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Judgment
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
“a)To issue an order, rule or direction for quashing and setting-aside the impugned order dated 29.12.2022 passed by respondent no. 5 by which the respondent no. 5 has rejected the genuine and legitimate claim of the applicant for allowing the benefit of payment of full TRCA including the arrears and bonus to the applicant from the date of termination i.e. 05.05.2016 till the date i.e. of joining 22.02.2020 as sanctioned and paid to the similarly situated employee (Annexure A-1 in compilation no.-I to this original application).
b)To issue an order rule or direction directing the respondent no. 5 to make the payment of full TRCA including the arrears and bonus to the applicant from the date of termination i.e. 05.05.2016 till the date of joining i.e. 22.02.2020 as sanctioned and paid to similarly situated GDS employee by the respondent no. 4 by ensuring the compliance of Hon'ble High Court Allahabad Bench judgment and order dated 30.04.2018 in case of Union of India & Others Vs Archana Mishra & others as the same has been relied upon by the Hon'ble High Court Lucknow Bench in case of Union of India & Others Vs Kumari Jyotika & Others and make the payment of full TRCA within a stipulated time.
c)To issue an order rule or direction, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.
d)To award the cost of the original application may also be awarded in favour of the applicant”.
The brief facts of the case are as follows: The applicant was engaged as GDS BPM, Kusumbhi, Unnao, on 18.10.2013, and was handed over charge of the post on 14.12.2013. Respondent No. 5 terminated his service, and she was relieved from the post on 06.05.2016. Aggrieved by the termination, the applicant filed OA No. 246 of 2016 before the CAT, Lucknow Bench. Vide order dated 03.04.2017, the Tribunal quashed the termination order and directed the respondents to allow the applicant to work as GDS BPM, Kusumbhi, Unnao. Respondent No. 5 challenged the said order before the Hon’ble High Court at Allahabad, Lucknow Bench, by filing Writ Petition No. 21728 of 2017. The writ petition was dismissed. Thereafter, the applicant was reinstated and charge of the post was handed over to her on 28.02.2020. The applicant has stated that the respondents paid full TRCA, arrears and bonus to similarly situated GDS employees pursuant to the judgment dated 14.07.2017 passed by this Tribunal in Birbal and Others v. Union of India and Others. The said judgment was upheld by the Hon’ble High Court vide judgment dated 30.04.2018 in Union of India and Others v. Archana Mishra and Others. On the basis of the aforesaid judgments, the applicant claims that she is also entitled to full Time Related Continuity Allowance (TRCA), including arrears and bonus, for the period from 06.05.2016, when her service was terminated, till her reinstatement in February 2020, on the same terms as were allowed to similarly situated employees. Accordingly, the applicant submitted a detailed representation dated 20.05.2020, relying upon the aforesaid judgments and other judicial pronouncements, and requested the respondents to grant her the same benefits. However, instead of deciding her claim on merits, the respondents rejected her reminder vide the impugned order dated 29.12.2022. Aggrieved by the said order, the applicant has filed the present Original Application.
Per contra, the respondents, in their counter affidavit, submitted that the applicant, Km. Amita Bajpai, was engaged as GDS BPM, Kusumbhi (Nawabganj), Unnao, vide order dated 18.10.2013. However, during the subsequent review, certain irregularities were found in her engagement, as the prescribed procedure under the GDS (Conduct and Engagement) Rules, 2011, had not been properly followed. Accordingly, her engagement was terminated vide order dated 05.05.2016 under Rule 8 of the aforesaid Rules. The applicant challenged the termination order by filing OA No. 246/2016 before the CAT, Lucknow Bench. The Tribunal, vide order dated 03.04.2017, set aside the termination order. However, it left the respondents free to take further action in accordance with the prescribed procedure under the Rules. Thereafter, the respondents filed Writ Petition No. 21756/2017 before the Hon’ble High Court at Lucknow, which was dismissed on 07.03.2019 in view of the judgment dated 30.04.2018 passed in the case of Union of India and Others v. Archana Mishra and Others. The respondents further submitted that, in compliance with the orders of the Tribunal and the Hon’ble High Court, the applicant was taken back on duty vide order dated 22.02.2020 and joined the post of GDS BPM, Kusumbhi, on 29.02.2020. According to the respondents, neither the Tribunal nor the Hon’ble High Court had directed payment of TRCA, back wages or other benefits for the period during which the applicant remained out of service. Therefore, the applicant was not entitled to such payment. It was further submitted that the applicant's representation seeking full TRCA, arrears and bonus for the period from 06.05.2016 till her joining was considered and rejected vide order dated 29.12.2022, on the ground that no such payment had been directed by the Tribunal in its earlier order dated 03.04.2017. The respondents also raised an objection regarding the filing of the present Original Application before the CAT, Allahabad Bench, stating that the applicant had earlier filed OA No. 246/2016 before the CAT, Lucknow Bench and resides at Lucknow. On these grounds, the respondents prayed that the present Original Application be dismissed as not maintainable and devoid of merit.
A rejoinder affidavit has also been filed by the applicant, in which the facts stated in the Original Application have been reiterated and the contents of the counter affidavit have been denied. Nothing new has been stated in the rejoinder affidavit.
I have heard Shri Avnish Tripathi, learned counsel for the applicant, and Sri Vinod Kumar Pandey, learned counsel for the respondents, and have perused the record.
Submission of learned counsel for the applicant is that the applicant was engaged as GDS BPM, Kusumbhi, Unnao, on 18.10.2013. Her services were terminated vide order dated 05.05.2016. The applicant challenged the said order before this Tribunal by filing OA No. 246 of 2016, which was allowed vide order dated 03.04.2017, and the termination order was set aside. Thereafter, the applicant was reinstated and joined the post in February 2020. Learned counsel for the applicant further submitted that in similar cases, this Tribunal, vide judgment dated 14.07.2017 passed in Birbal and Others v. Union of India and Others, had granted relief to similarly situated GDS employees. The said judgment was upheld by the Hon’ble High Court vide judgment dated 30.04.2018 in Union of India and Others v. Archana Mishra and Others. In view of these judgments, the respondents had granted full TRCA, arrears and bonus to similarly situated employees for the period during which they remained out of service. It was further argued that the applicant was also similarly situated and there was no valid reason to deny her the same benefits. The applicant claimed that she should not be treated differently from other GDS employees whose claims had been accepted by the respondents. Therefore, the applicant was entitled to full TRCA, arrears and bonus for the period from 06.05.2016 till her reinstatement in February 2020. Learned counsel for the applicant also submitted that the applicant had submitted a representation dated 20.05.2020 requesting the respondents to grant her the aforesaid benefits by relying upon the judgments mentioned above. However, the respondents rejected her claim vide the impugned order dated 29.12.2022, mainly on the ground that no direction for payment had been given in the earlier order of this Tribunal. According to learned counsel, the respondents ought to have considered the applicant’s claim in the light of the judgments relied upon by her and the benefits granted to similarly situated employees. Thus, learned counsel for the applicant prayed that the impugned order dated 29.12.2022 be quashed and the respondents be directed to pay full TRCA, arrears and bonus to the applicant for the period in question, within a stipulated time.
In rebuttal,, learned counsel for the respondents submitted that the applicant’s engagement as GDS BPM, Kusumbhi, was terminated vide order dated 05.05.2016 because certain irregularities had been found in her engagement and the prescribed procedure under the GDS (Conduct and Engagement) Rules, 2011, had not been followed. It was submitted that the termination was made under Rule 8 of the aforesaid Rules. Learned counsel for the respondents further submitted that the applicant challenged the termination order before this Tribunal in OA No. 246 of 2016. Although this Tribunal set aside the termination order vide order dated 03.04.2017, it left the respondents free to take further action in accordance with the prescribed procedure under the Rules. The respondents also challenged the order before the Hon’ble High Court, but their writ petition was dismissed. It was further submitted that, in compliance with the orders passed by this Tribunal and the Hon’ble High Court, the applicant was taken back on duty vide order dated 22.02.2020 and joined the post of GDS BPM, Kusumbhi, on 29.02.2020. However, neither this Tribunal nor the Hon’ble High Court had directed the respondents to pay back wages, TRCA or any other benefits for the period during which the applicant remained out of service. Learned counsel for the respondents next argued that the order setting aside the termination and permitting the applicant to resume duty did not entitle her to payment of TRCA and other benefits for the entire period of absence. Therefore, according to the respondents, the applicant could not claim such payment merely on the basis of her reinstatement. Learned counsel for the respondents further argued that the applicant’s representation seeking full TRCA, arrears and bonus was considered and rejected vide order dated 29.12.2022 because the earlier order of this Tribunal did not contain any direction for payment of the said benefits. The respondents, therefore, maintained that the impugned order was justified and did not call for interference by this Tribunal. Thus, learned counsel for the respondents prayed that the Original Application be dismissed as devoid of merit.
I have considered the rival submissions made by learned counsel for the parties and have gone through the entire record.
The main question for consideration is whether the applicant is entitled to full Time Related Continuity Allowance (TRCA), including arrears and bonus, for the period during which she remained out of service pursuant to the termination order dated 05.05.2016, which was subsequently set aside by this Tribunal.
It is an admitted fact that the applicant was engaged as GDS BPM, Kusumbhi, Unnao, on 18.10.2013, and her services were terminated vide order dated 05.05.2016. The applicant challenged the said order before this Tribunal by filing OA No. 246 of 2016. The Tribunal vide order dated 03.04.2017 set aside the termination order and directed the respondents to allow the applicant to work on the post in question. Consequently, the applicant was taken back on duty in February 2020.
It further appears from the record that certain similarly situated GDS BPMs, namely Subhash Chandra, Himanshu Mishra, Gaurav Singh, Km. Pinki Singh and Pankaj Kumar, had approached the Lucknow Bench of this Tribunal, which had set aside their termination orders and directed their reinstatement. The said directions were challenged before the Hon’ble High Court of Allahabad at Lucknow Bench, but the same was dismissed. Consequently, the aforesaid applicants were reinstated in service in compliance with the directions issued by this Tribunal and the Hon’ble High Court. However, as no specific direction had been issued either for payment or denial of TRCA for the period during which the applicants remained out of service. They had also approached this Tribunal by filing OA Nos. 427/2020, 454/2020, 456/2020, 457/2020 and 458/2020, respectively. This Tribunal, by a common judgment dated 08.03.2022, allowed the said Original Applications in the following terms:-
“Reserved
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 08th day of March, 2022
Hon’ble Mr. Tarun Shridhar, Member (A)
Original Application No. 330/00427/2020
Along With
Original Application No. 330/00454/2020
Original Application No. 330/00456/2020
Original Application No. 330/00457/2020
Original Application No. 330/00458/2020
Subhash Chandra, aged about years, S/o Sri Radhe Lal R/o V. & P.-Kodra, Bhakat Khera, Police Station- Bara Sagwar, District- Unnao.
……….. Applicant in O.A. No. 427 of 2020
By Advocate: Shri Avnish Tripathi
Versus
1.Union of India through Director General of Post Ministry of communication Dak Bhawan, Sansad Marg, New Delhi- 110001.
2.Chief Post Master General U.P. Circle Hazratganj Lucknow.
3.Post Master General Kanpur Region Kanpur.
4.Superintendent of Post Offices Kanpur Division Kanpur.
------- Respondents in O.A. No. 427 of 2020
By Advocate: Shri Shree Prakash Rai.
Along With
O.A. No. 330/00454/2020
Himanshu Mishra, aged about 28 years, S/o Ram Mohan Mishra, R/o V. & P.-Dela, Thana-Purwa.
……….. Applicant in O.A. No. 454 of 2020
By Advocate: Shri Avnish Tripathi.
Versus
1.Union of India through Director General of Post Ministry of communication Dak Bhawan, Sansad Marg, New Delhi – 110001.
2.Chief Post Master General U.P. Circle Hazratganj Lucknow.
3.Post Master General Kanpur Region Kanpur.
4.Superintendent of Post Offices Kanpur Division Kanpur.
------- Respondents in O.A. No. 454 of 2020
By Advocate: Shri Amitabh Kumar Sinha.
O.A. No. 330/456/2020
Gaurav Singh Yadav, aged about 32 years, S/o Chhote Lal Yadav, R/o V.-Chilauli & P.- Tedha Bara Sagwar, Bhighapur, District – Unnao.
------Applicant is O.A. No. 456 of 2020
Versus
1.Union of India through Director General of Post Ministry of communication Dak Bhawan, Sansad Marg, New Delhi – 110001.
2.Chief Post Master General U.P. Circle Hazratganj Lucknow.
3.Post Master General Kanpur Region Kanpur.
4.Superintendent of Post Offices Kanpur Division Kanpur.
------ Respondents in O.A. No. 456 of 2020
O.A. No. 330/00457/2020
Km. Pinki Singh, aged about 30 years, D/o Ram Babu Singh, R/o V.-Sarai Maniyar & P.- Sumerpur District – Unnao.
-----Applicant in O.A. No. 457 of 2020
Versus
1.Union of India through Director General of Post Ministry of communication Dak Bhawan, Sansad Marg, New Delhi – 110001.
2.Chief Post Master General U.P. Circle Hazratganj Lucknow.
3.Post Master General Kanpur Region Kanpur.
4.Superintendent of Post Offices Kanpur Division Kanpur.
----- Respondents in O.A. No. 457 of 2020
O.A. No. 330/00458/2020
Pankaj Kumar, aged about 38 years, S/o Kamla Shankar Mishra, R/o V. & P. – Terha District – Unnao.
-----Applicant in O.A. No. 458 of 2020
Versus
1.Union of India through Director General of Post Ministry of communication Dak Bhawan, Sansad Marg, New Delhi – 110001.
2.Chief Post Master General U.P. Circle Hazratganj Lucknow.
3.Post Master General Kanpur Region Kanpur.
4.Superintendent of Post Offices Kanpur Division Kanpur.
-----Respondents in O.A. No. 458 of 2020
ORDER
Delivered By Hon’ble Mr. Tarun Shridhar, Member (A)
Learned counsel Shri Avnish Tripathi is present for the applicant and Learned counsel Shri Shree Prakash Rai assisted by Shri Ritwik Saha is present for the respondents in O.A. No. 427/2020, while learned counsel Shri Avnish Tripathi is present for the applicant and learned counsel Shri Amitabh Kumar Sinha is present for the respondents in four connected O.As i.e., O.A. No. 454/2020, O.A. No. 456/2020, O.A. No. 457/2020 and O.A. No. 458/2020.
All the listed O.As are connected but for the sake of clarity, the facts of only O.A. No. 427 of 2020 are so being discussed. However, the orders passed in this O.A. shall be applicable in case of the other associated O.As listed.
The applicant is aggrieved by the denial of Time Related Continuity Allowances (TRCA).
The case of the applicant is that several identically placed employees have been awarded TRCA and the applicant's claim falls strictly within the provision of the Rules. The relief as sought by the applicant vide the instant O.A. is reproduced below verbatim:
" In view of the facts mentioned in paragraph no. 4 above it is most respectfully prayed that this Hon'ble Tribunal may graciously be pleased to grant the following reliefs:-
i)To issue an order, rule or direction for quashing and setting-aside the impugned order dated 27.04.2020 passed by respondents no. 4 by which the respondent no. 4 has rejected the genuine and legitimate claim of the applicant for allowing the benefit of payment of full TRCA including the arrears and bonus to the applicant from the date of termination i.e. 29.06.2016 till the date of joining i.e. 27.02.2020 as sanctioned and paid to the similarly situated employee (Annexure A-1 in compilation no. -I to this original application).
ii) To issue an order rule or direction direction the respondent no. 4 to make the payment of full TRCA including the arrears and bonus to the applicant from the date of termination i.e. 29.06.2016 till the date of joining i.e. 27.02.2020 as sanctioned and paid to the similarly situated GDS employee by the respondent no. 4 by ensuring the compliance of Hon'ble High Court Allahabad Bench judgment and order dated 30.04.2018 in case of Union of India & Others Vs Archana Mishra & others as the same has been relied upon by the Hon'ble High Court Lucknow Bench in case of Union of India & Others Vs Kumari Jyotika & Others and make the payment of full TRCA within a stipulated time.
iii) To issue an order rule or direction, which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law.
iv) To award the cost of the original application may also be awarded in favour of the applicant."
Learned counsel for the applicant takes us through the history of the case and submits that the Superintendent of Post Offices (Mufassil Region), Kanpur Division had terminated the services of the applicant along with 142 GDS BPM. Several of the applicants who were aggrieved by this order of termination approached this Tribunal in O.A. No. 49864/2017 titled as Archana Mishra & Others Vs Union of India & Others. This came to be the leading case amongst several other cases of similarly affected persons whose services had been terminated. This Tribunal disposed of these original applications by way of directing the reinstatement of the applicants along with payment of TRCA and its arrears. The case of the applicant is that he is identically placed and accordingly he also deserves the benefit of the reinstatement and TRCA. The learned counsel for the applicant further submits that while the applicant has been reinstated in service, his Representation for grant of TRCA has been denied which is a discriminatory treatment as several other identically placed employees have been accorded the benefit of both reinstatement and grant of TRCA. He further submits that the respondents had chosen to assail the orders of this Tribunal which directed the reinstatement and payment of TRCA in the Hon'ble High Court of Allahabad in a bunch of writ petitions and the Hon'ble High Court after detailed deliberation on the merits of the case dismissed the petitions making the following observations:
" 36. In view of the above discussion, we do not find any manifest error in judgments of Tribunal warranting interference. It is always open to petitioners to pass fresh orders after complying with the requirements of Rules. Hence, we find no valid reason to interfere with judgments of Tribunal, impugned in all these writ petitions.
37.Writ petitions, for the reasons discussed above, lack merit and are dismissed, accordingly. No costs."
The learned counsel fairly points out that similar petitions were filed in the Lucknow Bench of the Tribunal also wherein the relief given to such similarly placed employees was only reinstatement with no direction with respect to the payment of TRCA. Learned counsel goes on to draw attention to the statement made by the Learned ASGI in the Lucknow Bench of the Hon'ble High Court of Allahabad wherein the Learned ASGI categorically mentions that the writ petitions be disposed of in the light of judgement rendered in the Archana Mishra Case which has since become the leading case in the matter. He particularly draws attention to the statement made by the Learned ASGI that the controversy is squarely covered in the Archana Mishra Case.
Learned counsel for the respondents, on the other hand, raises the issue of maintainability of this O.A. pointing out that the jurisdiction in this matter in respect of the applicant falls within the domain of the Lucknow Bench of the Central Administrative Tribunal and therefore this matter cannot be heard by Allahabad Bench of the Central Administrative Tribunal. He further draws attention to the fact that each case is to be decided on its own merits and unless the issue of jurisdiction is first adjudicated upon, it cannot be held that the controversy involved in the instant case is similar to the controversy involved in the Archana Mishra Case. At this stage, learned counsel for the applicant points out that Lucknow Bench too, in O.A. No. 427/2020, has directed the benefit of both reinstatement in service as also the payment of TRCA. Rebutting this argument, learned counsel for the respondents points out that the order of the Lucknow Bench being referred to by the learned counsel for the applicant passed in O.A. No. 427/2020 has not been passed on merits.
Learned counsel further points out that since the order has not been passed after evaluating the issues on merits, this cannot be held as precedence. At this stage, the learned counsel for the applicant again pitches in, pointing out that it is this very order which was challenged in the Lucknow Bench of the Hon'ble Allahabad High Court wherein the aforesaid reference of the Learned ASGI has been quoted. Learned counsel for the applicant also points out that it is a belated stage to raise the issue of jurisdiction again as this issue has already been thrashed out in the short counter affidavit the respondents had submitted which was considered by the Tribunal.
I have heard the learned counsel for the parties at length and also gone through the documents on record meticulously.
There has been a catena of judgments by this very Bench of the Tribunal in several identically situated cases. This Tribunal in all such cases while directing the reinstatement of the various GDS BPM had directed payment of full TRCA along with arrears and other consequential dues for the period the aggrieved applicants stood terminated till the date of their reinstatement pursuant to such orders. I have observed that while the respondents have complied with the orders in some of those cases, in quite a few, while the direction with respect to the reinstatement has been complied with, the respondents have not taken any steps to release the TRCA and hence a large number of contempt petitions have also been filed before this Tribunal. In the instant case and the associated O.As too, the benefit of payment of TRCA including arrears and bonus from the date of termination has been directed to be paid. There is absolutely no case before me to deviate from the already established principal in the several other judgments passed. In the present case, while the benefit of reinstatement stands awarded to the applicant, it is but logical that the benefit of TRCA for the period along with other consequential dues is also extended to the applicant. Accordingly, O.A No. 427 of 2020 and the associated O.As i.e., O.A. No. 454/2020, O.A. No. 456/2020, O.A. No. 457/2020 and O.A. No. 458/2020 are allowed and all the impugned orders in the aforementioned O.As are quashed and set aside with a direction to the respondents to sanction and release the TRCA including its arrears and other benefits which would accrue to the applicants in all the O.As within a period of twelve weeks from the date of this Order.
There shall be no order as to costs”.
In the present case, the applicant had also approached the Lucknow Bench of this Tribunal, where the termination order was quashed. The order passed by the Tribunal was challenged before the Hon’ble High Court of Allahabad at Lucknow Bench, but the challenge was dismissed. Thereafter, the applicant was reinstated in service, however, TRCA for the period during which he remained out of service was not paid, as no specific direction regarding such payment had been issued in the earlier proceedings. Although the applicant has approached this Tribunal belatedly, keeping in view the fact that the claim relates to non-payment of TRCA for the period during which she remained out of service, I am of the considered view that the present Original Application also deserves to be allowed in terms of the common judgment dated 08.03.2022 passed by this Tribunal in the aforesaid Original Applications.
Accordingly, the Original Application is allowed. The impugned order dated 29.12.2022 is hereby quashed and set aside. The respondents are directed to grant the applicant full TRCA, including arrears and bonus, for the period from 06.05.2016 till the date of her joining pursuant to reinstatement, i.e. 29.02.2020, on the same terms and conditions as applicable to similarly situated GDS employees in the light of the judgments relied upon by the applicant. The respondents shall calculate and release the admissible amount within a period of three months from the date of receipt of a certified copy of this order. No order as to costs. All associated MAs stands disposed of.