Central Administrative Tribunal - Allahabad
K D Mishra vs Union Of India on 23 March, 2023
RESERVED ON 17.03.2023.
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 23rd of March 2023
PRESENT:
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 828 of 2009
With
Original Application No. 100 of 2011.
Kedar Dutta Mishra (K.D. Mishra), son of Sri B.K Mishra, resident of Plot No. 181,
Tirputati State Colony, Badaun Road, Village Karelly, District Bareilly.
. . . Applicant in OA No. 828/09
By Adv: Shri Santosh Kumar Mishra/Shri Pankaj Srivastava
VERSUS
1. Union of India through its Secretary, Ministry of Communication and
Information Technology, Department of Post, Dak Bhawan, SansadMarg,
New Delhi.
2. Director General (S.P.G. Section), Department of Post, DakBhawan, Sansad
Marg, New Delhi.
3. Chief Post Master General, Department of Post, India, U.P Circle, Lucknow.
4. Post Master General, Department of Post, India, Bareilly Region, Bareilly,
U.P.
5. Assistant Post Master General (Staff), Office of the Chief Post Master
General, U.P Circle, Lucknow.
. . .Respondents in OA No. 828/09
By Adv: ShriK.K.Ojha
and
Original Application No. 100 of 2011.
Kedar Dutta Mishra son of Sri B.K Mishra, resident of Plot No. 181, TirputatiEstate
Colony, Badaun Road, Village Karelly, District Bareilly.
Presently posted as Superintendent of Post Offices, Mainpuri Division, Mainpuri.
. . . Applicant in OA No. 100/11
By Adv: Shri Santosh Kumar Mishra/Shri Pankaj Srivastava
Versus
1. Union of India through its Secretary, Ministry of Communication and
Information Technology, Department of Post, Dak Bhawan, Sansad Marg,
New Delhi.
2. Shri Kamlesh Chandra, presently posted as Chief Post Master General,
Department of Post India, U.P Circle, Lucknow.
3. Chief Post Master General, Department of Post, India, U.P Circle, Lucknow.
4. Assistant Post Master General (Staff), Office of the Chief Post Master
General, U.P Circle, Lucknow.
. . .Respondents in OA No. 100/11
By Adv: Shri Chakrapani Vatsyayan
2
ORDER
The OA No. 828/09 was decided by this Tribunal on 15.12.2011. Aforesaid order of this Tribunal was challenged before Hon'ble High Court in Writ A No. 34470/2012 Union of India and others Vs. Kedar Dutta Mishra, wherein the order dated 15.12.2011 was set aside. The order of the Hon'ble High Court is reads as under:-
"We have heard Sri SaurabhSrivastava for the petitioners; Sri VinodSwarup assisted by Sri Santosh Kumar Mishra for the first respondent and have perused the record.
The first respondent had filed Original Application No.828 of 2009 with multiple prayers. The first prayer was to quash the orders dated 18th June, 2009 and 15th September, 2008 as also the order dated 19th September, 2008, by which decision was taken by the department to transfer/revert the original applicant (first respondent herein) from his officiating position. Another prayer made by the original applicant was for payment of his salary with effect from 10th March, 2009 up to the date of filing the Original Application.
During the pendency of Original Application, further developments took place as a consequence whereof the issue raised in respect of reversion as well as transfer lost its relevance. In fact, the department had issued show cause notice on 13th January, 2011 seeking explanation from the original applicant (first respondent herein) as to how the period of his un- authorized absence with effect from 10th April, 2009 to 22nd November, 2010 be dealt with as per CCS Leave Rules, 1972.
Assailing the notice dated 13th January, 2011, the first respondent filed Original Application No.100 of 2011, which, admittedly, remains pending.
In the meantime, without moving any application : (a) to club Original Application No.828 of 2009 with subsequent Original Application No.100 of 2011 or (b) to amend the Original Application No.828 of 2009 by disclosing the subsequent developments, the first respondent pressed the Original Application No.828 of 2009, upon which, the Central Administrative Tribunal, Allahabad proceeded to partly allow Original Application No.828 of 2009 whereby though it refused to set aside the orders dated 18th June, 2009; 15th September, 2008 and 19th September, 2008 as regards which no dispute had survived but issued direction upon the petitioners (respondents in the Original Application) to pay salary to the first respondent (original applicant) with effect from 10th March, 2009 up to the date of the order.
The order of the Tribunal has been assailed by the petitioners on ground that as the dispute as regards entitlement for salary in respect of the period 10th March, 2009 to 22nd November, 2010 was pending in another Original Application No.100 of 2011 both matters ought to have been clubbed together and heard and 3 decided together hence the order passed by the Tribunal is liable to be set aside with direction upon the Tribunal to decide Original Application No.828 of 2009 along with pending Original Application No.100 of 2011.
Learned counsel for the first respondent submitted that since the transfer orders were found to be not legally sustainable, the natural consequence of setting aside of those orders would be that the first respondent would be entitled to salary and otherwise also in Original Application No.100 of 2011, an interim order was passed in favour of the first respondent.
Upon consideration of the rival submissions and perusal of the record, we are of the view that when the first respondent had already approached the Tribunal in respect of subsequent cause of action, which was in respect of salary for the period for which the first respondent was declared un-authorizedly absent by the petitioners herein, and the Tribunal was seized of the matter in another proceeding, namely, Original Application No.100 of 2011, the parties, in particular, the original applicant (first respondent) should have applied for clubbing of the two matters so that no conflicting orders are passed on the pleadings of the parties. More so, when in the subsequent Original Application the issue involved, on which direction was issued in the previous application, was the main issue. Accordingly, without expressing any opinion as regards the merits of the claim of either party, in the ends of justice and judicial propriety, we consider it appropriate to set aside the order dated 15th December, 2011, passed by the Tribunal in Original Application No.828 of 2009 and direct the Tribunal to restore the said application to its original number and club the same with Original Application No.100 of 2011 and endeavour to decide both the Original Applications, expeditiously, in accordance with law, after giving opportunity of hearing to both sides, preferably, within a period of four months from the date a certified copy of this order is submitted before the Tribunal".
2. Hence, in view of direction of the Hon'ble High Court, both OAs are being decided in a common order.
3. Through OA No. 828/2009 and OA No.100/2011, applicant seeks following reliefs:-
Relief in OA No. 828/2009.
"(i) Quash the order dated 18.06.2009 passed by the respondent No.2 as well as order dated 15.09.2008 passed by the respondent NO. 3 and order dated 19.9.2008 passed by the respondent NO. 4 (Annexure Nos. A-1C, IA and IB to the Compilation No.1 of this application) and pass an order directing the respondents not to interfere in the applicant's service in JTS and IPS Group 'A' cadre in UP Circle.
(ii) Any other order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(iii) Award costs of the application to the applicant.
(iv) Issue an order or direction to the opposite parties to pay salary to the applicant up to date with effect from 10.3.2009 with interest.4 Relief in OA No. 100/2011
(i) Issue an order or direction to quash the impugned show cause notice dated 13.01.2011 issued by the respondent No.4 to the applicant (Annexure A-1).
(ii) Issue an order or direction of suitable nature which this Hon'ble Tribunal may deem fit and proper on the facts and circumstances of the case.
(iii) Award the cost of application to the applicant".
4. The brief facts of the case in OA No. 828/2009are that applicant was initially appointed on the post of Steno/Typist in the office of respondents on 06.04.1974, thereafter promoted on the post of Supervisor in the office of Postal Training Centre, Saharanpur on 9.11.1994. He was promoted on the post of Assistant Director Postal Training Centre, Saharanpur on 3.11.2003. When the applicant was working in the office of respondent No. 3 the respondent No. 2 vide its order dated 12th September 2007 passed an order promoting the applicant on adhoc basis in JTS of IPS Group 'A' cadre in the pay scale of Rs. 8000-13500/-. Thereafter the applicant was given posting in Agra Region, Agra vide order dated 12.09.2007 but subsequently the allotment of the applicant was changed and he was given Bareilly Region. The applicant was posted by respondent No. 4 vide order dated 18.09.2007 on the post of Senior Superintendent of Post Offices, Muzaffarnagar. Vide order dated 12.09.2007, the applicant along with several other persons were given adhoc promotion in Group 'A' cadre and vide letter dated 05.06.2004, the application of the applicant for repatriation of home circle was considered on the basis of availability of vacancies and application was moved for re-allotment to U.P Circle. By order dated 15.09.2008, respondent No. 3 has terminated the services of the applicant in Group 'A' cadre and reverted to Group 'B' cadre. Thereafter respondent No. 3 passed an order dated 19.9.2008 by which the applicant has been transferred and directed to be posted in West Bengal Circle. Aggrieved against the aforesaid orders, applicant preferred an OA No. 1033/2008 before this Tribunal, which was disposed of by this Hon'ble Tribunal vide its order dated 16.10.2008 with a direction to the applicant to file detailed representation, which shall be decided by the respondents by passing a reasoned and speaking order and till the disposal of the representation, the impugned order was remain suspended. Respondent No. 2 passed the order dated 2.1.2009 by which the representation of the applicant has been rejected. Applicant again filed OA No. 66/2009 whereby the order of the respondents dated 2.1.2009 were challenged. The OA No. 66/2009 was disposed of by this Tribunal on 2.4.2009 with direction to the respondent to decide the representation within six weeks in accordance with rules. It was also observed that in view of interim order passed earlier in this O.A., it is provided that till disposal of the representation, impugned order shall not be given effect to. Thereafter respondent No.2 passed the order dated 18.06.2009 whereby the representation of the applicant has been rejected. Hence, respondents rejected the applicant's 5 request regarding cancellation of transfer order from UP Circle to West Bengal Circle.
5. Through OA No. 100/2011, applicant brieflystated that the representation dated 20.4.2009 moved by the applicant was rejected by the respondents by its order dated 18.6.2009, which was challenged by the applicant before this Tribunal by way of OA No.828/2009. The aforesaid OA was decided by this Tribunal vide order dated 15.12.2011 by which Tribunal partly allowed the O.A and directed the respondents to calculate the salary of the applicant w.e.f.10th March 2009 upto the date he took over the charge and pay salary to the applicant. The said order was challenged before the Hon'ble High Court, Allahabad and Hon'ble High Court has remanded the case back to the Tribunal with a direction to restore the OA No. 828/2009 to its original number and club the same with Original Application No.100 of 2011 and endeavour to decide both the Original Applications, expeditiously, in accordance with law, after giving opportunity of hearing to both sides, preferably, within a period of four months from the date a certified copy of this order is submitted before the Tribunal.
6. I have heard and considered the arguments of learned counsel for the parties and perused the record.
7. From perusal of the record, it is evident that respondent No. 3 vide order dated 12.9.2007 promoted the applicant on adhoc basis in JTS of IPS Group A cadre and given posting in Agra Region but subsequently this allotment was changed and he was given Bareilly region. Respondent No. 4 again vide order dated 18.9.2007 posted the applicant on the post of Senior Superintendent of Post Office, Muzaffar Nagar. Respondent No. 3 has passed an order dated 15.9.2008, whereby the adhoc promotion to the applicant in Group A cadre has been terminated and he has been reverted in Group B cadre and has been allotted West Bengal Circle. Respondent No. 3 passed an order dated 19.9.2008 by which applicant was transferred and directed to be posted in West Bengal circle in PSS Group B cadre. In pursuance of the direction issued by this Tribunal in O.A. No.1033/2008, respondents vide order dated 2.1.2009 rejected the representation of the applicant dated 27.10.2008. Applicant again filed O.A. No. 66/2009 challenging the order dated 2.1.2009 and this Tribunal vide order dated 3.3.2009 (Annexure No. A-14) stayed the transfer order dated 2.1.2009 and 12.1.2009. Thereafter O.A. No. 66 of 2009 was finally disposed off by this Tribunal vide order dated 2.4.2009 (Annexure No. 15 to the O.A. ) with direction to the respondent to decide the representation within six weeks in accordance with rules. It was also observed that in view of interim order passed earlier in this O.A., it is provided that till disposal of the representation, impugned order shall not be given effect to. In compliance of the order dated 2.4.2009, respondent No. 2 passed the order dated 6 18.6.2009, whereby representation of the applicant dated 20.42009 has been rejected, which is challenged by the applicant in the present O.A. The instant O.A. has been filed in the year 2009 and no stay has been granted by this Tribunal but O.A. was disposed of finally vide order dated 15.12.2011 and allowed the O.A., which was later on challenged before the Hon'ble High by filing Writ Petition No. 34470 of 2012 which was decided by the Hon'ble High Court on 28.8.2018 remanded the matter back to the CAT to decide the O.A. along with O.A. No. 100/2011. Perusal of aforesaid record shows that transfer order of the applicant was stayed by this Tribunal and he was enjoying the benefit of stay order and his case was pending before the courts till today. Hence it is clear that applicant was willing to work but was kept away from the work by the authorities due to court case. Therefore, in my view the normal rule of 'no work no pay' will not be applicable in the instant case and I am not in full agreement with the observation made by this Tribunal earlier in the order dated 15.12.2011 as applicant from the 10.04.2009 to 22.11.2010 had unauthorizedly absent from service and he had not worked on the aforesaid period due to pendency of court case. In the case of Chief Regional Manager, United India Insurance Company Ltd. Vs. SirajUddin Khan decided on 11.07.2019 in Civil Appeal No. 5390/2019, Hon'ble Supreme Court has held that :-
"10. The learned counsel for the respondent has, however, supported the judgment of the Division Bench. We are of the opinion that in the light of the fact that the respondent did not report for duty for 15 years, there was no justification whatsoever to grant him any back wages on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification. We also find that the judgment dated 13-8-1999 which had attained finality had directed as under:
"(a) Insofar as the salary of the writ petitioner is concerned during the period he stayed away from the work, the respondent Airports Authority of India, is directed to consider the matter sympathetically and, if it is permissible under its rules, allow to him half of the salary and other benefits."
11. This claim was considered by the competent authority and rejected for valid reasons. We are, thus, unable to endorse the High Court's order for payment of 50% back wages for the period from 17-10-1985 to 10-11-1995 which are far in excess of the directions in the order dated 13-8- 1999. We accordingly allow this appeal, set aside the order of the Division Bench and restore the order of the learned Single Judge dated 15-4-2004."
19. This Court held that there was no justification whatsoever to grant any back wages to the respondent on the general principle that nobody could be directed to claim wages for the period that he remained absent without leave or without justification.
721.This Court held in the above case that; having restrained the appellant from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the plea of the principle of "no work no pay" for denying the wages. In the above case, the appellant was restrained from working due to order of retirement dated 31.12.2002, due to which he could not work till his normal retirement. When the order dated 31.12.2002 was set aside, automatically, he became entitled for back wages and the principle of "no work no pay" was not attracted."
8. The relief prayed in the OA No. 100/2011 for quashing the show cause notice dated 13.1.2011 is liable to be allowed as no charge-sheet has been submitted by the respondents against the show cause notice before the retirement of the applicant and now the applicant has retired from service. It is settled legal position that once the applicant has retired from service, no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the case of Dev PrakashTewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others reported in (2014) 7 Supreme Court Cases 260, the Hon'ble Supreme Court has held as under:-
"8. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits.
9. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him.
10. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein. No costs".
9. In view of the aforesaid observations made above, I am of the view that O.A. No. 828/2009 is partly allowed. Respondents are directed to calculate the salary of the applicant w.e.f. 10th March 2009 till the date of retirement of the applicant because applicant was willing to work but he was kept away from work due to court cases, till his retirement. As far as O.A. No. 100/2011 is concerned, since the applicant has retired from service, no enquiry can be initiated against him. Accordingly O.A. No. 100/2011 is allowed. Show cause notice dated 13.1.2011 is quashed because no charge sheet against show cause notice has been served upon the applicant during his service period and as per settled law, once the 8 applicant has retired from service, no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant.
11. No order as to costs.
12. Copy of this order be also placed in connected7 O.A. No. 100/2011.
(JUSTICE OM PRAKASH VII) Member (J) Manish/-