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2016 DIGILAW 787 (ORI)

Union of India v. Prasanna Kumar Tripathy

2016-09-12

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2016
JUDGMENT : D.P. CHOUDHURY, J. 1. Challenge has been made in this case to the order dated 15.5.2013 passed by the learned Central Administrative Tribunal, Cuttack Bench, Cuttack (hereinafter called “the Tribunal”) in R.A. No. 3 of 2013 in W.P.(C) No. 15428 of 2013. Similarly challenge has been made to the order dated 30.1.2014 passed by the learned Tribunal in O.A. No. 369 of 2012 in W.P. (C) No. 8853 of 2014. Since both the writ petitions arise out of the disciplinary proceeding against the present opposite party and heard analogously, the same are disposed of by the common judgment. FACTS 2. The factual matrix leading to the present cases is that the opposite party was working as Postal Assistant (P.A.) under petitioner no. 4 during the period from 2.6.1997 to 4.3.2001. At that time he was managing both the duties of Postal Assistant (P.A.) and Sub-Postmaster of Dhenkanal R.S. During such incumbency there was allegation of fraudulent withdrawal of money amounting to Rs.6,000/- from the R.D. Pass Book Account No. 76719 on 20.2.2001, Rs.3,000/- from R.D. Pass Book Account No. 76807 on 12.2.2001, Rs.4,000/- from R.D. Pass Book Account No. 76926 on 12.2.2001, Rs.3,000/- from R.D. Pass Book Account No. 76964 on 12.2.2001 and Rs.2,500/- from R.D. Pass Book Account No. 76927 on 17.2.2001 by the opposite party without knowledge of the depositors. As such, the opposite party found to have committed gross misconduct by violating the provisions contained in Rule 94 (ii), Rule 113 (4) read with Rule 33(1)(2)(3) and (5) of Post Office S.B. Manual Volume-I. It is alleged by the petitioners that for the above misconduct the opposite party was charge-sheeted by Superintendent, Post Office, Dhenkanal Division, Dhenkanal by Memo No. F4-1/2003-2004 dated 10.6.2005 under Rule 14 of CCS (CC&A.) Rules, 1965. The charge-sheet was sent to the opposite party in his home address but such charge-sheet returned back to petitioner no. 4 with remark ‘refused’. Since there was refusal, the authorities proceeded under the provisions of Rule 63 of Postal Manual Volume-III. The enquiry was started by appointing Enquiring Officer. The charge-sheet was sent to the opposite party in his home address but such charge-sheet returned back to petitioner no. 4 with remark ‘refused’. Since there was refusal, the authorities proceeded under the provisions of Rule 63 of Postal Manual Volume-III. The enquiry was started by appointing Enquiring Officer. The copy of memo of appointment of the Enquiring Officer was sent vide Dhenkanal Head Office to the opposite party and said registered letter also could not be delivered at Talcher and returned back on 12.8.2005 with remark “Not Found.” Again letter was sent to the opposite party to his home address vide registered letter dated 17.8.2005 but again same was returned back with remark ‘refused.’ 3. It is alleged inter-alia that the opposite party during the period from 2.6.1997 to 4.3.2001 has committed permanent fraud of Rs.2,39,279/- and temporary fraud of Rs.57,550/- in 164 R.D. Accounts and has made withdrawal of R.D. transactions in eleven number of cases without reflecting the relevant transactions in the relevant R.D. Pass Books. On 5.3.2003 the opposite party was placed under suspension and charge-sheeted under Rule 14 of CCS (CC & A) Rules, 1965 vide Memo No. F4-3/2002-03 dated 15.3.2004 for his misconduct at Dhenkanal Head Post Office. The Enquiring Officer issued notice to the opposite party on 30.9.2004 to attend the enquiry. Challenging same, the opposite party filed O.A. No. 870 of 2004 before the Tribunal on the ground that since on self-same allegation criminal case is pending, the petitioners should not be proceeded with the disciplinary proceeding till completion of the criminal case. 4. Be it stated that when the charge-sheet and memo of appointment of Enquiring Officer in F4-1/2003-04 was received undelivered the Enquiring Officer held the enquiry ex-parte as per the Postal and Telegraph Manual Volume-III and submitted report on 16.8.2006. The copy of the enquiry report of the Enquiring Officer was sent to opposite party vide registered dated 22.8.2006 in his headquarter address and another copy was sent in his home address. But both the registered letters returned with remark ‘refused’. Thereafter the authority passed order of removal of opposite party from service on 15.9.2006 which was received by opposite party on 30.9.2006. Against that the appeal was preferred but after careful consideration the said appeal was dismissed by the Director, Postal Services, Sambalpur. But both the registered letters returned with remark ‘refused’. Thereafter the authority passed order of removal of opposite party from service on 15.9.2006 which was received by opposite party on 30.9.2006. Against that the appeal was preferred but after careful consideration the said appeal was dismissed by the Director, Postal Services, Sambalpur. Against this order of removal from service dated 15.9.2006 the opposite party filed O.A. No. 799 of 2006. 5. It is stated that both the Original Applications were disposed of on 11.5.2010 by the Tribunal directing stay of the disciplinary proceeding in O.A. No. 870 of 2004 and learned Tribunal quashed the order of punishment dated 15.9.2006 and remitted the matter back to the Enquiring Officer for proceeding in the enquiry from the beginning and complete the proceedings within a period of 120 days. So, vide order of the Tribunal in O.A. No. 799 of 2006 fresh proceeding was initiated. The opposite party was supplied with the documents. On the preliminary date of hearing the opposite party being delinquent was asked to furnish the name of the Assistant Government Servant (AGS) to defend him. But after 3.10.2010 the opposite party made dilatory tactics by asking for several documents and as such the enquiry was protracted. Then the Enquiring Officer being promoted, another Enquiring Officer was appointed. When enquiry was continued the opposite party attended the enquiry on 28.3.2011 and 29.3.2011. When he was going to be examined, he took time on the ground of self illness on 29.3.2011. Then the Enquiring Officer submitted enquiry report which was sent to the opposite party but it was returned back with remark “long absent returned to sender.” 6. The opposite party filed another O.A. No. 349 of 2011 on 25.5.2011 before the Tribunal stating that the enquiry was going to be completed without supplying the records, without examination of the key witnesses and provisions of Rule 14 of CCS (CCA) Rules has not been followed. On the other hand on 17.6.2011 the Superintendent of Post Offices, Dhenkanal Division, Dhenkanal-petitioner no. 4 basing on the enquiry report passed the order of dismissal of opposite party from service. In the meantime the opposite party superannuated from service on 31.7.2011. But the Tribunal passed the stay of order of dismissal on 22.7.2011. On the other hand on 17.6.2011 the Superintendent of Post Offices, Dhenkanal Division, Dhenkanal-petitioner no. 4 basing on the enquiry report passed the order of dismissal of opposite party from service. In the meantime the opposite party superannuated from service on 31.7.2011. But the Tribunal passed the stay of order of dismissal on 22.7.2011. Vide order dated 18.11.2011 in O.A. No. 349 of 2011 the Tribunal quashed the charge-sheet issued by the petitioners on the ground that no second charge-sheet can be issued on self-same allegation. It is stated by the petitioners that since the first charge-sheet was quashed by the order of the Tribunal in O.A. No. 799 of 2006, the finding of the learned Tribunal in O.A. No. 349 of 2011 that the second charge-sheet is not maintainable is untenable and is liable to be set aside. 7. Against the order of the Tribunal dated 18.11.2011 in O.A. No. 349 of 2011, the petitioners filed W.P. (C) No. 5931 of 2012 before this Court. This Court disposed of the same by giving liberty to present petitioners to file application before the Tribunal for necessary review or correction of the order because there was contention by the learned AGSI that by the order the Tribunal passed, the opposite party has already retired from service. 8. In obedience to the order of this Court the petitioners filed review application before the Tribunal vide R.A. No. 13 of 2012. It is alleged by the petitioners that at the time of admission of the review application the Tribunal pointed out that the Original Application should have been filed by one Shri R.C. Swain, Additional Standing Counsel as he had appeared in the Original Application proceeding out of which present review application is filed. The learned Central Government Counsel pointed out that Shri Swain was no longer in panel then the Tribunal pressurized the Government Counsel to withdraw the same and file better review application after No Objection Certificate received from the then Central Government Counsel. After compliance of the order of the Tribunal another R.A. No. 3 of 2013 came to be filed on 5.3.2013 with a petition for condonation of delay vide M.A. No. 347 of 2013. After compliance of the order of the Tribunal another R.A. No. 3 of 2013 came to be filed on 5.3.2013 with a petition for condonation of delay vide M.A. No. 347 of 2013. When the R.A. and M.A. were heard by the Tribunal, the Tribunal dismissed the R.A. No. 3 of 2013 by following the decision of this Court in the case of Rajayya Bosi vs. Union of India and Others in O.J.C. No. 4532 of 1998 with the observation that the Tribunal has no power to condone delay and as such the entire R.A. was dismissed. Against such order of dismissal of R.A. No. 3 of 2013, W.P. (C) No. 15428 of 2013 was filed before this Court. It is also stated that the opposite party challenged the action of the petitioners by not sanctioning the subsistence allowance during the period of suspension between 10.6.2011 to 31.7.2011 and pensionary benefits for which he had to file O.A. No. 369 of 2012. As the Tribunal allowed the Original Application, the present writ petition No. 8853 of 2014 was filed challenging the impugned order of the Tribunal. Hence, the two writ petitions. 9. Per contra, the pleadings of the opposite party before the Tribunal in all the Original Applications is that the allegation made against the opposite party are totally false and fabulous because of the fact that the opposite party has not knowingly remained absent, not refused to receive the memo and the charge-sheet. It is also stated that the opposite party was all along cooperating the enquiring authority to proceed with the enquiry. Due to illness of the opposite party he could not attend the de novo departmental enquiry conducted against him as per the order of the Tribunal in O.A. No. 799 of 2006, but the petitioners without affording any opportunity to the opposite party completed the enquiry and saddled the opposite party with the punishment of dismissal from service against which the present opposite party had to file O.A. No. 349 of 2011 before the Tribunal. The Tribunal quashed the said punishment on 18.11.2011 against which the petitioners filed W.P. (C) No. 5931 of 2012 in this Court and the Court asked the petitioners to file review application before the Tribunal. The Tribunal quashed the said punishment on 18.11.2011 against which the petitioners filed W.P. (C) No. 5931 of 2012 in this Court and the Court asked the petitioners to file review application before the Tribunal. It is also pleaded by opposite party before the Tribunal that on 31.7.2011 the opposite party attained the age of superannuation but the petitioners had not paid the subsistence allowance from 17.6.2011 when the punishment of removal from service was inflicted on him till his age of superannuation on 31.7.2011 in spite of his representation. So, he had to file O.A. No. 369 of 2012 before the Tribunal and the Tribunal was pleased to direct the petitioners to pay the subsistence allowance of his suspension period and other pensionary benefits. On the other hand the petitioners knowingly made delayed review application before the Tribunal and the Tribunal rejected the same observing same as barred by limitation. 10. It is revealed from the pleadings of the opposite party that the petitioners being authorities have been harassing him by dragging litigations for last fifteen years and he being poor person, the family members are suffering from illness and are deprived of getting better treatment due to financial crunch. It is also pleaded that the allegations against the opposite party are false and fabulous because in the necessary criminal case he has been acquitted by the Special Judge, C.B.I. and there is no any necessity of proceeding with the departmental enquiry which culminates from the criminal case filed by the C.B.I. SUBMISSIONS 11. Mr. A.K. Bose, learned Assistant Solicitor General submitted that the opposite party having fraud case for misappropriating the money of the depositors is dragging litigations but filed different applications before the Tribunal and the Tribunal has erred in law by not following the principles of law. He submitted that the Tribunal has erred in law by dismissing the Review Application No. 3 of 2013 inasmuch as by virtue of the order of this Court in W.P. (C) No. 5931 of 2012 the review application was filed. The review application was not filed by the petitioners suo motu but as per the direction of this Court for which the question of limitation should not come on the way to reject the same. The review application was not filed by the petitioners suo motu but as per the direction of this Court for which the question of limitation should not come on the way to reject the same. He further submitted that the Tribunal committed error by dismissing the petition for condonation of delay in filing the review application with observation that it had no power to condone the delay. He submitted that the Full Bench of this Court reported in 2015 (I) OLR (FB) 544, Akshaya Kumar Parida vs. Union of India & Others where Their Lordships have observed that the Tribunal has power to condone the delay under Section 5 of the Limitation Act while receiving the review application and as such the Tribunal has committed material irregularity by not allowing the petition for condonation. 12. Mr. Bose, learned Assistant Solicitor General also submitted that the Tribunal committed error by allowing the subsistence allowance for the period in between the date of termination and superannuation as after the order of termination the Department has no any duty to pay subsistence allowance as his service has been terminated from 17.6.2011 even if he was to superannuate on 31.7.2011. He further submitted that the Tribunal has failed to understand that once this Court has directed the party to file review application and it has informed to the Court that necessary writ petition is pending against the impugned order, the Tribunal ought to have stayed his hand by not granting the relief prayed in O.A. No. 369 of 2012. The Tribunal has also erred in law in granting the pensionary benefit when the order of the Tribunal in O.A. No. 349 of 2011 is being not reached finality and the order in W.P. (C) No. 5931 of 2012 had kept the issue open by directing the petitioners to file review application. In toto he submitted both the impugned orders in O.A. No. 369 of 2012 and R.A. No. 3 of 2013 are illegal, improper and liable to be set aside. 13. In toto he submitted both the impugned orders in O.A. No. 369 of 2012 and R.A. No. 3 of 2013 are illegal, improper and liable to be set aside. 13. The opposite party who appeared in person submitted that the Tribunal has rightly dismissed the R.A. No. 3 of 2013 inasmuch as the Tribunal being the creature of statute has no power to condone the delay in allowing the R.A. application as this Court in Rajayya Bosi vs. Union of India and Others passed in O.J.C. No. 4532 of 1998 have held that the Tribunal has no power for condonation of delay while entertaining the review application. He also submitted that this Court in W.P. (C) No. 5931 of 2012 having directed to file the review application did not disturb the finding in O.A. No. 349 of 2011 in which the Tribunal has quashed the punishment awarded to the opposite party and further observed that the opposite party is to remain in same position as he was before the punishment awarded. 14. The opposite party further submitted in writing that when the order of termination dated 17.6.2011 has been set aside by the order of the Tribunal and review application has been dismissed, the Tribunal was right in directing the petitioners to disburse the subsistence allowance accrued to the opposite party from the date of termination, i.e., 17.6.2011 till the date of superannuation, i.e., 31.7.2011. It is also submitted that the departmental proceeding is culminated from the criminal case and the opposite party having been acquitted in the criminal case, the petitioners should not have followed the departmental proceeding and ought to have granted the pensionary benefits to the opposite party as ordered by the Tribunal. He further submitted that the order of the Tribunal in O.A. No. 369 of 2012 being legal and proper, same should be confirmed by this Court. On the whole, he submitted that the petitioners have filed these writ applications with dilatory tactics to deprive the opposite party from availing his legitimate dues. So, he submitted to dismiss the writ petitions. 15. The points for consideration:- (i) Whether the Tribunal has power to condone the delay in entertaining the review application in this case. (ii) Whether the order of the Tribunal in O.A. No. 369 of 2012 is valid, legal and proper. DISCUSSIONS POINT NO. (i) : 16. So, he submitted to dismiss the writ petitions. 15. The points for consideration:- (i) Whether the Tribunal has power to condone the delay in entertaining the review application in this case. (ii) Whether the order of the Tribunal in O.A. No. 369 of 2012 is valid, legal and proper. DISCUSSIONS POINT NO. (i) : 16. It is the admitted fact that there was allegation against the opposite party that he has made fraud of R.D. Accounts in between 1997 to 2003 for which C.B.I. registered a case and basing on the allegation departmental enquiry was started against the opposite party. It is not in dispute that in the first disciplinary proceeding the order was passed against the opposite party by dismissing him from service against which he preferred O.A. No. 799 of 2006 before the Tribunal. In the latter case the Tribunal remitted the matter back to the petitioners for fresh enquiry. It is also not disputed that in the fresh enquiry fresh charge was framed and the enquiry proceeded but allegation was made about the non-cooperation of the opposite party and the order was passed again terminating the opposite party from service. It is also not in dispute that against such order O.A. No. 349 of 2011 was preferred by opposite party and the Tribunal set aside the order of termination basing on the ground that no second charge-sheet can be issued on the same set of allegation. It is also admitted that against such order W.P. (C) No. 5931 of 2012 came to be filed at the instance of petitioners and this Court gave liberty to petitioners to file review application before the Tribunal and R.A. No. 3 of 2013 was filed in pursuance of such order. 17. It is admitted fact that the petitioners did not pay the subsistence allowance from 17.6.2011 till the date of superannuation of the opposite party, i.e., 31.7.2011 for which the opposite party had to prefer O.A. No. 369 of 2012 which was disposed of directing the petitioners to pay the subsistence allowance and pensionary benefits to the opposite party. In the present litigation much water has shed but the fact remains that the snake and ladder story has been repeated time and again. 18. In the present litigation much water has shed but the fact remains that the snake and ladder story has been repeated time and again. 18. It is trite in law that the Court should not enter to the result of the disciplinary proceeding but can pursue to find out any manner or the procedure of departmental proceeding is violative of natural justice or against the provisions of law. After O.A. No. 799 of 2006 the Union of India has not approached this Court but started the fresh enquiry by framing the charge. So, that is not the dispute to be discussed now. When the second charge-sheet framed and the enquiry concluded by the petitioners where opposite party after participating to certain extent failed to participate in the final hearing on the ground of his illness, the enquiry report was submitted by the Enquiring Officer. Finally the disciplinary authority passed the order of removal of opposite party from service. That was the subject matter in O.A. No. 349 of 2011 where the Tribunal quashed the disciplinary proceeding again. Of course that order was challenged before this Court vide W.P. (C) No. 5931 of 2012. It is relevant to quote that order below:- “16.07.2012 Heard. The learned Asst. Solicitor General submits that the observation of the learned Tribunal that the status of the applicant shall be as he was prior to the present order of punishment and the intervening period shall be decided by the DA while passing the final order in the proceedings is unwarranted because of the reason that by the time the order was passed by the Tribunal, the petitioner had already retired from service. Considering the above submission, we dispose of the writ petition giving liberty to the petitioner that the Union of India shall file an application before the appropriate Bench for necessary review or correction of the order.” The aforesaid order of this Court clearly directed the petitioners to file an application before the Tribunal for necessary review or correction of the order because by the time the Tribunal passed the order the opposite party had already retired from service. 19. We have called for the L.C.R. of the Tribunal. 19. We have called for the L.C.R. of the Tribunal. From the impugned order in W.P. (C) No. 15428 of 2013 it appears that after disposal of the aforesaid writ application the petitioners filed Review Application No. 13 of 2012 which was disposed of on 15.11.2012 being withdrawn with liberty to file better one after obtaining N.O.C. from Shri R.C. Swain the previous Additional Standing Counsel. In this regard, the writ petition shows that it is the Tribunal which objected to accept the same on the ground that the previous Additional Standing Counsel had to give consent for filing the review application. It is not required in law to take the consent of the previous Government lawyer who was conducting the case to give consent for review application since the panel lawyer of the Central Government has to file case on behalf of Union of India. It should be remembered that in a case filed by the State or the Union of India, any lawyer from the panel can defend the State Government or Union of India as the case may be so that the interest of the concerned Government will be well protected. Of course in respect of private party separate Vakalatnama is required if a lawyer other than the lawyer in the previous proceeding is no more interested to file a review application but the consent in the review application is not necessary from the previous Advocate because the Vakalatnama being a contract between the lawyer and the client continues till termination of the proceeding. Since the previous proceeding has already ended and review application is a fresh application to review the earlier order, the consent as required by the Tribunal was not in accordance with law or the practice or the precedent. 20. It also appears from the impugned order that another review application was filed on 5.2.2013 after complying the objection of the Tribunal. Also it appears that one Miscellaneous Application (M.A.) No. 347 of 2013 was filed for condonation of delay in filing the review application. But the Tribunal took the matter as if the petition for condonation of delay has been filed to condone the delay in filing the application for review under Rule 17 of CAT (Procedure) Rules, 1987. The observation of the Tribunal at para-3 of the order dated 15.5.2013 passed in R.A. No. 3 of 2013 is placed below:- “3. But the Tribunal took the matter as if the petition for condonation of delay has been filed to condone the delay in filing the application for review under Rule 17 of CAT (Procedure) Rules, 1987. The observation of the Tribunal at para-3 of the order dated 15.5.2013 passed in R.A. No. 3 of 2013 is placed below:- “3. By filing MA No. 347 of 2013 it has been averred that this RA has been filed in pursuance of the liberty granted by the Hon’ble High Court of Orissa and by this Tribunal dated 15th November, 2012 and, therefore, the delay in filing this RA beyond thirty days may be condoned and the RA may be heard on merit. But we find that though by order dated 15th November, 2012 this Tribunal granted liberty to the Review Applicants to file review, they should have filed the RA within thirty days. However, they seek condonation of the delay but this Tribunal lacks competence to do so as held by the Hon’ble High Court of Orissa in the case of Rajayya Bosi vs. Union of India and Others in OJC No. 4532 of 1998, dated 3.7.2003. Rule 17 of CAT (Procedure) Rules, 1987 deals in regard to filing of application for review wherein it has been provided that “no application for review shall be entertained unless it is filed within thirty days from the date of receipt of copy of the order sought to be reviewed.” In either event this RA has admittedly been filed beyond the period of limitation. Hence by applying the law laid down by Hon’ble High Court of Orissa in the case of Rajayya Bosi (supra) this RA stands dismissed by leaving the parties to bear their own costs.” It is clear from the Tribunal’s order that the Tribunal has taken the Review Application No. 3 of 2013 as if filed under Rule 17 of the CAT (Procedure) Rules, 1987 and it should be filed within thirty days from the date of receipt of the copy of the order sought to be reviewed. The Tribunal has lost sight of the fact that it is the order of this Court which directed the petitioners to file review application and such order was passed on 16.7.2012 in W.P. (C) No. 5931 of 2012 and the petitioners have taken immediate action as R.A. No. 13 of 2012 was filed but for the irrelevant objection by the Tribunal such petition was withdrawn and filed fresh one in 2013. Rule 17 of CAT (Procedure) Rules permits review of the orders by the Tribunal sought to be reviewed. Here the question of delay in the facts and circumstances as narrated above did not arise. So, question of condonation of delay also is not the point to be considered. Had there been impugned order passed bereft of intervention of the Court order or Tribunal order and the application for review is filed beyond the period of limitation, the observation of the Tribunal could have been appropriate. But in the peculiar facts and circumstances as depicted above, we are of the considered view that the observation of the Tribunal that the Tribunal lacks confidence to condone delay and accordingly the review application being barred by time do not arise. On the other hand, we are of the view that the observation in para-3 of the Tribunal is misplaced and such view in the facts and circumstances is illegal and improper. So, the petition for review of the order in O.A. No. 349 of 2011 cannot be said to be barred by time. Issue No. (i) is answered accordingly. POINT NO. (ii) 21. From the above discussion, it appears that R.A. No. 3 of 2013 came to be filed before the Tribunal to review the order of the Tribunal passed in O.A. No. 349 of 2011. In O.A. No. 349 of 2011 the entire departmental proceeding including the termination of the opposite party from service was quashed. Unless review application is heard as per the order of this Court, the order of the Tribunal in O.A. No. 349 of 2011 cannot be said to have reached finality. Here, the relevant portion of the impugned order passed in O.A. No. 369 of 2012 at paras-15 and 16 are placed below for better appreciation:- “15. Unless review application is heard as per the order of this Court, the order of the Tribunal in O.A. No. 349 of 2011 cannot be said to have reached finality. Here, the relevant portion of the impugned order passed in O.A. No. 369 of 2012 at paras-15 and 16 are placed below for better appreciation:- “15. When this Tribunal on the first occasion directed that the status of the applicant would be under deemed suspension entitling him the subsistence allowance as per rules and on second occasion it was directed that the status of the applicant shall be as he was prior to the order of punishment and that the applicant reached the age of superannuation before reaching finality on the disciplinary proceedings and the said order of this Tribunal reached its finality, there is no occasion on the part of the Respondents not to pay the applicant Subsistence Allowance or release the pension and pensionary benefits as per Rules. 16. For the discussions made above, we find merit in this OA and accordingly this OA is disposed of with direction to the Respondents to release the subsistence allowance from 10.06.2011 to 31.07.2011 and pension/pensionary dues, as per Rules, if no such order of removal/dismissal exists in the eyes of law till 31.07.2011 i.e. the date when he reached the age of superannuation. The entire exercise shall be completed within a period of 90 (ninety) days from the date of receipt of copy of this order.” 22. From the aforesaid observation of the Tribunal, it appears that the opposite party was under suspension but due to the order of the Tribunal in O.A. No. 349 of 2011 which came out after the age of superannuation of the opposite party, the disciplinary proceeding can be said to have reached finality as per the order of the Tribunal. Basing on such observation, the Tribunal allowed to pay substantial allowance from the date of the order of the disciplinary proceeding till the date of superannuation and to also allow pensionary benefits. Such observation of the Tribunal appears to be not in consonance with law. From the pleading of both the parties, it appears that on 17.6.2011 the departmental proceeding was concluded and the order of removal from service by disciplinary authority was passed. But the date of superannuation of the opposite party was 31.7.2011. Such observation of the Tribunal appears to be not in consonance with law. From the pleading of both the parties, it appears that on 17.6.2011 the departmental proceeding was concluded and the order of removal from service by disciplinary authority was passed. But the date of superannuation of the opposite party was 31.7.2011. Had there been no proceeding in Tribunal, the departmental proceeding has been concluded before the age of superannuation of the opposite party. On the other hand, the departmental proceeding has been concluded before the retirement of the opposite party. There is nothing found from the order that the proceeding of the Tribunal has stayed operation of the order of termination and only after the order of the Tribunal was passed in O.A. No. 349 of 2011, the status of the opposite party was reversed. The proceeding of the Tribunal cannot be equated as appellate authority of any disciplinary proceeding conducted by petitioners. So, under law the departmental proceeding has concluded before the age of superannuation of the opposite party. Moreover, the impugned order in O.A. No. 349 of 2011 has been challenged before this Court in W.P. (C) No. 5931 of 2012 where this Court has asked filing the review application before the Tribunal and it appears from the record that the Tribunal after having disposed of R.A. No. 3 of 2013 has disposed of O.A. No. 369 of 2012 on 30.1.2014. So, the Tribunal failed in error to appreciate the sequence of the facts. Moreover, it is found from the writ petition that the Union of India has brought to the knowledge of the Tribunal about the filing of writ petition against the order of the Tribunal passed in Review Application No. 3 of 2013. When there is proceeding pending before the Court challenging the order of the Tribunal and the fate of O.A. No. 369 of 2012 depends on the fate of O.A. No. 349 of 2011, the observation of the Tribunal in all such angle is de hors to the principle of law. 23. When there is proceeding pending before the Court challenging the order of the Tribunal and the fate of O.A. No. 369 of 2012 depends on the fate of O.A. No. 349 of 2011, the observation of the Tribunal in all such angle is de hors to the principle of law. 23. Be that as it may, the order of the Tribunal passed in O.A. No. 369 of 2012 is premature one because the fate of the order in O.A. No. 349 of 2011 is yet to be reached finality as R.A. No. 3 of 2013 is to be disposed of by the Tribunal in view of our observation made in Point No. (i). After analyzing all the factors, we are of the view that the order in O.A. No. 369 of 2012 is illegal and improper. Point No. (ii) is answered accordingly. CONCLUSION: 24. For the foregoing discussions, we are of the view that the order of this Court in W.P. (C) No. 5931 of 2012 being complied with by the petitioners by filing the review application and same petition being not barred by limitation as per discussion made in Issue No. (i), it should be reheard by the Tribunal. At the same time, the order in O.A. No. 369 of 2012 being de hors to the principles of law and premature, it requires interference by this Court. So, we are of the view that the order passed in O.A. No. 369 of 2012 being illegal and improper, is liable to be quashed and we do so. In view of our observation in Point No. (i) the impugned order in R.A. No. 3 of 2013 does not stand and same is liable to be quashed and we do so. We hereby remit R.A. No. 3 of 2013 to the Tribunal with a direction to hear the same again on merit by giving opportunity to both the sides and pass necessary orders within a period of four weeks from the date of receipt of the order from this Court. W.P. (C) No. 8853 of 2014 is allowed and W.P. (C) No. 15428 of 2013 is disposed of accordingly. I. Mahanty, J. – I agree.