S. Balaji vs Department of Telecommunications and Others

Mohan M. Shantana Goudar, J.—The order dated 31.7.2013 passed by the Central Administrative Tribunal (''CAT'' for short), Bangalore Bench, Bangalore in Original Application No. 193/2011 is called in question in this writ petition.

By the impugned order, the CAT directed the respondents/Bharath Sanchar Nigam Limited (''BSNL'' for short) to count the period spent by the petitioner facing the disciplinary enquiry (in which he was kept out of duty) for the purposes of seniority, increments, other eligibilities and pension. However the Tribunal has not granted the backwages to the petitioner herein. Being aggrieved by the same, this writ petition is filed.

The records reveal that while petitioner was working as Telecom Technical Assistant, a complaint came to be lodged against him and three others, which came to be registered in Crime No. 223/2000 in Gundlupet Police Station. The petitioner was kept under suspension on account of the criminal case. However on 26.4.2003, the Criminal Court acquitted the petitioner.

In the meanwhile, the disciplinary proceedings were initiated against the petitioner. The Disciplinary Authority after following due procedure held by its order dated 28.3.2003 that the petitioner be removed from service with immediate effect inasmuch as the charges levelled against him are proved. The order passed by the Disciplinary Authority was confirmed by the Appellate Authority as well as the Revisional Authority vide Annexures-A3 and Annexure-A4 respectively. The order of the Disciplinary Authority, Appellate Authority and the Revisional Authority were questioned by the petitioner before the CAT in Transferred Application No. 295/2009, which came to be allowed on merits and not on technical grounds. The order dated 8.1.2010 passed by the CAT in Transferred Application No. 295/2009 runs to about 17 pages. While passing the order in favour of the petitioner, the Tribunal has gone in depth on all aspects of the matter on merits and in accordance with law and set aside the order of dismissal passed by the Disciplinary Authority as confirmed by the Appellate Authority and the Revisional Authority. The operative portion of the order passed by the CAT in Transferred Application No. 295/2009 reads thus:

"5.5. Thus, on the totality of the facts and the entirety of the circumstances of the instant case besides taking an overall view of the matter in the light of ratio decidendi of the case laws relied upon by the applicant, unlike those case laws relied upon by the respondents which are distinguishable on the facts and circumstances of the case as well as in view of the aforesaid discussions with reasons, we deem it just fit and proper to quash the orders in the departmental proceedings impugned by the applicant as prayed and consequently to direct the respondents to reinstate the applicant. The competent authority shall take a decision regarding the intervening period having regard to the rules and regulations and in accordance with what has been discussed above.

In the result, this OA is allowed partly as above."

From the above, it is clear that the CAT directed the competent authority/department to take decision regarding the intervening period in which the petitioner was kept out of duty having regard to the rules and regulations and in accordance with the discussion made in the said order.

Pursuant to the order passed by the CAT in Transferred Application No. 295/2009, the department has passed the order as per Annexure-A8 dated 11.3.2011 and Annexure-A9 dated 18.3.2011 in which the department has concluded that the petitioner is reinstated into service and the entire period spent by him while facing disciplinary enquiry was treated as period of non-duty. Even the period of suspension preceding the order of removal was also treated as period of non-duty. The order Annexure-A9 dated 18.3.2011 was called in question before the CAT by the petitioner in O.A. No. 193/2011, which came to be decided with the following conclusion:

"16. For the reasons above, we are of the considered view, the applicant failed to establish to quash the impugned orders and consequential relief under FR 54 A (3). The respondents justified in their defence, though they have not referred the Rule FR in their order while reinstatement of the applicant and treated as non-duty of the intervening period from the date of removal to the date of reinstatement. In the facts of this case, we direct the respondents-BSNL to count the said period as prayed for in the OA for purposes of seniority, increments, other eligibilities and pension. There shall not be any recovery from applicant, if any, the allowance paid during the period of suspension.

With the above observation, OA is dismissed. No order as to costs."

The relevant Rule which is applicable to the facts of this case is Fundamental Rule 54-A(1)(2) and (3), which reads thus:

"F.R. 54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.

(2)(i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:

(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule(5) of Rule 54.

(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be."

Sub-rule (1) of Fundamental Rule 54-A makes it clear that where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court. Sub-rule (2) of Fundamental Rule 54-A deals with the case wherein the order of dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of non-compliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution or where the Government servant is not exonerated on merits. If the order of dismissal or removal is set aside solely on the technical point as mentioned supra and not on merits, the payment to be made in favour of the government servant during non-service period is governed by sub-rule (2) of Fundamental Rule 54-A. However in the matter on hand, the Government servant/petitioner is exonerated on merits (not on technical grounds) by the CAT in Transferred Application No. 295/2009 as aforementioned. Thus what is applicable to the case on hand is sub-rule (3) of Fundamental Rule 54-A. The said sub-rule makes it clear that if the order of dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired.

In the matter on hand, we have already made it clear that the CAT has exonerated the petitioner of all the charges levelled against him on merits and not on technical grounds. In view of the same, the petitioner is entitled to the benefit as contemplated under sub-rule (3) of Fundamental Rule 54-A.

The reasons assigned by the Tribunal while passing the impugned order are unsustainable inasmuch as the Tribunal has proceeded relying upon the judgment of acquittal passed by the Criminal Court. Apart from the same, the Tribunal has also relied on various other extraneous circumstances while coming to the conclusion.

In view of the above, the order of the Tribunal needs to be modified. Accordingly, the following order is made:

The period intervening between the date of dismissal including the period of suspension preceding such dismissal and the date of reinstatement shall be treated as duty for all purposes and the petitioner shall be paid full pay and allowances for the period to which he would have been entitled, had he not been dismissed or suspended prior to such dismissal.

Writ Petition is allowed. The order shall be complied within four months from this date.