G. Bhaskara Jyothi vs Union Of India & Others

Sunil Thomas, Member J

The review applicant, was an Office Superintendent in the Trivandrum Division of Southern Railway. He was compulsorily retired from service by way of punishment, on 2.11.2016. He preferred an appeal which was dismissed. That was challenged by him in revision, preferred before the Chief Personnel Officer/Admn., who was the revisional authority. By Annexure A4 order dated 15.3.2021, the penalty was modified to that of reinstatement in service with a modified penalty of reduction to lower grade from level-6 to level-5 with the pay of Rs. 39,200/- for a period of 5 years, with recurring effect. The intervening period from the date of compulsory retirement to the date of reinstatement was ordered to be treated as dies-non.

Thereupon, he approached the employer with a request to reinstate him and to pay him the benefits, as if he was in continuous service from 15.3.2021. By Annexure A1 he was informed that he had received pensionary benefits with pension with effect from 4.11.2016 and the Divisional Personnel Officer, Trivandrum had sought clarification from the CPO/Admn./MAS about any liability, if at all and seniority position after the penalty period. He was informed that he would be reinstated thereafter. Subsequently, by Annexure A2, he was informed that he had received a sum of Rs. 34,41,591/- and he was directed to remit it as a condition for reinstating him. He was informed that reinstatement will take effect only after the remittance.

Aggrieved by the above, he approached this Tribunal by filing the present Original Application. The relief sought was to quash Annexures A1 and A2, to direct the 2nd respondent to permit the applicant to join duties with all consequential benefits and also to direct the respondents to treat him as reinstated in service with effect from 15.3.2021. After hearing both sides, this Tribunal by order dated 11.5.2022 held that the revisional authority, though had granted relief, had not issued specific orders relating to recovery of the amount already received by the applicant. Accordingly, the revisional authority was directed to pass a considered order on merits, as to how the reinstatement has to be implemented in the present case. It was also directed to hear the applicant and to pass a considered order as to how the monetary benefits given to the applicant has to be recovered when he is reinstated.

Contending that the above orders suffers patent illegality and is liable to be reviewed, the applicant has preferred this review application.

The revisional authority by Annexure A4 order had allowed the revision in part and ordered reinstatement with modified penalty. It emerges from the records that the fact that the applicant had in the interregnum received retirement benefits, was not brought to the notice of the revisional authority. Consequently the revisional authority had no occasion to consider the question of repayment, if any, of the retirement benefits and the modality of working out the reinstatement benefits. The above order of the revisional authority has become final and conclusive, in the absence of any challenge.

In the light of the fact that the question regarding repayment, if any, of the retirement benefits received by the applicant was not a question before the revisional authority, necessarily the authority could not have passed any orders on that. The question as to the repayment of the benefits seems to have emerged later and that exactly is the issue now in dispute in the Original Application. The fact that the question of repayment of retirement benefits was not in issue, before the revisional authority and that the revisional authority could not have and did not have the occasion to consider that on merits, seems to have not been brought to the notice of this Tribunal while disposing of the Original Application. The question as to how the order has to be implemented has emerged later, when Annexure A4 revisional authority’s order was sought to be implemented.

Having considered from this angle, it emerges that this is an issue now to be considered by this Tribunal independently and on the basis of the legal position. Hence, we feel that there is an error apparent on the face of the order which is liable to be corrected by recalling it.

Accordingly, the review application stands allowed. The order of this Tribunal produced as Annexure R1(a) dated 11.5.2022 stands recalled. The OA will be heard on merits.