High Court of KeralaDivision Bench2007-02-01Writ petition dismissed; CAT order upheld and b...

Sr. Manager, Mail Motor Service, Kochi & others vs A.K. Divakaran, Central Administrative Tribunal, Ernakulam Bench (and Addl R3 & R4 impleaded)

Case / Petition Number:W.P.(C). No. 20238 of 2004

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. A. Abdul Gafoor
K. R. Udayabhanu
Judgment Date: 2007-02-01
Court Decision / Holding: The writ petition is dismissed; the CAT’s order setting aside the removal and directing reinstatement with back wages is maintained. The court holds that FR 54-A, Clause 3 obligates payment of back wages for the period of dismissal up to reinstatement, and that the administration must pay the entire back wages to the legal representatives within three months.
Final Disposition: Writ petition dismissed; CAT order upheld and back wages ordered to be paid within three months.

Parties to the Case

Appellants / Petitioners

The Sr. Manager, Mail Motor Service, Kochi 682 016
The Director of Postal Services, Central Region, Kochi 682 018
The Chief Postmaster General, Kerala Circle, Thiruvananthapuram 695 033
The Member (Personnel) Postal Service Board, Dak Bhavan, New Delhi
Union of India, rep. by its Secretary to Government of India, Ministry of Communications, New Delhi

Respondents

A.K. Divakaran, S/O Kunjan Bava, Driver, Mail Motor Service, Ernakulam
Central Administrative Tribunal, Ernakulam Bench, represented by its Registrar
V.K. Pushpa, W/o Late A.K. Divakaran, aged 41 years, residing at Alunkathara House, Ernakulam, Cochin - 682 020
Dilish D, S/O Late A.K. Divakaran, aged 18 years, residing at Alunkathara House, Ernakulam, Cochin - 682 020 (Addl. R3 & R4 impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• Sri S. Krishnamoorthy (Addl. CGSC)
• Sri T.D. Rajalakshmi

Counsels for Respondents

• Sri P.A. Kumaran
• Sri Sunil Nath
• Sri Jose Joseph (Mannar)

Case Synopsis & Summary

This writ petition challenges Ext. P3, an order of the Central Administrative Tribunal which set aside the penalty of removal from service and directed reinstatement of the employee with back wages and continuity of service. Filed on 5 July 2004, the petition argues that the tribunal’s order primarily concerns reinstatement; the challenge is specifically to the back-wages component and related benefits. The court notes that the applicant was reinstated on 30.06.2004 and subsequently died on 26.10.2005, with his legal representatives now contesting the back wages. The petitioner relies on Rule 3 of FR 54-A (Fundamental Rules) to contend that the period up to reinstatement must be treated as duty and that full pay and allowances are admissible for that period. The Tribunal’s reasoning is supported by a Supreme Court decision cited as G.M. Tank v. State of Gujarat (2006) 5 SCC 446, which the court says squarely applies to this case. The court rejects a contention that FR 54-A applies only when a dismissal order becomes final, emphasizing the entitlement to back wages once reinstatement occurs. Ultimately, the writ petition is dismissed, directing that back wages be paid, with three-month compliance for the beneficiaries, in light of the statutory provisions and the tribunal’s order.

Provisions of Law Cited

Clause 3 of FR 54-AFR 54-A (Fundamental Rules)

Legal Doctrines & Maxims

Doctrine: Back pay and continuity of service on reinstatement under FR 54-A, Clause 3

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that Ext. P3 set aside the penalty and reinstated the employee, but the writ petition challenged only the back wages and not the reinstatement. They argued that FR 54-A, Clause 3 requires that the period of dismissal up to reinstatement must be treated as duty and accompanied by full pay and allowances. Since the applicant was reinstated, back wages are due to him or his legal representatives; the death of the employee in 2005 and the involvement of legal representatives necessitate timely payment, as reflected in the tribunal’s order. They urged adherence to the statutory provision and the tribunal’s implementation, seeking the benefit for the period of back wages and continuity of service.

Contentions of Respondents

The respondents, through Additional Standing Counsel, urged that FR 54-A applies only when the dismissal order becomes final; they argued this narrow application should limit back-wages. The respondents contended the petition challenges the back-wages award, not the reinstatement, and urged a narrower approach to the FR 54-A clause. They also argued compliance and limitations (e.g., three months) may be required for disbursement of back wages.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
G.M. Tank v. State of Gujarat & others	2006 (5) SCC 446	Positive	Cited to support the applicability of FR 54-A Clause 3, ensuring back wages and continuity of service upon reinstatement.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.A.ABDUL GAFOOR & THE HONOURABLE MR. JUSTICE K.R.UDAYABHANU THURSDAY, THE 1ST FEBRUARY 2007 / 12TH MAGHA 1928 WP(C).No. 20238 of 2004(S) -------------------------- OA.602/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: 1. THE SR.MANAGER, MAIL MOTOR SERVICE, KOCHI 682 016. 2. THE DIRECTOR OF POSTAL SERVICES, CENTRAL REGION, KOCHI 682 018. 3. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM 695 033. 4. THE MEMBER (PERSONNEL) POSTAL SERVICE BOARD, DAK BHAVAN, NEW DELHI. 5. UNION OF INDIA, REP.BY ITS SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF COMMUNICATIONS, NEW DELHI. BY ADV. SRI.S.KRISHNAMOORTHY, ADDL.CGSC SRI. T.D. RAJALAKSHMI RESPONDENTS: 1. A.K.DIVAKARAN, S/O.KUNJAN BAVA, DRIVER, MAIL MOTOR SERVICE, ERNAKULAM. 2. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REP. BY ITS REGISTRAR. ## **ADDL. R3 & R4 IMPLEADED** 3. V.K. PUSHPA, W/O. LATE A.K. DIVAKARAN, AGED 41 YEARS, RESIDING AT ALUNKATHARA HOUSE, ERNAKULAM, COCHIN - 682 020. 4. DILISH D, S/O. LATE A.K. DIVAKARAN, - AGED 18 YEARS, RESIDING AT ALUNKATHARA HOUSE, ERNAKULAM, COCHIN - 682 020. - ( ADDL. R3 & R4 ARE IMPLEADED AS PER ORDER DT. 12/12/2005 IN I.A. NO. 18056/05) BY ADV. SRI.P.A.KUMARAN SRI.SUNILNATH SRI.JOSE JOSEPH (MANNAR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/02/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(C). NO. 20238 OF 2004 ## **APPENDIX** ## PETITIONERS' EXHIBITS: EXHIBIT P1: TRUE COPY OF O.A. NO. 602/2003 WITH ANNEXURES EXHIBIT P2: TRUE COPY OF REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A. NO. 602/2003 EXHIBIT P3: TRUE COPY OF ORDER IN OA NO. 602/2003 DT. 05.04.2004 PASSED BY CAT, ERNAKULAM. ## K.A. ABDUL GAFOOR & K.R. UDAYABHANU, JJ ============================= W.P.(C). NO. 20238 OF 2004 ============================== Dated this the 1[st] day of February 2007 ## **JUDGMENT** ## Abdul Gafoor,J Challenge is against Ext. P3 order of the Central Administrative Tribunal whereby imposition of penalty of removal from service has been set aside. The applicant has been ordered to be reinstated with back wages. This writ petition has been filed on 05.07.2004. It has been specifically urged in ground G that “It is respectfully submitted that the 1[st] respondent was reinstated in service as per the order of the Tribunal on 30.06.2004.” Thus, the applicant has been reinstated and it is after such reinstatement the writ petition has been filed. Reinstatement has been directed in Ext. P3 of the Tribunal. Therefore, the challenge against Ext.P3 as contained in this writ petition is not against the direction to reinstate the same, but as rightly prayed in prayer No. 1 “ to the extent it directs the petitioner to pay the 1[st] respondent full back wages with the continuity of service and all consequential benefits.” W.P.(C). NO. 20238 OF 2004 : 2 : 2. This means the direction for reinstatement on setting aside the imposition of penalty on removal is accepted by the writ petitioners, the administration. When it is so accepted, the statutory provision that operates is clause 3 of F.R 54-A which reads as under: “ **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. “** When this statutory provision operates and as the petitioners have already reinstated the applicant, he shall have to be paid the entire back wages. There is no other way for the administration to get out of that liability. W.P.(C). NO. 20238 OF 2004 : 3 : 3. Going by Articles of Charges Annexure 2 in Ext. P1 original application, the applicant has been charged that he had failed to maintain devotion to duty in so far as he got involved in an accident while driving a motor mail service van. It was alleged by the petitioner that there was a rash and negligent driving by the delinquent which ultimately resulted in this accident. There was also a criminal case on the same set of facts. Therefore, the facts framing basis for disciplinary action as well as criminal case are one and the same. Necessarily, the direction laid down in the decision of the Supreme Court reported in **G.M. Tank v. State of Gujarath & others** ( 2006 (5) SCC 446) squarely applies to this case. Further, the applicant is no more. After reinstatement he died on 26.10.2005 and his legal representatives are now on record, to contest the challenge against award of back wages. In the aforesaid circumstances, we are of the view that the Tribunal was justified in awarding back wages, in terms of sub Rule 3 of FR 54A. W.P.(C). NO. 20238 OF 2004 : 4 : 4. The contention that the said rule applies only when the dismissal order comes to the finality, as urged by the Additional Standing Counsel does not have any force when the writ petitioners challenged only the award of back wages accepting the order of back wages. Whatever benefit due to the legal representatives shall be given within three months. The writ petition is accordingly dismissed. ## **K.A. ABDUL GAFOOR, JUDGE** ## **K.R. UDAYABHANU, JUDGE.** RV W.P.(C). NO. 20238 OF 2004 : 5 :