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Judgment
Sudhi Ranjan Mishra, Member J
The crux of the matter is that while the applicant was working as Sr. Section Engineer (Works), Carriage Repair Workshop (CRW), Mancheswar, a disciplinary proceeding was initiated against him under major penalty provision vide memorandum No. MCSW/M/D&A/Engg/PSP-44/3020 dated 3.9.2004 which ultimately culminated in an order of punishment vide letter No. MCSW/M/D&A/PSP-44/1184 dated 24.5.2006. The same order of punishment was ultimately upheld by the Revisional authority. After protracted litigations before this Tribunal as also before the Hon’ble High Court, ultimately vide order No. W.4/416/D&A Corres/4151 dated 19/23.11.2022 the competent authority passed the order as under :
“Therefore, DA is directed to hold a fresh enquiry by the same IO from the stage it was concluded or by appointing a fresh IO to enquire into the charges framed against the CO and action taken accordingly in view of Hon’ble CAT/CTC’s remark. In the meanwhile, the punishment imposed by DA and upheld by AA vide letter No. MCSW/M/D&A/PSP-44/202 dated 16/17.1.2020 is set aside. Further, condonation of delay in application for revision petition as prayed by the CO vide application dated 27.4.2022 is accepted.”
The applicant submitted representation dated 14.12.2022 (Annexure A/4) praying inter alia that since the order of punishment has been set aside he is entitled to benefits which was deprived to him by virtue of the order of punishment dated 24.5.2006. Thereafter the competent authority issued order No. MCSW/M/D&A/PSP-44/2004/4344 dated 7.12.2022 (Annexure A/5) appointing IO to enquire into the allegation made in the memorandum No. MCSW/M/D&A/Engg/PSP-44/3020 dated 3.9.2004. Since no decision was communicated to him on his representation dated 14.12.2022 the applicant approached this Tribunal in OA 51/2023 which was disposed of on 1.2.2023 with a direction to the respondents to consider and dispose of the representation of the applicant. Thereafter the respondents communicated the result of the consideration of the representation vide order No. MCSW/M/D&A/PSP-442004/536 dated 16.2.2023 (Annexure A/7). The relevant portion of the order is quoted as under :
“Now in obedience to Hon’ble CAT/Cuttack’s direction vide OA No. 51 of 2023, I, in the capacity of Chief Workshop Manager & DA, after going through the entire case, pass the following order :
1) RA & PCE/ECoR-BBS vide his order No. W.4/416/D&A Corres/4151, dated 19/23.11.2022 has directed DA to hold a fresh enquiry by the same IO from the stage it was concluded or by appointing a fresh IO to enquiry into the charges framed against the CO. Accordingly, fresh Inquiry Officer has been appointed vide SF-& No. MCSW/M/D&A/PSP-44/2004/4344 dated 7.12.2022. The date of Preliminary Heard (PH) was fixed on 9.2.2023 at 10.30 hours, the same could not be conducted due to CO’s non-attendance. The letter for PH has been returned un-delivered with postal remarks, “Always D/L, RTS”. Thus enquiry is under way.
2) It is required to comply orders/instructions of Revisionary Authority as stated in the aforesaid paras.
Therefore, CO is directed to bear with the Railway administration till fresh enquiry proceedings are completed and to co-operate the Inquiry Officer (IO) in due conduct of enquiry.
This disposes of the letter of CO dated 14.12.2022. The charged official is required to acknowledge the receipt of this order.”
Being aggrieved by the said order the applicant approached this Tribunal inter alia praying as under :
I) To quash the order of rejection dated 16.2.2023 under Annexure A/7;
II) And to direct the respondents to restore the position by withdrawing the punishment imposed vide order dated 24.5.2006;
III) And to direct the respondents to release the financial benefits arising out of withdrawal of order of punishment dated 24.5.2006 with 12% interest;
IV) And to direct the respondents to proceed with the inquiry after restoring position by withdrawing punishment order dated 24.5.2006 and complete the same within six months as per the guideline issued by the Railway Board and judgment law of the Hon’ble Apex Court.
The respondents filed their counter objecting/contesting the case of the applicant and the applicant has also filed rejoinder.
Heard learned counsel for both the parties and perused the materials available on record.
According to the learned counsel for the applicant, once the competent authority has set aside the order of punishment dated 24.5.2006 and appointed IO/PO for enquiry from certain stages, obviously the punishment earlier imposed is no more available and therefore the financial benefits which was denied to the applicant by virtue of the order of punishment became due to him and it should have been paid to him. It is submitted that the advice tendered by the authority concerned that the applicant to bear with The Railway administration in so far as getting his dues till the conclusion of the enquiry is misnomer. Hence he has prayed for grant of the relief sought for by the applicant in the present OA.
On the contrary learned counsel for the respondents by drawing our attention to the order dated 19/23.11.2022 (Annexure A/3) has submitted that the competent authority while setting aside the order of punishment did not pass any such order for restoration of the pay etc. and therefore the applicant was rightly not paid anything till the conclusion of the fresh enquiry ordered to be taken up. It has been submitted that notice for preliminary enquiry was issued to the applicant in compliance of the order dated 19/23.11.2022, but the enquiry could not be conducted due to non-appearance of the applicant. The letter sent to the applicant returned undelivered with the postal remark “Always D/L, RTS”. The enquiry is under way and therefore the pay of the applicant has not been rightly restored awaiting the final outcome of the enquiry taken up in pursuance of the charge sheet No. MCSW/M/D&A/Engg/PSP-44/3020 dated 3.9.2004. Hence he has prayed for dismissal of the present OA.
We have considered the rival submissions of the respective parties and facts on record. It is not in dispute that major penalty proceeding was initiated against the applicant vide memorandum No. MCSW/M/D&A/Engg/PSP-44/3020 dated 3.9.2004 and vide order dated 24.5.2006, the applicant was faced with the punishment of reversion from the post of Senior Section Engineer (Works) in the scale of pay Rs.7450-11,500/- to the grade of Section Engineer (Works) in the scale of pay Rs.6500-10,500/- for a period of 02 years on cumulative basis. During the period of penalty, basic pay shall remain fixed at Rs.6500/- and during this period Dearness Pay and Dearness Allowance shall be calculated on the basis of the fixed Basic Pay of Rs.6500/-. On completion of the period of penalty, his future increments shall stand postponed by these 02 years and his seniority shall be adversely affected accordingly. Be that as it may in compliance of the order of this Tribunal the authority concerned considered the grievance of the applicant and vide order dated 20.9.2022 set aside the order of punishment which was upheld by the revisional authority vide order dated 19/23.11.2022. It is also admitted fact that fresh enquiry proceeding in pursuance of the memorandum No. W.4/416/D&A Corres/4151 dated 19/23.11.2022 is under way. Once the order of punishment is set aside obviously and axiomatically the punishment imposed on him is no more available in the field and the implication of imposition of penalty including benefits which were withheld because of the punishment order ought to have been restored in favour of the applicant. The respondents did not produce any authority (rules or law) to justify their action that in the above circumstances an employee is not entitled to the benefits. In the above circumstances we find sufficient force in the submission of the learned counsel for the applicant that denial of the restoration and benefits which were withheld by virtue of the order dated 24.5.2006 is not sustainable in the eyes of law.
In the circumstances the order dated 16.2.2023 denying the applicant the benefits is hereby quashed. The respondents are directed to restore the applicant to the post of Senior Section Engineer (Works) in the scale of pay Rs.7450-11,500/- and grant him consequential financial benefits within a period of 120 days from the date of receipt of the copy of this order.
The OA is disposed of accordingly. There shall be no order as to costs.