Union of India and others v B. Anil Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 22ND DAY OF SEPTEMBER 2017/31ST BHADRA, 1939** **OP (CAT).No. 116 of 2017 (Z) -----------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 869/2016 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 05-12-2016** ## **PETITIONER(S)/PETITIONERS/RESPONDENTS IN O.A.:** **---------------------------------------------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS, GOVERNMENT OF INDIA, NEW DELHI-110001** **2. THE CHIEF POSTMASTER GENRAL, KERALA CIRCLE, TRIVANDRUM-695033** **3. DIRECTOR OF POSTAL SERVICES(HQ), O/O.THE CHIEF PMG, TRIVANDRUM-695033** **4. THE SUPERINTENDENT OF POST OFFICES,** - **PATHANAMTHITTA POSTAL DIVISION, PATHANAMTHITTA-689645** ## **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE** ## **RESPONDENT/APPLICANT IN THE O.A.:** ## **-----------------------------------------------** **B.ANILKUMAR, S/O.LATE K.A.BHASKARAN, POSTAL ASSISTANT, ADOOR HO, DEPARTMENT OF POSTS, RESIDING AT THADATHIL VEEDU, MANAKAYAM, CHITTAR P.O., PATHANAMTHITTA-689663** ## **R1 BY ADV. SRI.SAJITH KUMAR V.** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 22-09-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 116 of 2017 (Z)** **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1 TRUE COPY OF THE O.A.NO.869 OF 2016, FILED BY THE APPLICANT ON 17.10.2016 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **EXHIBIT P2 TRUE COPY OF THE ORDER IIN O.A.NO.180/00869/2016, DATED 05.12.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXHIBIT R1(c) ORIIGINAL OF THE MEMO NO.F4/2/2013-14 DATED 28/12/2016 SIGNED BY THE 4TH PETITIONER AND SERVED THROUGH THE INSPECTOR OF POST, RANNI.** **EXHIBIT R1(d) ORIGINAL OF THE MEMO NO.B/20/TFR/2016 DATED 29/12/2016 SIGNED BY THE 4TH PETITIONER AND SERVED THROUGH THE INSPECTOR OF POST, RANNI. EXHIBIT R1(e) COPY OF THE M.A. NO.180/228/2017 IN O.A. NO.180/869/2016 SUBMITTED BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT R1(f) COPY OF THE ORDER DATED 2-3-2017 IN M.A. NO.180/228/2017 IN O.A. NO. 180/869/2016 OF the HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **TRUE COPY** **P.A TO JUDGE** ## **SMM** **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ. -----------------------------------------------------O.P(CAT)No.116 of 2017** **-----------------------------------------------------Dated this the 22[nd] day of September, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Ext.P2 order passed by the Tribunal in O.A.No.180/00869/2016 directing the third respondent in the Original Application (3[rd] petitioner herein) to reinstate the applicant in service [who was continuing on suspension from 16.1.2014], with arrears of pay, in a post office other than the one in which fraud was allegedly committed and to keep a close watch on the work and conduct of the applicant, is under challenge in the Original Petition preferred at the instance of the respondents in the Original Application. 2. When the matter came up for consideration before this Court on 10.4.2017, an interim order was passed, staying the operation of Ext.P2 order, to the O.P(CAT)No.116/2017 2 extent it has directed payment of arrears on reinstatement, for a period of two months. The interim order was extended subsequently. The first respondent entered appearance and filed a counter affidavit in I.A No.1292/2017 producing copies of the relevant documents as Exts.R1(a) and R1(b) pointing out that there is clear suppression of material facts on the part of the petitioners, in so far as the reinstatement of the respondent/applicant in service, pursuant to Ext.P2 order, has not been brought to light. A copy of the said order has been produced as Ext.R1(a). The interim order was sought to be vacated accordingly, upon which this Court directed the petitioners to explain the facts and figures. 3. Pursuant to the said direction given on 21.7.2017, an affidavit dated 27.7.2017 has been filed, pointing out that Ext.R1(e) order passed by the Superintendent of Post Offices was fearing the course of Contempt of Court proceedings before the Tribunal and that according to him, it was only a provisional order. It is O.P(CAT)No.116/2017 3 also conceded that the factual position as to passing of Ext.R1(a) was unfortunately omitted to be mentioned in the Original Petition and that he regretted the position, in turn expressing apology for the omission. A copy of the order of reinstatement dated 28.12.2016 is produced as Ext.P3 along with the above affidavit; which shows that copies of Ext.P3 were marked to different authorities. The respondent has filed an additional counter affidavit along with I.A.No.1460/2017, seeking to accept some additional documents. The original of the order dated 28.12.2016, served to the respondent, has been produced as Ext.R1(c), wherein there is no endorsement as to the marking of copies to anybody else and in the said circumstance, the document produced as Ext.P3 marking copies to various authorities is stated as a fabricated one. It is also pointed out that, pursuant to filing of M.A No.228/2017 before the Tribunal, referring to the noncompliance of the direction given in Ext.P2, a further direction was given by the Tribunal on 2.3.2017, whereby O.P(CAT)No.116/2017 4 the arrears of pay and allowances were ordered to be disbursed within one month. A copy of the M.A is produced as Ext.R1(e), while copy of the order is produced as Ext.R1(f). 4. Heard the learned Assistant Solicitor General as well as the learned Counsel appearing on behalf of the respondent. 5. The factual matrix revealed from the proceedings is that the respondent herein was working as a Postal Assistant and while serving so, some serious delinquency involving misappropriation of amounts committed by a Recurring Deposit Agent came to the notice of the Department. As a matter of fact, the diversion of amounts was over a longer period, under different Officers and the respondent also happened to be one of the such officers who were having supervisory control over the Recurring Deposit Agent. The delinquency on the part of the respondent and others concerned also involved various offences, which had resulted in investigation by the CBI, O.P(CAT)No.116/2017 5 who has registered a criminal case and the case is going on. The respondent came to be suspended as per order dated 17.10.2013 in connection with the above instance of fraud occurred during the period from January 2009 to June 2013. After considering the matter, the suspension was ordered to be extended by the Review Committee on 9.1.2014. The appeal preferred against the order of suspension came to be rejected as per Annexure A6 and it was being extended further, which made the respondent to approach the Tribunal by filing Ext.P1 Original Application with the following prayers: “ In view of the facts mentioned above the applicant prays for the following relief(s): (i) To declare that Annexure A2 and Annexure A4 series of orders are illegal and inoperative and the Applicant will stand deemed to have been reinstated back to service with effect from 16.01.2014 with all consequential benefits and arrears of pay. (ii) To direct the Respondents to reinstate the Applicant back to service with effect from 16/01/2014 with all consequential benefits and arrears of pay. (iii) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and O.P(CAT)No.116/2017 6 iv) Grant the cost of this Original Application.” 6. After hearing both the sides, the Tribunal took note of the undisputed fact that no charge sheet was ever served to the applicant during the said period and that by virtue of the law declared by the Apex Court in _**Ajayakumar vs. Union of India 2015 (7) SCC 291**_ and the Circular issued by Central Government with reference to Rule 10 of the CCS (CCA) Rules, the suspension could never go beyond 90 days, if charge sheet was not served within 90 days. Annexure A8 judgment passed by this Court in W.P.(C).No.35158/2007 (to which one of us - P.R. Ramachandra Menon, J. was also a member) explaining the scope of Rule 10 of CCS (CCA) Rules was also adverted to by the Tribunal. It was accordingly, that a declaration was made to the effect that the applicant was liable to be reinstated in service, in turn giving direction to disburse the arrears within the time as specified therein. The said verdict is under challenge in this Original Petition, pointing out that, it was not correct O.P(CAT)No.116/2017 7 or proper for the Tribunal to have passed such a verdict; especially since disciplinary proceedings are still continuing and further that, how the period of suspension is to be treated could be decided only on culmination of the disciplinary proceedings and never before. Reliance is sought to be placed on F.R.54-B. 7. It is submitted by the learned Counsel for the respondent/applicant that the suspension of the respondent has been ordered and extended only on a mechanical basis. Eventhough the alleged supervisory lapse, giving cause of action to the petitioners herein, had occurred during the period between 2009 and 2013, under different officers, no other officer was ever suspended by the petitioners. It is also pointed out that charge sheet was never served to the respondent/applicant for several years and the applicant was kept in the dark as to the course and events, who was finding it extremely difficult to make the both ends meet. O.P(CAT)No.116/2017 8 8. The learned Assistant Solicitor General submits that, since the issue involved is a serious one, giving rise to various offences leading to investigation by the CBI and registering of criminal case, almost all the documents were seized by the CBI and it was in the said circumstance, that the Department could not pursue the disciplinary proceedings. It is however stated that, after reinstating the respondent/applicant in service, pursuant to Ext.R1(c) order, a charge sheet has been served to the respondent/applicant and to the other similarly situated officers and that the matter is pending consideration. The reason stated for not suspending other officers is that the amount involved during their regime was only to an extent of Rs.17,950/-, Rs.16,550/- and Rs.31750/whereas in the case of the respondent/applicant, it was nearly 21 lakhs. This Court finds it difficult to agree to the said proposition, as the necessity to suspend a delinquent officer is never to be with reference to the quantum, especially when the misconduct levelled against the O.P(CAT)No.116/2017 9 officers in not with reference to misappropriation, but 'supervisory lapse'. The purpose of suspension cannot be a penalty in disguise and it is only to ensure that the delinquent officer does not get a chance to mutilate the records/evidence or influence the witnesses. This could have been achieved, if there is any delay in finalising the proceedings by giving a posting in some other office, especially on expiry of 90 days, in view of the rule position (Rule 10 of the CCS (CCA)Rules) and also the law declared by the Supreme Court in **Ajayakumar's case** (cited supra) 9. With regard to the submissions made by the learned Assistant Solicitor General, that the Tribunal, while passing Ext.P2 order, has virtually ordered payment of the entire arrears to the applicant 'including for the period of suspension' does not appear to be factually correct. The operative portion of Ext.P2 order as contained in paragraph 8 reads as follows: “8. We note that this is a case of fraud amounting O.P(CAT)No.116/2017 10 to over Rs.31 lakhs spread over a period of 2009 to 2013. Without making any observations on the seriousness of the fraud committed or the loss to the public exchequer or the holders of Recurring Deposit Account, we note that Government of India has on 3.7.2015 passed orders curtailing the suspension of officials beyond 90 days. We also note that the Apex Court in Ajayakumar v. Union of India [ (2015) 7 SCC 291] has not quashed the CCS(CCA) Rule 10 on extension of suspension beyond 90 days. Hence the operation of Rule 10 continues. However in this matter we note that the respondent has failed to extend the suspension in time before the expiry of 90 days period. Subsequent order of suspension can not thus be valid in the light of the aforecited decision of the Apex Court. Hence the 3[rd] respondent will, within 15 days of receipt of this order reinstate the applicant into service with arrears of pay in a post office other than the one in which fraud has been committed and keep a close watch on the work and conduct of the applicant. O.A. is allowed accordingly. No costs.” 10. From the above, it is quite obvious that, what has been spoken to by the Tribunal is as to the eligibility of the delinquent employee to get reinstated, if charge sheet is not given within 90 days, by virtue of Rule position and also as held by the Apex Court in **2015 (7) SCC 291 (supra)** . The Tribunal has never stated that the O.P(CAT)No.116/2017 11 entire salary 'including for the period of suspension' has to be given to the employee, but for stating that the arrears of salary should be given, which only means the arrears of salary payable in accordance with the relevant rule, i.e. FR 54-B, which is relied on by the petitioners. FR 54-B(1)reads as follows: **“F.R.54-B** (1) when a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order ; (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement) as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty.” 11. It is quite evident from the Rule, that while the Rule casts a duty upon the Department/Officers concerned to pass a specific order as to the period of suspension as well (when an order of reinstatement is O.P(CAT)No.116/2017 12 made), the terminology used in the Rule by itself is enough to hold that it is for the purpose of clarity as to the further course of action; more so since in every case, it may not be possible to decide as to how the period of suspension is to be treated and the suspension is to be put an end to, while reinstating the delinquent employee in service. This is more evident from Sub-rule (6) of FR 54-B, which is reproduced below, for convenience of reference. “6. Where suspension is revoked pending finalization of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5),as the case may be.” 12. There is no case of the petitioners that, there is any hurdle for passing such order as to the period of suspension to be treated, based on the outcome of the disciplinary proceedings. Even according to the O.P(CAT)No.116/2017 13 petitioners, the charge sheet came to be issued only after reinstatement ordered as per Ext.R1(c). As such, even if it is possible to contend that the petitioners/Department might not be compelled to pay the entire salary during the period of suspension as well, there is absolutely no rationale or explanation for denying the salary for the period after 90 days. The learned Assistant Solicitor General submits that this by itself may come around Rs. 8 or 9 lakhs; which however cannot deter us from making observations without any regard to the undisputed facts and the Rule position with regard to the liability to pay. If the Employer-Departmental Authorities were not in a position to understand the scope of Ext.P2 order or the relevant Rule position, that is their mistake, which cannot be shifted to the shoulders of the respondent -Employee. 13. Now, coming to the explanation sought to be offered by the petitioners that the Superintendent of Post Office had passed Ext.R1(c) order only as a 'provisional one', no such rider is seen placed anywhere in Ext.R1(c). O.P(CAT)No.116/2017 14 However, reliance is sought to be placed on the 'endorsement' made on Ext. P3, [which is not there in Ext. R1(c) produced by the respondent/applicant]. This is only to the effect that, actual disbursement shall not be effected before getting specific approval from the office of the issuing authority. Even the said endorsement does not say, that the order is only provisional. It will be worthwhile to extract the said order as contained in Ext.P3, which is in the following terms: “In pursuance of orders contained in Circle Office letter No. VIG/1-17/RVW/2016 P1 II dated 28.12.16 and in obedience to the orders contained in judgment dated 05.12.16 of the Hon'ble CAT, Ernakulam & in O.A.No.869/2016 the suspension ordered vide memo No. F/misc/Thattayil/2013-14 dated 17.10.2013 is hereby revoked and Sri. B. Anil Kumar, PA (under suspension), Adur HO is reinstated to service with effect from 16.01.2014. The period spent on suspension by Sri. B. Anil Kumar from 16.01.2014 to the date of actual joining will be treated as duty and he will be eligible for the pay and allowances in full. xx xx xx xx xx xx Copy to:- O.P(CAT)No.116/2017 15 1. The Postmaster, Adur HO-The difference between pay and subsistence allowance for the period noted may be worked out and communicated to this office. The payment should not be made before getting specific approval from this office to make payment.” (emphasis supplied) 14. With regard to the submission made by the learned counsel for the respondent that there is some fabrication/manipulation in so far as the endorsement as contained in Ext.P3 is not there in Ext.R1(c), the learned Assistant Solicitor General points out that as per the relevant Rules, the order of reinstatement has been issued in 'Form 9'. A copy of the said 'form' is placed for perusal of this Court. 'Note 5' clearly stipulates that the endorsements 2 to 5 mentioned therein shall not be shown in the copy of the order to be given to the applicant/employee. It was in the said circumstances, that the endorsement was not made in the copy served to the applicant, which in fact has been produced by him as Ext.R1(c). This Court finds considerable force in the said submission made by the learned Assistant Solicitor O.P(CAT)No.116/2017 16 General and we do not intend to take any further steps in this regard. 15. However, coming to the more serious issue, i.e. Non-mentioning of the correct factual position with reference to Ext.P3(Ext.R1(c)) in the Original Petition filed by the petitioners, the course and conduct of the 4[th] petitioner, who has issued the said order on 28.12.2016 and who himself is a signatory to the Original Petition filed before this Court, also swearing to the affidavit dated 27.3.2017 in support thereof, cannot but be deprecated. The said officer could not have pleaded ignorance as to the order passed by himself as to the reinstatement ordered and the factum of joining duty of the respondent on the next day. In all fairness, the same should have been brought to the notice of the learned Assistant Solicitor General, who has raised appropriate pleadings, producing copies of the relevant documents. Suppression of material facts and filing of casual/reckless affidavits and proceedings before court amounts to Contempt of O.P(CAT)No.116/2017 17 Court, which has to be dealt with seriously, as held by the Apex Court in **Dhananjay Sharma v. State of Haryana and Others [AIR 1995 SC 1795].** However,considering the persuasive request made by the learned Assistant Solicitor General, we leave it here, while dismissing the Original Petition with cost, which is limited to Rs.10,000/(Rupees ten thousand only). Since the time for effecting payment ordered by the Tribunal is already over, we grant two more weeks' time from the date of receipt of a copy of this judgment, to effect the payment of arrears as aforesaid. ## **P. R. RAMACHANDRA MENON JUDGE** **SHIRCY V. JUDGE** smm/ks