Central Administrative Tribunal - Delhi
Ramdhan Singh vs Delhi Jal Board on 16 December, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.169/2013 Wednesday, this the 11th day of December 2013 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. P.K. Basu, Member (A) Ramdhan Singh Aged about 59 years s/o Mr. Jai Pal Singh r/o H.No.287, Shiv Mandir Wazirabad, Delhi .. Applicant (By Advocate: Ms. Tatini Basu) Versus 1. Delhi Jal Board Govt. of NCT of Delhi Through its Vice Chairman Varunalaya, Phase II Karol Bagh, New Delhi 2. Member (Administration) Delhi Jal Board, Govt. of NCT of Delhi Varunalaya, Phase II Karol Bagh, New Delhi 3. Deputy Director (Vigilance) Delhi Jal Board, Govt. of NCT of Delhi Varunalaya, Phase II Karol Bagh, New Delhi 4. Chief Executive Officer (Vigilance) Delhi Jal Board, Govt. of NCT of Delhi Varunalaya, Phase II Karol Bagh, New Delhi ..Respondents (By Advocate: Mr. Nishakant Pandey) O R D E R (ORAL)
Mr. A.K. Bhardwaj:
As can be gathered from the pleadings of the parties, the facts of the case are that the applicant joined Delhi Jal Board (DJB) as Beldar and subsequently got regularization in said capacity only. He was served with a Memorandum dated 6.11.1997 wherein he was charged for collecting illegal gratification from the job seekers for getting them engaged in the Department on muster roll basis.
2. The short issue arises to be determined in the present Original Application is whether for the period of service during which the applicant was not on duty on account of dismissal, he should be given increments and the period should be counted as qualifying service for the purpose of terminal benefits.
3. In view of the issue being brief, we may avoid referring to several rounds of litigation. Ms. Tatini Basu, learned counsel for applicant contended that maybe while directing his reinstatement in service Honble High Court of Delhi (W.P. (C) No.2761/2010 dated 27.9.2010) specifically directed that the applicant would not be entitled to back-wages for the intervening period, still the said period should be taken into account to give him increments as also terminal benefits. She placed reliance upon the judgment of the Honble High Court of Delhi in Dinesh Kumar Kain v. Assistant General Manager, Corporation Bank & another 131 (2006) Delhi Law Times 550 and the judgments of Honble Supreme Courts in Lt. Governor of Delhi & others v. Dharampal & others, (1990) 4 SCC 13, Dr. Ramesh Chandra Tyagi v. Union of India & others, (1994) 2 SCC 416 and Sagir Ahmad v. Union of India & others, 1994 SCC (L&S) 406.
4. On the other hand, Mr. Nishakant Pandey, learned standing counsel for Delhi Jal Board relied upon the decisions of the Honble Supreme Court in A.P. State Road Transport Corporation & others v. Abdul Kareem, (2005) 6 SCC 36 and J.K. Synthetics Limited v. K.P. Agrawal & another, (2007) 2 SCC 433.
5. We have heard the learned counsels for the parties and perused the records.
6. It is born out of record that in the judgment dated 27.9.2010 passed by the Honble High Court of Delhi in W.P. (C) No.2761/2010 (ibid) when a direction had been issued for reinstatement of the applicant it was specifically viewed that he would not be entitled to back-wages for the intervening period, i.e., 1.12.2000 to 24.11.2010, the said issue stands settled.
7. As far as the entitlement of the applicant for the purpose of increments during the said period is concerned, in Abdul Kareems case (supra), it has been specifically viewed by the Honble Apex Court that when no specific direction is issued by a Court for giving consequential benefits to an employee, even if a direction is there for reinstatement, the intervening period would not automatically be considered as continuity in service entitling the employee to increments. For easy reference, paragraphs 10 to 12 of the judgment are extracted as under:-
10. The principle of law on point are no more res integra. This Court in S. Narsagoud (supra) succinctly crystallized principle of law in Paragraph 9 of the judgment on Page SCC 215:
"We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."
11. Reverting to the facts of the case at hand, as already noticed, the Labour Court specifically directed that the reinstatement would be without back wages. There is no specific direction that the employee would be entitled to all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back wages, he could claim a benefit of increments notionally earned during the period when he was not on duty or during the period when he was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence.
12. In view of what has been stated above, both the Learned Single Judge and Division Bench had erred in law in allowing the benefit of increments notionally to the employee during the period when he was out of service. Both the orders in C.A. No. 7797 of 2003 are set aside.
8. Also in K.P. Agrawals case (supra), the Honble Supreme Court has specifically held thus:
17. There is also a misconception that whenever reinstatement is directed, 'continuity of service' and 'consequential benefits' should follow, as a matter of course. The disastrous effect of granting several promotions as a 'consequential benefit' to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether 'continuity of service' and/or 'consequential benefits' should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406].
9. However, the legal proposition regarding admissibility of increments to an employee and treatment of a period as qualifying service for pensionary benefits is totally different aspect. In terms of FR 26 all duty in a post on a time-scale counts for increments in that time-scale. For easy reference, relevant excerpt of FR 26 reads as under:-
FR-26. The following provisions prescribe the conditions on which service counts for increments in a time-scale :-
All duty in a post on a time-scale counts for increments in that time-scale :
Provided that, for the purpose of arriving at the date of the next increment in that time-scale, the total of all such periods as do not count for increment in that time-scale, shall be added to the normal date of increment.
(i) Service in another post, other than a post carrying less pay referred to in Clause (a) of Rule 15, whether in a substantive or officiating capacity , service on deputation out of India and leave except extraordinary leave taken otherwise than on medical certificate shall count for increments in the time-scale applicable to the post on which the Government servant holds a lien, as well as in the time-scale applicable to the post or posts, if any, on which he would hold a lien had his lien not been suspended.
(ii) All leave except extraordinary leave taken otherwise than on medical certificate and the period of deputation out of India shall count for increment in the time-scale applicable to a post in which a Government Servant was officiating at the time he proceeded on leave or deputation out of India and would have continued to officiate but for his proceeding on leave or deputation out of India.
10. A period is not to be counted as qualifying service if the same is treated as dies non. Ex facie the respondents have not taken any specific decision regarding the intervening period on their own and on the basis of the order passed by the Honble High Court (ibid) that the applicant would not be entitled to back-wages for the period from 1.12.2000 to 24.11.2010, they have drawn an inference that the period may not be treated as spent on duty and would not be commuted for the purpose of deciding the consequential benefits. In paragraph 13 of the order dated 27.9.2010 passed by the Honble High Court of Delhi (ibid), the view has not been taken regarding treatment of intervening period and it has only been provided that the denial of back-wages to the applicant would be sufficient penalty inasmuch as he stands deprived of wages for 8 years and 9 months. Paragraph 13 of the said judgment reads as under:-
13. Taking into account all the facts noted hereinabove, suffice would it be to state that there is no evidence that late Shri Rakesh Kumar committed suicide due to any act attributable to the petitioner. The evidence shows that at the relevant time the petitioner was working as a beldar, the lowest post in the department. Assuming there was a racket as alleged, the linchpin thereof Sanjay Gupta working as Additional Director (P&M) against whom no departmental proceedings have been taken. The penalty imposed is even otherwise discriminatory. We note that the penalty imposed is of dismissal from service. The petitioner has been without job since 01.12.2000 and the concession made by the learned counsel for the petitioner that back wages may be denied is sufficient penalty inasmuch as the petitioner stands deprived of wages for 8 years and 9 months as a consequence of our order passed today quashing the penalty imposed, but without any back wages to be paid.
11. There is separate procedure and provision regarding treatment of the period of absence from duty as dies non. Relevant extract of such instructions (D. G., P & Ts letter No.6/28/70- Disc.I (SPB-1) dated 5.10.1972) read as under:
(3) Action for unauthorized absence from duty or overstayal of leave. - The following decisions have been taken in consultation with the Department of Personnel and the Ministry of Finance:-
(i) When a temporary Government servant asks for leave in excess of the limits prescribed under Rule 14 (b) of the Revised Leave Rules, 1933 (now Rule 32 of the Central Civil Services (Leave) Rules, 1972] and if the circumstances are exceptional, a decision could be taken by the leave sanctioning authority to grant further leave in excess of the limits in consultation with the Ministry of Finance. Such cases should be referred to the Directorate.
(ii) When a temporary Government servant applies for leave beyond the prescribed limit of extraordinary leave and the leave sanctioning authority is not satisfied with the genuineness of the grounds on which further leave has been asked for, nor does it consider the grounds as exceptional, the leave cannot be granted. In such a case, the Government should be asked to rejoin duty within a specified date failing which he would render himself liable for disciplinary action. Disobedience of orders to rejoin duty within the specified date failing which he would render himself liable for disciplinary action. Disobedience of orders to rejoin duty within the specified period would afford good and sufficient reasons for initiating disciplinary action under CCS (CCA) Rules, 1965. If he rejoins duty by the stipulated date, he may be taken back to service and the period of absence not covered by leave be treated as overstayal of leave and dealt with in accordance with the orders regarding regularization of overstayal of leave.
If the Government servant does not join duty by the stipulated date, it would be open to the disciplinary authority to institute disciplinary proceedings against him. If during the course of disciplinary proceedings he comes for rejoining duty, he should be allowed to do so without prejudice to the disciplinary action concluded as quickly as possible. The question of regularization of the period of overstayal of leave be left over for consideration till the finalization of the disciplinary proceedings.
(iii) If a Government servant absents himself abruptly or applies for leave which is refused in the exigencies of service and still he happens to absent himself from duty, he should be told of the consequences viz., that the entire period of absence would be treated as unauthorized entailing loss of pay for the period in question under proviso to Fundamental Rule 17, thereby resulting in break in service. If, however, he reports for duty before or after initiation of disciplinary proceedings, he may be taken back for duty because he has not been placed under suspension. The disciplinary action may be concluded and the period of absence treated as unauthorized resulting in loss in pay and allowances for the period of absence under proviso to FR 17 (1) and thus a break in service. The question whether the break should be condoned or not and treated as dies non should be considered only after conclusion of the disciplinary proceedings and that too after the Government servant represents in this regard.
2. It is made clear that a Government servant who remains absent unauthorizedly without proper permission should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32 (2) (a) of the CCS (Leave) Rules, 1972. However, the Disciplinary Authority should consider the grounds adduced by the Government servant for his unauthorized absence before initiating disciplinary proceedings. If the disciplinary authority is satisfied that the grounds adduced for unauthorized absence are justified, the leave of the kind applied for and due and admissible may be granted to him.
12. Also in Dinesh Kumar Kains case (supra), the Honble High Court of Delhi has viewed as under:
9. The correct position therefore, appears to be that the grant of back wages depends upon the facts and circumstances of each case, and a circumstance which has to be kept in mind is that the employee does not work with the employer on account of a cloud on his conduct, necessitating suspension due to pendancy of criminal charges. The right to claim reinstatement, if one can term it to be so, arises only after the court acquits the employee. Till then, the disability arising on account of the employee facing criminal charges, remains; he cannot claim reinstatement. The reliance placed on the judgment in Mohan Lal and Brahma Chandra, in my opinion, are not apt. In the former case, the court held that the terminology used by the criminal court would not be determinative of the true nature of the result, which is acquittal. The proposition, in my opinion, is too widely stated. The Supreme Court, as noticed above, has reiterated that the grant of complete back wages, and considerations which would be relevant, are to be on the basis of facts of each case. In this case, there is no dispute that the allegations against the petitioner, for which he stood trial, were of corruption. The matter was referred to the Central Bureau of Investigation. The court framed charges, and examined evidence. No doubt the petitioner was acquitted. Even if the matter were seen only from that perspective, ignoring for the moment whether the petitioner was given benefit of doubt, as observed in Krishnakant Raghunath Bibhavnekar, the nature of the charge would be relevant for determination of the issue by the employer. Further, the petitioner was granted subsistence allowance, during the period, which was even enhanced. Therefore, denial of arrears of full salary and allowances to the petitioner, for the period he was out of employment on account of pendancy of trial into criminal charges, is neither arbitrary nor illegal.
10. The opinion of the bank not to grant a full salary for the duration the petitioner was under suspension, cannot be faulted. However, its decision not to treat him as on duty is unsupported by any reason. It is true that Regulation 15(1) entitles a competent authority to grant full pay in two eventualities, namely, when the official is fully exonerated or where the suspension was unjustifiable. Similarly, Rule 15 (3) requires that that period should not be treated as having spent on duty. Yet, the factual narrative in this case would show that the bank itself was of the opinion that for purposes of gratuity and pension, the petitioner was entitled to reckon the entire duration as having been on duty. Therefore, the order depriving the petitioner continuity of service benefits for purposes of seniority etc. for more than 11 years, operates in a very oppressive and arbitrary manner. Apart from citing Rule 15 (3), the respondent bank had not disclosed why the petitioner should suffer such deprivation or what were contributory factors on his part, disentitling him to the consequential benefits of seniority, increment on the grade and other normal benefits that would have accrued to him. I am, therefore, of the opinion that the bland reliance on operation of the rule cannot be justified and that no reasons have been disclosed why the bank found it expedient to deny such reliefs.
13. In Dharampals case (supra), the Honble Supreme Court viewed that for a particular period the applicant would not be entitled to back-wages but the said period for the purposes of seniority, promotion and retiral benefits, the entire period between termination and reinstatement shall be taken into account. Paragraph 5 of the said judgment reads thus:
5. We have heard learned counsel for the parties. Considering facts and circumstances as well as the judgment rendered by Anand J. in CWP Nos. 270 and 937 of 1978, we dismiss the appeals and confirm the judgment and order dated November 26, 1987 of the Tribunal with the modification that the respondents, excepting respondent No. 24, Kanwal Singh who is dead, will file affidavits stating whether they had been gainfully employed or not during the period of the termination of service and if so employed, they will state further in the affidavits the period of such employment. The appellants may verify the same and will be at liberty to deduct the pay and allowances during the period such gainful employment while determining the arrears of salary and allowances for the period of termination. We, however, make it clear that for the purposes of seniority, promotion and retiral benefits, the entire period between termination and reinstatement shall be taken into account.
14. In Dr. Ramesh Chandra Tyagis case (supra), it could be viewed by the Honble Apex Court thus:
10. The appellant shall be reinstated forthwith and shall be entitled to all benefits except that he shall be paid but only 1/3rd of the back wages calculated as if he was continuing in service with allowances etc. He shall further be entitled to be considered for promotion on reinstatement on its own merits, when it falls due for such consideration.
15. In Sagir Ahmads case (supra), the Honble Supreme Court passed the following orders:
4. It is no doubt correct that the appellant having worked as casual labourer for over a period of five years had no right to hold the post but his services were not terminated on the ground that his work was unsatisfactory. The termination was on the ground that the appellant was involved in a criminal case. He, having been acquitted in the criminal case the natural consequence would be that he is entitled to be reinstated in the service. We allow the appeal, set aside the order of the Tribunal and direct the respondents to reinstate the appellant in service. In the facts and circumstances of this case we direct that the appellant shall not be entitled to back wages. The period of absence shall, however, be treated for the purposes of continuity in service as casual labourer and for whatever benefits which may enure to him in the service. We set aside the order of the Tribunal and allow the appeal with no order as to costs.
16. From the aforementioned precedents, it is apparent that entitlement for back-wages and consideration of a period as qualifying service for terminal benefits and the entitlement of an employee for increments during such period are different aspects. Even if the employee is denied the back-wages and increments of pay for a particular period, still the period may be treated as qualifying service for pensionary benefits. In this regard, we may also refer to G.I., M.F., O.M. No.15 (14) E IV (59) dated 25.5.1962, which reads as under:-
(3) Treatment of period of absence and payment thereof.- The Government of India have conveyed the following clarifications in regard to certain points which have been raised in connection with the application of FRs 54, 54-A and 54-B:-
(1) The decision of the competent authority under FRs 54, 54-A and 54-B is in respect of two separate and independent matters, viz., (a) pay and allowances for the period of absence, and (b) whether or not the period of absence should be treated as duty.
It is not necessary that the decision on (a) above should depend upon the decision on (b) above.
The competent authority has the discretion to pay the proportionate pay and allowances and treat the period as duty for any specified purpose(s) or only to pay the proportionate pay and allowances. It has no discretion to pay full pay and allowances when the period is treated as non-duty.
If no order is passed directing that the period of absence be treated as duty for any specified purpose, the period of absence should be treated as non-duty. In such event, the past service (i.e.,) service rendered before dismissal, removal, compulsory retirement or suspension will not be forfeited.
(2) As Fundamental Rule 54 is absolute, the law of limitation restricting payment of arrears of subsistence allowance only for a period of three years in certain circumstances need not be invoked at the time of paying the arrears of pay and allowances for the period from the date of dismissal/ removal/ compulsory retirement/ suspension to the date of reinstatement in respect of all cases where the pay and allowances are regulated on reinstatement in accordance with the provisions contained in FR 54, FR 54-A and FR 54-B.
17. It would be out of place to mention here that the Court of Mr. Prem Kumar, Additional Sessions Judge, Delhi had acquitted the applicant from criminal charges against him. For easy reference, paragraphs 16 to 18 of the order dated 2.3.2001 are extracted hereinbelow:
16. I may point out that it is even doubtful if all the deceased committed suicide. The manner of hanging on the electric pole as seen in the photographs filed on record show that both the hands of the deceased were tied behind. Both the lags were also found tied together. Piece of cloth was gagged in the mouth over which another ligatured was tied over. This position of the hanging dead body with hands and legetied and cloth piece gagged in the mouth tied with another ligature over it, is not possible by suicide. That is why, the doctor conducting the postmortem on the dead body observed that the death was due to anta mortem hanging and homicidal death could not be excluded. It clearly seems to be a case of homicidal hanging and not suicide. The entire approach of investigation is towards suicide on the basis of the suicide not without finding out the circumstances in which said not could have been written. The possibility of the deceased being compelled to write such a note cannot be excludes. The investigation is perfunctory. The Io took it to be the and of his duty to arrest accused Ram Dhan and his son on the basis of suicide note when the note does not indicate in any manner there complicity in the matter. At the most the deceased may not have been able to face accused Ram Dhan for the job of employing 18 of his boys could not be achieved by the deceased though amount of Rs.54000/- had been taken from Ram Dhan how Ram Dhan can be held responsible is not at all understandable. The IO seems to have converted the case of murder into the case of suicide. He has not taken the care expected to him. It is a completely defective investigation. Such investigation does not instill confidence in the public mind. Such investigation also does not do justice to the deceased and his family. It is unfortunate that no investigate worth the name has been carried out in this case.
17. Be that it may, the fact remains that the prosecution has failed to show that the accused persons have in any way instigated the commission of suicide by the deceased of have committed any other offence.
18. This case also exposes the corrupt practices prevailing in the Jal Board. Copy of this order be sent to chairman, Jal Board, Jhandewalan, Delhi so that proper probe into the corrupt practices can be made by that concerned department and appropriate action can be taken.
18. In view of the aforementioned, when we decline the claim of the applicant for continuity of service for the purpose of increments, seniority, promotion, etc., we direct respondents to take into account the said period as qualifying service for the purpose of terminal benefits. Since the applicant has retired from service w.e.f. 31.10.2013, the respondents would make earnest efforts to release his terminal benefits, if any, within a period of 12 weeks from the date of receipt of a copy of this order.
19. Original Application stands disposed of. No costs.
( P.K. Basu ) ( A.K. Bhardwaj ) Member (A) Member (J) December 11, 2013 /sunil/