Union of India & Others v. G. Bhaskara Jyothi

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE & THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 OP (CAT) NO. 77 OF 2023** **[AGAINST THE ORDER DTD.1.6.2023 IN OA 327/2021 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH]** ## **PETITIONERS:** - 1 UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003 - 2 THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION ,TRIVANDRUM., PIN - 695014 - 3 THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION ,TRIVANDRUM, PIN - 695014 - 4 THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN P.O.,CHENNAI, PIN - 600003 - 5 THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION ,TRIVANDRUM, PIN - 695014 BY ADV R.V.SREEJITH ## **RESPONDENT:** G. BHASKARA JYOTHI, S/O GURUSWAMY, OFFICE SUPERINTENDENT, TRIVANDRUM DN, SOUTHERN RAILWAY, AALAYAM, VAKKOM P.O., KADAKKAVOOR, TRIVANDRUM-695308 BY ADVS. T.C.GOVINDASWAMY KALA T.GOPI ## **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON** **08.12.2023, THE COURT ON 30.01.2024 DELIVERED THE FOLLOWING:** O.P(CAT) NO.77 OF 2023 :-2-: **A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. -----------------------------------------O.P(CAT) No.77 OF 2023 -----------------------------------------Dated this the 30[th ] day of January 2024** **J U D G M E N T** ## **SHOBA ANNAMMA EAPEN,J:** **The above OP(CAT) is filed by the Union of India challenging the order of the Central Administrative Tribunal in O.A.No.327/2021 dated 1.6.2023. The petitioners are respondents in the above O.A. and the respondent herein is the applicant.** **2. While the respondent/applicant was working as Office Superintendent in the Trivandrum Division of Southern Railway, (Personnel), he was imposed with the penalty of compulsory retirement by way of punishment on 2.11.2016. A statutory appeal was filed challenging the said penalty order and the same was dismissed by the appellate authority. Statutory revision filed before the** O.P(CAT) NO.77 OF 2023 :-3-: **competent authority was allowed as per Annexure A4 order dated 15.3.2021. The operative portion of the order reads as follows:-** **“** _**I have gone through the revision petition. You have stated that you are a cancer patient and having other ailments also. But, you have failed to apply for leave and observe other formalities. You have repented for the mistake and pleaded for a chance to reform yourself. I intend to give one opportunity to change yourself.**_ _**Considering the above, penalty is modified to that of reinstatement into service and imposed with a penalty of reduction to lower grade from level 6 to level 5 with pay Rs.39,200/- for a period of five years with recurring effect. Intervening period from the date of compulsory Retirement to the date of reinstatement is treated as 'dies non'.”**_ ## **3. Pursuant to the order in Revision, the** **original application was filed by the respondent/applicant before the Tribunal, challenging Annexures A1 and A2 letters dated 7.4.2021 and 27.5.2021 respectively and also** O.P(CAT) NO.77 OF 2023 :-4-: **seeking for a direction to the second respondentSenior Divisional Personnel Officer to allow the applicant to join duty forthwith with all consequential benefits arising therefrom. Annexure A1 letter was sent to the applicant stating that the authorities were waiting for clarification from the headquarters about any liability and also regarding the seniority position after the penalty period and on receipt of the clarification from the Head Quarters, action would be taken to reinstate him in service. In Annexure A2, the petitioner was advised to remit back the entire amount of pension and other settlement benefits paid to him at the time of compulsory retirement from service with effect from 4.11.2016.** **4. Initially, the Tribunal had disposed of the O.A. directing the revisional authority to consider and pass orders as to how the reinstatement has to be implemented in this case.** O.P(CAT) NO.77 OF 2023 :-5-: **Thereafter, Review Application (R.A.) No.11/2022 was filed by the respondent/applicant and the review was allowed, recalling Ext.P6 order and again, the Original Application was disposed of on** **1.6.2023. The Tribunal, after detailed consideration, allowed the application with the following conditions:-** **“** _**i)The applicant shall execute a bond for such amount that is found drawn by the applicant from the date of compulsory retirement till the date of reinducting him to service with two solvent sureties each for the like amount to the satisfaction of the third respondent;**_ _**ii)One of the sureties shall be a near relative of the applicant.**_ _**iii)This arrangement will be subject to the final outcome in O.A.No.636/2021.**_ _**iv)If the applicant does not prosecute the said original application and on its eventual dismissal for nonprosecution, this arrangement will stand automatically vacated and entire amount found paid by the Railways will fall due in lump or as decided by the competent authority fixing some instalment.”**_ O.P(CAT) NO.77 OF 2023 :-6-: **5. Aggrieved by the same, the Union of India and its officials have come up before this Court with the above O.P(CAT).** **6. Heard the learned Central Government Counsel and the learned counsel appearing for the respondent.** **7. It is an admitted fact that the respondent/applicant was imposed with the penalty of compulsory retirement as per penalty advice dated 2.11.2016. Pursuant to that, an appeal was filed and it was rejected and further statutory revision was filed, which was disposed of, by modifying the penalty to that of reinstatement into service and imposing the penalty of reduction of lower grade from Level-6 to Level-5 with pay of Rs.39,200/- for a period of five years with recurring effect and the intervening period from the date of compulsory retirement to the date of reinstatement is treated as dies non. After the** O.P(CAT) NO.77 OF 2023 :-7-: **penalty advice was received by the applicant on 2.11.2016, instead of filing an appeal, the applicant preferred duly filled-in pension forms on 7.2.2017. He was given all the due retirement benefits by issuing Pension Payment Order No. 20177060400069 and he was paid an amount of Rs.34,41,591/towards retirement benefits and pension. It is after receipt of the retirement benefits and pension, the applicant filed the appeal and thereafter the statutory revision. Pursuant to the order in statutory revision, the petitioner gave representation for reinstating him** **in service. Challenging the revisional order, the respondent/applicant has also filed O.A.No.636/2021 and the same is pending consideration before the Tribunal. It is at this juncture that the respondents issued Annexure A1 stating that further clarifications were sought for and Annexure A2 calling upon the applicant to** O.P(CAT) NO.77 OF 2023 :-8-: **remit an amount of Rs.34,41,591/-, the amount received towards retirement benefits and pension. On 24.5.2021, a clarificatory order was also** **issued by the revisional authority as follows:-** **“As the employee was reinstated into service and also the intervening period was treated as dies-non, the pension and settlement benefits paid to him shall be recovered.** **Modified penalty is without loss of seniority.”** **8. The question that arises for consideration is whether, pursuant to the revisional order, for reinstatement into service, the petitioner has to remit Rs.34,41,591/-, the amount received towards the retirement benefits and pension.** **9. Learned Central Government Counsel submits that since O.A.No.636/2021 is pending before the Tribunal, the Tribunal ought not to have directed the reinstatement of the respondent, subject to the outcome in O.A.No.636/2021. It was further** O.P(CAT) NO.77 OF 2023 :-9-: **submitted that Annexure A2 letter dated 27.5.2021 is legally sustainable since it only directed the respondent/the applicant to remit back an amount of Rs.34,41,591/received towards retirement benefits and pension, since the petitioner wanted reinstatement into service. Serving employees are not entitled to any pensionary benefits.** **10. Per Contra, the learned counsel for the respondent/applicant submitted that the Tribunal is correct in directing the reinstatement of the applicant by executing a bond for such an amount. It is further submitted that the revisional order was passed on 15.3.2021 and thereafter, the applicant had given several representations for allowing him to rejoin duty which were not considered by the authority concerned.** **11. On a perusal of the order of the Tribunal, it is seen that the Tribunal was very well aware of the pendency of O.A.No.636/2021** O.P(CAT) NO.77 OF 2023 :-10-: **while giving a direction to reinstate the applicant/respondent, without deciding the legal issues raised in O.A.No.636/2021. The primary purpose of the pensionary benefits is to serve as a support mechanism after retirement, ensuring financial sustenance when an individual ceases active service. These benefits are specifically structured to cater to the needs of retired individuals and are not intended for enjoyment during the tenure of employment. Pensionary benefits are structured to provide a stable income source when an individual transitions into retirement. They serve as a financial safety net during the non-earning phase of life, ensuring a dignified living standard. They are designed to be received after retirement, acknowledging the years of contribution to an organisation or employment.** **12. In the decision of the Apex Court reported in D.S.Nakara v. Union of India [(1983)1 SC** O.P(CAT) NO.77 OF 2023 :-11-: **305], it was held that pension is a valuable right earned by an employee for past services rendered and that pensionary benefits are designed to provide economic security and support during old age when a person is no longer earning.** **13. Here the respondent/applicant, after receiving the penalty order, filed pension forms on 7.2.2017 and received the entire retirement benefits and thereafter, with much delay filed a statutory appeal and revision. The Indian Railway Establishment Code Vo.II produced as Annexure A12, does not say anything about pensionary benefits. Initially, in the revisional order, there were no specific orders relating to the recovery of the amount already received by the applicant. Thereafter, on 24.5.2021, as per Annexure MA-R1, the order was clarified stating that pension and settlement benefits paid to him shall be recovered. The respondent/applicant has filed O.A** O.P(CAT) NO.77 OF 2023 :-12-: **No.636/2021 before the Tribunal challenging the revisional order and the same is pending. A decision on the pending O.A No.636/2021 would have given a quietus to the entire issue. We are of the opinion that it is only proper to relegate back the issue to the Tribunal and to direct the Tribunal to reconsider the above matter along with O.A.No.636/2021 which is pending consideration before the Tribunal.** **14. Accordingly, the order in** **O.A.No.327/2021 dated 01.06.2023 is hereby set aside. The Tribunal is directed to consider and pass fresh orders in O.A.327/2021 along with O.A.No.636/2021, untrammelled by the observations made in this judgment. The petitioners as well as the respondent/applicant may take steps to get the original applications disposed of by the Tribunal as early as possible.** O.P(CAT) NO.77 OF 2023 :-13-: **The Original Petition (CAT) is disposed** **of as above.** **Sd/-** **A.MUHAMED MUSTAQUE, JUDGE** **sd/SHOBA ANNAMMA EAPEN, JUDGE** **MBS/-** O.P(CAT) NO.77 OF 2023 :-14-: ## **APPENDIX OF OP (CAT) 77/2023** ## **PETITIONERS' ANNEXURES** : Annexure A1 TRUE COPY OF THE LETTER NO.V/P.535/XII/OS/VOL.XIV DATED 07.04.2021 OF THE 2ND RESPONDENT IN O.A Annexure A2 TRUE COPY OF THE LETTER NO.V/P.535/XII/OS/VOL.XIV DATED 27.05.2021 OF THE 2ND RESPONDENT IN O.A Annexure A3 TRUE COPY OF THE LETTER NO.V/P.227/GL/VOL.II DATED 02.11.2016 OF THE 2ND RESPONDENT IN O.A Annexure A4 TRUE COPY OF THE ORDER OF THE REVISIONARY AUTHORITY BEARING NO.P(A)89/2021/97 DATED 15.03.2021 Annexure A5 TRUE COPY OF THE REPRESENTATION DATED 31.03.2021 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT IN O.A Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 01.04.2021 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT IN O.A Annexure A7 TRUE COPY OF THE REPRESENTATION DATED 03.05.2021 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT IN O.A Annexure A8 TRUE COPY OF THE REPRESENTATION DATED 17.05.2021 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT IN O.A Annexure A9 TRUE COPY OF THE REPRESENTATION DATED 05.07.2021 SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT IN O.A Annexure A10 TRUE COPY OF THE RELEVANT EXTRACT OF RULE 1343(FR54 OF THE INDIAN RAILWAY ESTABLISHMENT CODE VOLUME 2 Annexure A11 TRUE COPY OF THE ORDER NO.V/VO/CON./27 DATED 08.04.2009 ISSUED BY THE ADDITIONAL O.P(CAT) NO.77 OF 2023 ## :-15-: DIVISIONAL RAILWAY MANAGER. - Annexure A12 TRUE COPY OF THE PROVISIONS OF RULES 1343, 1344, AND 1345 OF THE INDIAN RAILWAYS ESTABLISHMENT CODE VOL.II - Annexure R1(a) TRUE COPY OF THE PENALTY ADVICE NO.V/P.227/2014/03/GBJ DATED 12.11.2014. - Annexure R2(b) TRUE COPY OF THE PENALTY ADVICE NO.V/P.227/2014/03/GBJ DATED 06.08.2015 - Annexure MA R1 TRUE COPY OF THE LETTER NO.P(A)89/2021/97 DATED 24.05.2021 ISSUED BY THE PRINCIPAL CHIEF PERSONNEL OFFICER. - Exhibit P1 TRUE COPY OF O.A.327/2021 FILED BEFORE THE CAT - Exhibit P2 TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENTS IN O.A 327/2021 - Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 20.09.2021 - Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 20.09.2021 IN O.P.(CAT) 62/2021 OF THIS HON'BLE COURT. - Exhibit P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A.327/2021 - Exhibit P5 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.327/2021 Exhibit P6 TRUE COPY OF THE FINAL ORDER DATED 11.05.2022 IN O.A.327/2021 OF THE CAT Exhibit P7 TRUE COPY OF THE ORDER DATED 29.08.2022 OF THE CAT IN RA 11/2022 IN OA.327/2021 Exhibit P8 TRUE COPY OF THE MISCELLANEOUS APPLICATION FILED BY THE RESPONDENTS IN O.A.327/2021 Exhibit P9 TRUE COPY OF THE FINAL ORDER DATED 01.06.2023 OF THE CAT IN O.A.327/2021