Allahabad High Court
Md Asharf vs State Of U.P. And 4 Others on 21 December, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 37 Case :- WRIT - A No. - 10013 of 2022 Petitioner :- Md Asharf Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vijay Kumar Rai Counsel for Respondent :- C.S.C.,Mritunjay Mohan Sahai,Sanjeev Kumar Yadav Hon'ble Mrs. Sangeeta Chandra,J.
1. This petition has been filed by the petitioner praying for quashing of the order dated 10.11.2020 and for a direction to the respondent No. 3 to make payment of gratuity to the petitioner and other retiral benefits considering his date of regular appointment with effect from 16.08.1982 and to grant ACP and all consequential benefits treating him to be in continuous service till the date of his retirement.
2. It is the case of the petitioner that he was appointed as Labour/Mazdoor in UPSRTC on 16.08.1982 in Azamgarh Depot. He completed 37 years of service and retired on 28.02.2019. He has been paid only Rs. 2,99,056/- as gratuity ignoring service rendered by him from 16.08.1982 to 26.11.1993. The petitioner has made a representation to the respondent No. 5 on 31.01.2020 for payment of gratuity from the date of his initial joining till his retirement on which the respondent No. 5 has passed the impugned order dated 10.11.2020 showing an artificial break in service with effect from 22.11.1992 to 26.11.1993 and treating his date of appointment as 26.11.1993 forfeiting benefits of past service and rejecting his claim for retiral benefits on the basis of continue in service from the date of his initial appointment on 16.08.1982. The respondents have also deducted certain amount from the Provident Fund of the petitioner, as is evident from the subscribers' ledger card dated 7.10.2020, which has been filed as Annexure-4 to the writ petition.
3. It has been argued by the learned counsel for the petitioner that since the petitioner has worked for 37 years in UPSRTC, he is also entitled for grant of Assured Carrier Progression (hereinafter referred to as 'ACP'), for the service rendered by him which has not been given to him till date by the respondents. The learned counsel appearing for UPSRTC, Sri Sanjeev Kumar Yadav, has referred his counter affidavit wherein it has been stated that initially the petitioner was appointed on 16.08.1982 as Majdoor for a definite period up to 30.09.1982. By an order dated 1.10.1982 and the order dated 2.11.1982, tenure of service of the petitioner was extended. The petitioner remained absent unauthorizedly and disciplinary proceedings were initiated against him and on 22.12.1992, he was removed from service.
4. The petitioner represented to the Assistant Regional Manager, Azamgarh, who by his order dated 18.10.1993 give fresh appointment to the petitioner and in his order also observed that no service benefits shall be given to the petitioner for the period he remained out of service. The petitioner joined on 26.11.1993. With respect to non grant of A.C.P., the respondents have referred to Government order dated 5.11.2014 which says that on completion of regular and satisfactory service, A.C.P can be given to an incumbent. However, the petitioner's service has not been satisfactory. He has been issued various orders imposing minor penalty from time to time. By an order dated 4.4.2009, time scale pay was refused to the petitioner. After he retired, his entitlement to A.C.P was also rejected by an order dated 23.03.2022. The gratuity of the petitioner being a service benefit was forfeited on the order of his dismissal dated 22.12.1992. He was reengaged afresh only by an order dated 18.10.1993, therefore, the contention of the petitioner that his 10 years of service rendered from 1982 to 1992 has not been considered and the calculation of gratuity, is misconceived.
5. The respondents in paragraph-5 of the counter affidavit have mentioned the various punishment order passed against the petitioner including the order of dismissal on 22.12.1992. The order of suspension dated 29.6.2001 and his reinstatement provisionally on 16.7.2001 and punishment order dated 15.2.2003 by which minor penalty of withholding of one annual increment was issued along with non-grant of salary for the period he remained under suspension except for subsistence allowance already paid to him. Again on 29.5.2007, the petitioner was given a minor penalty of withholding of one annual increment without future effect for unauthorized absence of 149 days. It has been argued that the petitioner's service was not satisfactory and therefore, he could not be given the benefit of ACP.
6. In Paragraph-7 of the counter affidavit, mention has been made of the fact that the petitioner after giving fresh appointment in 1993 has served for 25 years, 3 months and 2 days. It has also been stated that in the counter affidavit in paragraph-7 that the petitioner has remained absent without leave being sanctioned to him, on various occasions, the total absence of the petitioner being 4 years, 7 months and 5 days for which the petitioner was not given any salary. The petitioner's total number of years of service on due salary was only 20 years, 7 months and 27 days. For the payment of gratuity, it was rounded of up to 21 years and after adding Dearness Allowance, an amount of Rs. 3,04,920 became payable to the petitioner. Since no leave remained in the account of the petitioner, there was no question of leave encashment dues to be given to him.
7. Learned counsel for the respondents has argued that once the petitioner represented against his order of removal dated 22.12.2022 and order dated 18.10.1993 was passed, he accepted the same without any protest and joined on 26.11.1993. The order dated 18.10.1993 had stated that the petitioner be given fresh appointment and all service benefits accruing to him from 1982 to 1992 be forfeited. Such order dated 18.11.1993 having become final, the petitioner cannot claim addition of 10 years additional service that he rendered between 1982 to 1992 after calculation of gratuity.
It has been argued by the learned counsel for the respondents that the petitioner has had a chequered service tenure and has been visited with several orders of minor penalties. He has not rendered satisfactory service as is evident from the chart filed at Page No. 40 to 44 showing his having remained absent for 1,675 days i.e. 4 years 7 months and 27 days. All retiral dues as are admissible to the petitioner have been paid to him and nothing further remained to be paid. In fact, the Regional Manager, Azamgarh has rejected the claim of the petitioner for grant of Assured Carrier Progression because of non satisfactory service. The Government order dated 5.11.2014 mentions that ACP can be given to an incumbent who has completed regular and satisfactory service without any break and without any punishment.
8. Learned counsel for the petitioner in rejoinder has submitted that the respondents have wrongly calculated the service period of petitioner from 26.11.1993 to 28.02.2019. They have ignored 10 years of his service rendered earlier and have violated the provisions of Section 2A of the Payment of Gratuity Act, 1972. His service was terminated on 22.10.1992 were restored on 18.11.1993. He has remained absent only for 10 months with effect from 18.10.1992 to 26.11.1993. A perusal of the order dated 18.11.1993 would show that the petitioner has not been denied benefit of earlier service rendered. He has only been denied payment of salary and other benefits for the period he remained out of job i.e. for 10 months. Minor penalties that have been given to the petitioner during his long tenure service cannot be taken into account while calculating his gratuity and admissibility of ACP to him.
9. It has been argued further that the order dated 18.11.1993 passed by the Regional Manager, Azamgarh is being wrongly interpreted by the respondents. Earlier service rendered by the petitioner from 1982 to 1992 should be counted as continuous service under Section 2A of the Payments of Gratuity Act. It has also been argued that the Managing Director has issued a Circular on 22.4.2015 that cases of employees, in respect of grant of ACP may be considered sympathetically ignoring minor penalties, if any. The counsel for the petitioner has quoted the Circular dated 22.4.2015 issued by the Managing Director of the Corporation in Paragraph-11 of his rejoinder affidavit.
10. Having heard the learned counsel for the petitioner and learned counsel for the respondents-corporation, this Court has carefully perused the various orders passed in the case of the petitioner which have been annexed with the counter affidavit. The initial punishment order of dismissal dated 22.10.1992 has not been set aside by the order dated 18.11.1993 passed by the Regional Manager. Any order of dismissal or removal from service entails forfeiture of service benefits of the delinquent employee.
Only fresh appointment has been offered to the petitioner by the Regional Manager and it has been further observed that "Inhe Seva se prithak avadhi ka koi laabh, vetan bhatta Aaadi dey nahi hoga". It appears that the petitioner is interpreting such observation in the order as denial of back wages and interpreting the order dated 18.11.1993 as an order continuing him in his service without back wages . This is clearly a misinterpretation of the language of the order as understood by this Court and by the Corporation. This court has also gone through the order dated 21.12.2019 issued by the Assistant Regional Manager, Dohrighat Depot, which calculates the amount of gratuity of the petitioner on the basis of basic pay admissible to him on the date of his retirement on 28.02.2019, and Dearness Allowance payable to him at the rate of 2 per cent initially which was later on revised with effect from 01.01.2017 to 4 per cent. This Court finds that the order dated 21.12.2019 does not suffer from any error.
11. However, this Court finds also from the chart annexed at Page 40 to 44 of the counter affidavit that in the remarks columns while mentioning the period of absence of the petitioner only against entries at Serial No. 7, 110, 126, 146, 170, 171, 174, 180, 181, 182, 204, 232, 233, 241 and 263, the remark of "Bina Vetan" has been noted. Only such period of absence can be treated to be as leave without pay. Therefore, the calculation of 4 years 7 months 5 days as period of leave without pay is incomprehensible.
12. This Court has also considered various orders of minor penalty issued against the petitioner which have not been challenged by the petitioner at any stage. The petitioner has allowed them to become final. Such orders of minor penalty could not have been ignored for considering the question of regular satisfactory service for grant of ACP. The petitioner has mentioned a Circular dated 22.04.2016 in his rejoinder affidavit and has also filed a copy thereof as Annexure-5 to the writ petition, where the Managing Director has noted that he has been receiving several complaints of non-grant of ACP because of minor issues and that the employees are not being given ACP on censure entry being noted in the ACR due to negligence, noting of recovery or warning in their service records. He has directed that all cases of ACP should be evaluated on case to case basis and taking a sympathetic view only in cases where the incumbent is accused and found guilty of indiscipline, acting against Rules, causing financial loss to the Corporation or given a major penalty, his service should be treated as inadmissible and not satisfactory for the purpose of grant of ACP.
13. This Court has perused all minor penalty orders that have been filed as Annexures to the counter affidavit. They have been passed after issuing regular charge-sheets to the petitioner and after holding disciplinary proceedings by the corporation. Even an order of warning issued after regular disciplinary proceedings cannot be ignored. Only such entries in the Annual Confidential Report of an incumbent which relate to his service and have been made by officer responsible for making such noting in the ACR without regular disciplinary proceedings can be ignored. This Court finds no ground for interference as prayed for this in the writ petition.
14. However, this Court has found some discrepancy in the calculation of service rendered by the petitioner of 4 years 7 months and 5 days as service without pay, therefore, a direction is issued to the Regional Manager, the respondent No. 3 to get the service period of the petitioner as leave without pay recalculated and if any difference in amount is noticed, the same shall be paid to the petitioner within a period of 3 months from the date of production a copy of this order before him.
15. If group insurance and GPF does not have not been paid to the petitioner, the same shall be ensured to be paid by the respondent no. 3 within the aforesaid period of 3 months.
16. The writ petition stands disposed of.
Order Date :- 21.12.2022 SA