G.Bhaskara Jyothi vs Union Of India & Ors

K.Haripal, Member J

The applicant was working as Office Superintendent in Southern Railway, Trivandrum Division who had commenced his service as Junior Clerk on 2.2.1990. While working as Office Superintendent, he was subjected to disciplinary proceedings. By Annexure A-3 order dated 2.11.2016, a penalty of compulsory retirement from Railway service with full pension and gratuity was imposed on him. That order had come into force on 4.11.2016. The applicant preferred appeal against the same which was rejected and thereafter he filed a statutory revision before the Chief Personnel Officer. By Annexure A-4 order dated 15.3.2021, the above order of compulsory retirement was set aside and he was directed to be reinstated with a modified penalty of 'reduction to lower grade from level 6 to level 5 with pay of Rs.39,200/- for a period of 5 years with recurring effect' was imposed on him. The intervening period from the date of compulsory retirement to the date of reinstatement was directed to be treated as dies non. The applicant complains that, immediately thereafter, he approached the respondents requesting to reinstate him. At first, in response to Annexure A-6 representation, Annexure A-1 reply was given stating that they have sought some clarification from the higher-ups that on receipt of clarification, action will be taken to reinstate him in service. Again, he filed representations and by Annexure A-2 communication, the Divisional Officer advised him to remit back the entire amounts of pension and other settlement benefits paid to him as furnished in the letter which comes to Rs.34,41,591/-. He was advised to make remittance through a Demand Draft drawn in favour of the Senior Divisional Finance Manager, Southern Railway, Thiruvananthapuram Division and that only on production of such remittance proof, his posting orders will be issued. Aggrieved by the same, the applicant has approached this Tribunal seeking to quash Annexures A1 and A-2, to direct the second respondent to allow him to join duties forthwith with all consequential benefits arising therefrom, and to direct the respondents to deem the applicant to have been reinstated in service w.e.f 15.3.2021 with all consequential benefits including pay, allowances arising therefrom.

According to the applicant, Annexures A-1 and A-2 are arbitrary and discriminatory, calculations found therein, even if the recovery is permissible, are opposed to the principles of natural justice, the quantum of pay and allowances determined in terms of Rule 1343(4) of IREE would be adjusted at the time of final retirement, that the orders are against Rule 1343 (4) of Indian Railway Establishment Manual, that such orders are unheard and illegal besides arbitrary. It has also referred to Annexure A-11 order passed in the case of one Mr.Radhakrishnan. Moreover, Annexure A-4 order was passed by the statutory authority in exercise of revisional powers. The second respondent has no authority to set such conditions in the implementation of the transfer order and therefore the above stated reliefs have sought.

The respondents filed reply statement denying the contentions in the Application. According to him, by virtue of Annexure A-3 order, order of compulsory retirement was passed with all benefits pension, gratuity etc. The applicant did not prefer appeal in proper time. An application was filed after the period of limitation and thereafter, after the dismissal of the appeal, he preferred a revision which was allowed with a modified penalty of reduction from Level 6 to Level 5 with pay of Rs.39,200/- for a period of 5 years with recurring effect. The intervening period was ordered to be treated as dies non.

Referring to sub clause (5) of Rule 1343 of the IREC Volume II, they say that the applicant can claim any amount for the period from 2.11.2016 only if that period was treated as duty by the revisional authority. Here, such a period was not treated as duty. Reference was also made to sub clause (8) of Rule 1343 of the IREC. According to them, an amount of Rs.34,41,591/- was paid to the applicant and he can be permitted to re-join duty only after remitting the same. According to the respondents, the case of Mr.Radhakrishnan is not applicable as he was not granted any pension and therefore, they have sought for the dismissal of the O.A.

The applicant filed a rejoinder. In our opinion, the contentions in the rejoinder do not have much relevance especially in view of the course we are proposing to adopt in this case. The respondents filed a reply statement to the rejoinder. It is also worth mentioning that the respondents also produced copy of order dated 24.5.2021 whereby the revisional authority had made amendment to the Annexure A4 order, the modified order was also conveyed to the applicant. In the said order, it is stated that as the employee was reinstated in to service and also the intervening period was treated as dies non the pension and settlement benefits paid to him shall be recovered'. This order has not been made mention in the Original Application filed on 16.7.2021.

We heard the learned counsel for the applicant and also the learned Senior Central Government Standing Counsel.

The learned counsel for the applicant submitted that since the applicant is prepared to re-pay whatever amount liable to be paid him, that can be recovered from the salary. But such amounts are liable to be demanded only after reinstatement, payment of such an amount cannot be insisted as a pre-condition by a subordinate officer of the revisional authority. According to him, there is absolutely nothing in Annexure A-4 insisting that any amount should be remitted as a condition precedent and that there is no statutory backing for imposing such a condition by the subordinate officer who issued Annexures A-1 and A-2. According to the learned counsel, such a condition is improper and illegal.

On the other hand, the learned SCGSC pointed out that at first, this Tribunal had declined to grant any interim relief to the applicant. Even though that order was challenged before the Hon'ble High Court, the High Court also refused to interfere with the order not to grant any interim relief; the Tribunal was directed to dispose of the matter within a time frame.

Thereafter, an order was passed by this Tribunal on 11.5.2021 disposing the O.A which was later reviewed. She also pointed out that Annexure A-4 order is under challenge in O.A 636/2021 where the applicant has sought for quashing Annexure A-3 order as well. If Annexure A-3 is gone, entire liability will go. According to the learned counsel, therefore the applicant is not entitled to get any relief. She also pointed out that the revisional authority has also passed an order under Rule 1343(1)(a) of the IREC and Annexure A-2 was passed by way of clarification. According to the learned Standing Counsel, after Annexure A-3, the applicant had chosen to accept pension and other benefits, before accepting Annexure A-4, he should put the clock back to the position.

Now we have been called upon to go into the legality and correctness of Annexures A-1 and A-2 orders passed by the second respondent. But we cannot forget the fact that, thereafter the applicant has filed O.A 636/21 challenging the correctness of the disciplinary proceedings initiated against the applicant. If the entire proceedings are quashed, question as to how the interregnum should be treated will have to be decided separately. Secondly, in the limited scope of this O.A, we are not called upon to the question as to the period of absence was properly addressed by the disciplinary authorities. All are matters falling within the ambit of O.A 636/2021. Moreover, we are unable to comprehend as to why the parties on both sides especially the applicant have not pressed for tagging both these applications together and why a combined hearing was not sought for . Whatever it may be, now the legality and correctness of Annexure A-4 is under challenge. A finding on it will clinch the issue. If Annexure A-4 is liable to be quashed or that part of the order directing to treat the period of absence as dies non is decided in the above O.A, necessarily that would ultimately give a quietus to the disputes in controversy. Therefore, pending adjudication of the O.A 636/2021, which is expected to go into the legality and correctness of Annexure A-4 order, larger questions involved need not trouble us.

As noticed earlier, we have come across Annexure M.A R1 order dated 24.5.2021 whereby, the Principal Chief Personnel Officer had issued a modified order to the revisional order where under amounts paid as pension and settlement benefits shall be recovered. We notice that in none of the orders, the competent authority has stated that he should pay the amount as a condition precedent. Similarly, pursuant to an order dated 11.5.2022 in the O.A, the revisional authority had issued order on 15.7.2022. This order was passed as directed by this Tribunal on 11.05.2022, after giving opportunity to the applicant as well. However, the order of this Tribunal dated 11.5.2022 was later reviewed. That was how the O.A was restored to file, after quashing the earlier order. Taking into account the entire circumstances and having regard to the fact that O.A 636 /21 is pending, in our view pending consideration of the whole issues, the applicant can be directed to be reinstated without going into the contentions raised by both sides in detail within a period of 15 days from the date of receipt of a copy of this order with the following conditions:

1) The applicant shall execute a bond for such amount that is found drawn by the applicant from the date of compulsory retirement till the date of re-inducting him to service with two solvent sureties each for the like amount, to the satisfaction of the third respondent;

2) One of the sureties shall be a near relative of the applicant;

3) This arrangement will be subject to the final outcome in O.A 636/2021;

4) If the applicant does not prosecute the said original application and on its eventual dismissal for non-prosecution, this arrangement will stand automatically vacated and entire amount found paid by the Railways will fall due in lump or as decided by the competent authority fixing some installment.

We make it absolutely clear that we have not expressed any opinion on the merits of the case.

The Original Application is disposed of as above. No costs.

(Dated this the 1st day of June, 2023)