P.K. Geetha vs Union Of India & Ors

K.V. Eapen, Member A

1.The applicant is a Postal Assistant who had been imposed with the penalty of compulsory retirement as per order dated 30.07.2020 by the 3rd respondent, Senior Superintendent of Post Offices (SSPO), Calicut produced at Annexure A-6. She had preferred an appeal to the 2nd respondent, Director of Postal Services (DPS), Northern Region, Calicut vide Annexure A-7 dated 02.09.2020. This O.A was filed to direct the respondents to reinstate the applicant back in service consequent to the Annexure A-8 order of the Appellate Authority ie., the 2nd respondent, DPS, NR, Calicut. The Appellate Authority remitted the matter to the Disciplinary Authority ie., the 3rd respondent, SSPO, Calicut for de novo inquiry from the stage of deciding the relevancy of the additional defence documents and witness demanded by the charged official. It was also indicated therein in the Annexure A-8 order that the relevancy of the additional defence documents will have to be decided only by the Inquiry Officer, who is the 4th respondent, Assistant Superintendent of Post Offices (ASPO), Thalassery. Aggrieved by the fact that the said Inquiry Authority had then issued notice by the Annexure A-1 dated 25.01.2021 for the first sitting of the de novo inquiry on 12.02.2021 to the applicant as well as by the Annexure A-2 letter from the Disciplinary Authority addressed to the applicant referring to a decision taken by the Appellate Authority vide Annexure A-14 dated 23.04.2021 as well as the Annexure A-3 letter to the applicant dated 04.06.2021 by which it has been stated that no reinstatement was ordered and the order of punishment was not set aside, the applicant had filed this O.A. She had sought the quashing of Annexure A-1, Annexure A-2 and Annexure A-3 communications and also to reinstate back in service with all consequential benefits including arrears of pay and allowances as if she had not been compulsorily retired from service.

When the matter came up before this Tribunal on 27.07.2021 an interim order was passed that the applicant has a prima facie case and the respondents need not proceed with the inquiry until reply. When the matter came up again on 20.08.2021, interim relief as prayed for, to direct the 3rd respondent, Disciplinary Authority to reinstate the applicant before further proceeding with the inquiry as ordered for in the Annexure A-8 Appellate Order, provisionally was allowed subject to the final outcome of the O.A. No orders relating to backwages etc., were passed, which was to be considered at the time of final hearing. The respondent Postal Department took this order dated 20.08.2021 on appeal before the Hon'ble High Court of Kerala. The Hon'ble High Court on 22.03.2022, in O.P.(CAT) No.81/2021 then passed a detailed order, by which, after examining the effects of Rule 27(2) and the sub-rule 3 & 4 of Rule 10 of the Central Civil Services (Classification, Control & Appeal) Rules (CCS CCA Rules) came to the clear conclusion in paragraph 24 of its judgment that the upshot of the discussion was that Clauses (i) and (ii) of Rule 27 (2) of CCS (CCA) Rules would apply on different fields and dimensions, the first being on merit and the other on technical failure of natural justice. But even where the order is passed under Clause (ii) of Rule 27 (2), it was found that it would require the restoration of the snapped jural relationship of employer-employee between the delinquent and the department and therefore, it goes without saying that such a technical remit would also involve the technical setting aside of the order of termination from service by way of major penalty and then for recommencement of the proceedings. Further, in a case where the employee is already under suspension from service, then the legal fiction under Rule 10 (3) of deemed suspension would automatically apply. However, where the employee is not under suspension, such legal fiction would not apply in Rule 10 (3), but the Appellate Authority, if convinced, based on its cogent and relevant materials, could give liberty to the Disciplinary Authority or competent authority to recommence the proceedings after keeping the employee under suspension from service. But in a scenario covered by Clause (ii), it goes without saying that reinstatement is mandatory otherwise the snapped relationship between the employer-employee cannot be restored. In the result that the delinquent cannot be brought within the seisin of the employer's disciplinary proceedings in the eye of law.

In paragraphs 25 and 26 of O.P.(CAT) No.81/2021 the Hon'ble High Court then directed as follows :

“25. We have adverted to these aspects based on the requests made by both sides, as there are quite a few nuanced and subtle areas in the understanding of the above said provisions. In the instant case, the petitioner was never suspended from service and the Appellate Authority, while passing Annexure-A8 appellate order, has not found, on the basis of the existence of relevant materials, that it is necessary to keep the employee under suspension from service and has not given any liberty to the Disciplinary Authority, to do so. In the light of the above legal position, it is only to be held that the applicant has made out a strong prima facie case for reinstatement, pending finalisation of disciplinary proceedings, as the operation of legal fiction under Rule 10(3) will not apply in the facts of this case. The reinstatement will be subject to the final result of the O.A. Other issues of pay and allowances, etc, pursuant to such reinstatement, will also be subject to the final result of the O.A. The Tribunal may deal with all such issues in the OA and may decide on the legality and correctness of the proceedings impugned in O.A, as in Annexure- A14 dated 23.04.2021 issued by R2, in the light of the above legal position in the matter. So the impugned order of the Tribunal does not deserve any interference in this O.P.

Hence, it is ordered that the 3rd respondent will forthwith reinstate the applicant in service, as ordered by the Tribunal, without any further delay, at any rate, within one week from the date of receipt of a copy of this judgment. However, it is made clear that if the 3rd respondent is of the considered opinion that the applicant is to be kept away from the station or office where the alleged events had taken place, then they will have the liberty to do so. No other orders and directions are called for. The Tribunal will take all reasonable endeavours possible in the circumstances of the case to ensure the final disposal of the O.A, without much delay, preferably within one month from the date of receipt of a copy of this judgment or within any reasonable time limit that may be appropriately fixed by the Tribunal, taking note of the interest of administration of justice.

With these observations and directions, the above Original Petition will stand finally disposed of.”

It is clear from the above judgment of the Hon'ble High Court of Kerala that the respondents authorities, particularly the Disciplinary Authority (3rd respondent) – the Senior Superintendent of Post Offices, Calicut – would have to forthwith reinstate the applicant in service within one week from the date of receipt of a copy of the judgment. However, it has also been made clear that in case the 3rd respondent (Disciplinary Authority) was of the opinion that the applicant was to be kept away from the office where the alleged events had taken place, they have the liberty to do so. No other orders and directions are called for. Further, there was a direction to this Tribunal to take all reasonable endeavours possible in the circumstances of the case to ensure the final disposal of the O.A including deciding on issues of pay and allowances etc., pursuant to such reinstatement as well as other issues without much delay preferably within one month from the date of receipt of a copy of the judgment or within any reasonable time limit that may be appropriately fixed by the Tribunal taking note of the interest of administration of justice.

This Tribunal was unfortunately not able to fix a time limit for disposal of the proceedings due to various reasons. At the same time since the Hon'ble High Court had ordered reinstatement of the applicant forthwith giving a week to the respondents for the same, it was felt that further orders in this regard were not immediately required to be passed. What was left was to decide on issues of pay and allowances etc., which would also depend on the date of reinstatement of the applicant. Hence the first concern of this Tribunal was to decide on further steps to proceed with, in the context of the detailed findings and directions of the Hon'ble High Court. In this context we note at the outset that the applicant has not sought any amendment of the relief array in the O.A in the light of these findings of the Hon'ble High Court. In fact, all the written pleadings in the O.A including the reply of the respondents had been received much prior to the judgment of the Hon'ble High Court of Kerala in O.P.(CAT) No.81/2021 dated 22.03.2022. No rejoinder by the applicant or additional reply by the respondents have been filed, consequent to the judgment dated 22.03.2022 in O.P.(CAT) No.81/2021 of the Hon'ble High Court of Kerala. We also note that the O.A was filed seeking the following specific reliefs :

To call for the records leading to the issue of Annexures A-1 to A-18 and to quash the Annexure A-1, Annexure A-2 and Annexure A-3 in the interest of justice.

To direct the respondents to reinstate the applicant back in service with all consequential benefits including the arrears of pay and allowances as if the applicant had not been compulsorily retired from service.

To pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.

And

To award costs of and incidental to this application.

Thus, the main relief sought in the O.A., ie., that of reinstatement has already been allowed by the Hon'ble High Court. With this there should have been nothing more for the respondents to do but to accordingly reinstate the applicant back in service forthwith. The only matter that is left for adjudication, as also directed by the Hon'ble High Court, is as stated in relation to the consequential benefits including the arrears of pay and allowances as if the applicant had not been compulsorily retired from service. In this regard we are hamstrung by the lack of additional pleadings preferred by both sides. We note that the applicant had been compulsorily retired from service vide Annexure A-6 dated 30.07.2020 with immediate effect. The Annexure A-8 order of the Appellate Authority which remitted the matter back to the Disciplinary Authority for de novo inquiry, is dated 25.11.2020. It is to be noted that the Annexure A-8 order has been issued by the Appellate Authority without any reference to exercise of consideration of the Appeal under the relevant Rule 27 (2) Clause (ii). The subsequent order at Annexure A-14 dated 23.04.2021 by the same Appellate Authority in this matter has stated that the earlier decision has been taken under clause (ii) of Rule 27 (2) of the CCS (CCA) Rules. This subsequent order, while noting that the earlier order under Annexure A-8 passed had not set aside the punishment awarded by the Disciplinary Authority, has directed that the de novo proceedings would be carried out as per rule. Further, it adds that “...Needless to say that the earlier punishment order of the Disciplinary Authority would cease to exist and would be deemed to have been set aside immediately before fresh orders are issued by the Disciplinary Authority based on the facts on record.”

From the above it is indeed to be expected if the earlier punishment order 'ceases to exist and would be deemed to be set aside', then it is for the respondent authorities in light of this as well as interim orders of this Tribunal as well as the judgment of the Hon'ble High Court to have immediately reinstated the applicant. Learned Sr.PC has during oral submissions indicated that the applicant has been reinstated with effect from 19.08.2021. However, no specific orders to this effect have been furnished to us. Further, there is neither any clarity in relation to the inquiry as such ie., whether the inquiry has proceeded as ordered by the Appellate Authority from the stage of deciding the relevancy of additional defence documents and witnesses etc., or if the matter has been finalized.

Hence, given these considerations as well lack of required details at this stage, we are of the opinion that it will be premature for this Tribunal to order anything in relation to the payment of arrears and allowances for the period she was kept out of the service. What is required to be done, keeping in view the detailed directions and findings of the Hon'ble High Court, is for the respondent authorities to conduct the inquiry as per the findings of the Appellate Authority at Annexure A-8 from the stage of deciding the relevancy of additional defence documents and witnesses. The respondents and the applicant are directed to cooperate with each other in order to ensure that the inquiry is completed at an early date. The competent authority should then decide how the period between the date of compulsory retirement and date of reinstatement should be treated, along with whether any arrears of pay and allowances etc., are to be released to the applicant for the relevant period. This may, however, be done after completion of the inquiry and the final orders are passed. This Tribunal is in no position to issue any further directions other than this in this regard at this stage.

The O.A is, therefore, disposed of with the above directions. We give liberty to the applicant to approach this Tribunal in case she is aggrieved or any other legal issue survives in her opinion in the light of our findings above and actions taken by the authorities. We make no order as to costs.

(Dated this the 9th day of August 2023)