Allowed

K. Raja Rao v. Under Secretary

Andhra Pradesh HC17 Mar 2023WP/28131/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition set aside the Central Administrative Tribunal's order holding the petitioner's period of absence as dies non. The Court held the Tribunal's direction for pension and salary calculation was a binding finding, not obiter dictum, despite lack of explicit fundamental rule citation. Respondents directed to comply within eight weeks.

What did the court decide?

The order dated 23.07.2021 in C.P. No. 38 of 2021 is set aside; respondents directed to take further steps within eight weeks.

K. Raja Rao Vs Under Secretary — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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HON’BLE MR. JUSTICE D.V.S.S.SOMAYAJULU

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AND

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HON’BLE MR.JUSTICE V.SRINIVAS

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W.P. No.28131 of 2021

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O R D E R: (per D.V.S.S.Somayajulu, J)

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This writ petition is filed for the following relief:

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“to issue Writ of certiorari calling for records in C.P.No.38 of 2021 in O.A.No.690 of 2018 on the file of Central Administrative Tribunal Hyderabad and set aside the order dated 23.07.2021 as the same is incorrect and unsustainable and consequently direct the respondents to pay the salary and pension as directed in O.A.No.690 of 2018 dated 12.04.2019…”

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This Court has heard Sri N.Vijay, learned counsel for the petitioner and Smt. M.Aparajitha, appearing for the respondents Union of India.

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The issue raised in this case is about the finding recorded in CP/020/38/2021 in OA/020/690/2018, wherein the Central

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Administrative Tribunal came to the conclusion that the petitioner is not entitled to any relief.

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Sri N.Vijay, learned counsel for the petitioner submits that this case has a long history relating to the disciplinary proceedings initiated against the petitioner. He points out that in O.A.No.690 of 2018, an order was passed on 12.04.2019, wherein the following finding was recorded:

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“Things would have been different altogether, had the applicant been exonerated of the charges. In the instant case, the finding on the charges remains and, in a way, is approved by the Tribunal and the High Court. Therefore, the question of the applicant being treated as 'on duty' during the period of absence does not arise. Though the impugned order is silent, we direct that the period of absence shall hold good for the purpose of pension and fixation of salary.”

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As noticed, the last line of the order states ‘though the impugned order is silent, we direct that the period of absence was hold good for the purpose of pension and fixation of salary’. Learned counsel submits that for the period in which the petitioner was under suspension etc., was treated as ‘ dies non ’, but a positive direction was given that the period of absence was hold good for the purpose of pension and fixation of salary only.

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He submits that thereafter the petitioner was also promoted as Assistant Commissioner from Superintendent. The matter also

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went to the Court and a Division Bench of this Court in W.P.No.11092 of 2019 has upheld the order passed by the Tribunal.

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Learned counsel submits that the issue before the writ Court was about the alleged failure of the employer to treat the period of absence from 2005 to March 2015 as ‘ dies non ’. Nothing else was considered and the impugned order of the Central Administrative Tribunal was upheld. Thereafter, contempt proceedings were initiated, as the petitioner was not given the benefit of the last line of the order, which is mentioned above, namely, ‘the period of absence was hold good for the purpose of pension and fixation of salary’. However, the Tribunal held that it was an obiter dicta and therefore, no contempt was committed. Questioning the same, this writ petition is filed.

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Learned counsel relies upon R.Murali and others v. Kanyaka P.Devasthanam and charities¹ and Arun Kumar

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1 (2005) 6 SCC 166

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Aggarwal v. Stateof Madhya Pradesh and others² in support of the argument that this finding is not an obiter dicta and the essential finding for the purpose of deciding the issue.

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In reply, Smt. Aparajita, argued the matter at length and pointed out that the issue was rightly decided by the Tribunal both in the original proceedings and also in the Contempt proceedings. She points out that no legal flaw was found and the Division Bench also upheld the order of the Central Administrative Tribunal. Therefore, it is submitted that there is virtually no mistake in the order passed. She also points out that the finding that it is an obiter dicta is also correct. The High Court also observed the question of treating the period of suspension ‘on duty’ does not arise. Therefore, she supports the order and prays that the writ should be dismissed.

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Court: The essential dispute in this case is about the period of absence of the petitioner from duty due to removal from service etc., and after protracted litigation, the final order was passed by the disciplinary authority. The authority held that the period in

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2 (2014) 13 SCC 707

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which the petitioner was absent should be treated as not on duty. This was challenged.

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A reading of the entire order of the Central Administrative Tribunal would make it clear that the fundamental rules were considered before the order was passed. It is also noticed that the first major order of punishment was set aside in O.A.No.900 of 2007 and the matter was remanded to the disciplinary authority. He proceeded to re-consider the matter and passed an order dated 21.03.2011 compulsorily retiring the writ petitioner from service. This was challenged in O.A.No.840 of 2013, which was allowed on 29.11.2013. The appellant was aggrieved by the denial of certain reliefs and the department was aggrieved by the direction of reinstatement. Both filed writ petitions.

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The High Court set aside the order passed by the Tribunal and directed the disciplinary authority to re-consider the matter with regard to the imposition of punishment. Thereafter, the disciplinary authority passed an order dated 18.03.2015 imposing the punishment of reduction of pay scale to the minimum period of five (5) years with cumulative effect. In a departmental appeal, this punishment was reduced to one of reduction of pay scale to

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the minimum period of two (2) years with cumulative effect on 24.06.2016. For deciding the pay for the various spells in which the petitioner was absent, the authority came to the conclusion that it should be treated as dies non . This was challenged in the O.A. and the following order was passed:

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“9. The Fundamental Rules provide for the manner in which the period of absence of different categories is to be treated, in the context of the employees not attending to duties, be it on account of suspension or on removal from service, but followed by reinstatement on modification of the order of punishment. Ever since the order of removal was passed against him, the applicant was out of service. He was reinstated only on the basis of the direction issued by the Tribunal followed by that of the High Court in the second round of litigation; vis-a-vis the disciplinary proceedings.

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10.Things would have been different altogether, had the applicant been exonerated of the charges. In the instant case, the finding on the charges remains and, in a way, is approved by the Tribunal and the High Court. Therefore, the question of the applicant being treated as 'on duty' during the period of absence does not arise. Though the impugned order is silent, we direct that the period of absence shall hold good for the purpose of pension and fixation of salary.”

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It is settled principle of interpretation; be it of documents or judgments that the entire document or judgment should be read

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as a whole and a line or a sentence should be taken out of context. If the entire sequence of events were noticed, it is clear that the Tribunal was dealing of a disciplinary proceedings initiated on 07.11.2011. While the finding on the charges were upheld, the fact remains that the punishments were reduced from removal of service to compulsory retirement to reduction of pay for five (5) years and finally to a reduction of pay for a period of two (2) years. It is in this context that after the petitioner was reinstated into service, the Tribunal passed the order that the petitioner cannot be treated as on duty for the period of his absence and that the period of absence would hold good for the purpose of pension and fixation of salary only.

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In the opinion of this Court, this will not amount to an ‘obiter dicta’. An obiter is a finding or expression of opinion which is not actually necessary for a decision, but a judicial dicta is an expression of opinion on a point which is deliberately passed by the Court. It forms the ratio or the gist of the case. In the case on hand, in order to do complete justice to the parties, the finding was given. This Court is of the opinion that the said finding is not an obiter at all. In fact, in Arun Kumar Aggarwal’s case ( 2

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supra), at para 24, it was held that once the Court acquires jurisdiction, it may properly decide all the questions so involved even though it is not absolutely essential for the result. In the opinion of this Court, this is visible from the sentence ‘though the order is silent, we direct that the period of absence was hold good for the purpose of pension and fixation of salary’. This is in the nature of a positive direction that is issued to the respondents and it is not an obiter as contended by the respondents or as held by the Tribunal in the Contempt proceedings. It is also a fact that the petitioner is enjoying his pension and he has also been promoted.

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Therefore, for all these reasons, the writ petition is allowed and the order dated 23.07.2021 in C.P.No.38 of 2021 in O.A.No.690 of 2018 is set aside. The respondents are directed to take all further steps in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order. No order as to costs.

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As a sequel, the miscellaneous petitions if any shall stand dismissed.

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D.V.S.S. SOMAYAJULU,J

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_______________ V.SRINIVAS,J

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Date: 17.03.2023 KLP

K. Raja Rao v. Under Secretary

Case brief

What is this about?

What did the court decide?

K. Raja Rao v. Under Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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