Dilipsinh Chauhan vs D/o Post on 14 October 2026

ORDER

Per: Hon’ble Shri Sanjiv Kumar, Member (A)

1. The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking following reliefs: - A) quashing and setting that part of the order No. B2/50/GDS MD Lank BO/DAC/13-14 dated 11.2.2015 issued by the respondent No. 3 denying the applicant seniority and promotion at Annexure A/1; B) quashing and setting aside order No. B2/50/GDS MD Lank BO/DAC/13-14 dated 6.10.2017 issued by the respondent No.3 at Annexure-A2; C) directing the respondents to grant seniority, promotion, arrears of pay and all other consequential benefits to the applicant on his reinstatement in service vide order dated 11.2.2015; and D) passing any other appropriate order.

2. Brief facts of the case as stated by the applicants are as under: - 2.1 The applicant was appointed as Gramin Dak Sevak Mail Deliverer (GDS MD) at Lank Branch Office with effect from 17.05.1999. While serving as GDS MD, the applicant came to be involved in Criminal Case No.76/2007. The learned Fast Track Court at Modasa, by judgment dated 31.07.2007, convicted the applicant and sentenced him to imprisonment for life. Consequent upon the conviction, the applicant was dismissed from service by order dated 01.02.2008. 2.2 The applicant challenged his conviction before the Hon’ble High Court of Gujarat. The Hon’ble High Court, by judgment dated 31.03.2014, acquitted the applicant of the charges. Thus, the conviction which had constituted the basis of his dismissal no longer survived. The applicant thereafter submitted a representation dated 16.04.2014 seeking reinstatement and consequential benefits. The applicant has also claimed parity with his father, who was implicated in the same criminal case and was a Postman in the Department. The P ANUKUMA

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father, on his acquittal, was reinstated with consequential benefits, and the applicant contends that there is no reason why he should be treated differently. 2.3 The competent authority thereafter passed an order dated 11.02.2015 setting aside the order of dismissal and directing reinstatement of the applicant. However, while directing reinstatement, the respondents stipulated that the period from dismissal till reinstatement would constitute a break in service and that the applicant would not claim seniority or consequential promotion on account of the said period. 2.4 The applicant was thereafter reinstated in service. The applicant, however, contended that mere reinstatement without restoration of consequential service benefits was not justified, particularly when the very foundation of his dismissal i.e., his conviction, had subsequently been set aside by the Hon’ble High Court. 2.5 The applicant accordingly submitted various representations seeking, inter alia, treatment of the period from 01.02.2008 to 17.02.2015 as period spent on duty, payment of TRCA and restoration of his seniority and consequential benefits. 2.6 The applicant thereafter issued a legal notice dated 12.12.2016. As the matter was not decided, he approached this Tribunal by filing OA No.314/2017. The said OA was disposed of by this Tribunal on 06.07.2017 directing the respondents to consider the applicant’s representation/legal notice and pass an appropriate order within the stipulated period. Pursuant thereto, the respondents passed the impugned order dated 06.10.2017. 2.7 The respondents held that the applicant had not physically worked during the intervening period and, therefore, the said period could not be treated as period spent on duty. The respondents further invoked the principle of "no work, no pay" and denied TRCA and other consequential benefits. The order also relied upon the applicant’s P ANUKUMA

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written declaration/undertaking dated 08.10.2014 and took the view that the relevant provisions of the Fundamental Rules relied upon by the applicant were not applicable to GDS employees. 2.8 Aggrieved by the aforesaid orders, the applicant has approached this Tribunal seeking quashing of the impugned orders and grant of consequential benefits.

3. Submissions of learned counsel for the applicant 3.1 Learned counsel for the applicant submitted that the entire foundation of the applicant’s dismissal was his conviction in the criminal case and that the said conviction was subsequently set aside by the Hon’ble High Court of Gujarat, resulting in his complete acquittal. 3.2 Learned counsel submitted that the respondents themselves accepted the consequence of the acquittal by setting aside the dismissal order and reinstating the applicant. Once the dismissal was set aside, the respondents could not treat the intervening period as an artificial break in service and deprive the applicant of the service benefits flowing from his earlier appointment. 3.3 It was further submitted that the applicant had been in service since 17.05.1999 and had rendered nearly nine years of service before his dismissal. After the conviction was set aside in appeal, the very basis of the dismissal ceased to exist. 3.4 Learned counsel further submitted that the applicant had immediately approached the Department after his acquittal and had sought reinstatement along with consequential benefits. Therefore, the applicant could not be blamed for the period during which the respondents took time to pass the order of reinstatement. 3.5 Learned counsel placed reliance upon the decision of the Ernakulam Bench of this Tribunal in OA No.423/2011, with a similar situation P ANUKUMA

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concerning a GDS employee who had been removed from service pursuant to conviction and was subsequently acquitted. The said decision was challenged before the Hon’ble High Court of Kerala in OP(CAT) No.1285/2012 and the challenge was dismissed by judgment dated 08.03.2016. 3.6 Learned counsel submitted that in the aforesaid case also the period between removal and reinstatement was considered for service benefits and the Tribunal’s order was upheld by the Hon'ble High Court. 3.7 Learned counsel further submitted that the respondents could not rely upon the alleged undertaking dated 08.10.2014 to defeat the applicant’s legitimate claim. The undertaking was obtained when the applicant was seeking reinstatement and was under the compelling circumstance of securing restoration of his employment. It was therefore contended that the undertaking could not operate as a permanent waiver of statutory or legitimate service benefits. 3.8 Learned counsel also contended that the applicant’s father, who was also an employee of the Department and was involved in the same criminal case, had similarly been convicted and subsequently acquitted. After his acquittal, he was reinstated with consequential benefits. The applicant therefore claimed parity of treatment. 3.9 Learned counsel accordingly prayed that the OA be allowed and the impugned orders be quashed with a direction to the respondents to grant the applicant continuity of service, consequential seniority and other admissible service benefits, including appropriate monetary benefits.

4. Submissions of learned counsel for the respondents 4.1 Learned counsel for the respondents submitted that the applicant was a GDS employee governed by GDS Conduct and Employment Rules, P ANUKUMA

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2011 and, therefore, the provisions of the Fundamental Rules and CCS (CCA) Rules, 1965, relied upon by him were not applicable in this case. The Disciplinary Authority (DA) proceeded as per the provisions embodied in Rule 12(5) of GDS Rules, 2011 which is legal and proper. The applicant was dismissed from the post of GDS w.e.f. 01.02.2008 and as per Rule 12(3) and (5) was to be treated as put off duty till the date of reinstatement. 4.2 Learned counsel submitted that the applicant had admittedly not rendered any service during the period from 01.02.2008 to 17.02.2015. He had remained out of service pursuant to his conviction and therefore could not claim payment of TRCA for the period during which no work was actually performed. 4.3 It was further submitted that the competent authority, while reinstating the applicant, had specifically ordered that the period from dismissal to reinstatement would constitute a break in service and that the applicant would not claim seniority or promotion on account of the said period. Thus, according to the respondents, the applicant had already accepted the terms on which he was reinstated. 4.4 Learned counsel further relied upon the declaration dated 08.10.2014, contending that the applicant had himself declared that he would not claim TRCA in future. The respondents therefore submitted that after having accepted reinstatement on the terms stipulated by the Department, the applicant could not subsequently turn around and claim benefits contrary to his undertaking. 4.5 Learned counsel further submitted that the applicant’s claim for seniority and promotion could not be considered in isolation because granting such relief could adversely affect the rights of other employees who had been placed above or ahead of him during the intervening period. P ANUKUMA

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4.6 Learned counsel further submitted that the applicant cannot claim parity with his father, as the father was a regular employee of the Department of Posts governed by the CCS (Conduct) Rules and the other rules applicable to departmental employees, whereas the applicant is a Gramin Dak Sevak governed by the GDS Rules, 2011.

5. Applicant has filed rejoinder and reiterated the submissions made in the OA. He further submitted that in the GDS cadre there was no promotion merely on the basis of seniority and, therefore, the question of impleading every person who might allegedly be affected did not arise in the manner suggested by the respondents. He also submitted that the respondents have given vague answer to the applicability of the judgment of Ernakulam Bench in OA No. 423/2011.

6. Heard learned counsel for the parties and perused the material available on record.

7. In view of the rival submissions, the following issues arise for consideration:

(i) Whether, upon his acquittal and reinstatement, the applicant is entitled to continuity of service, seniority and consequential benefits for the period from his dismissal to his reinstatement?

(ii) Whether the applicant is entitled to such benefits on the basis of parity with his father?

(iii) Whether the applicant is entitled to such benefits on the basis of the decision of the Ernakulam Bench of this Tribunal in OA No. 423/2011, affirmed by the Hon’ble High Court of Kerala in OP(CAT) No. 1285/2012?

8. Issue (i) – Continuity of service, seniority and consequential benefits. It is an undisputed fact that the applicant was dismissed from service because of his conviction in the criminal case. Subsequently, P ANUKUMA

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the Hon’ble High Court of Gujarat acquitted him, and the respondents themselves set aside the order of dismissal and directed his reinstatement. Thus, the respondents accepted the legal consequence of the acquittal to the extent that the applicant could no longer continue to suffer the penalty of dismissal founded upon the conviction. 8.1 The order dated 11.02.2015, however, while directing reinstatement, stipulated that the period from dismissal to reinstatement would constitute a break in service and that the applicant would not claim seniority or consequential promotion. Once the dismissal itself was set aside following the applicant’s acquittal, such a stipulation, made without examining the effect of the acquittal, is not tenable. The impugned order dated 06.10.2017 proceeds substantially on the reasoning that the applicant had not physically worked during the period and that the Fundamental Rules and the CCS (CCA) Rules, 1965 were not applicable to him. That reasoning is relevant to the claim for TRCA; it does not justify wiping out the applicant’s earlier service by a break. 8.2 The respondents contend that, under Rule 12(3) and (5) of the GDS Rules, 2011, the applicant is to be treated as put off duty from 01.02.2008 till his reinstatement. Those sub-rules deem a Sevak to be put off duty where a penalty of dismissal or removal is set aside in appeal or review, or by a court, and the case is remitted for, or the authority decides to hold, a further inquiry. No further inquiry was remitted or held in the applicant’s case; the dismissal was set aside as a consequence of the acquittal. In any event, put off duty is a status during the Sevak’s engagement; it does not sever that engagement. Rule 12 therefore lends no support to treating the period as a break in service. 8.3 The respondents also contend that the applicant accepted the terms on which he was reinstated. Acceptance of reinstatement does not P ANUKUMA

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amount to acceptance of conditions which the respondents were not entitled to impose. The applicant had sought consequential benefits by his representation dated 16.04.2014 and, after reinstatement, pursued his claim through representations, a legal notice and OA No. 314/2017. He cannot be said to have acquiesced in the break in service. 8.4 The period from 31.03.2014, the date of acquittal, to 17.02.2015, the date of reinstatement, stands on a different footing. After his acquittal, the conviction no longer operated against the applicant, and he sought reinstatement promptly by his representation dated 16.04.2014; the delay in reinstating him thereafter cannot be attributed to him. The respondents rely on the declaration dated 08.10.2014 by which the applicant undertook not to claim TRCA in future. That declaration was obtained while the applicant was seeking reinstatement and cannot operate as a waiver of an entitlement flowing from his acquittal; on the respondents’ own case it relates only to TRCA and has no bearing on continuity of service or seniority. The extent of the TRCA payable for this period is considered under Issue (iii). 8.5 As regards promotion, the applicant cannot automatically be granted every promotion which might have accrued during the intervening period. Such relief would necessarily depend upon the applicable GDS rules, eligibility and availability of vacancy. The respondents’ apprehension that restoring the applicant’s seniority may affect other employees is not supported by the identification of any employee whose position would be disturbed and, as the applicant points out, there is no promotion in the GDS cadre merely on the basis of seniority. We are not granting any promotion, and our directions shall not, by themselves, unsettle the position of any other employee. The objection of non-joinder, therefore, does not arise. 8.6 Issue (i) is answered accordingly. The applicant is entitled to continuity of service, without a break, and to have his seniority and P ANUKUMA

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other service benefits determined on that basis notionally. He is not entitled to TRCA for the period from 01.02.2008 to 31.03.2014, or to automatic promotion. The period from 31.03.2014 to 17.02.2015 is dealt with under Issue (iii).

9. Issue (ii) – Parity with the applicant’s father. The applicant claims parity with his father, who was implicated in the same criminal case, was similarly convicted and subsequently acquitted, and was reinstated with consequential service benefits. The applicant’s father was, however, a regular departmental employee of the Department of Posts, working as a Postman and governed by the CCS (Conduct) Rules and the other rules applicable to departmental employees, whereas the applicant is a Gramin Dak Sevak governed by the GDS Rules, 2011. The two hold different posts under different sets of rules and conditions of service. The benefits given to the father under the rules applicable to him cannot, therefore, be claimed by the applicant by way of parity. Issue (ii) is answered in the negative.

10. Issue (iii) – The decision of the Ernakulam Bench. The applicant has placed on record the decision of the Ernakulam Bench of this Tribunal in OA No. 423/2011. In that case, a Gramin Dak Sevak Branch Post Master had been removed from service on 26.12.2003 under Rule 11 of the GDS (Conduct and Employment) Rules, 2001, on the basis of his conviction under Section 138 of the Negotiable Instruments Act, without a formal inquiry. His conviction was set aside in appeal by the Court of Sessions on 26.04.2004, reinstatement was ordered on 15.12.2010, and he was actually reinstated on 12.02.2011. He claimed wages for the period from 01.01.2004 to 12.02.2011. 10.1 Relying on B.R. Kapur Vs State of Tamil Nadu (2001) 7 SCC 231, the Ernakulam Bench held that the conviction, and the disqualification attaching to it, continued up to the date of acquittal and ceased to exist thereafter. Noting that the GDS Rules contain no provision for P ANUKUMA

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regularising the period between acquittal and reinstatement, the Bench drew upon Rule 19 of the CCS (CCA) Rules and the Government of India instructions thereunder, including the OM dated 29.11.1966 as amended by the OM dated 19.09.1975, observing that the GDS Rules are based upon the corresponding CCS (CCA) Rules and that the DoPT instructions dated 11.11.1985 and 04.04.1986 have been incorporated under Rule 11 of the GDS Rules. Under para 3 of the OM dated 29.11.1966, where the employee is reinstated, pay and allowances are payable from the date of acquittal to the date of rejoining duty and that period is counted as duty for all purposes, whereas the period from removal to acquittal is regulated under FR 54(3) as directed by the competent authority. The Bench accordingly treated the period from the date of acquittal (26.04.2004) to the date of reinstatement (12.02.2011) as duty for all purposes and, on the submission of counsel for the applicant that he was prepared to accept 50% of the back wages, directed payment of 50% of TRCA for that period, together with half the bonus applicable for the period from the date of acquittal to the date of reinstatement (paras 17 and 18), by order dated 19.01.2012. 10.2 The Union of India challenged that order before the Hon’ble High Court of Kerala in OP(CAT) No. 1285/2012, contending, among other things, that the employee had been removed under Rule 11 of the GDS (Conduct and Employment) Rules, 2001, which contained no provision permitting reinstatement, and that he had delayed in informing the authorities of his acquittal. By judgment dated 08.03.2016, a Division Bench of the Hon’ble High Court of Kerala in OP(CAT) No. 1285/2012 held that “In view of the above stand taken in the reply statement it cannot be disputed that the authorities were made aware of the acquittal of the respondent without any delay. However, they had considered and rejected the request of the respondent. He was reinstated only after a direction was issued by the CAT in Original Application No. 33 of 2009 filed by him. Therefore P ANUKUMA

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we find that, there was no delay on the part of the respondent in bringing to the notice of the authorities the fact that he had been acquitted.” It was further held that: “We notice that the counsel in this case had made a submission before the CAT limiting the claim of the respondent to 50% of the pay and allowances. We further take note of the fact that, the respondent has retired during the pendency of these proceedings. The above being the present situation, we find no grounds to interfere with the order of the CAT. The CAT has considered the issues in the proper perspective. The conclusions OP(CAT) No. 1285 of 2012 drawn anre justified in the facts and circumstances of the case. For the forgoing reasons, this original petition is dismissed” 10.3 The respondents contend that the instructions applied in that decision do not apply to GDS. The absence of a specific provision in the GDS Rules was considered by the Ernakulam Bench, which drew upon the corresponding CCS (CCA) provisions, and the plea of the Union of India based on Rule 11 of the GDS Rules did not find favour with the Hon’ble High Court of Kerala, which upheld the Tribunal’s decision. It is the decision of a co-ordinate Bench, affirmed by a High Court, on materially similar facts, namely a Gramin Dak Sevak removed on conviction, later acquitted in appeal, and reinstated after delay. Although the judgment of the Hon’ble High Court of Kerala is not binding on this Bench, nothing has been shown to us from the Hon’ble Supreme Court or the Hon’ble High Court of Gujarat taking a contrary view, and we respectfully follow it. 10.4 Read as a whole, the decision of the Ernakulam Bench does not support the applicant’s claim for the entire period from his dismissal. It treats as duty only the period from the date of acquittal to the date of reinstatement, and holds that the disqualification on account of the P ANUKUMA

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conviction subsisted up to the date of acquittal. To that extent it is in accord with the decisions of the Hon’ble Supreme Court referred to in para 8.5. Applying it, the period from 31.03.2014, the date of the applicant’s acquittal, to 17.02.2015, the date of his reinstatement, is to be treated as duty for all purposes. 10.5 As regards TRCA for that period, following the decision of the Ernakulam Bench as affirmed by the Hon’ble High Court of Kerala, we consider that payment of 50% of the TRCA, together with half the bonus, if applicable, for the period from 31.03.2014 to 17.02.2015 will meet the ends of justice, the applicant not having rendered any service during that period and having himself given the declaration dated 08.10.2014. Issue (iii) is answered accordingly.

11. To sum up, the respondents rightly reinstated the applicant after his acquittal, but they could not treat the intervening period as a break in service or deny him seniority on that account. On the principle of “no work, no pay”, the applicant is not entitled to TRCA for the period from 01.02.2008 to 31.03.2014. Following the decision of the Ernakulam Bench, as affirmed by the Hon’ble High Court of Kerala, the period from 31.03.2014 to 17.02.2015 is to be treated as duty for all purposes, and the applicant is entitled to 50% of the TRCA and half the bonus, if applicable, for that period. His claim of parity with his father fails.

12. In view of the facts above:

(i) The impugned order dated 06.10.2017 is quashed and set aside.

(ii) The order dated 11.02.2015 is set aside to the extent it treats the period from 01.02.2008 to 17.02.2015 as a break in service and bars the applicant from claiming seniority.

(iii) The respondents shall treat the applicant’s service as continuous, without a break, determine his seniority P ANUKUMA

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accordingly under the rules governing GDS, and extend to him the other service benefits flowing from such continuity on a notional basis. The period from 31.03.2014 to 17.02.2015 shall be treated as duty for all purposes.

(iv) The applicant shall not, on that account alone, be entitled to any promotion, which shall be considered, if at all, in accordance with the applicable rules, eligibility and availability of vacancy. This order shall not, by itself, unsettle the position of any other employee.

(v) The respondents shall pay the applicant 50% of the TRCA, together with half the bonus, if applicable, for the period from 31.03.2014 to 17.02.2015. The applicant shall not be entitled to TRCA or arrears of any monetary benefit for the period from 01.02.2008 to 31.03.2014.

(vi) The above directions shall be complied with, and the amount under direction (v) paid, by the competent authority by passing a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this order.

13. OA is allowed on terms stated in para 12.

14. MA pending, if any, also stands disposed of.

15. There shall be no order as to costs.

(Sanjiv Kumar)

(Jayesh V Bhairavia)

Member (A)

Member (J)

Anu

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