ORDER

PRAMOD KUMAR DAS, MEMBER (A):

The case of the applicant in brief is that while working as O.S., he was served with the memorandum of charge dtd.

30.11.2009/07.12.2009 for unauthorized absence from 21.08.2009. Inquiry Officer conducted inquiry and found the charges proved. Disciplinary Authority passed the order of “dismissal from service” vide order dated 31.07.2012. Appellate Authority vide order dated 06.03.2013 rejected the appeal of the applicant confirming the punishment. Being aggrieved, applicant approached this Tribunal in OA No. 302/2014, which was disposed of vide order dated 23.08.2016 (A/1) with the following directions: <br/>

"8. The OA is allowed in part. The order passed by the Disciplinary Authority dated 31.07.2012/01.08.2012 [Annexure-

8] and Appellate Authority dated 06.03.2013 [Annexure-11] are set aside. The matter is remitted to the Appellate Authority to re-consider the case of the applicant only on the question of quantum of punishment and to pass a fresh order except major punishment . The exercise be completed within a period of one month from the date of passing of the order. Since the applicant is out of job, he may be reinstated forthwith." (Emphasis added)

1.1 The aforesaid order of this Tribunal was upheld by the Hon’ble High Court of Orissa in W.P(C) No. 17056/2016 (A/2) vide order dated 3 O.A.No. 260/00522 of 2018 02.08.2017. SLP(C) Diary No. 9135/2018 filed the department was also dismissed by the Hon’ble Apex Court vide order dated 28.03.2018 (A/3). Thereafter, the Respondent No.2, i.e. the Appellate Authority, issued speaking order dated 04.05.2018 (A/4) as under:

“6. While setting aside the order of dismissal, the Hon'ble Courts remitted the case to appellate authority with direction to reconsider the case by imposing any punishment except major penalty. As such, in compliance to the above directions of Hon'ble Courts, the undersigned as appellate authority have gone through the entire records of the case.

7. In Honour of the observations passed by the Hon'ble CAT/CTC and High Court ,Cuttack on the issue of unauthorized absence for a period of 103 days only and such alleged misconduct committed of unauthorized absence committed by Sri Asit Kumar Nayak, the undersigned as the appellate authority is inclined to modify the punishment of Major Penalty of "Dismissal" from Railway Service to the minor penalty of Withholding of annual increment of pay for a period of three years with the effect of postponing the future increments ( Cumulative Effect) .

8. Hence, Asit Kumar Nayak is reinstated in Railway Service with immediate effect. The intervening period from the date of dismissal from service to the date of joining in Railways will be treated as Dies Non for all the purposes.”

1.2 Subsequently, vide Office Order dated 14.05.2018 (A/5), applicant was reinstated to the post of Ch. O.S in Level-7 of GP 4600/-

with immediate effect while giving at note No.2 that the intervening period from the date of dismissal till date of joining/reporting will be treated as Dies Non.

4 O.A.No. 260/00522 of 2018

1.3 Ld. Counsel for the applicant alleges that the subsequent punishment imposed by the AA vide speaking order dated 04.05.2018 (A/4) is also a major penalty. In this regard, he has relied on the decision of the Hon’ble Apex Court in the case of Punjab State Electricity Board -Vs- Raj Kumar Goel, AIR 2015 SC 533, in which it has been observed as under:

“15. The High Court of Delhi in Uttam Kumar v. Delhi Jal Board has laid down the same principle and opined that there is a distinction between the withholding of increment without cumulative effect and withholding of increment with cumulative effect. The former is in the realm of minor penalty and the later is in the compartment of major penalty. In the later one, there is permanent postponement of the increment, whereas in the former one it is