Judgment:
Hon'ble Mrs. K. Noorjehan, Administrative Member
The applicant is challenging Ext. P-13 notice dated 3.1.2007 and Ext. P-1 order dated 4.4.200 rejecting his claim for pay and allowances on reinstatement.
2. The applicant, a Telecom Mechanic was proceeded against by way of disciplinary action on the ground that he had been habitually indebted and that he did not inform about one month's civil imprisonment he had undergone as a consequence of a court decree. Consequently, he was compulsorily retired from service w.e.f. 31.12.2003. The applicant challenged the punishment order before the Hon'ble High Court of Kerala through WP(C) 2194 of 2006 which was allowed by Single Bench, quashed the punishment order with a direction to the respondents to reinstate the applicant in service forthwith with all service benefits. The respondents Department challenged the judgment in W.A No. 1379 of 2006 which was disposed of by the Division Bench of the High Court by its judgment dated 28.7.2006 which set aside the order and permitted for imposition of minor penalty, as he did not inform the authorities about pendency of the suit or the civil imprisonment. The competent authority issued a notice (P-13) to the applicant in accordance with FR 54 proposing to limit the pay and allowance to be paid for the period of suspension to subsistence allowance already paid, to limit the pay and allowance to be paid for the period of his absence from duty from the day of compulsory retirement to the day of his reinstatement as 50% of the subsistence allowance he had been drawing just before his compulsory retirement and the period of absence from duty not to be treated as a period spent on duty unless he desires to convert it into leave of any kind due and admissible to him. The applicant challenges Ext. P-1 and Ext. P-13 orders on the ground that the notice is against the directions of the Hon'ble High Court, against FR 54, it modifies the judgment of the Hon'ble High Court to reinstate him and that the Hon'ble High Court permitted to impose only a minor penalty. Hence he filed this O.A. to quash the orders at Ext. P1 and Ext. P-13 and to direct the respondents to regularise his service with full back wages and continuity of service and other consequential benefits including seniority.
3. Per contra, the respondents submitted that departmental enquiry in connection with misappropriation of money by the applicant was held under Rule 14 of CCS(CCA) Rules, 1965 and the pay of the applicant was reduced by five stages for a period of three years w.e.f. 1.4.1999. The applicant was again involved in a serious case of money transaction which ended in recovery of Rs. 72,350/-with interest @ 12% per annum and being a judgment debtor he was arrested on 22.5.2001 and was committed to prison exceeding 48 hours. Consequently he was suspended w.e.f. 22.5.2001. Disciplinary Authority initiated proceedings under Rule 14 of CCS (CCA) Rules 1965 and charge sheet was issued. Detailed enquiry was held which culminated in compulsory retirement. His appeal and Review petitions were rejected. He challenged the order of retirement before the Hon'ble High Court of Kerala which was allowed and the Hon'ble Court directed the respondents to reinstate the applicant with all service benefits. The respondents filed WA before Division Bench which modified the judgment by giving right to impose minor penalty so far as he failed to inform the authorities about the pendency of the suit or the civil imprisonment he had undergone for 21 days. In compliance of the direction of of the Division Bench he was reinstated in service on 22.8.2006, pay was fixed in BSNL scales and consequential arrears were paid. The applicants filed another petition before the Hon'ble High Court alleging that he has not received the service benefits which was dismissed advising the petitioner to file objections if he is aggrieved. The respondents passed the impugned order reducing pay of the applicant to the lowest stage for a period of three years w.e.f. the next increment date without cumulative effect. The applicant filed Contempt Petition which was also dismissed stating that it is open to the applicant to challenge those orders before the authorities concerned. Applicant submitted representation which was disposed of by the impugned order. They contended that the reinstatement was ordered by the Hon'ble High Court on technical grounds and that he was not at all exonerated. The reduction in the basic pay of the applicant was due to the earlier punishment awarded to him.
4. The applicant filed rejoinder rebutting the stand of the respondents that he was reinstated on technical grounds and asserted that the direction of the Hon'ble High Court was to reinstate him with all service benefits. There is no punishment with cumulative effect.
5. We have heard learned counsel for the parties and perused the documents produced before us.
6. There have been several rounds of litigation. The applicant was charged with illegal gratification which culminated in reduction of pay by five stages. Another case involving money transaction which came before the Munsiff Court Chengannur culminated in recovery order of Rs. 72,350/with 12% interest and being the judgment debtor, he was arrested and jailed for 21 days. He was suspended and departmental proceedings were initiated against him which ended in his compulsory retirement. Applicant challenged the compulsory retirement before Single Bench of the High Court of Kerala through WP 2194/2006. The Hon'ble Single Bench in its judgment dated 5.7.2006 directed the respondents to reinstate the petitioner with all service benefits since the crime alleged against the petitioner does not involve moral turpitude. The respondents challenged the judgment in appeal before Division Bench through WA 1379/2006. The Hon'ble Division Bench modified the judgment by upholding the Department's right to impose proportionate minor penalty on the applicant so far as he failed to inform the authorities about the pendency of the suit or the civil imprisonment he had undergone for 21 days. In compliance to the directions of the Hon'ble High Court in WP(C) 2194/2006 and WA 1379/2006, the applicant was reinstated in service and his pay was fixed in BSNL scales and the consequential arrears were paid. Not satisfied, he moved the High Court alleging that he was not paid the service benefits which was rejected by the High Court directing him to file objections if he is aggrieved. Duly observing the directions of the Hon'ble Court in the above mentioned petitions and appeals, the Disciplinary Authority passed order reducing the pay of the petitioner to the lowest stage for a period of three years with effect from the date of next increment without cumulative effect and not adversely affecting his pension and terminal benefits (R-3). The applicant filed Contempt Petition COC No. 491/2007 before the Hon'ble High Court which was dismissed stating that it is always open to the petitioner to challenge those orders before the authorities concerned. We find that in WA No.1379/2006 Appeal filed by the applicant, the Division Bench of the Hon'ble High Court held as follows:
"3. The grievance of the appellants that at least a freedom to impose a proper penalty should have been rendered to them is justified. In this regard, we heard the counsel for the respondent also. Accordingly, we modify the judgment, having regard to the finding of guilt on the misconduct that he did not comply with Section 17 of the Rules, that a minor proportionate penalty can be imposed on him, in so far as he did not inform the authorities about the pendency of the suit or the civil imprisonment undergone. In every other respect the judgment of the learned single Judge is sustained. The Writ Appeal is disposed of as above."
There is no iota of doubt that the Hon'ble Division Bench of the High Court finding guilt of misconduct under Section 17 of the Rules, modified the judgment of the Hon'ble Single Bench by permitting the respondents to impose a proper minor penalty on the applicant.
8. It will be useful to extract FR-54-A which is relevant in this case:
FR 54-A(1)-Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularised 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 reorientation, 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.
(4) The payment of allowances under sub rule (2) or sub rule (3) shall be subject to all other conditions under which such allowances are admissible
(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant."
9. The Department of Personnel andTraining OM NO. 11012/15/85 Estt.(A) dated 3rd December, 1985 stipulates that the period of suspension is to be treated as duty if only a minor penalty is imposed. It was ordered that if the departmental proceedings against a suspended employee for the imposition of a major penalty finally end with minor penalty, the period of suspension is to be treated as wholly unjustified in terms of FR 54-B and the employee concerned there should be paid full pay and allowances from the period of suspension by passing suitable order under FR 54-B. The spirit of the order is that if the disciplinary proceeding ends only in minor penalty, even the suspension is unjustified and the government servant is entitled to treat the period of suspension as the period spent on duty for all purposes. Then there is no justification in not treating the period of petitioner kept out of service on compulsory retirement as part of service since only minor penalty is imposed.
10. The learned counsel for the applicant relied on the judgment of the Hon'ble High Court in Travancore Devasowm Board Vs. Rajasekharan Nair (2003(2) KLT 882) in which the Hon'ble High Court considered identical provision in KSR. In that case, the employees of the Travancore Devosowm Board who were dismissed/compulsorily retired were reinstated into service by the Hon'ble High Court on finding that the enquiry was vitiated for non-compliance of principles of natural justice. Though reinstatement was on technical ground they were paid the full salary and allowances for the period they were kept out of duty. Later the Board realised the mistake and issued notices for recovering the amount paid. The Single Bench of the Hon'ble High Court held that so far as the petitioners are concerned there was a declaration that their termination was bad and that the matter was disposed of on merits and hence, the petitioners were entitled to salary.
The facts in the above case are entirely different. The petitioners therein were paid full salary and allowances for the period they were kept out of duty. Later the Board issued notices for recovering the amount which was challenged. That is not the case of the petitioner in the case on hand.
11. Having heard the learned counsel on both sides and and having gone through the documents carefully, we are of the view that the Single Bench of the Hon'ble High has ordered reinstatement of the applicant on merit and that the Division Bench has modified the judgment by giving liberty to the respondents to impose a minor penalty on finding of guilt on the misconduct that he did not comply with Section 17 of the rules and did not inform the authorities about the pendency of the suit or the civil imprisonment undergone.
12. The incident of suppression of civil imprisonment was probably seen in isolation by the Single Bench of the Hon'ble High Court while the respondents tagged it to a prior event when the applicant was suspended and was allowed to be let off with reduction in pay by five stages without cumulative effect in 1999 with a warning that the misconduct of the official warrants a major punishment. The Division Bench of the Hon'ble High Court, having found the punishment of compulsory retirement excessive, permitted the respondents to impose a minor penalty. Therefore, the Division Bench of the Hon'ble High Court did not absolve him of guilt and hence he cannot be stated to be fully exonorated.
13. In the light of the above, in our considered opinion the treatment of the period of absence from 22.5.2001 to 31.12.2003 prior to his compulsory retirement as suspension and limiting the allowance to the amount already paid is in order. The action of the respondents was in accordance with the instructions laid down in PandT OM NO.11012/15/85-Estt(A) dated 3.12.1985 that suspension is to be resorted to only when the disciplinary proceedings are likely to culminate in dismissal, removal or compulsory retirement.
14. Regarding the period of absence from 1.4.2003 to 22.8.2006 ie. from the date of compulsory retirement, to his reinstatement, at the intervention of the Hon'ble High Court, FR 54(2)(i) can only be applicable since Hon'ble Division Bench of the High Court has observed misconduct on the part of the applicant. Hence, the respondents can treat this period also as suspension but they are directed to pay the maximum permissible subsistence allowance for this period of absence from duty. Both periods of suspension will count for duty for pensionary purpose and not seniority. Any other period of absence from duty will be regulated as leave eligible to him on the applicant’s request for the same.
15. Thus only para (ii) of Ext. P-1 and P-13 are set aside with a direction to issue a fresh order treating the period as suspension and his eligibility for the maximum permissible subsistence allowance.
16. The T.A. is allowed as above. No costs.