Central Administrative Tribunal - Cuttack
Duryodhan Mohanty vs D/O Post on 5 January, 2021
1 OA 283/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH
OA No. 283 of 2020
Present: Hon'ble Mr. Swarup Kumar Mishra, Judicial Member
Hon'ble Mr. Tarun Shridhar, Administrative Member Duryodhan Mohanty, aged about 63 years, S/o Late Parsuram Mohanty, permanent resident of Vill./PO-Damodarpur, PS-Khaira, Dist.-Balasore.
......Applicant VERSUS
1. Union of India represented through its Director General, Department of Posts, Government of India, Dak Bhawan, New Delhi-110116.
2. Chief Postmaster General (CPMG), Odisha Circle, Bhubaneswar, 751001.
3. Supt. Of Post Offices, Bhadrak Division, At/PO/Dist-Bhadrak.
......Respondents
For the applicant : Mr.S.K.Ojha, counsel
For the respondents: Ms.S.B.Das, Counsel
Heard & reserved on : 2.12.2020 Order on : 05.01.2021
O R D E R
Per Mr.Swarup Kumar Mishra, J.M.
The applicant has prayed for the following reliefs in the present OA :
"(i) To admit the Original Applicant;
(ii) To quash the order dated 19.06.2020 (Annex.A/9) holding that the
same is outcome of non-application of mind;
(iii) To direct Respondent No.2 & 3 to all financial and consequential benefits to the applicant w.e.f. 24.02.1998 to till the date of reinstatement on 16.08.2017 as if he has not been removed from service;
(iv) To direct the Respondents to re-fix/revise the pay of the applicant in reference to his pay was drawing at the time of his termination from service;
(v) To direct the Respondent No.3 to pay the arrear thereof within a stipulated period with interest;
(vi) To pass any other order/orders as deemed fit and proper for ends of justice;"
2. The brief facts of the case are as follows :
The applicant after being recruited as appointed as EDBPM (now GDSBPM) in Damodarpur, BO assumed charge w.e.f. 30.4.1981. On a complaint of manipulation of pass books and deposit slips, lodged against the 2 OA 283/2020 applicant an inquiry was made by the department and the applicant was found to be innocent and no departmental proceeding was initiated against him. During 1990, CBI drew up a FIR against the applicant on the self same allegation, following which inquiry was initiated against the applicant and he was convicted by the Learned Addl. ACJM, Bhubaneswar vide order dated 11.4.1997 for committing crime punishable under Section 409 of the IPC.
Following this, department issued order dated 28.11.1997 and the applicant was put off duty with immediate effect. In the meantime, the applicant challenged the order of conviction before higher forum in appeal and the sentence was suspended vide order dated 23.4.1997. But still then the applicant was penalized with put off duty. Vide order dated 24.2.1998 passed by respondent No.3, the applicant was removed from service without any departmental proceeding. The applicant preferred representation to the respondent No.3 seeking reinstatement in service which was rejected vide order dated 23.2.2001 (Annexure A/3). The applicant moved Hon'ble High Court in Crl. Revision No. 570/1999 which ended with the order dated 3.2.2017 (Annexure A/4), exonerating the applicant from all criminal charges. The applicant communicated the order of Hon'ble High Court along with his representation dated 8.2.2017 to the authority for consideration of his reinstatement in service. Since no action was taken by the department, the applicant approached this Tribunal in OA No. 145/2017 which was disposed of at the admission stage on 20.3.2017 directing the respondent No.3 to consider the representation of the applicant. In his order dated 8.5.2017 (Annexure A/5), respondent No.3 held that Hon'ble High Court has not allowed the Revision on merit. However, vide order dated 16.8.2017 (Annexure A/6), the applicant was reinstated in service but deprived from all such benefits which are consequential to his reinstatement. The applicant submitted a representation dated 13.12.2017 (Annexure A/7) to the authority which has not been considered. The applicant being aggrieved by such non-consideration of his representation, again approached this Tribunal in OA No. 7/2018 which was disposed of vide order dated 13.3.2020 (Annexure A/8) directing the 3 OA 283/2020 respondent No.2 to take a decision on the representation dated 13.12.2017 within a period of two months. Respondent No.2 considered the representation and rejected the same vide order dated 19.6.2020 (Annexure A/9) which is impugned in the present OA.
3. The applicant has urged the following grounds in support of his case :
(i) Since he was acquitted honorably, he is entitled to get all such consequential benefits including the financial benefits and the principle of 'No work no pay' will not apply in his case.
(ii) As per FR 52(2) since the applicant was fully exonerated by the department after receiving the GEQD report and belatedly by Hon'ble High Court from criminal charges, he is entitled to get all his dues as if he was not dismissed or removed from service.
(iii) As the law laid down by Hon'ble Apex court in the case of Dipali Gandu Surwise, 'reinstatement' means to reinstall in his earlier position.
Hence fixation of TRCA in the lower stage after his reinstatement is a conviction without any trial.
(iv) The order dated 19.6.2020 is outcome of non-application of mind and hence it needs to be quashed.
(v) Since the present order of reinstatement cannot be treated as fresh appointment/engagement in a post, the applicant cannot be treated as fresh entrant and the minimum pay is not appropriate for him. Since he rendered 16 years service prior to his termination, on reinstatement his pay must be fixed in reference to his pay that he was drawing at that point of time.
4. Respondents have filed their Counter stating as follows :
The facts stated by the applicant are true. The respondents submitted that since the applicant had not rendered any service to the Department during the period from 24.2.1998 to 21.8.2017, he is not entitled to any TRCA and hence is not entitled to any financial benefits for the said period in the principle of 'no work no pay'. Furthermore, another GDS named Sri Jayant Kumar Nayak performed duties provisionally for the intervening period and received 4 OA 283/2020 the TRCA as applicable. As such payment of TRCA to the applicant for the said period is not admissible since one post carries only one incumbent in the establishment. It is also stated that the respondents have also issued instruction to the Postmaster, Bhadrak Head Post Office vide letter dated 9.11.2017 that the monthly TRCA (Time Related Continuity Allowance) should be fixed at the rate of Rs.3660-70-5760 which is much higher than the allowance of the fresh entrants. The respondents have also submitted that the decision of the authority in removing the applicant from engagement was based on the conviction of the applicant in CBI/SPE case under Section 409 of IPC.
But he was brought back to the engagement as GDSBPM w.e.f. 21.8.2017. It is therefore submitted by the respondents that the grounds on which the applicant has filed the present OA, are not justified and the applicant is not entitled to any reliefs as sought for in this OA. The respondents have prayed for dismissal of this OA.
5. In the Rejoinder, the applicant has reiterated the facts and grounds stated in the OA.
6. The respondents have filed a reply to the Rejoinder filed by the applicant denying all the averments made by the applicant. It is stated that the applicant is not entitled to any relief because as per Rule 5-A of GDS (Conduct & Engagement) Rules, 2011, the DGSs are entitled to payment of TRCA and other allowances as prescribed by the Government on the basis of workload as per the standards of assessment decided by the department from time to time. As the applicant has not rendered any service from 24.2.1998 to 21.8.2017, he is not entitled to any TRCA and is not entitled to any financial benefits for the said period in the principle of 'No work no pay'.
7. Learned counsel for the applicant relied upon the following citations :
i) (2314) 2 SCC (L&S) 184 - Deepali Gundu Surwase -vs- Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Others.
ii) (2018) 1 SCC (L&S) 149 - Union Territory, Chandigarh Administration & Others -vs- Pradeep Kumar and Another.
iii) Rule 52(2) of FRSR 5 OA 283/2020
iv) OA No. 681/2016 (Meghanad Nayak -vs- UOI & Ors.) of Cuttack Bench of this Tribunal.
8. We have gone through the pleadings and citations relied upon by the learned counsels for both sides.
9. The factual aspect is not disputed in this case. Originally the applicant was convicted on 11.4.1997 in one criminal case. The applicant was terminated from service on 24.2.1998. Thereafter he was acquitted in revision appeal No. 570/1999 as per the order dated 3.2.2017 vide Annexure A/4. After the acquittal by appellate authority the applicant was reinstated in service on 16.8.2017 (Annexure A/6). He had earlier approached this Tribunal in OA 145/2017 and OA 7/2018.
10. It is the grievance of the applicant that although he was getting TRCA at a particular rate at the time of his termination form service, he has not been given same rate of TRCA after being reinstated. Learned counsel for the respondents on the other hand submitted that the payment of TRCA to a particular GDSBPM depends on workload and varies from period to period. But the rule governing the payment/fixing of TRCA is Rule 5A of the GDS (Conduct and Engagement) Rules, 2011 they have not assigned any satisfactory reason as to why rate of TRCA which was being given to the applicant at the time of his termination has not been given to him when he was reinstated even though he has been reinstated in the same place. The rate of calculation of TRCA has been given by learned counsel for the applicant which has been furnished in the memo dated 22.10.2020. In case the authori4es wanted that the rate of TRCA which was being paid to the applicant should have been changed, then it is normally expected that he should have been given the same TRCA which he was getting at the time of termination, when he was reinstated on 16.8.2017. In the absence of any overwhelming reason, this Tribunal is unable to accept the stand made by the respondents That apart the competent authorities have not made any review to come to the conclusion that the rate of TRCA for the post in question should be reduced taking into consideration the workload and other relevant factors. In the absence of any such review made by the 6 OA 283/2020 competent authority, there is no satisfactory reason as to why the applicant should not have been given the same TRCA which he was getting at the time of termination from the service. Therefore the said action of the respondents appears to be unreasonable, arbitrary and hence illegal. Accordingly the impugned order dated 19.6.2020 vide Annexure A/9 is quashed.
11. It is further submitted by learned counsel for the respondents that in accordance with FR 52(2) on the basis of principle of 'no work no pay', the applicant is not entitled to any pay during the interim period in question. But the authorities have not taken into consideration and have also not given any opportunity to the applicant to produce any materials before them to show that the applicant was gainfully employed anywhere else during the intervening period in question. In the absence of any such materials before the authorities the stand taken by the department that the applicant is not entitled to any pay during that period cannot be accepted. No opportunity of being heard was also given to the applicant and he was also not given opportunity to produce any materials in this regard. Therefore it is necessary to remand back the matter to the authorities for fresh consideration of the matter as to whether the applicant is entitled to get the TRCA for the intervening period from the date of his termination to the date of his acquittal in the criminal appeal in question. The date on which department came to know about the said acquittal of the applicant in connection with the criminal case in question is also a relevant aspect to be considered in this regard.
12. Therefore the matter is remanded back to the competent authority to consider in accordance with law and relevant rules and citations as to whether the applicant is entitled to get TRCA for the interim period in question i.e. from 24.2.1998 till his acquittal date i.e. 16.8.2017. Before taking any final decision in this regard by competent authority, it is incumbent and this Tribunal direct that the respondent/competent authority shall give notice to the applicant in this regard by giving reasonable time and opportunity to him to produce relevant materials, circulars, citations and if necessary to give a personal hearing to him before taking any such decision. The entire exercise shall be 7 OA 283/2020 completed by the competent authority/respondents within a period of three months from the date of receipt of the copy of this order and the decision taken by the authorities will be communicated to the applicant by way of a reasoned and speaking order, within the said period.
13. Accordingly the OA is allowed to the extent as above. There will be no order as to costs.
(TARUN SHRIDHAR) (SWARUP KUMAR MISHRA) MEMBER (A) MEMBER (J) I.Nath