Central Administrative Tribunal - Delhi
Shri Anil Vats vs The Union Of India on 23 March, 2011
Central Administrative Tribunal
Principal Bench
OA No.2620/2010
New Delhi, this the 23rd day of March, 2011
Honble Dr. Ramesh Chandra Panda, Member (A) Honble Mr. A.K. Bhardwaj, Member (J)
Shri Anil Vats,
S/o of Shri Ram Kanwar Vats,
Working as Sorting Assistant in Air Mail Sorting
Division, New Delhi,
R/o 24 Suraj Nagar Azadpur Delhi-110033,
Address for Service of notices
C/o Shri Sant Lal Advocates,
C.A.T. Bar Room
New Delhi-110001. Applicant
(By Advocate: Shri Sant Lal)
Versus
1. The union of India,
through the Secretary,
M.O Communications & I.T. (Deptt. Of Posts)
Dak Bhawan New Delhi-110001.
2. The Chief Postmaster General Delhi Circle,
Meghdoot Bhawan, New Delhi-110001.
3. The Director Postal Services (MB), Delhi Circle,
Meghdoot Bhawan, New Delhi-110001.
4. The Sr. Supdt. Air Mail Division,
New Delhi-110021. Respondents.
(By Advocate: Shri Ashish Nischal for Shri Rajinder Nischal )
:ORDER:
Honble Mr. A.K. Bhardwaj, Member(J):
As stated by the applicant in this OA, he was arrested by Police on 28.7.1985, being implicated in the some criminal case. He was detained in custody for a period exceeding 48 hours and was released on bail on 09.08.1985. As a result, he was deemed under suspension from 28.7.1985. His suspension was revoked on 02.9.1985 and he was reinstated in service. The applicant was convicted in the said case vide judgment dated 17.11.1997 passed by the Addl. Session Judge Delhi. The applicant was again placed under suspension vide order dated 18.11.1997. The order dated 17.11.1997 passed by the Addl. Session Judge, Delhi was challenged before the Honble High Court of Delhi in Cr. Appeal No.423 of 1997. In the said appeal, the Honble Delhi High Court passed an interim order dated 08.12.1997 whereby the sentence of the applicant was suspended. The applicant remained under suspension till 27.6.2000, when he was removed from service. The appeal preferred by the applicant against the removed order was rejected on 26.3.2001. The applicant filed OA No.1382/2001 before this Tribunal, challenging the order of removal and also the order passed in appeal preferred by him. The appeal preferred by applicant was allowed to the effect that the offence under Section 324/323/427/34 IPC was allowed to be compounded and applicant was acquitted from the charges under said provisions of law. However, the conviction of applicant under Section 27 of Arms Act was confirmed. In view of the judgment dated 02.9.2002 passed by the Honble Delhi High Court, this Tribunal quashed the order of removal of applicant from service and also the order dated 26.3.2001 passed by the appellate authority rejecting the appeal of the applicant made by him against the removal order. Quashing the said order, the Tribunal issued directions to the respondents to pass fresh speaking and reasoned order. As a result, the disciplinary authority passed the order dated 31.12.2002 imposing the penalty of compulsory retirement upon the applicant. The appeal dated 10.02.2003 preferred by the applicant against the order of the compulsory retirement was rejected by order dated 08.10.2003. The period from 27.6.2000 to 31.12.2002 was treated under deemed suspension. The order of compulsory retirement and also the order passed in appeal preferred against the said order were challenged by the applicant in revision petition dated 31.12.2003. The Revisional Authority passed an order dated 27.9.2004 quashing the penalty of compulsory retirement and also the order of appellate authority. The Revisional Authority directed the reinstatement of the applicant in service. It also directed that the period of suspension/removal and also the issue of pay and allowances for such period would be decided by the disciplinary authority. Accordingly, the applicant was reinstated in service vide memo dated 04.6.2004 issued by the disciplinary authority. The disciplinary authority also issued order dated 04.6.2004, treating the period of suspension/removal from 28.7.1985 to 02.9.1985 and 18.11.1997 to 31.12.2002 as not spent on duty. The applicant made a representation dated 25.11.2004 against the order dated 04.6.2004. In the said representation, he also made a reference of the order passed by the Revisional Authority passed on 27.9.2004. During pendency of representation dated 23/25.11.2004, the applicant filed OA No.2029/2005 before this Tribunal. In the meantime, the disciplinary authority passed another order dated 01.2.2006, treating the period from 01.1.2003 to 03.10.2004 as a period not spent on duty.
2. The OA No.2029/2005 was decided by this Tribunal by order dated 03.8.2006 by setting aside the orders dated 04.6.2004 and 01.2.2006 of the disciplinary authority and remitted the matter back to the disciplinary authority to decide the intervening period i.e. the period of suspension/removal/compulsory retirement. The order passed by this Tribunal reads as under:-
In view of the facts and circumstances of the case, we allow the OA by setting aside the order of the disciplinary authority dated 4.6.2004 and the order dated 01.2.2006 and remit the matter back to the disciplinary authority for providing hearing to the applicant and decide the regularization of the period of suspension of the applicant for granting pay and allowances to the applicant in accordance with the relevant rules and Government instructions afresh. The appropriate orders will be passed by the disciplinary authority within a period of three months of the receipt of the order. No costs.
3. The appellate authority passed the order dated 28.8.2009, directing that the period from 09.12.1997 to 31.12.2002 should be treated as duty for all purposes except for pay and allowances under FR-54 (3) read with FR-54 (7). Against the order of appellate authority, the applicant submitted his revision petition on 14.10.2009. The Revisional Authority rejected the revision petition filed by the applicant.
4. The applicant has filed the present OA, making the following prayers:-
1. To quash and set aside the impugned orders to the extent full reliefs have not been granted;
2(a). To direct the respondents for payment of pay and allowances for the period from 09.12.1997 to 31.12.2002 which has already been ordered to be treated as Duty for all purposes except pay and allowances vide order dated 28.8.2009;
2(b). To direct the respondents to treat the period from 18.11.97 to 08.12.97 as duty for all purposes as he was not detained in custody even after conviction U/S 27 of Arms Act as the sentence was restricted to the period of sentence that had already undergone.
2(c). To direct the respondents to treat the period of deemed suspension from 28.7.85 to 09.08.85 as Duty for the purpose of Pension only. This has been ordered to be treated as Non Duty being detained in Police Custody;
3. To grant such other or further relief as this Honble Tribunal deem fit in the interest of justice; and
4. To award costs of this application.
5. To substantiate his aforementioned prayer, the counsel for the applicant contends that: (i) the impugned orders are against the provisions of rule; (ii) the submission made by the applicant were not considered by the disciplinary authority and the order of the disciplinary authority is non speaking; and (iii) in terms of DOP&T OM dated 03.12.1985, the period of suspension should be treated as spent on duty.
6. The respondents have filed their counter reply. In the counter reply filed by the respondents, like applicant they have also narrated the facts. The respondents pleaded that the applicant had disabled himself for performing the duties by involving himself in the criminal case and getting arrested. The respondents have also contended that the applicant was convicted by the Court of A.D.J Delhi and the period of service of the applicant from 09.12.97 to 31.12.02 has been treated as spent on duty.
7. The issues arises for our consideration is:- (i) when the period of service of the applicant from 10.08.85 to 02.09.85, 09.12.97 to 31.12.02 and 01.01.2003 to 03.10.2004 are directed to be treated as spent on duty, whether the applicant would be entitled for pay and allowances for such period? and (ii) whether the period from 18.11.97 to 08.12.97 i.e. the period from the date of order of conviction till the date of suspension of sentence and the period from 28.7.85 to 02.9.85 can be directed to be treated as spent on duty?
8. A perusal of the impugned orders passed by the appellate authority and revisional authority reveal that when the disciplinary authority has declined the pay and allowances to the applicant, taking a view that he had not performed his official duty, thus, on the principle of no work no pay, he is not entitled to pay and allowances. The revisional authority has taken a view that the conviction of petitioner under Section 27 of Arms Act had been confirmed by the Honble Delhi High Court and he was not fully acquitted. The logic given by both the appellate and revisional authorities for denying the pay and allowances to the applicant for the period of suspension/deemed suspension are not plausible and cannot be accepted. If the conviction of the applicant under Section 27 of Arms Act was confirmed by Honble Delhi High Court, it was for respondents to take a view that whether a person, whose conviction was confirmed was entitled to be reinstated in service or not. Once the respondents reinstated the applicant in service and decided to treat majority of period of his suspension/deemed suspension as spent on duty, the application of rules has to be examined from said stage. The principle of no work no pay can be applied in such cases, where an employee is responsible for not performing the duties. In the present case, when these are the respondents, who had placed the applicant under suspension, ordered his removal and issued the order of his compulsory retirement, it is not understood that how the applicant can be blamed for not performing the work. It is true that by involving himself in criminal case and his consequent arrest, the applicant invited the order of his suspension. But even after confirmation of part of his conviction by Honble Delhi High Court, the respondents not only reinstated the applicant in service but also took a view that most of the periods of suspension should be treated as spent on duty. What is required to be looked at by us is the order dated 27.9.2004 passed by revisional authority. In the said order the revisional authority viewed that there was no moral turpitude committed by the applicant and he was acquitted from the major allegation under IPC and penalty of compulsory retirement was harsh. The revisional authority also viewed that the applicant was not given opportunity to defend himself under the provision of Rule 11. While quashing the order of penalty and also the order of appellate authority, the revisional authority had not remitted the matter back for any further inquiry or further action. In terms of FR 54, when a government servant, who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or review, the authority competent to order reinstatement is required to make specific order regarding the pay and allowances to be paid to the government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be. The disciplinary authority is also required to make an order to the effect that whether such period should be treated as spent on duty or not. A period of absence from duty on account of suspension preceding dismissal removal or compulsory retirement can be treated as spent on duty, where the authority competent to order reinstatement is of opinion that the government servant who had been dismissed, removed or compulsory retired had been fully exonerated. In such situation, as per the provisions of sub rule (6) of FR 54, a Government servant is entitled to full pay and allowances. In the case, where the order of removal or compulsory retirement should be set aside on the ground of non-compliance of principle of natural justice as per Clause I and Clause II of Rule 311 of the Constitution and no further inquiry proposed to be held, the Government servant shall, subject to the provisions of sub rules (5) & (7) of FR 54 would be entitled to such pay and allowances (not being the whole), as the competent authority may determine, after giving, notice to the government servant on the quantum proposed and after considering his representation. In the present case, it appears that the authority of the respondents right from the stage of reinstating the applicant in service pursuant to their order dated 27.9.2004 did not care to appreciate the rules. We expect the departmental authority to do their job in consonance with the rules.
9. Again the difference created by the respondents between various spell of suspension while taking the decision to treat the said period as spent on duty or not spent on duty also does not appear to be intelligible. Once the Honble Delhi High Court passed final order, confirming the sentences of the applicant for a particular offences and acquitting him from other charges on compounding, it is not understood that how the period of suspension from the date of initially arrest till release from custody and also the period from the date of conviction till suspension or sentences by Honble Delhi High Court can be treated differently. The respondents have not recorded any reason for classifying the period of suspension in different categories and taking different decision in respect of the same. Accordingly, we quash the impugned order and remit the matter back to the appellate authority to take fresh decision following the rules particular FR 54 and also the procedure laid down in the instructions issued by the government from time to time regarding decision on the period of suspension/removal/compulsory retirement and the payment of pay and allowances for said period. It would be open for the appellate authority to ask the disciplinary authority to take a decision in the matter in accordance with the rules. While taking a decision regarding treatment of intervening period of suspension/removal/compulsory retirement, it would not be open to the respondents to treat such period, which has already been treated as spent on duty as not spent on duty. The concerned authority would take a decision regarding payment of pay and allowances for the period treated as spent on duty and regarding treatment of period, which has been treated as not spent on duty within three months. OA is disposed off. No costs.
(A.K. Bhardwaj) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
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