE 3RD
RESPONDENT.
EXT.P17: COPY OF ORDER NO.STA/30-IN/1/2000 DT.1.2.2001 ISSUED BY THE 3RD
RESPONDENT.
EXT.P18: COPY OF REVISION PETITION DT.1.6.2001 SUBMITTED BY THE PETITIONER BEFORE
THE MEMBER (PERSONAL) POSTALBOARD.
EXT.P19: COPY OF ORIGINAL APPLICATION NO.524/05 (WITHOUT ANNEXURES) BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
EXT.P20: COPY OF REPLY STATEMENT DT.24.1.2006 FILED BY THE RESPONDENTS BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ALONG WITH
ANNEXURES.
RESPONDENTS' EXTS: NIL
TRUE COPY
P.S.TO JUDGE
dsn
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
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W.P.(C)No.21351 OF 2008
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DATED THIS THE 20th DAY OF MAY, 2016
JUDGMENT
ANIL K.NARENDRAN, J.
The petitioner, while working as Postal Assistant in Chungathara Post Office, was placed under suspension alleging misconduct. He was issued with a memo of charges containing the following charges.
"ARTICLE-I: That Shri P.Velayudhan/III while functioning as Postal Assistant, Chungathara during the period from
2.1.81 to 31.5.81 received from Shri C.Uneen, licensee of Chungathara DBRL No.418, which had expired on 31.12.74, a sum of Rs.200/- for renewal of the licence some time in January/February 81, but failed to renew the licence and account the money and afterwards by way of an attempt to cover up the malpractice as mentioned and avoid subsequent detection of non-renewal of the licence fraudulently recorded the remarks "Transferred to Bangalore-2 on 14.1.81' against the entry of the licence in page 37 of the BRL Register, and, as an additional precaution tore off the sheet bearing Number 36 on the reverse of which and facing page 37, particulars of the BRL in Col.1 to 8 had been entered and, therefore, by not account a sum accepted in PO transactions and by making W.P.(C)No.21351/2008 -2- false entries in office records and destroying records in a bid to cover up the faraud has contravened the provisions of Rule and 103 of FHB volume I and displayed utter lack of integrity infringing rule 3(1)(i) of Central Civil Services (Conduct) Rules, 1964. ARTICLE-II- That Shri P.Velayudhan/III while functioning as Postal Assistant, Nilambur, when it became known that the above licensee was questioned by the Wireless Licence Inspector, Manjeri in regard to non-renewal of the licence on 24.7.82 and the truth had come out, approached the licensee on 27.7.1982, himself wrote out a petition from the licensee to the Superintendent of Post Offices, Manjeri, requesting for refund of the money paid by him to Chungathara Post Office in 1981 and attempted to get it signed by the licensee with a view to subsequently pay the money to him as if it was refunded by the Superintendent and to obtain a receipt for it which could be made use of to shield him against any departmental lack of integrity violating rule 3(1)(i) of the CCS (Conduct) Rules, 1964."
2. To the memo of charges, the petitioner filed written statement of defence. In the disciplinary enquiry, he was found guilty of the charges levelled against him. Based on the report of the Enquiry Officer, the petitioner was proceeded against under Rule 14 of the Central Civil Service (Classification, Control and W.P.(C)No.21351/2008 -3- Appeal) Rules, (hereinafter referred to as 'the CCS (CCA) Rules) and he was imposed with a penalty of dismissal from service.
3. Challenging the order of dismissal, the petitioner filed O.P.No.2861/1985 before this Court, which was later transferred to the Central Administrative Tribunal, Ernakulam Bench and re- numbered as T.A.No.472/1987. By Ext.P2 order dated 31.07.1989, the Tribunal allowed the said T.A. and ordered reinstatement of the petitioner. The Disciplinary Authority was directed to pass final orders after getting comments from the petitioner, on the enquiry report. There was also a direction to keep him under suspension from the date of reinstatement.
4. Pursuant to the direction contained in Ext.P2 order passed by the Tribunal, the Disciplinary Authority furnished a copy of the enquiry report to the petitioner and after obtaining his comments, imposed the penalty of dismissal from service vide order dated 24.10.1989. Aggrieved by the said order, the petitioner filed an appeal and the Appellate Authority by Ext.P3 order dated 22.10.1992 modified the penalty as reduction in rank to lower grade of Group D and it was also ordered that the period of absence from duty due to dismissal shall be treated as non- W.P.(C)No.21351/2008 -4- duty for all purposes.
5. Ext.P3 order passed by the Appellate Authority was under challenge in O.A.No.1172/1993 filed before the Tribunal. By Ext.P4 judgment dated 15.2.1994, the Tribunal allowed the said Original Application, after setting aside Ext.P3 order and the matter was remitted to the Appellate Authority for reconsideration. However, by order dated 4.11.1994, the appeal filed by the petitioner ended in dismissal. Though the said order passed by the Appellate Authority was under challenge in O.A.No.1468/1994 filed before the Tribunal, the same was dismissed, without prejudice to the right of the petitioner to move the Revisional Authority.
6. Pursuant to the above order passed by the Tribunal, the petitioner filed revision petition before the Revisional Authority. The said revision was disposed of by Ext.P5 order dated 26.1.1995 confirming the appellate order. However, the Disciplinary Authority was directed to issue show cause notice on the question of treatment of the intervening period. Pursuant to the direction contained in Ext.P5 order of the Revisional Authority, the petitioner was issued with Ext.P6 show cause W.P.(C)No.21351/2008 -5- notice dated 16.11.1995 proposing to regularise the period of suspension and the intervening period between dismissal and reinstatement as period not spent on duty for any purpose. On receipt of Ext.P6 show cause notice, the petitioner made Ext.P7 representation dated 2.2.1996 requesting that the entire period may be treated as duty for all purposes. The Disciplinary Authority by Ext.P8 order dated 18.3.1996 ordered to treat the period of suspension and intervening period of absence as period not spent on duty for any purpose, except for pension.
7. Dissatisfied with Ext.P8 order passed by the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority. By Ext.P9 order dated 17.11.1997, the said appeal was allowed and the Disciplinary Authority was directed to decide the matter afresh after getting a representation from the petitioner. Based on the aforesaid order, the petitioner made Ext.P10 representation dated 3.12.1997 before the Disciplinary Authority to treat the period of suspension and the intervening period between dismissal and reinstatement as duty for all purposes.
8. The Disciplinary Authority by Ext.P11 order dated W.P.(C)No.21351/2008 -6- 8.5.1998 reconsidered the question of regularisation of the period of absence and it was ordered that the pay and allowance during the period of suspension from 7.8.1982 to 14.11.1989 will be limited to subsistence allowance already drawn and paid to the petitioner and that the said period shall be treated as period not spent on duty for all purposes. It was also ordered that the period from 15.11.1989 to 26.11.1992, i.e., the period during which the petitioner remained out of service will be treated as leave of any kind admissible and eligible to him as on the date of reinstatement and the remaining period as non-duty for all purposes.
9. Aggrieved by the said order passed by the Disciplinary Authority, the petitioner filed Ext.P12 appeal before the Appellate Authority. The said appeal was disposed of directing the Disciplinary Authority to consider the matter afresh after giving notice and getting a representation from the petitioner. Pursuant to the said order passed by the Appellate Authority, the Disciplinary Authority issued Ext.P13 notice proposing to restrict payment of subsistence allowance only for the intervening period. After considering Ext.P14 reply dated 21.6.1999 made by the W.P.(C)No.21351/2008 -7- petitioner, Ext.P15 order dated 6.12.1999 was passed by the Disciplinary Authority, by which the period of suspension and intervening period were ordered to be treated as period spent not on duty for any purpose, except for subsistence allowance and other allowances admissible under FR.53. Ext.P16 appeal filed by the petitioner against Ext.P15 order ended in dismissal by Ext.P17 order dated 1.2.2001.
10. Though the petitioner filed Ext.P18 revision before the 2nd respondent, there was no response from the said respondent. In such circumstances, the petitioner approached the Tribunal in O.A.No.524/2005, seeking an order to quash Ext.P15 order dated 6.12.1999 of the Disciplinary Authority and Ext.P17 order dated 1.2.2001 of the Appellate Authority. The petitioner has also sought for a declaration that he is entitled to be granted full wages for the period he was kept out of service and that the said period has to be treated as duty for all purpose, and to direct the respondents to grant him the said benefits along with all consequential benefits including arrears of pay.
11. Before the Tribunal, the prayer sought for in the Original Application was opposed by the respondents by filing W.P.(C)No.21351/2008 -8- Ext.P20 reply statement.
12. After considering the pleadings and materials on record, the Tribunal by Ext.P1 order dated 12.1.2007 dismissed O.A.No.524/2005 holding that Ext.P15 order of the Disciplinary Authority does contain specifically that the intervening period cannot be treated as duty for any purpose. The Appellate Authority had considered the appeal against the said stipulation but by Ext.P17 order declined to modify the same. The said decision of the Appellate Authority also cannot be found fault with.
13. Being aggrieved by Ext.P1 order of the Tribunal, the petitioner is before this court in this Writ Petition.
14. We heard arguments of the learned counsel for the petitioner and also the learned Assistant Solicitor General of India appearing for the respondents.
15. The issue that arises for consideration in this Writ Petition is as to the legality of Ext.P1 order of the Tribunal, by which, interference was declined against Ext.P15 order dated 6.12.1999 of the Disciplinary Authority and Ext.P17 order dated 1.2.2001 of the Appellate Authority, by which the claim of the W.P.(C)No.21351/2008 -9- petitioner that he is entitled for full wages for the period he was kept out of service, treating the said period as duty for all purposes, with all consequential benefits including arrears of pay, was declined.
16. Alleging misconduct by the petitioner while he was working as Postal Assistant in Chungathara Post Office, he was placed under suspension on 14.8.1982. In the disciplinary proceedings initiated against him, he was initially imposed with the penalty of dismissal from service, which was later modified by Ext.P3 order dated 22.10.1992 as reduction in rank in the lower grade of Group D. As per the said order, the period of absence of the petitioner from duty shall be treated as non duty for all purposes. The challenge made by the petitioner against Ext.P3 order resulted in Ext.P5 order, pursuant to which he was issued with Ext.P6 show cause notice on regularisation of the period of suspension and the intervening period between dismissal and reinstatement in service. The petitioner submitted Ext.P7 representation, requesting that the entire period may be treated as duty for all purposes. After considering the said representation, the Disciplinary Authority by Ext.P8 order dated W.P.(C)No.21351/2008 -10- 18.3.1996 ordered that the period of suspension and the intervening period of absence shall be treated as period not spent on duty for any purpose, except for pension.
17. Dissatisfied with Ext.P8 order passed by the Disciplinary Authority, the petitioner preferred an appeal before the Appellate Authority. The Appellate Authority by Ext.P9 order directed the Disciplinary Authority to reconsider the matter. The Disciplinary Authority by Ext.P11 order ordered that the period of suspension from 7.8.1982 to 14.11.1989 will be limited to subsistence allowance already paid to the petitioner and the said period shall not be treated as period spent on duty for any purpose. It was also ordered that the period from 15.11.1989 to 26.11.1982, ie. the period during which he remained out of service will be treated as leave of any kind admissible and eligible to him as on the date of reinstatement and the remaining period as non duty for all purposes.
18. The said order of the Disciplinary Authority was under
challenge in Ext.P12 appeal, which was disposed of directing the Disciplinary Authority to reconsider the matter, pursuant to which, the Disciplinary Authority issued Ext.P13 notice to the W.P.(C)No.21351/2008 -11- petitioner proposing to restrict payment of subsistence allowance only for the intervening period. The petitioner submitted his reply and after considering the same, the Disciplinary Authority passed Ext.P15 order, by which it was ordered that the period of suspension and intervening period will be treated as period spent not on duty for any purpose, except for subsistence allowance and other allowances admissible under FR.53. Ext.P16 appeal filed by the petitioner against Ext.P15 order ended in dismissal by Ext.P17 order.
19. As we have already noticed, by Ext.P8 order of the Disciplinary Authority, the period of suspension and the intervening period of absence of the petitioner was ordered to be treated as period not spent on duty for any purpose, except for pension. As discernible from Ext.P8 order passed by the Disciplinary Authority, it was after considering the entire aspects of the case and also the satisfactory service of the petitioner in the lower grade of Group D, it was ordered in Ext.P8 that the period of suspension from 7.8.1982 to 14.11.1989 and the period between the dismissal from service and reinstatement, i.e., from 15.11.1989 to 26.11.1992 be treated as period not spent on duty W.P.(C)No.21351/2008 -12- for any purpose, except for pension. It was also ordered that the pay and allowances of the petitioner during the period of suspension will be limited to what he had drawn as subsistence allowance during that period. It is aggrieved by Ext.P8 order, the petitioner approached the Appellate Authority/ Revisional Authority, contending that he is entitled for regularisation of the aforesaid period as on duty for all purposes with payment of consequential benefits including arrears of pay. The challenge so made by the petitioner has culminated in Ext.P15 order passed by the Disciplinary Authority, in which it has been ordered that the pay and allowances of the petitioner for the period spent under suspension from 7.8.1982 to 14.11.1989 and the period between his dismissal from service and reinstatement, i.e., from 15.11.1989 to 26.11.1992 shall be limited to the amount of subsistence allowance and other allowances admissible under FR.53. Accordingly, it was ordered that the period in question shall not be treated as period spent on duty for any purpose. The said order of the Disciplinary Authority was confirmed in Ext.P17 order of the Appellate Authority.
20. When the challenge made against the petitioner in the W.P.(C)No.21351/2008 -13- appeal filed against Ext.P8 order passed by the Disciplinary Authority is for regularisation of his period of suspension and also the intervening period as duty for all purpose, the benefit already granted by the Disciplinary Authority in Ext.P8 order that the period of suspension and intervening period of absence shall be reckoned for the purpose of pension, cannot be taken away in exercise of the powers of the Appellate Authority. If the Appellate Authority or the Revisional Authority, as the case may be, find no merit in the appeal/revision filed by the petitioner, it is for them to dismiss the said appeal/revision, thereby confirming Ext.P8 order passed by the Disciplinary Authority. In such an appeal/revision the Appellate Authority/Revisional Authority has absolutely no jurisdiction to take away even the benefit given to him in Ext.P8 order to the limited extent of reckoning for the purpose of pension, the period of suspension and the intervening period between the dismissal and reinstatement.
21. In that view of the matter, we find no reason to sustain the impugned order of the Tribunal. In the result, we set aside Ext.P1 order of the Tribunal in O.A.No.524/2005. It is ordered that in terms of Ext.P8 order passed by the Disciplinary W.P.(C)No.21351/2008 -14- Authority, the period of suspension and the intervening period of absence of the petitioner shall be treated as period spent on duty for the purpose of pension. Exts.P15 and P17 orders (Annexures A1 and A18 orders in the O.A.) are set aside to that extent. The respondents shall re-fix the pensionary benefits due to the petitioner accordingly and all consequential monetary benefits shall be disbursed to him within a period of three months from the date of receipt of a certified copy of this judgment.
The Writ Petition is disposed of as above. No order as to costs.
Sd/-
P.R.RAMACHANDRA MENON, JUDGE Sd/-
ANIL K.NARENDRAN,
JUDGE
dsn //True copy
P.S. to Judge//