Central Administrative Tribunal - Delhi
Sh. H.K. Jain vs Union Of India & Ors. Through on 20 May, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3498/2012
Reserved on : 08.05.2014.
Pronounced on :20.05.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. H.K. Jain,
S/o Sh. U.S. Jain,
R/o H-6, Sector-D,
LDA Colony, Kanpur Road,
Lucknow. . Applicant
(through Sh. N.K. Kain, Advocate)
Versus
Union of India & Ors. through
1. The Secretary,
Ministry of Communications and IT,
Department of Telecommunication,
Sanchar Bhawan, New Delhi.
2. The Director,
Ministry of Communications and IT,
Department of Telecommunication,
Sanchar Bhawan, New Delhi.
3. The Deputy Director General (Estt.),
Ministry of Communications and IT,
Department of Telecommunication,
Sanchar Bhawan, New Delhi.
4. The CMD,
MTNL, Khurshid Lal Bhawan,
New Delhi.
5. The Executive Director,
MTNL, Khurshid Lal Bhawan,
New Delhi. .. Respondents
(through Sh. Subhash Gosain, Advocate of Respondents No. 1 to 3 and Ms. Rachna Joshi Issar, Advocate for Respondents No.4 & 5)
O R D E R
Mr. Shekhar Agarwal, Member (A) This O.A. has been filed seeking the following relief:-
(a) set aside order dt. 21.11.2011 passed by the Respondents and direct the Respondents to grant the arrears and other allowances etc. of pay from 10.08.2001 till 24.07.2007.
(b) Direct the Respondents to the count the period from 10.08.2001 till 24.07.2007 as in service period and release other ancillary benefits accordingly along with interest @ 12% p.a. and compensation for the illegal act of the Respondents.
(c) Set aside punishment of Compulsory retirement w.e.f. 24.07.2007.
(d) Pass any such other and further order(s)/direction(s) as this Honble Court may deem fit and proper.
2. During the course of the arguments, learned counsel for the applicant stated that the applicant would confine his prayer to the following:-
(i) Grant of arrears of pay and allowances for the period from 22.08.2005 to 24.07.2007.
(ii) Direct the respondents to count the period from 10.08.2001 till 24.07.2007 for the purpose of pension.
The applicants counsel stated that the applicant was no longer interested in challenging the order of compulsory retirement and also claiming arrears of pay and allowances for the period from 10.08.2001 to 21.08.2005.
3. Facts of the case are that the applicant joined the post of Mechanic with the respondents in the year 1967. He was promoted as Technical Supervisor subsequently. According to the applicant he fell ill in the year 1994 and could not attend office till 10.08.2001. On that date he submitted his joining report but the respondents did not give him any work nor did they allow him to mark his attendance. The respondents were seeking instructions from higher authorities whether to permit the applicant to join duty or not. However, the respondents failed to respond to the representation of the applicant. On the other hand, they started disciplinary proceedings against him. On 20.08.2005 the applicant received a letter directing him to join duties immediately. The applicant thereafter joined duty on 22.08.2005. In the disciplinary proceedings pending against the applicant the Disciplinary Authority passed an order imposing a penalty of removal of service on the applicant on 24.07.2007. The applicant then filed OA No. 545/2009 before this Tribunal. This was disposed of on 23.07.2009 with a direction to the respondents to take a decision on the statutory appeal of the applicant. This appeal was decided on 16.12.2009 and the Appellate Authority reduced the penalty of removal from service to compulsory retirement from service. Thereafter, the applicant filed another OA No. 215/2011. This was disposed of on 21.02.2011 with the following directions:-
3. In this view of the matter, we deem it appropriate to dispose of this OA, without expressing any view on the merits of the case, by directing the applicant to make a representation to the respondents pointing out the specific action that he feels/they are required to take but which have not been taken. If the representation is made within one month from the date of receipt of a copy of this order, the respondents are directed to look into the same in accordance with rules and dispose of such representation within a period of six weeks from the date of its receipt, by passing a speaking order in the matter to be communicated to the applicant. If the applicant is aggrieved by the order passed by the respondents, he may challenge the same in accordance with rules. 3.1 In compliance thereof, the respondents have passed order dated 21.11.2011 which has been challenged in this O.A. It is noticed from this order that the applicant had raised the following issues in his representation:-
(i) He has never committed any misconduct as evident from the records as well as noting on Note-sheet dated 13.8.2001. After recovering from illness and completion of medical leave w.e.f. 1.1.1998 to 9.8.2001 he submitted joining report along with necessary documents such as leave application, medical fitness etc.
(ii) The concerned officer did not accept his joining submitted on 10.8.2001 by raising technical pleas. It is only after repeated requests that he was allowed to join service w.e.f. 22.8.2005. However, he had not been paid salary even for the said period.
(iii) It is evident from the above facts that he was always willing to work but deprived from doing so by the concerned officer without any justification.
(iv) The intervening period from 10.8.2001 till the date of compulsory retirement may be treated as duty for all purposes and the consequential benefits such arrears of pay etc. may be released without further delay.
(v) The punishment of compulsory retirement which is not based on the correct assessment of facts may also be set aside.
(vi) His salary for the aforesaid period i.e. from 10.8.2001 till the date of compulsory retirement may be released along with 12% interest. 3.2 However, the competent authority while deciding the representation has decided that the orders of the Disciplinary Authority and the Appellate Authority were in order and that the order of the Disciplinary Authority would merge in the order of the Appellate Authority. Hence, the compulsory retirement of the applicant would take effect from 24.07.2007. Further, they have decided that when the applicant reported for duty on 10.08.2001, he was directed to submit his medical and fitness certificate in accordance with Rule-19(ii) of CCS (Leave) Rules, 1972 but instead of complying with these instructions, he continued to remain on unauthorized absence upto 22.08.2005. Thus, the period from 10.08.2001 to 21.08.2005 cannot be treated as duty and no pay and allowances for the said period would be admissible to him.
4. It is seen from the impugned order that the respondents have not passed any order regarding pay and allowances for the period from 22.08.2005 to 24.07.2007, the date of compulsory retirement of the applicant. They have also not passed any order as to how the period between 10.08.2001 till 24.07.2007 should be treated i.e. whether it should count for the purpose of pension or not. We further notice that the applicant has now kept his relief clause confined only to these above two issues. Even in the counter-affidavits filed by the respondents there is no mention about the above two issues. Thus, the respondents have been extremely careless in dealing with the representation of the applicant. First they failed to deal with all the issues raised in the representation submitted by him and thereafter even in the counter-affidavit they have been negligent and have not taken any stand on the same.
5. Learned counsel for the respondents had submitted that she would take instructions from the department and file the written arguments. However, no such written arguments have been filed. Thus, it is clear that the respondents have still not been able to take a decision on these issues.
6. Under the circumstances, we feel that this case is not ripe for judicial review. The respondents should first decide this matter and thereafter if the applicant is still aggrieved he can approach this Tribunal. We, therefore, dispose of this O.A. by directing the respondents to take a decision on payment of pay and allowances to the applicant for the period from 22.08.2005 till 24.07.2007 and also regarding counting the period from 10.08.2001 to 24.07.2007 for the purpose of pensionary benefits. This will be done within a period of six weeks from the date of receipt of a certified copy of this order. Needless to say that if the applicant is still aggrieved, he will be at liberty, if so advised, to approach this Tribunal through appropriate judicial proceedings. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/