K. Ravikumar v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE S.V.BHATTI** ## **&** **THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 22[ND] DAY OF FEBRUARY 2023 / 3RD PHALGUNA,** ## **1944** **OP (CAT) NO. 186 OF 2016** **OA 216/2003 OF C A T,ERNAKULAM BENCH** ## **PETITIONER/S:** K. RAVIKUMAR, S/O.LATE K.V.KUNCHU PILLAI,SA INDUCTIN TRAINEE, (FORMER SRO KAYAMKULAM),RMS T V DIVISION, THIRUVANANTHAPURAM. RESIDING AT KOLLAKASSERIL HOUSE, CHERAVALLY, KAYAMKULAM PO, KAYAMKULAM DISTRICT. BY ADV.SRI.K.SASIKUMAR SRI.S.ARAVIND/SRI.P.S.RAGHUKUMAR ## **RESPONDENT/S:** 1 UNION OF INDIA,REPRESENTED BY ITS SECRETARY, GOVERNMENT OF INDIA, DEPARTMENT OF POSTS, NEW DELHI 110 001. 2 MEMBER P,POSTAL SERVICES BOARD, NEW DELHI 110 001. 3 DIRECTOR OF POSTAL SERVICES SR OFFICE OF THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, TRIVANDRUM 695 035. 4 SENIOR SUPERINTENDENT RMS TV DIVISION TRIVANDRUM 695 035. BY ADV SRI.T.V.VINU, CGC THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP (CAT) NO. 186 OF 2016** -2- ## **S.V.BHATTI & BASANT BALAJI, JJ.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - ## **O.P. (CAT) NO. 186 OF 2016** - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - ## JUDGMENT (Dated this the 22[nd] day of February 2023) ## Basant Balaji J., The petitioner/applicant challenges the order of the CAT Ernakulam bench in O.A.No.216 of 2003. The OA was filed to quash Annex.Nos.A1, A2 and A3 and to reinstate the applicant with all consequential benefits. 2. The petitioner commenced the services as an extra departmental mailman. While so, he met with an accident during the course of his duty and was physically disabled. Though he requested a posting with lesser demand of **OP (CAT) NO. 186 OF 2016** -3- physical endurance, it was refused. But leave without allowance was granted till he recovers from his illness. The allegations raised against him is that taking advantage of the situation the applicant had taken alternative employment as advocate clerk under many advocates at Kayamkulam and Mavelikkara courts during the period of leave. As per the then existing rules, the official should not be absent for a period of exceeding 180 days in a year. 3. A charge sheet was framed and issued to the applicant and an enquiry was sought to be conducted. Three charges were framed against the applicant. They are “(i) regarding the period of unauthorised absence which violated the provisions of Rule 25 of CCS (Leave) Rules 19 72, Rule 62 of P&T Manual Vol.III and Rule 92 of P&T Manual Vol.IV and thus acted in a manner quite unbecoming of a Government servant contrary to Rule 3 (1)(iii) of CCS (conduct) Rules 1964, **OP (CAT) NO. 186 OF 2016** -4- (ii) the applicant made false declaration about his local and permanent address to SRO RMS 'TV' Dn, Kottayam and thereby failed to maintain absolute integrity and acted in a manner unbecoming of a Government servant contravening to Rule 31(1)(i) and 3(1)(iii) respectively of CCS (Conduct) Rules 1964, and (iii) the applicant undertook employment as a clerk to Sri G.John and Sri Thomas Zachariah, Advocates at Mavellikara and Kayamkulam courts respectively and thus engaged himself in dual gainful job and thereby he infringed rule 15(1) of CCS (Conduct) Rules 1964.” 4. An enquiry was conducted and all the articles charged against the applicant were proved. In continuation to the enquiry report. Annex.A1 proceedings was initiated on 29.9.1999 whereby the applicant was removed from service with immediate effect. An appeal was filed challenging the order of dismissal which also ended in dismissal. Though a revision was filed it was also not entertained. it is challenging the 3 orders, that the applicant **OP (CAT) NO. 186 OF 2016** -5- approached the Tribunal. 5. The Tribunal, after elaborately considering the entire proceedings initiated against him, came to a definite finding that the entire disciplinary proceedings based on Annex.A6 charge memo cannot stand and therefore, it was set aside and it was directed that the applicant shall be reinstated in service from the post from which he was deemed to have been removed from service. The Tribunal though quashed all the 3 charges, had entered into a finding in paragraph 14 as follows: “We feel that a look at the 3 different articles of charges framed against the applicant indicates that, but for the period of absence indicate in Article 1, the other charges seem to be unsubstantiated and elastic in nature.” It is because of this finding entered by the Tribunal, that **OP (CAT) NO. 186 OF 2016** -6- though the charge memos were quashed in consequential orders in appeal and in revision and he was directed to be reinstated in service did not grant back wages for the period for which he was kept out of service and it shall be treated as 'leave not due'. But taking a lenient view, it was also directed the entire period service he was out of employment as a result of Annex.Nos.A1 to A3 shall be counted for increment and pension. It was also made clear that the said order will not entitle the applicant to claim any further damages or any future promotion, he would have been entitled to during the interregnum. 6. The counsel for the petitioner submits when the entire charge memo is quashed by the Tribunal and reinstatement was ordered, all consequential benefits **OP (CAT) NO. 186 OF 2016** -7- including back wages ought to have been granted. He also relied on the judgment of Apex Court in **Shobha Ram Raturi v. Haryana Vidyut Prasaran Nigam Limited [(2016) 16 SCC 663]** where the Apex Court in the facts and circumstances of the case directed payment of wages and there is no ratio _decidendi._ 7. Now coming into the facts of this case, it can be seen that the question of unauthorised absence having proved against him in the enquiry report, the Tribunal held that except to the Article 1, the other articles are not proved, which means the question of unauthorised absence have been affirmed by the Tribunal. In such view of the matter, the Tribunal was justified in not awarding back **OP (CAT) NO. 186 OF 2016** -8- wages on the principle of 'no work and no pay'. Since the other two articles were found to be not sustainable, the applicant was directed to be reinstated without back wages. The facts of this case is entirely different than the one relied on by the counsel for the petitioner. The period of unauthorized absence has been clearly proved to be correct. In such a situation, the applicant cannot claim any back wages. Moreover the Tribunal has also held that the applicant would not be entitled for future promotions during the interregnum period when he was kept out of service after entering into a finding that there was unauthorised absence in different spells. Having abstained from service the Tribunal has taken a liberal view and ordered reinstatement. If the argument of the counsel for the petitioner is accepted, the petitioner shall be paid **OP (CAT) NO. 186 OF 2016** -9- backwage and future promotion would amount to paying double premium for the unauthorised absence. Hence, we are of the considered view that the Tribunal was justified in reinstating the petitioner after setting aside the order of dismissal without backwages and claim for future promotions during the period when he was out of service. We do not find any error of jurisdictional to interfere with the order of the Tribunal. The Original Petition fails and it is dismissed. ## **SD/-** ## **S.V.BHATTI, JUDGE** **SD/BASANT BALAJI, JUDGE** _dl/_ ## **OP (CAT) NO. 186 OF 2016** -10- ## **APPENDIX OF OP (CAT) 186/2016** PETITIONER ANNEXURES - ANNEXURE A1 A TRUE COPY OF THE O.A NO.216 OF 2003 FILED BY THE PETITIONER BEFORE THE HON'BLE CAT, ERNAKULAM. - ANNEXURE A2 A TRUE COPY OF THE ORDER NO. ST/B-8/2000 DATED 29-9-1999 ISSUED BY THE 3RD RESPONDENT. - ANNEXURE A3 A TRUE COPY OF THE ORDER NO. C 17013/2/2001-VP, DATED 5-4-2002 (RECEIVED BY APPLICANT ON 22-4-2002 ISSUED BY THE 2ND RESPONDENT, THE REVISIONAL AUTHORITY. - ANNEXURE A4 A TRUE COPY ORDER NO. BII/ED/GNL DATED 21-7-1986 ISSUED BY THE 4TH RESP0NDENT. - ANNEXURE A5 A TRUE COPY JUDGMENT IN OS 465/1990 DATED 21-12-1991 OF THE HON'BLE MUNSIFF COURT, KAYAMKULAM. - ANNEXURE A6 TRUE COPY OF CHARGE MEMO BEARING NO. BII/1-19/DISC 24 DATED 5-8-1994. - ANNEXURE A7 A TRUE COPY REPRESENTATION DATED 16-41999 SUBMITTED BY THE APPLICANT TO INQUIRY OFFICER ALONG WITH THE TRANSLATION. - ANNEXURE A8 A TRUE COPY OF THE INQUIRY REPORT. ANNEXURE A9 A TRUE COPY OF REPRESENTATION DATED 267-1999. - ANNEXURE A10 A TRUE COPY OF APPEAL DATED 22-11-1999. ## **OP (CAT) NO. 186 OF 2016** -11- ANNEXURE A11 A TRUE COPY OF THE REVISION PETITION DATED 29-8-2000. - EXHIBIT P1 A TRUE COPY OF THE OA NO.216/2003 FILED BY THE PETITIONER BEFORE THE HON'BLE CAT, ERNAKULAM. - EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 19/4/2006 OF THE HON'BLE CAT, ERNAKULAM IN OA NO.216/2003 FILED BY THE PETITIONER - EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 11/2/2014 OF THIS HON'BLE COURT IN O.P NO.30236/2006 - EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 16/9/2015 OF THE HON'BLE CAT, ERNAKULAM BENCH, IN OA. 216/2003. - EXHIBIT P5 A TRUE COPY OF THE CONTEMPT PETITION NO.180/00083/2015 IN OA.NO.261/2003 FILED BY THE PETITIONER BEFORE THE HON'BLE CAT - EXHIBIT P6 A TRUE COPY OF THE ORDER BII/MTS/WPC 30236/2006 DATED 23/12/2015 - EXHIBIT P7 A TRUE COPY OF THE ORDER DATED 8/1/2016 OF THE HON'BLE CAT, ERNAKULAM IN CP NO.180/00083/2015 IN O.A 216/2003. - EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 2.4.2018 ISSUED BY THE 4TH RESPONDENT. - RESPONDENT EXHIBITS EXHIBIT R4(a) TRUE COPY OF THE LETTER NO.B II/MTS/WPC 30236/06 DATED 23.12.2015. ## **OP (CAT) NO. 186 OF 2016** -12- EXHIBIT R4(b) TRUE COPY OF THE LETTER NO. B/19/17 DATED 12.02.2016. EXHIBIT R4(c) TRUE COPY OF THE ORDER NO. B/18/10 DATED 08.05.2017. EXHIBIT R4(d) TRUE COPY OF THE MEMO NO.470/A2/GNL DATED 16.05.2017.