Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 13 October, 2011
Central Administrative Tribunal,
Chandigarh Bench.
(Circuit Bench at Shimla)
O.A.No.10-HP-2009 Decided on :13.10.2011
CORAM : HONBLE MS.SHYAMA DOGRA, MEMBER (JUDL.) &
HONBLE MR.KHUSHI RAM, MEMBER (A).
Shri J.S. Thakur son of Shri Hira Singh, resident of Village Jharech, PO Beolia, Shimla-171009.
. Applicant
By : Mr. H.K.Paul, Advocate.
Versus
1. Union of India through the Secretary to the Government of India, Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi-110001.
2. The Director General, Directorate for Advertising & Visual Publicity, Ministry of Information & Broadcasting, Suchna Bhawan, CGO Complex, New Deli-110003.
3. The Registrar of Newspapers for India, West Block-8, Wing No. 2, R.K. Puram, New Delhi-110066.
4. The Pay & Accounts Officer, Central Pension Accounting Office, Ministry of Finance, Govt. of India, Trikoot II Complex, Bhikaji Cama Place, New Delhi-110066.
5. Directorate General of Doordarshan, Prasar Bharati, Doordarshan Bhawan, Copernicus Marg, New Delhi.
Respondents
By : Mr. K.S.Rathore, Advocate.
O R D E R(ORAL)
HONBLE MS.SHYAMA DOGRA, MEMBER(J) The applicant has filed this O.A, inter-alia, for issuance of directions to the respondents to treat the period of suspension from 29.3.1982 to 9.2.1990 as spent on duty and as qualifying service for the purpose of pension and other retiral dues and period from 23.1.1998 to 18.12.1998 and 2.6.2003 to 25.7.2003 being treated as Extra-Ordinary Leave by the respondents vide orders contained in Annexure A-11 and A-12 may be treated as qualifying service for pension and he may also be given second ACP w.e.f. 9.8.1999 along with interest @18% per annum on these dues.
2. The above reliefs have been sought for in the background of the facts that the applicant joined service as a LDC on 21.12.1965 and as UDC w.e.f. 17.3.1988. He was appointed as Assistant in the pay scale of Rs.5500-175-9000 in the cadre of CSS vide office order dated 28.7.2003. The applicant retired on 5.6.2006 (A-1). The applicants service from 29.3.1982 to 9.2.1990 during which period he remained under suspension has been treated as non-qualifying service for the purpose of grant of pensionary benefits though he was paid subsistence allowance for the said period,. The period from 23.1.1998 to 18.12.1998 and from 2.6.2003 to 26.7.2003 was regularised as Extra Ordinary leave (EOL) and not counting it as period for qualifying service for the purpose of pensionary benefits.
3. Applicants next submission is that he has not been supplied with copies of the statements of GPF deductions / accumulations since 1998 to the date of his retirement in 2006, which are otherwise required to be supplied every year resulting into his inability to check or verify the exact amount being paid to him. Therefore, respondents be directed to supply these copies to the applicant.
4. With regard to treating the relevant period as E.O.L. from 23.1.1998 to 18.12.1998 and from 2.6.2003 to 25.7.2003, the submission of the applicant is that he was having enough leave of kind due in his account, therefore, this period should not have been treated as EOL that too without affording any opportunity of being heard to the applicant as treating this period as EOL has deprived him to get salary for the period which affects his monetary benefits including civil consequences.
5. The applicant has also contended that respondents have wrongly treated his relevant period as EOL despite the fact that he had asked for disability leave on production of medical certificate and leave of kind due was also in his account, therefore, without affording him any opportunity of being heard to treat this period as EOL and counting break in his service has caused grave mis-carriage of justice in violation of principles of natural justice.
6. The applicant has also asked for grant of interest on the dues @18% per annum on the ground that since respondents have illegally subjected him to face departmental proceedings time and again also deprived him of 2nd ACP, therefore, he being not at fault, is entitled to get interest on these amounts from due date.
7. To substantiate this plea that the applicant was subjected to face departmental proceedings three times for the same charge sheet for same misconduct which is not permissible under any service law, he pleads that 1st charge sheet was issued against him on 15.6.1982 and second on 29.10.1986. He was visited with the penalty by the D.A. vide order dated 20.6.1994. Against this order, the applicant filed appeal and appellate authority quashed the order of disciplinary authority with directions to conduct de novo inquiry. After de novo inquiry for the same charges, the D.A. vide order date 12.2.1997, held the applicant guilty and imposed the punishment of reduction to a lower stage by three stages for a period of three years with further directions that the applicant would not earn increments of pay during the period of reduction and on the expiry of this penalty, the reduction will have the effect of postponing his future increments of pay.
8. The grievance of the applicant is that once the appellate authority has quashed the impugned order of penalty, therefore, no departmental proceedings can be said to be pending against him. Moreover, there is no provision in the Rules to initiate department proceedings de-novo. In these circumstances, he submits that de-novo inquiry can be initiated only from a particular stage in departmental proceedings where defect has crept in, therefore, order of appellate authority for de-novo inquiry and subsequent order of penalty passed by the D.A. on the same charges are nullity. Therefore, the applicant is entitled to grant of second ACP from 9.8.1999 as after declaring these orders as non-est, nothing adverse during the relevant period was against the applicant to deny him this benefit.
9. The learned counsel for the applicant has also supported his submissions detailed hereinabove with case law cited in (1997) 11 SCC 373 titled Bibhuti Bhushan Chaudhry Vs. Union of India & Others, wherein it was held that period of suspension during which subsistence allowance was paid is includible as qualifying service for the purpose of Pension (Para 3). In the case of M.S. Subramanayam Vs. Commander, Madras Engineering Group Centre & Others, 1980 (1) SLR, 123, that after quashing of dismissal order, penalty is not presumed to be survived.
10. The respondents have filed their reply and justified the orders of penalty on the ground that the applicant was charge sheeted for his wilful absence from duty and since he was facing departmental proceedings as on 9.8.1999 he was not granted IInd ACP from that date but from the date when his penalty of reduction by three stages for three years was over in 2003 which was made effective from 1.3.2000 in terms of orders dated 24.2.2000 passed by the appellate authority. The applicant has been rightly granted the benefit of IInd ACP from 2003 as during the pendency of disciplinary proceedings, he was not entitled to this benefit. They further pleaded that since the applicant remained under suspension for the period mentioned in his O.A., he was not entitled to get this period being treated as spent on duty. However, respondents have not denied this fact that the applicant has received subsistence allowance during suspension period.
11. With regard to grant of EOL, for remaining period of his absence, the contention of the respondent is that as there is no provision to sanction disability leave for this period treated as E.O.L. which cannot be calculated or added as qualifying period in his service for the purpose of pensionary benefits, therefore, the applicant cannot claim this benefit also.
12. The contention of the applicant with regard to non supply of GPF statement is rebutted by the respondents on the ground that they were not aware of his changed address which is reflected in the orders passed by the appellate authority in its order dated 9.4.2001, Page 14.
13. The respondents have also given detailed explanation for delay of finalising pension papers of the applicant and submit that since applicant was posted in DAVP on 15.4.2005 and prior to that he was working in Prasar Bharti (Doordarshan) and was also transferred to Department of Commerce but it was not accepted because he was to retire from government service on 31.5.2006 (Annexure R-III) and thereafter the applicant stopped coming to the office and various cases were filed by him and he was also facing departmental proceedings, therefore, delay if any caused to finalise his pension is not intentional, therefore, the respondents are not liable to pay any interest and this O. A. is liable to be dismissed.
14. The respondents further submit that there is no provision for grant of disability leave which can only be given to a person who has been disabled by injury caused during performance of official duty. Grant of leave is the discretion of the competent authority. Major penalty proceedings were pending against him on 9.8.1999, so it was not possible to grant him ACP from that date. The same culminated in imposition of major penalty of reduction of pay by three stages for a period of three years w.e.f. 1.3.2000. On completion of effect of penalty, he was granted second ACP w.e.f. 1.3.2003.
15. The applicant has filed a rejoinder to rebut the contentions made by respondents in their reply. It is also submitted by him that there was a regular deposit of monthly subscription in his G.P.F. account for the period in dispute which was treated as EOL and there was also sufficient leave in his account to grant him leave of its kind due. He has also categorically mentioned that he was given medical reimbursement for the period from 26.3.2003 to 25.7.2003 vide Bill No. 20/2003 dated 19.1.2007 amounting to Rs.647/-. Therefore, this period cannot be treated as EOL and break in service that too without affording him an opportunity of being heard.
16. We have heard learned counsel for the parties and perused the material on the file.
17. The applicant claims treating the period from 29.3.1982 to 9.2.1990 as spent on duty and as qualifying service for pension. Admittedly, the applicant was placed under suspension on 29.3.1982 and remained as such upto 9.2.1990 i.e. for a period of 7 years, 10 months and 11 days and was also paid subsistence allowance for this period. This issue came to be considered in 2005 (3) SLJ 281 CAT titled Abdul Razack vs The President Of Income Tax And Anr by the C.A.T. Hyderabad in which it was clearly held that period of suspension is to be counted towards qualifying service. The relevant part of the judgement is reproduced as under :
.It is further mentioned in the statement that the applicant was under suspension from 20.3.2001 and, therefore, the period from the date of suspension uptill the date of retirement is not to be counted as qualifying service for the purpose of pension and pensionary benefits. The learned Counsel for the applicant submitted that this action of the respondent authorities in not counting the period of suspension from 20.3.2001, for the purpose of counting as qualifying service, is not as per the rules. We find sufficient strength in the arguments of the learned Counsel for the applicant that as Rule 27(1)(c) of the CCS (Pension) Rules clearly lays down that the period of suspension in cases where Government servant is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension, will not be excluded for the purpose of calculation qualifying service of a Government servant. In the present case, we find that vide Notification F.No. A-12023(1)/91-Admn.III(LA), dated 11.7.2003 published in Gazetted of India, Part-I, Section-2, issued by the Department of Legal Affairs, Ministry of Law and Justice, Government of India, the applicant stood retired while under suspension on superannuating from Government service with effect from the afternoon of 14th February, 2003 in accordance with Rule 11 of the Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963. From this, it is clear that though under suspension, the applicant was permitted to retire by the Government by a specific order to that effect and as such this case would be duly covered under Rule 27(1)(c) of CCS (Pension) Rules. This would mean that his services from 20.3.2001 upto 14.2.2003 during which period he was in receipt of subsistence allowance also from the Government, will be counted towards qualifying service for the purpose of admission of pension and pensionary benefits. When this period of suspension viz., from 20.3.2001 to 14.2.2003 is also taken into account as per Rule 27(1)(c) for the purpose of calculation of qualifying service, the applicant clearly completes more than 10 years of service and as such he would be entitled for pension and pensionary benefits. When the learned Counsel for the respondents was asked to explain and give his views in respect of Rule 27(1) (c) of CCS (Pension) Rules, he could not offer any comments contrary to the view taken by us
18 Similar view has been taken by the Honble Punjab and Haryana High Court in the case of Y.P. Sehgal Vs. State of Punjab, 1992 (2) SCT, 179. Considering the view taken by a coordinate Bench of this Tribunal and finding that the case in hand is fully covered by the decision aforesaid, we hold that the applicant is entitled to count the suspension period in question towards qualifying service for the purpose of pensionary benefits.
19. The second claim of the applicant is for counting the period of EOL (without medical certificate) for 384 days towards qualifying service. There is a specific averment of the applicant in Para 4 (xv) that he had submitted the application supported with documents for grant of disability leave which was not considered by the respondents and for a particular period in 2003, he was also paid medical reimbursement. In reply to this specific averment, the respondents have mentioned that the Special Disability Leave can be granted only to a person who has been disabled by injury during performance of official duty. The applicant was on unauthorized absence and as such his request was not covered under these rules. Thus, the leave applied for was treated as Extra-Ordinary Leave. According to them, the conduct of applicant was highly objectionable and against official decency and decorum and disciplinary action could have been taken against him. There is no averment that the medical certificates given by the applicant were received by them or not but this fact is admitted by the respondent that the applicant had asked for disability leave which was neither accepted nor refused by them and he was treated to be unauthorizedly absent and treating this period as EOL causing break in service, which certainly involves civil consequences. Therefore, action taken by them, without affording the applicant an opportunity of hearing, stands vitiated and the impugned action of the respondents cannot be appreciated by a court of law and needs re-consideration.
20. In so far as grant of second ACP w.e.f. 9.8.1999 is concerned, it has been vehemently argued on behalf of the applicant that he had completed 24 years of service in 1989 itself. No doubt, applicant was kept under suspension w.e.f. 29.3.1982 to 9.2.1990 and was given subsistence allowances. The appellate authority has observed that two charge sheets were issued to the applicant vide Memorandum dated 15.6.1982 and on 29.10.1986 on the same articles of charges without deciding the fate of first charge sheet which was held to be in contravention of the Government of Indias instruction No. 9 below Rule 15 of the CCS (CCA) Rules, 1965. It was also held by the appellate authority that Deputy Press Registrar was not competent to act as disciplinary authority and as such a de-novo inquiry was ordered on 25.5.1995. The fresh charge sheet was issued to the applicant only on 14.9.1995 for the same charges. It is very heartening to note that authorities concerned have not taken into consideration that the delinquent can not be subjected to face departmental proceedings de-novo for the same charges and if it is permitted, it would become an endless process to continue such proceedings unless the delinquent is imposed some penalty. This is not permissible in service jurisprudence, therefore, since de-novo proceedings were nothing in the eyes of law and the appellate authority had already quashed the impugned order of D.A, therefore, it is presumed that nothing was pending against the applicant when order of de-novo enquiry was passed. Therefore, applicant is held to be entitled for grant of IInd ACP w.e.f. 9.8.1999 on completion of 24 years regular service in 1989.
21. In so far as question of supply of documents is concerned, most of the documents have been furnished to the applicant. In any case, if he needs more documents, he can invoke the provisions under the Right to Information Act, 2005. In so far as delay in release of payment is concerned, as explained by the respondents, the entire fault cannot be attributed to the respondents yet this fact cannot be ignored that the applicant was also subjected to face departmental proceedings time and again for the same charges, which is not permissible under law and authorities concerned have not cared to examine or appreciate this legal aspect. The applicant is held entitled to interest if the relevant dues as directed by us in operating part of the orders are not paid within specified period. The applicant, is not entitled to payment of interest on retiral benefits as the applicant was facing departmental proceedings and was given retiral and other pensionary dues in 2006 only after his retirement in 2006.
22. Thus, after overall analysis of the matter, the applicant is held entitled for regularization of his suspension period from 29.3.1982 to 9.2.1990 for the purpose of pensionary benefits. The appropriate orders for payment of difference of arrears of pay and pensionary benefits revised from time to time, if any, be passed by the competent authority and pension be fixed accordingly.
23. In so far as claim of the applicant for grant of ACP from 9.8.1999 is concerned, the concerned respondents are directed to grant the ACP to the applicant from 9.8.1999, if he is otherwise also found fit as per ACP Scheme. They are also directed to consider his case for regularising of the period from 23.1.1998 to 18.12.1998 and from 2.6.2003 to 25.7.2003, which was treated as EOL on the basis of medical certificates to treat it as leave of the kind due, if there was some leave in his credit at that time and amount of leave encashment, if any, received by him for that particular period be adjusted accordingly. Before doing this exercise, the applicant be afforded an opportunity of being heard. The applicant be also supplied copies of GPF statements to enable him to verify the factual position of payments / withdrawals etc. of GPF amount. Needful as above be done by the concerned respondents within a period of three months from the date of receipt of copy of this order. If the needful is not done within aforesaid period, the respondents will be liable to pay interest @ 6% per annum, on the arrears / entitlement from the date of his retirement till the date of receipt of actual benefits.
24. With these observations and directions as above, this O.A. stands disposed of with no orders as to costs.
(KHUSHI RAM) (SHYAMA DOGRA)
MEMBER (A) MEMBER (J)
Place: Shimla.
Dated: 13.10.2011
HC*
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