Central Administrative Tribunal - Delhi
Dharam Pal vs M/O Railways on 26 September, 2019
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 1753/2017
Order Reserved on: 23.09.2019
Order Pronounced on: 26.09.2019
Hon'ble Ms. Nita Chowdhury, Member (A)
Dharam Pal (Aged about 59 years)
Group „D‟ Senior Pointsman,
S/o sh. Shiv Charan,
O/o Chief Yard Master,
Northern Railway, Delhi Junction,
R/o Village Dalalpur,
Post Roza Yaqubpur, Tehsil Dadri
Distt. Gautam Budh Nagar (UP) - Applicant
(By Advocate: Mr. V.K. Sharma)
VERSUS
1. The Union of India through
The Secretary, Govt. of India,
Ministry of Railways,
Rail Bhawan, New Delhi
2. The General Manager,
Northern Railway Headquarters,
Baroda House, New Delhi
3. The Senior Divisional Operational Manager,
Northern Railway, Divisional Office,
New Delhi
4. The Station Manager,
Northern Railway, Delhi Railway Station,
Delhi Junction - Respondents
(By Advocate: Mr. SM Arif)
2
OA 1473/2012
ORDER
The applicant has filed this OA, seeking the following reliefs:-
"(a) That during his long more than 30 years service, he has not been granted any Regular Promotion. He is eligible for Three Financial Upgradation under Modified Assured Career Progression (MACP) Scheme, which may kindly be allowed to applicant as per the Rules, with all consequential arrears within a time bound period.
(b) That the Competent Authority may be directed to pass immediate appropriate Order‟s for continuous to draw the minimum of Pay Scale meant for lowest Group D post as per attention is invited to Railway Board No.E(NG)-II/2009-RR-1/10/PT dated 09.12.2010, which provide this minimum scale of pay for Group D employee, have been even brought to the notice of the applicant. (Annexure A-6 and Annexure A-7).
(c) That the competent authority may be directed to pass immediate appropriate order‟s for regularizing the leave period as earned leave/commuted leave under the medical grounds, as per the rules. The training period following the said leave undergone departmentally may be treated as duty on full pay and allowances.
(d) That he may also be allowed penal interest of 12% p.a. for the entire period of delayed payment of salary.
(e) That all the reliefs sought by the applicant in this case, Consequential reliefs (interconnected reliefs) related to applicant‟s case, and he is retiring from service on 31.03.2018.
(f) Allow any other further relief which this Hon‟ble Court may deem fit and proper in the circumstances of this case in order to meet the ends of justice;
and
(g) Allow cost of this OA."
2. This is second round of litigation by the applicant. Earlier he had filed OA No. 3480/2015, praying therein to regularize his leave period as earned leave and treat the 3 OA 1473/2012 period of his reporting for duty from 1.05.2013 till the date of his resumption for duty, as duty. The Tribunal through a detailed order dated 5.10.2015 directed the respondents to examine the appeal pending with them and dispose of the same by passing a speaking order. In compliance with the Tribunal‟s directions, the respondents restored the applicant in his post as Tech. III and directed him to undergo conversion course of six months. It is the grievance of the applicant that though he has completed six months training, as directed, his leave period has not been regularized nor has he been granted any regular promotion or MACP though he has completed more than 30 years of service.
3. The respondents have filed the counter affidavit opposing the OA. They have contended that after being redeployed as Tech.III, the applicant remained unauthorizedly absent from duty from 1.01.2008 to 6.04.2008. Therefore, action was initiated against him and punishment of WIT for one year was awarded. Meanwhile, he was declared medically `unfit‟ and in terms of PS 11816, was kept on special supernumerary post. While discharging duties on supernumerary post, he again absented himself from duty unauthorizedly from 21.02.2009 to 19.01.2010. When he reported for duty after a lapse of 334 days, he was directed once again to undergo medical fitness test. He was put on duty while serving SF-11 for unauthorized absence. On being 4 OA 1473/2012 found suitable by the adjudging Committee for the post of Tech-III, he was directed to undergo six months conversion course. While undergoing the said Course, the applicant again remained unauthorizedly absent from duty from 17.04.2011 to 22.10.2012. He was directed to report to Sr. Station Manager, Delhi when he reported for duty after a lapse of about two years on 27.04.2013.
4. The respondents in their reply have categorically mentioned that the total absence period of the applicant of 1707 days has been decided as LWOP vide letter dated 9.04.2018 and the case is sent to Settlement Section for finalizing retiral benefits. It is further contended that since the period of absence of the applicant was decided as LWOP, therefore, no leave salary was admissible to him.
5. As regards grant of MACP, the respondents in their reply have submitted that the applicant was initially appointed in Grade Rs.196-232 and was promoted in Grade Rs.950-1150 on 1.03.1993. On account of his absence for a total period of 3798 days i.e. 10 years, 4 months and 28 days, he has not been found eligible for grant of second MACP. The respondents have thus prayed for dismissal of the OA.
6. The applicant, in response to the reply, has filed the rejoinder reiterating the averments already made in the OA. He has placed reliance on judgment in the case of S.N. Ramaswamy Vs. Union of India, (1989) 10 ATC 80 (Madras) 5 OA 1473/2012 stating that before passing any order entailing civil and penal consequences, the respondents ought to have issued show cause notice to him. However, upon perusal of the impugned order dated 01.02.2016 placed at Annexure A-1, we find that the notice could not be issued to the applicant due to non- receipt of his service record from Personnel Branch.
7. After hearing both learned counsel for the parties and perusing the pleadings available on record, it is noticed that the respondents, in compliance with the directions of the Tribunal in OA No 3480/2015, have passed a detailed and speaking order dated 01.02.2016, which reads as under:-
"You were unauthorized absent from 01.01.08 to 06.04.08 for which you were taken up under D & AR. You were awarded a major penalty charge-sheet vide no.84-TM/11/A/D&AR/92/09 dated 16.12.09 for this, an inquiry was conducted by CYM/DLI & you did not attend despite several messages. Finally an ex parte action was taken as the charges were proved in the enquiry and a punishment of WIP for two years was awarded to you but notice could not be issued to you due to non receipt of your service record from Personnel Branch.
You were working as a Pointsman/Delhi Railway Station whence you were medically de-categorised on 05.08.2010 & deployed in C&W department as Tech-III by Personnel Branch vide 729-E/2/3356 dated 05.08.10. You were sent for training at C&W Training Center/GZB on 06.10.10 & you absconded from there since 17.04.11.
I have gone through the orders of the Hon‟ble CAT, Appeal (No. Nil dated 23.06.2014 annexure-10) in your representation, you have stated that you were under medical treatment for diabetes and you lost your two sons during this period.
Keeping in view all above, a sympathetic view is taken and you are allowed to join your duty back at C&W Training Centre/Ghaziabad with immediate 6 OA 1473/2012 effect as you were redeployed as Tech-III in C&W dept. & you were under training at C&W Training Centre/Ghaziabad when you absconded from duty. Regarding you period of unauthorized absence the decision may be taken by your administrative officer once you join back at C&W Training Centre/Ghaziabad.
(Emphasis Supplied)"
8. Even thereafter the Division Personnel Officer, DRM Office, New Delhi had issued a notice dated 19.02.2016 to the applicant for the purpose of undergoing conversion course of six months and which reads as under:-
"In compliance to above order of Hon‟ble CAT/NDLS order dated 05.10.2015 and keeping a lenient view of all above, the applicant is allowed to join your duty back at C&W/Training Centre/GZB with immediate effect as he was redeployed as Tech III in C&W Deptt. & he was under training at C&W/Trg. Centre/GZB when he was absconded from duty. Regarding his period of unauthorized absence, the decision may be taken by your administrative officer once his join back at C&W/Trg.Centre/GZB.
Accordingly, Sh. Dharam Pal s/o Sh. Shiv Charan to undergo conversion course of six month duration at C&W Training centre GZB immediately. He will draw the same pay and allowance as being drawn during Training. His posting and seniority will be decided on completion of training and joining the post of Tech-III."
Inspite of the aforesaid notice to the applicant for undergoing the said course, he again preferred to remain unauthorizedly absent from the duty from 17.04.2011 to 22.10.2012.
9. It is thus, clear from the above orders, that the applicant had remained unauthorizedly absent for such a long period and did not provide continuous service. Despite the continuous absence of the applicant, the respondents 7 OA 1473/2012 have taken a sympathetic view and allowed the applicant to join duty back at C&W Training Centre/Ghaziabad with immediate effect. Hence, the applicant cannot blame and contend that he has been discriminated against. If he has been denied MACP or not granted regular promotion, none else than the applicant himself is responsible because he remained absent unauthrizedly for years together as is clearly shown in order dated 01.02.2018 of the respondents. Hence, we do not find any illegality in action of the respondents in this matter.
10. In view of above discussion, the OA lacks merit and is accordingly dismissed. No order as to costs.
(Nita Chowdhury) Member (A) /lg/