Hon'ble Jayant Banerji,J.
(Delivered by Hon'ble B. Amit Sthalekar, J.) The petitioner is appearing in person and is seeking quashing of the order dated 13.9.2017 passed by the Central Administrative Tribunal, Allahabad with a consequential direction to the respondents to pay him arrears of salary for the period he was under suspension alongwith dearness allowance at the current rate and also interest and also to enhance the pensionary benefits including fixation of amount of pension, gratuity, leave encashment etc. by treating the period of suspension as treated on duty and increments for the same.
Briefly stated the case of the petitioner is that when he was posted as Librarian in the Kendriya Vidyalaya, Thawe, Gopalganj he was transferred to Kendriya Vidyalaya, Phulpur, Allahabad and was again transferred to Kendriya Vidyalaya, IDPL, Virbhadra, Rishikesh. On 30.08.1988 he was placed under suspension but was allowed to report to the office everyday and sign the attendance register. It is stated that when the departmental enquiry was not being initiated he filed Writ Petition No.11763 of 1989 seeking quashing of the order of suspension. It is also stated that during the pendency of the writ petition an order was passed by the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Lucknow on 22.04.1991 by which the pay of the petitioner was reduced by four stages from Rs.1,750/- to Rs.1,560/- with cumulative effect for a period of two years affecting his future increment of pay also on the basis of an enquiry report dated 23.04.1990. The petitioner filed departmental appeal which was not decided. Thereafter he filed Writ Petition No.33295 of 1995 and the same was disposed of by the High Court by order dated 22.11.1995 with a direction to the respondents to decide the petitioner's departmental appeal. It is stated that the appellate authority finally passed an order dated 22.11.1995 deciding the petitioner's appeal. The petitioner then filed Writ Petition No.14175 of 1996. The writ petition was transferred to the Uttrakhand High Court, Nainital and again transferred back to the Central Administrative Tribunal, Allahabad Bench and numbered as T.A. No.02 of 2005. The Tribunal by its judgment and order dated 28.08.2009 passed in the T.A. No.02 of 2005 quashed the order dated 22.04.1991 of the disciplinary authority as well as the appellate order dated 18.01.1996 and remitted the matter to the appellate authority to reconsider the appeal. In pursuance of the direction of the Tribunal the appellate authority reconsidered the appeal of the petitioner and by order dated 26.11.2009 rejected the appeal upholding the penalty of reduction of pay by four stages in terms of the previous penalty order dated 22.04.1991.
The case of the petitioner before the Tribunal was that once the Tribunal while deciding T.A. No.02 of 2005 had by its judgment and order dated 28.08.2009 quashed the penalty order of the disciplinary authority dated 22.04.1991 nothing remained to be decided in the departmental appeal and therefore, the order of the appellate authority dated 26.11.2009 was a nullity. Reference was made to Rule 129 of the P & T Manual Volume-III, which provides that the appellate order replaces the punishment order, therefore, if the appellate order is set aside for procedural defects, the punishment order will also simultaneously stand quashed and in such a case, it would be necessary to initiate de novo proceedings against the concerned officer. The extract of the instructions and Rule 128 of the P & T Manual, Volume-III has been filed as Annexure-3 to the writ petition.
The Tribunal has, however held that while quashing the appellate order dated 18.01.1996 the previous bench of the Tribunal had also quashed the order dated 22.04.1991 of which the petitioner was trying to take advantage whereas the Tribunal had in fact only remitted the matter back to the appellate authority to reconsider the appeal of the petitioner within a period of three months. The Tribunal also held that the previous bench of the Tribunal while deciding T.A. No.02 of 2005 was very clear in its mind that it was quashing the appellate authority order which was a cryptic and non-speaking order and therefore, the Tribunal was amply justified in quashing the appellate order and to direct the appellate authority to reconsider the appeal of the petitioner and therefore, there was no occasion for the Tribunal to quash the order of the disciplinary authority and even if it has done so it is clear that the Tribunal only intended to quash the appellate authority order. So far as the applicability of Rule 129 of the P & T Manual, Volume-III is concerned, the Tribunal held that the same is not applicable in Kendriya Vidyalaya Sangthan as Kendriya Vidyalaya Sangthan is governed by its own rules and regulations and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are applicable in the case of the employees of Kendriya Vidyalaya Sangthan by virtue of provisions of Article 80 of the Education Code. The Tribunal accordingly dismissed the claim petition/original application filed by the petitioner.
We have heard the petitioner in person and Shri D.P. Singh, learned counsel for the respondents The petitioner has reiterated his case before the Tribunal by submitting that once the Bench of the Tribunal while deciding T.A. No.02 of 2005 had quashed the order of the disciplinary authority dated 22.04.1991 as well as the appellate order dated 18.01.1996 it had only remitted the matter to the appellate authority to decide the appeal since by the quashing of the penalty order no appeal remained pending before the Appellate Authority.
Shri D.P. Singh, learned counsel for the respondents, on the other hand, sought to justify the order of the Tribunal and submitted that the intention of the Tribunal while deciding T.A. No.02 of 2005 was very clear that it was not quashing the penalty order of the disciplinary authority dated 22.04.1991 rather it was setting aside the appellate order dated 18.01.1996, in as much as in its operative portion the direction was issued to the appellate authority to reconsider the petitioner's appeal.
We are not inclined to accept the submission of the learned counsel for the respondents. The operative portion of the order of the Tribunal dated 28.08.2009 deciding T.A. No.02 of 2005 reads as under:
"We have also noticed against the order dated 2.8.2006 passed by the Hon'ble High Court, Allahabad, the respondents have filed Special Appeal before Hon'ble Supreme Court and the matter is still subjudice there. Having given our thoughtful consideration to the pleas advanced by the parties counsel, we are finally of the view that the appellate order dated 18.1.1996 passed by the appellate authority is cryptic non-speaking and not according to law. We accordingly allow the O.A. partly and quash and set aside the order dated 22.4.1991 and 18.1.1996 (Annexure No.2 and 3) respectively. The matter is remitted back to the Appellate Authority to reconsider the appeal of the appellant within a period of three months from the date of receipt of copy of this order."
There is absolutely no ambiguity so far as the order dated 28.08.2009 is concerned in that the Tribunal had quashed and set aside the order dated 22.04.1991 as well as the appellate order dated 18.01.1996. Once the penalty order had been set aside there remained nothing thereafter for the appellate authority to decide since the appellate authority could only decide a pending appeal and once the penalty order itself was quashed any pending appeal would have become infructuous unless there was a direction by the Tribunal to the disciplinary authority to pass a fresh order and if a fresh order had been passed by the disciplinary authority the petitioner would have had a fresh right to file an appeal before the appellate authority.
In the order dated 13.09.2017 impugned herein the Tribunal has sought to clarify the earlier order of the Tribunal dated 28.08.2009 and has held as under:
"8. After giving thoughtful consideration to the written submissions made by both the parties as also the pleadings available on records, we are of the view that the stand taken by the applicant is not justified as it is not disputed that the T.A. No.02/2005 was decided by this Tribunal vide its Order dated 28.08.2009, the operative part of the said Order reads as under:-
"We have also noticed against the order dated 2.8.2006 passed by the Hon'ble High Court, Allahabad, the respondents have filed Special Appeal before Hon'ble Supreme Court and the matter is still subjudice there. Having given our thoughtful consideration to the pleas advanced by the parties counsel, we are finally of the view that the appellate order dated 18.1.1996 passed by the appellate authority is cryptic not-speaking and not according to law. We accordingly allow the O.A. partly and quash and set aside the order dated 22.4.1991 and 18.1.1996 (Annexure No.2 and 3) respectively. The matter is remitted back to the Appellate Authority to reconsider the appeal of the appellant within a period of three months from the date of receipt of copy of this order."
Both the parties have relied upon the aforesaid operative portion of the said Order. We also observe that the Tribunal while passing the aforesaid Order dated 28.08.2009 in T.A. No.02/2005 specifically noted that the order of the appellate authority dated 18.01.1996 was cryptic, not-speaking and not according to the law and this Tribunal allowed the said OA partly. However, while quashing the order dated 18.1.1996, the Tribunal also mentioned quashing of order dated 22.4.1991 and the applicant in fact wants to take the benefit of quashing of order dated 22.4.1991. However, this Tribunal while passing the aforesaid Order further specifically held that 'the matter is remitted back to the Appellate Authority to reconsider the appeal of the applicant within a period of three months from the date of receipt of copy of this order.' Meaning thereby that this Tribunal was very much clear in their mind that they were quashing the appellate authority's order, which was a cryptic, non-speaking and not according to law. Therefore, this Tribunal was amply justified to quash the appellate authority's order and to direct the appellate authority to reconsider the appeal of the applicant and further that this Tribunal while deciding the said OA has neither questioned the order passed by the disciplinary authority nor anywhere is it stated that it is not in accordance with law. Hence, there was no question for the Tribunal to quash the order of the disciplinary authority. Even if it is mentioned in the Order, it is amply clear that this Tribunal only intended to quash the appellate authority's order and for that reason, the matter was remitted back to the appellate authority only to reconsider the appeal of the applicant."
The Tribunal has held that the previous Tribunal while passing the order dated 28.08.2009 had never questioned the order of the disciplinary authority dated 22.04.1991 and was very clear in its mind that it was only quashing the appellate order and had only remitted the matter back to the appellate authority to reconsider the appeal of the applicant. The Tribunal further held that the petitioner also never challenged the proceedings before the appellate authority and therefore, it was not open for him to raise this issue before the Tribunal.
In fact we find that the Tribunal while passing the impugned order dated 13.09.2017 was virtually sitting in review over the previous order of the Tribunal dated 28.08.2009 passed in T.A. No.02 of 2005 which was not permissible while deciding a fresh Original Application and there was no review pending before the Tribunal against the previous order dated 28.08.2009.
In our opinion, the findings recorded by the Tribunal in this regard are thoroughly misconceived and rather in the nature of a review of its earlier judgment and order dated 28.08.2009 passed in another claim proceeding. Once the Tribunal in the previous proceedings, while passing the order dated 28.08.2009 had quashed the penalty order dated 22.04.1991 nothing remained to be remitted to the appellate authority as any pending appeal before the appellate authority would have as a consequence become infructuous once the punishment order itself stood quashed. May be the petitioner who is appearing in person had not challenged the proceedings before the appellate authority that would not validate the order of the appellate authority which was otherwise illegal and a nullity. So far as the applicability of the provisions of Rule 129 of the P & T Manual, Volume-III to the proceedings before Kendriya Vidyalaya Sangthan is concerned, we are satisfied that the said rule has no application to Kendriya Vidyalaya Sangthan, which is governed by its own rules and regulations and the Central Civil Services (Classification, Control and Appeal) Rules, 1965.
We in fact note that the department had never approached the High Court challenging the order dated 28.08.2009 nor did it file any application for review or for clarification of the said order with regard to the quashing of the punishment order dated 22.04.1991. The respondents also in their counter affidavit have not disclosed what was the nature of the charges against the petitioner which resulted in his dismissal from service. The charge sheet has not been filed with the counter affidavit nor has any enquiry report been placed before us. We find that the matter has been travelling in and out of the portals of the Tribunal and of this Court since 1991 and the petitioner is now 64 years of age has also retired from service and that it would not serve the ends of justice to remit the matter back to the disciplinary authority. Even otherwise, as already noted above, the previous order of the Tribunal was never put to challenge by the respondents, therefore our considered view is that the matter should be given a quietus now.
We, therefore find that the order of the Central Administrative Tribunal, Allahabad dated 13.09.2017 is wholly illegal and without jurisdiction and the same is accordingly quashed.
We also find that since the penalty order dated 22.04.1991 had itself been set aside by the Tribunal in previous proceedings and thereafter there were no proceedings pending before the Tribunal nor was any direction given to proceed afresh in the departmental proceedings at any stage the petitioner who has long retired and cannot be reinstated in service, will nevertheless be entitled for regularization of the period he was under suspension with all consequential benefits. The respondents shall settle all the consequential benefits, financial benefits and retiral dues of the petitioner within a period of four months from the date of receipt of the certified copy of this order.
The writ petition stands allowed.
There shall be no order as to cost.
Order Date :- 24th August, 2018 N Tiwari