Central Administrative Tribunal - Allahabad
Chandra Mauli Pandey vs D/O Post on 20 January, 2023
(Reserved on 06.01.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Pronounced on 20th day of January 2023
Hon'ble Dr. Sanjiv Kumar, Member (A)
Original Application No. 129 of 2021
Chandra Mauli Pandey, S/o Late Sri Udai Shanker Pandey, aged
about 54 years, R/o Village - Daskolwa, PO - Samaspur
(Mahnso), Distt. Basti. .
. . .Applicants
Advocate for the applicants : Shri Raj Kumar Upadhyay
VERSUS
1. The Union of India through its Secretary, Ministry of
Communication, Dak Bhawan, Sansad Marg, New Delhi.
2. The Superintendent of Post Offices, Basti Division, Basti,
PIN 2720012.
3. The Assistant Superintendent Posts, East Sub Division,
Basti (Disciplinary Authority) , PIN 272001.
. . .Respondents
Advocate for the respondents: Shri V.K. Shukla (absent)
ORDER
Instant original application is filed under section 19 of Administrative Tribunals Act, 1985 seeking relief to quash the impugned order dated 08.12.2020 issued by the respondent no. 2 and the respondents be directed to release the amount of remaining 25% as ex-gratia compensation, in favour of the applicant in accordance with law.
2. The facts of the case, as per the OA, are that the applicant was appointed as Gramin Dak Sevak (in short GDS) on 2 18.11.1992. He was suspended on 15.12.2009. However, he was reinstated on 11.05.2010. He was again placed under suspension on 19.12.2011 and the respondent no. 3/disciplinary authority vide order dated 01.04.2013 dismissed the applicant from service. This order was revoked by the Appellate Authority vide order dated 31.12.2013. On 08.12.2015, the respondent no. 3 again removed the applicant from service which was challenged before this Tribunal by way of OA No. 877/2017 in which the removal order dated 13.07.2017 and 08.12.2015 were quashed vide order dated 06.08.2018 (Annexure-1) and the respondents were directed to reconsider the matter in question and to pass order except dismissal and removal. It is stated in the OA that there is an Office Memorandum dated 26.06.2019 (Annexure-2) issued by the Government of India, Ministry of Communication, Department of Posts (GDS Section) reviewing the provisions of Ruls-12 of GDS (Conduct and Engagement) Rules 2011 vide which the amount of compensation as ex-gratia payment has been increased by a suitable amount not exceeding 50% of such compensation admissible during the period of the 1st 90 days, if in the opinion of the said authority the period of put off duty has been prolonged for the reasons to be recorded in writing not directly attributable to the sever and as such in view of the same, the present case of the applicant is fully covered by the provisions of Rule-12. It is stated that the respondents against the order dated 06.08.2018 passed by this Tribunal, after a lapse of more than one year, filed C.M.W.P. No. 16894/2019 before the Hon'ble High Court, which was disposed 3 off with a direction to make an inquiry and to pass an order in accordance with the law. Thereafter, the respondent no. 3 vide order dated 23.01.2020 again removed the applicant from service without making any inquiry, which is under challenge before this Tribunal. The applicant made an application dated 29.05.2020 under the RTI Act 2005 before the respondent no. 2 (Annexure-3) for replying the quarries as sought as to whether there is any provision for increasing the amount of the ex-gratia compensation upto 50%. The applicant also made an application dated 20.08.2020 to the respondent no. 3 requesting for payment of the remaining 25% compensation which exceeded 90 days just after the period commencing from the date of 20.03.2012 to the date of 22.01.2020. The respondent no. 3 vide order dated 25.08.2020 (Annexure-4A) denied the payment of the same. The applicant again made a representation dated 03.09.2020 (Annexure-5) to the respondent no. 3 requesting for ex-gratia compensation not exceeding 50%, which the respondent no. 3 denied the same vide order dated 09.09.2020 (Annexure-5A).
3. The respondent no. 2 vide letter dated 14.09.2020 (Annexure-6) replied the RTI application dated 29.05.2020 admitting the same and also annexing the copy of Provisions of Rule 12(1) of the GDS Rule-2011. Thereafter, the applicant made another representation dated 26.09.2020 (Annexure-7) to the respondent no. 3 requesting that keeping in view the well settled provisions of the concerned Rule 12(3) and the 4 concerned documents and other material facts, the due payment of the remaining 25% compensation may be given. This representation of the applicant was rejected vide order dated 19.10.2020 (Annexure-7A) with direction of prefer an appeal. Thereafter, the applicant preferred an appeal dated 23.10.2020 (Annexure-8) before the respondent no. 2 against the rejection of the applications dated 20.08.2020, 25.08.2020 and 26.09.2020 with the prayer for payment of remaining 25% ex- gratia compensation in view of Rule 12(3) of the GDS Rules- 2011. The said appeal of the applicant dated 23.10.2020 was rejected by the appellate authority vide order dated 08.12.2020, aggrieved by which the applicant has filed the instant original application on the ground that in view of the specific Rule 12(3) of the GDS Rules-2011 as well as the office memorandum dated 26.06.2019 issued by the Government of India, the applicant is entitled for the amount of remaining ex-gratia compensation of 25% and the impugned order dated 08.12.2020 is liable to be quashed.
4. In the counter affidavit, the respondents have stated that the applicant was appointed as EDBPM, Samaspur BO (Hahson), Basti vide memo dated 18.11.1992. He was found habitual to remain absent from duty frequently. A disciplinary proceeding was initiated against him vide memo dated 07.09.2020 for his unauthorized absence on 11.03.2000, 13.03.2000, 14.03.2000, 15.03.2000, 16.03.2000 and 28.03.2000. Apart from this, several public complaints regarding non-delivery of letters was 5 received and the same were found true during the enquiry and the applicant was put off from duty by the appointing authority vide memo no. A/Samaspur/04 dated 26.06.2004 and disciplinary proceeding under Rule 10 of GDS (Conduct and Employment) Rules 2001 was initiated against him vide memo no. A/Samaspur/Shri Chandra Mauli Pandey/DP/04 dated 14.08.2004. However, the applicant had been taken back to duty vide memo no. A/Samaspur/DP/4 dated 31.08.2004 during pendency of disciplinary proceeding.
5. It is stated by the respondents that the post of GDS BPM, Samaspur was vacant due to retirement of BPM, Samaspur and the Superintendent of Post Offices, Basti Division, Basti Shri S.N. Tiwari has appointed the applicant as BPM, Samaspur vide order No. A.346/Samaspur dated 03.09.2009 in a irregular manner ignoring the GDS Rules for recruitment/adjustment of surplus GDS. Shri S.N. Tiwari, SPOs, Basti was transferred and the above order dated 03.09.2009 was cancelled by the successor of SPOs, Basti Dr. S.R. Singh vide memo no. A.346/Samaspur dated 03.11.2009. On cancellation of the above order, the applicant refused to hand over the charge of BPM, Samaspur. However, the charge was handed over after several attempts made by the ASPOs, East, Basti on 17.11.2009. On complaint made by the applicant, the Postmaster General, Gorakhpur has confirmed the said cancellation order dated 03.09.2009 vide memo no. RPG/Rectt/M.14/Misc/Basti/2009 dated 13.01.2010 (Annexure CA-1). Again, the applicant sent a complaint directly to the 6 C.P.M.G, U.P. Circle, Lucknow, who has also confirmed the above cancellation order dated 03.11.2009 vide Memo No. Rectt/GKP/Misc/2010-11/4 dated 04.10.2011 (Annexure CA-2).
6. It is stated that the applicant absented himself from duty on several dates and did not perform his duties which resulted in non-exchange of mails and also non-delivery of postal articles to addressees. Besides absence, other more serious misconduct was noticed against the applicant. Therefore, he was ordered to be put off duty by the competent authority vide Memo No. A/Samaspur/09-10 dated 15.12.2009. Thereafter, the applicant filed OA No. 91/2020, which was dismissed by this Tribunal at the admission stage vide order dated 22.10.2010 (Annexure CA-
3) with the observation that "the put off order dated 15.12.2009 shows that disciplinary inquiry is contemplated which means that the applicant has been put off duty under relevant statutory Rules". The applicant challenged the order dated 22.10.2010 before Hon'ble High Court, Allahabad by way of Writ Petition No. 7450/2010, which was dismissed vide judgment dated 11.02.2010 (Annexure CA-4) with direction to the SPOs, Basti to decide the appeal within a period of two months of receipt of a certified copy of the judgment alongwith copy of appeal.
7. It is also stated by the respondents that the applicant made several complaints against the ASPOs, East Sub Division, Basti and the SPOs, Basti & others and also lodged false criminal complaint No. 1875/2020 before C.J.M, Basti. The Hon'ble High 7 Court in application Under Section 482 in W.P No. 33460/2010, after careful consideration of the contents of the application, counter affidavit filed by the application and further RA filed, stayed the criminal proceeding. The appeal of the applicant was also decided by the competent authority i.e. SPOs, Basti vide Memo No. A.346/Samaspur dated 19.04.2010.
8. The respondents have further stated that the disciplinary proceeding under Rule 10 of GDS (Conduct and Employment) Rules, 2001 was initiated against him vide ASPOs, East Sub Division, Basti Memo No. B/GDS MD/MC/Samaspur/DP/09 dated 16.02.2010 and Shri Subedar Singh, the then ASPOs, Khalilabad Sub Division was appointed as Inquiry Officer and Shri C.P. Mishra, the then PRI (P), Basti was appointed as Presenting Officer vide Memo No. B/GDS/MD/MC/DP/09 dated 08.03.2010. Just after appointment of I.O and P.O, the applicant submitted representation dated 16.03.2010 and 29.03.2010 to the Post Master General, Gorakhpur vide which he requested to quash the put off order dated 15.12.2009 and charge sheet issued to him vide memo no. B/GDS MD/MC/DP/09 dated 16.02.2010 and to get the inquiry conducted through competent and impartial officer. The Post Master General, Gorakhpur vide order No. RPG/Bharti/M.14/Vividh/Basti/09 dated 04.03.2010 ordered to take action to put back the applicant to duty but in respect of prayer for quashing the charge sheet dated 16.02.2010 ordered as under: -
8
"जह ॉ तक ददए दमे आयोऩ ऩत्र के ननयस्तीकयण क प्रष्न है , ज ॉच क मयव ही के चरते हुए इसे ननयस्त कयने क कोई औचचत्म नहीॊ है क्मोंकक खुरी ज ॉच के दौय न सयक यी ऩऺ एवॊ फच व ऩऺ द्व य प्रस्तत ु अभबरेखों, स क्ष्मों एवॊ गव हों की प्रत्मेक दृष्ष्िकोण से सभीऺ कयने के आध य ऩय ज चॊ अचधक यी द्व य आयोऩों को सही म गरत ऩ मे ज ने की रयऩोिय अनश ु सननक प्र चधक यी के सभऺ प्रस्तुत की ज ती है तथ सऺभ अनश ु सननक प्र चधक यी द्व य ज च आख्म ऩय सहभनत अथव असहभनत के ववन्दओ ु ॊ ऩय प्रनतवेदनकत य को अऩन ऩऺ प्रस्तुत कयने क ऩयू -ऩयू अवसय प्रद न ककए ज ने को ननणयम ककम जत है ।
अत् इस स्तय ऩय आयोऩ ऩत्र को ननयस्त कयने क
औचचत्म नहीॊ ऩ म जत है । जह ॉ तक भ भरे भें
ननष्ऩऺ ज ॉच कय ने क प्रष्न है , अनश
ु सननक
प्र चधक यी को मह ननदे श गम ज त है कक वह ऩव
ू य भें
ननमक्
ु त ज ॉच अचधक यी एवॊ प्रस्तोत अचधक यी को
फदर कय ननम्न को ज ॉच अचधक यी एवॊ प्रस्तोत
अचधक यी ननमक्
ु त कय ज ॉच क मयव ही 3 भ ह के अन्दय
ननस्त रयत कय वें ।
1. श्री ऩी0के0श्रीव स्तव सह मक अधीऺक ड क फ सी - ज ॉच अचधक यी
2. श्री ए0पी0सिंङ उपमण्डलीय ननरीक्षक डाक हरे या, बस्ती- प्रस्तोता ऄनधकारी"
9. Pursuant to the above order, the applicant was ordered to put back to duty vide ASPOs, East Sub Division, Basti Memo No. A/Samaspur/09-10 dated 08.05.2010 and Shri P.K. Srivastava, the then ASPOs, Bansi Sub Division and Shri A.P. Singh, the then SDI (P), Harraiya Sub Division were appointed as Inquiry Officer and Presenting Officer respectively vide Memo No. 9 G/GDS/MD/MC/Samaspur/DP/09 dated 11.05.2010. Further, in compliance to the PMG, Gorakhpur letter No. RPG/Vig/M.1/41/89/3 dated 12.05.2010, Shri Subedar Singh, the then ASPOs, Khalilabad Sub Division was appointed as adhoc Disciplinary Authority in above mentioned DP Case vide Memo No. A.346/Samaspur dated 21.05.2010 vice Shri I.K. Shukla, the then disciplinary authority. Thereafter, the Inquiry Officer fixed a date of hearing on 02.07.2010, 06.07.2010 and 12.07.2010 but the applicant did not attend the inquiry on 02.07.2010 on the pretext that notice was not received by him owing to which he did not participate in the inquiry on 06.07.2010. The applicant took part in the inquiry on 12.07.2010 and he denied the charges leveled against him. The applicant was requested to participate in the inquiry on 28.07.2010 with his Defence Assistant. The applicant vide his representation dated 12.07.2010 lodged complaint against Shri P.K. Srivastava about biasness and to meet the ends of justice, Shri A.M. Pandey, the then Inspector, Post, Tetari Bazar Sub Division was appointed as Inquiry Officer vide Memo No. B/GDSMD/MC/Samaspur/DP/09 dated 06.08.2010 vide Shri P.K. Srivastava. Thereafter, the newly appointed Inquiry Officer fixed a date of hearing on 14.09.2010 on which the applicant took part but the proceeding could not be held in absence of Defence Assistant of the applicant. Further, the applicant did not take part in inquiry proceeding on the next date i.e. 26.10.2010 and moved a representation dated 02.11.2010 to the Post Master General, Gorakhpur challenging the corrigendum dated 23.10.2010 issued 10 by the ASPOs East Sub Division, Basti. The applicant took part in the enquiry proceeding on 12.11.2010 with his Defence Assistant but did not examine the listed documents on the pretext of his representation dated 02.11.2010. The applicant further did not attend the enquiry proceeding on 14.12.2010. The applicant vide his application dated 11.12.2010 addressed to Inquiry Officer informed that he will not attend the enquiry on 14.12.2010. This application was received by the Inquiry Officer after 14.12.2010. On 08.02.2011, the applicant did not attend enquiry while his Defence Assistant attended the enquiry on 23.02.2011. On 10.03.2011, the applicant further did not examine the document on the pretext that his Defence Assistant was not present. On 06.04.2011, the Defence Assistant of the applicant attended enquiry but the applicant did not attend. On receipt of IO letter dated 12.05.2011, the applicant became annoyed with I.O and on hearing dated 20.05.2011, he refused to examine the documents while the applicant with his Defence Assistant was present in the enquiry proceedings and signed the daily order sheet dated 20.05.2011. Thus, due to non-cooperation of the applicant, after 12 dates of hearing, the stage of examination of listed documents, could not be completed. Thereafter, another dated was fixed for hearing on 21.09.2011 on which the applicant was present but he neither examined the documents nor signed on daily order sheet. On 21.10.2011 and 28.10.2011, the dates fixed for hearing, no proceeding could be held. Ultimately, the Inquiry Officer fixed date of examination / cross examination of state witnesses on 11.11.2011 but , as directed 11 by the Adhoc Disciplinary Authority, the Inquiry Officer further fixed date of hearing on 17.05.2012 on which date, the applicant and his defence witness did not attend the enquiry. The applicant further did not attend enquiry alongwith his Defence Assistant on 26.06.2012 and 04.07.2012. The applicant vide his application dated 20.07.2012 requested to fix date of hearing after 30.07.2012 on the pretext that he had filed a case in the Tribunal in which date of hearing is on 30.07.2012. Accordingly, the Inquiry Officer fixed date of hearing on 07.08.2012. the applicant alongwith his Defence Assistant attended the enquiry and examined the listed documents and also photocopy thereof was provided to him. The applicant was requested to submit list of additional documents and list of defence witnesses on the next date of hearing on 17.08.2012 on which the applicant attended enquiry with his Defence Assistant but did not submit the list of additional documents and witnesses. The Inquiry Officer fixed date of hearing on 28.09.2012 but the applicant submitted an application for postponement of hearing. The Inquiry Officer postponed the date of hearing on 08.10.2012 but the applicant did not attend the enquiry. This it is clear that the applicant was provided occasion at so many times by the Inquiry Officer but he alleged the Inquiry Officer as biased only to linger on the said proceeding. Hence, the Inquiry Officer could not complete the enquiry and returned the case vide leter No. EO.1/2011-12/Chandra Mauli Pandey/GDSMD/Samaspur (Mahson) dated 22.09.2011 (Annexure CA-5). Thereafter, Shri 12 Parmanad Kumar, O.S was appointed as Inquiry Officer vide Memo No. B/GDSMD/MC/Samaspur/DP/09 dated 30.10.2012.
10. The respondents have referred to copy of letter no. EO.1/2011-12/Chandra Mauli Pandey/GDSMD/MC/Samaspur (Mahson) dated 22.09.2011 (Annexure CA-6), in which following observations were made against the applicant "आयोवऩत कभयच यी द्व य ज ॉच के दौय न रग त य व्मवध न ड र गम एवॊ अधोहस्त ऺयी ऩय तथ आऩ (अधीऺक ड कघय फस्ती) ऩय अभम यददत दिप्ऩणणम ॊ कय असॊसदीम ब ष क प्रमोग ककम गम । आयोवऩत कभयच यी द्व य क पी ऊॉचे स्वय क प्रमोग कय अधोहस्त ऺयी को धभकी दी गई एवॊ अनश ु सनहीनत की तभ भ सीभ एॊ र ॊधते हुए ड कघय भें अपय तपयी क भ हौर ऩैद ककम गम ष्जसके क यण कोई बी क मयव ही आगे नहीॊ फढ़ सकी।"
11. The respondents further referred to the Memo No. RPG/M- 02/Basti/2011/Loose dated 03.04.2012 (Annexure CA-7), in which following observation was made by the Post Master General, Gorakhpur Region, Gorakhpur against the applicant : -
"मह दे ख गम है कक कभयच यी प्र म् फस्ती भण्डर के ड क अधीऺक सदहत सबी अचधक रयमों के णखर प भशक मत कय चक ु है तथ उच्च अचधक रयमों को सीधे ऩत्र च य कयत है जो ड क ननमभ ऩस् ु तक ।। के ननमभ 14 के ववऩयीत है । उक्त कभयच यी क आचयण एवॊ व्मवह य इस क म यरम क प्रनत ठीक नहीॊ है क्मोकक वह ववगत नवम्फय भ ह भें ऩी0एभ0जी0 भहोदम 13 से भर ु क त के दौय न उसके फ त चीत क तौय तयीक अत्मन्त आक्र भक ऩ म ।"
श्री चन्र भौभर ऩ ण्डेम ग्र भीण ड क सेवक ड क ववतयक/- ड क व हक सभसऩयु ( भहसों) फस्ती इसके ऩव ू य बी गम्बीय आयोऩों के क यण सह मक अधीऺक ड कघय ऩव ू ी, फस्ती के ऻ ऩन सॊ0ए/सभसऩयु /09.10 ददन ॊक 15.12.2009 द्व य क मय ऩथ ृ क ककम गम थ तथ सभ सॊख्मक ऻ ऩन ददन ॊक 16.02.2010 द्व य आयोऩ ऩत्र ददम थ । कभयच यी इन्हीॊ दोनों आदे षों के ववरूद्ध प्रनतवेदन ददन ॊक 16.03.2010 एवॊ 29.03.2010 अधीऺक ड कघय फस्ती को न दे कय ऩोस्िभ स्िय जनयर गोयखऩयु को ददम थ । अधोहस्त ऺयी द्व य उसके उक्त दोनों प्रनतवेदनों ऩय सह नब ु नू तऩव ू क य ववच य कयते हुए इस क म यरम के ऻ ऩन सॊ0 आयऩीजी/बती/एभ.14/ववववध/फस्ती/09 ददन ॊक 04.03.2010 के द्व य उसके क मय ऩथ ृ क (ऩि ु आप डडमि ू ी) को फह र कयके डडमि ू ी ऩय व ऩस रेने क आदे ष ददम गम ककन्तु उक्त अनश ु सननक प्रकयण अबी ज च के अन्तगयत है । अऩीर थी उक्त ज च क मयव ही भें ऩण ू त य म असहमोग कय यह है तथ इसके सभफन्थ भें सऺभ अऩीरीम अचधक यी को प्रनतवेदन न दे कय सीधे उच्च अचधक रयमों को ऩत्र च य कयने क आदी है । वह भण्डर स्तय के सबी के ववरूद्ध ऩी0एभ0जी0 एवॊ सी0ऩी0एभ0जी0 उ0 प्र0 ऩरयभण्डर को ऩत्र भरख कयत है तथ बफन सऺभ अचधक यी की अनभ ु नत भरए ऺेत्रीम क म यरम/ऩरयभण्डर क म यरम भें ज कय व्मष्क्तगत अभम यददत तयीके से ऺेत्रीम क म यरम/ऩरयभण्डर क म यरम भें ज कय व्मष्क्तगत सम्ऩकय कयके भशक मतें कयत है । उसकी म चचक के ननस्त यण के दौय न चीप ऩोस्िभ स्िय जनयर उ0 प्र0 ऩरय0 रखनऊ द्व य ऻ ऩन सॊ0 बती/जी0के0ऩी0- जीडीएस/भभस/2010/11/4 ददन ॊक 04.10.2011 ( Annexure CA.2) भें अऩीर थी के ववरूद्ध प्रनतकूर दिप्ऩणी भरखी गई है । उसकी ब ष अत्मन्त अषोबनीम एवॊ एक सयक यी कभयच यी के आचयण के प्रनतकूर ऩ ई ज ती है । प्रकयण भें मह तथ्म बी उल्रेखनीम है कक अऩीर थी के ववरूद्ध जन ऩरयव दों के ऩरयऩेक्ष्म भें तत्क रीन अधीऺक ड कघय फस्ती ने ग्र भ यऺ को 14 सभसऩयु ष ख ड कघय से ननक र कय रेख क म यरम भहसों से सम्फद्ध कय ददम थ । अऩीर थी ने अऩने अऩीर के ऩैय 9 भें भ ननीम सीएिी इर ह फ द भें ओ0 ए0 सॊ0 1135 म07 भें एवॊ उसी भ भरे भें अवभ नन व द सॊ0 85म2008 द णखर कयने के क यण श्री एस0 आय0 भसॊह अधीऺक ड कघय फस्ती द्व य अऩने चैम्फय भें धोखे से फर ु कय भ यने ऩीिने क आयोऩ रग म है । इस सम्फन्ध भें मह उल्रेखनीम है कक उक्त भ भर ववब ग की नीनतगत भ भरों के ववरूद्ध थ तथ अवभ नन व द ड क भह ननदे शक नई ददल्री के ववरूद्ध थ । अत् ववब ग की ऩ भरसी के ववरूद्ध होने के क यण भ ननीम सीएिी द्व य उक्त अवभ नन व द ख रयज कय ददम गम । इस भ भरे भें श्री एस0आय0भसॊह अधीऺक सदहत अन्म कोई ननयीऺक म सह मक अधीऺक की कोई बभू भक नहीॊ थी। अत् इस क यण से उक्त अचधक रयमों के प्रनत दब ु यवन ग्रस्त होकय क मय कयने क आयोऩ सहीॊ नहीॊ ज न ऩड़त है ।"
ऄपीलाथी को ऄपने अचरण, कायय व्यवहार एवं उच्च ऄनधकाररयों के िंाथ पत्र व्यवहार में िंुधार लाने का प्रयाप्त ऄविंर पूवय में ददया जा चुका है परन्तु ऄपीलाथी द्वारा आिंिंे िंबक न लेते हुए पुनः िंक्षम ऄनधकारी को ऄपील न करके पोस्टमास्टर जनरल को ऄपील प्रस्तुत दकया गया है।"
12. The respondents have further stated that after dismissal of CCP No. 85/08 in OA No. 1135/07 by this Tribunal, the OA No. 498/2011 filed by the applicant was dismissed by this Tribunal vide order dated 11.01.2012 with following observations: -
"Under these circumstances, it will be just and proper that instead of deciding the amendment application of the applicant, we would like to hear as to how this case is maintainable when identical relief has been sought in earlier OA and the same was decided and the matter is subjudice before Hon'ble 15 High Court and as to how this OA is not barred by principle of res-judicata. The same relief cannot be again and again sought by changing the language and it cannot be equated like old wine in a new bottle."
13. The respondents further stated that the ASPOs, East Sub Division, Basti while carrying out annual inspection of Samaspur Branch Post Office on 05.11.2011 noticed serious lapses and fraudulent working of the applicant and ordered to put him off duty under the provisions of Rule 12(1) of GDS (Conduct and Engagement) Rules 2011 vide memo No. A/Samaspur/DP/II dated 19.12.2011. Against the said order, the applicant moved an appeal dated 20.12.2011 (Annexure CA-9) to the Post Master General, Gorakhpur and without waiting the decision on his appeal dated 20.12.2012, the applicant filed OA No. 192/2012, which was disposed off by this Tribunal vide order dated 14.02.2012 with direction to the Post Master General to decide the appeal of the applicant by a reasoned and speaking order within a period of two months from the date of receipt of certified copy of the order and in compliance thereto, the appeal of the applicant was decided vide Memo No. RPG/Vig/M.2/Basti/2011/Loose dated 03.04.2012. The respondents further stated that a disciplinary proceeding against the applicant under Rule 10 of GDS (Conduct and Engagement) Rules 2011 was initiated vide Memo No. A/Samaspur/DP.II dated 12.03.2012. On receipt of the charge sheet dated 12.03.2012, 16 the applicant denied the charges leveled vide his representation dated 15.03.2012 and requested to conduct open enquiry. Accordingly, Shri Parmanand Kumar, OS, O/o SPOs, Basti Division andn Shri C.P. Mishra, O.A, DO Basti were appointed as Inquiry Officer and Presenting Officer respectively vide Memo No. A/Samaspur/DP/II dated 09.04.2012. The I.O fixed the date of hearing on 31.07.2012 but no proceeding could be held on that date due to non-attending the enquiry by the applicant. The applicant attended enquiry on 07.08.2012 and denied the charges leveled against him and submitted an application to I.O intimating filing of OA No. 690/2012 before the Tribunal challenging the order dated 03.04.2012/09.04.2012 passed by the Post Master General, Gorakhpur Region as well as the order dated 19.12.2011 passed by the Disciplinary Authority. The said OA was decided by the Tribunal vide order dated 30.11.2012 with following orders: -
"The applicant has, on his part, agreed to co-operate with the enquiry. For non-cooperation of the applicant in respect of the inquiry would amount to his deriving undue advantage of continuing to receive the ex-gratia either as at present or the enhanced one in the event of the authorities deciding to enhance the same in accordance with the rules.
In view of the above, this OA is disposed of with a direction to the respondents to complete the pending 17 inquiry within a period of four months. The progress of inquiry shall be monitored by the Post Master General, the third respondent. The applicant shall fully cooperate with the authorities in conclusion of the inquiry. He shall not save for emergent reason, seek adjournment of the inquiry proceedings."
14. After the decision of the OA No. 690/12, the Inquiry Officer fixed the date of hearing on 14.01.2013, 23.01.2013, 31.01.2013, 12.02.2013, 18.01.2013 and 25.02.2013 but the applicant did not attend enquiry on 31.07.2012 while on 07.08.2012, he attended the enquiry and requested not to proceed with the enquiry by submitting two applications dated 02.08.2012 and 07.08.2012. Keeping in view the dis-cooperation and indiscipline nature of the applicant, the Inquiry Officer returned the case to the Disciplinary Authority. Hence, the Disciplinary Authority issued a show cause notice to the applicant vide Memo No. B/GDS MD/MC/Samaspur/DP/09 dated 11.03.2013 (Annexure CA-13). The applicant submitted his representation dated 23.03.2013 and after careful consideration of all the connected documents and facts, the Disciplinary Authority dismissed the applicant from service vide Memo No. B/GDS MD/MC Samaspur/09 dated 01.04.2013 as per the provisions of Rule 11 (ii) of GDS (Conduct and Engagement) Rules 2011. Against this order, the applicant preferred an appeal dated 18.04.2013 to the Appellate Authority and without waiting for the decision, he filed OA No. 817/2013 before the Tribunal, 18 which was decided by the Tribunal at the admission stage vide order dated 05.07.2013 with the direction to the respondent no. 4 competent appellate authority to decide the appeal within a period of three months from the date of receipt of certified copy of the order, which was corrected vide order dated 23.07.2013 to the extent that in place of respondent no. 4, the respondent no. 2. In compliance of the above order, the P.M.G., Gorakhpur decided the appeal dated 18.04.2013 vide order dated 31.12.2023 (Annexure CA-13), vide which the applicant was ordered to be treated as deemed put off duty vide memo no. B/GDS MD/MC/Samaspur/DP/09 dated 07.01.2014 and Shri A.K. Soni, Inspector Post Domariaganj Sub Division was appointed as Inquiry Officer to conduct enquiry afresh vide memo No. B/GDS MD/MC/Samaspur/DP/09 dated 17.01.2013 who declined to function as Inquiry Officer. Thereafter, Shri R.D. Tripathi, ASPOs, Bansi Sub Division was appointed as Inquiry Officer vide B/GDS MD/MC/Samaspur/DP/09 dated 27.01.2014. The applicant vide his application dated 14.02.2014 requested not to conduct the enquiry and filed OA No. 155/2014 challenging the order dated 31.12.2013 passed by the P.M.G. Gorakhpur in compliance of the order of the Tribunal dated 23.07.2013. The said OA was decided by the Tribunal vide order dated 14.05.2015 with following directions: -
"Accordingly, the Assistant Superintendent of Post Offices, East Sub Division, Basti / Respondent No. 5 is directed to reinstate the applicant forthwith and then, if considers necessary, start fresh inquiry 19 proceeding against him. The Respondents are directed to provide the applicant full opportunity to defend himself in the inquiry proceeding, if initiated and complete the inquiry within four months. It is made clear that the applicant will not be entitled for back wages for the period during which he was out of service."
15. The respondents challenged the above order dated 14.05.2015 before Hon'ble High Court, Allahabad in CMWP No. 41284/2015, which was decided at the admission stage vide judgment dated 28.07.2015 with direction to the respondents to decide the enquiry within four months. Thereafter, the disciplinary authority vide letter No. A/Samaspur/DP/2015 dated 07.08.2015 requested the applicant to cooperate /participate in the inquiry so that the enquiries may be completed within four months. In the denovo proceeding, the applicant took part on 18.08.2015, 26.08.2015, 04.09.2015, 12.09.2015 and 19.09.2015 but on further dates of hearing fixed by the Inquiry Officer on 26.09.2015, 03.10.2015, 08.10.2015, 12.10.2015 and 26.10.2015, he did not take part in the enquiry. The applicant handed over an application to the Inquiry Officer on 19.09.2015 that time frame of four months as fixed by the Tribunal stands completed, he will not participate in further inquiry proceedings. It is stated that the denovo proceeding against the applicant was initiated from the initial stage of open inquiry in compliance of the judgment dated 28.07.2015, as such four months period was 20 going to be completed on 28.11.2015 but the applicant violated the instructions of the Hon'ble High Court and did not take part in the inquiry on 26.09.2015 onwards, as such the enquiry proceeding was held ex parte. It is also stated that the registered notices /letters alongwith proceeding sheet and connected documents sent to the applicant at his residential address to participate in inquiry proceeding had been received back undelivered with the remarks that the addressee (applicant) was not residing at his home in his native village. The receipt of following RLS is reproduced below: -
"26.09.2015 RL No. RU087671157IN dated 26.09.2015 and RL No. RU087671174IN.
03.10.2015 RL No. RU791061540IN dated 03.10.2015 & RL No. RU791061315IN dated 03.10.2015. 08.10.2015 RL No. RU628640362In dated 08.10.2015.
12.10.2015 RL No. RU789330115In dated 12.10.2015.
26.10.2015 RL No. RU648640402IN dated 26.10.2015."
16. Ultimately, the Inquiry Officer after completing the enquiry submitted the inquiry report to the disciplinary authority vide letter No. E.O 1/2015/Chandra Mauli Pandey/15-16 dated 12.11.2015. Thereafter the disciplinary authority sent a copy of inquiry report to the applicant by registered post RL No. RU 628646262IN dated 13.11.2015 vide letter dated 13.11.2015 (Annexure CA-17) to submit his defence representation within 15 days but the said letter dated 13.11.2015 was received back undelivered with the remark that the addressee not met being 21 not resided at his native village after several visits. Thereafter, effort to deliver the said inquiry report to the applicant through Mail Overseer also became in vain. Hence, the DP case against the applicant was decided by the disciplinary authority in exercise of powers with greatest care, concern and scrupulous regard for the rules and procedure and without any personal and prejudice fear or favour and imposed the penalty of removal from service upon the applicant vide Memo no. B/GDSMD/MC/Samaspur/DP/09 dated 08.12.2015. This order was also sent to the applicant by registered post which was received back undelivered with the remark "addressee not met at his home after several visits" (Annexure CA-19). Thereafter, the punishment order dated 08.12.2015 was sent to the applicant through Mail Overseer to deliver to the applicant at his home but could not be delivered due to his non availability. Report of Mail Overseer has been enclosed at Annexure CA-20.
17. It is stated by the respondents that the applicant filed O.A No. 1090/2015 against the letter dated 07.08.2015 vide which he was requested to cooperate /participate in the inquiry so that the enquiries may be completed within four months, as fixed by the Hon'ble High Court vide judgment dated 28.07.2015. The said OA was dismissed by this Tribunal vide order dated 31.05.2016 (Annexure CA-21). Thereafter, the applicant challenged the order dated 31.05.2016 by filing W.P. No. 48713/2016 before Hon'ble High Court, Allahabad, which was also dismissed by the Hon'ble High Court imposing a cost of Rs. 22 5000/- upon the applicant (Annexure CA-22). The respondents have further stated that after filing of OA No. 1090/2015, the applicant filed OA No. 1472/15, OA No. 08/2016, CCP No.03/2016 and OA No. 1596/2016. However, OA No. 08.2016 and CCP 03/2016 were dismissed as withdrawn vide order dated 03.03.2016 whereas OA No. 1596/2016 is pending.
18. The respondents have further stated that the DP case against the applicant was initiated on 16.02.2010 but could not be completed within prescribed time frame to his non- cooperation and undisciplined attitude and filing of several cases before this Tribunal. It is further stated that the applicant was aware of the impugned punishment as early as on the date of issue of punishment order and this fact is evident from the judgment dated 31.05.2016 in OA No. 1090/2015 but he was keeping mum on this issue even after judgment of Hon'ble High Court in W.P No. 48713/2016. However, the applicant submitted an appeal dated 13.05.2017 before the competent authority, as ordered by this Tribunal vide order dated 13.04.2017 in OA No. 1472/2015 and after careful consideration of all documents and facts, the said appeal dated 13.05.2017 was rejected vide Memo dated 13.07.2017 and the applicant, in the instant OA, has impugned the said order without exhausting all the channels, as provided in Rule 19 of GDS (Conduct and Engagement) Rules 2011, hence the OA may be dismissed.
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19. The respondents have further stated that the OA No. 877/2017 filed by the applicant was disposed of by the Tribunal vide order dated 06.08.2018 quashing the order dated 13.07.2017 passed by the appellate authority as well punishment order dated 08.12.2015 and the matter was remitted to the disciplinary authority to pass a fresh order under the rules and the quantum of such penalty, as in rule 9 of GDS (Conduct & Engagement) Rules 2011, shall exclude removal / dismissal from service in view of the observation at para 27 of the order dated 06.08.2015 (Annexure CA-24). This order was challenged by the respondents in Writ Petition No. 16894/2019 before Hon'ble High Court, which was decided by the Hon'ble High Court vide judgment dated 31.10.2019 (Annexure CA-25) and in compliance of the said order, the copy of the inquiry report dated 12.11.2015 was sent to the applicant vide ASPOs, East Sub Division, Basti Letter dated 06.12.2019 (Annexure CA-
26) and the period from 08.12.2015 to 22.01.2020 had been treated deemed to be put off duty vide ASPOs, East Sub Division, Basti Memo dated 17.01.2020 (Annexure CA-27) and compensation of ex-gratia was paid to the applicant. The applicant file appeal for enhancement of compensation / ex- gratia amount @ 50%, which was rejected by the appellate authority vide Memo No. A.346/Samaspur/C.M. Pandey/Appeal/2020 dated 08.12.2020 against which the applicant had not filed petition to the competent authority. It is further stated by the respondents that the instant OA has been filed contrary to the provisions of Section 20 and 21 of 24 Administrative Tribunals Act 1985. Since the applicant did not file petition to the competent authority, as required vide DG P&T Letter No. 18/1/65-Disc. 04.05.1965, the OA is liable to be dismissed.
20. The applicant has filed rejoinder in which he has reiterated the facts of the case. It is stated that the present original application duly relates to the payment of the remaining 25% ex gratia compensation , which is provided under the well settled provisions of the statutory rules which cannot be ignored by the respondents. It is further stated that in the RTI application, the competent authority has accepted that the 50% compensation is payable to the applicant and as such the applicant is legally entitled to the benefit of remaining 25% compensation.
21. In the Suppl. Counter Affidavit, the respondents have denied the submissions of the applicant made above and states that as per rule 12 of GDS (Conduct & Engagement) Rules 2011, 25% compensation as ex gratia has been paid to the applicant for which he was entitled during the period he was treated as deemed to have been put off duty.
22. The applicant has also filed Suppl. Affidavit stating that in para 14 of the original application, the period in question commencing from the date of 20.03.2012 to the date of 22.01.2020, the remaining ex gratia compensation of 25% is legally required to be paid in accordance with law. The applicant 25 further reiterated the details of period in question for which he is entitled to get 25% ex gratia compensation, which reads as under: -
"Firstly, the applicant was suspended from service on 15.12.2009 and later on 11.05.2010 duly reinstated to the same post and just after expiration of 90th days, since the date of 15.12.2009, from the date of 16.03.2010 to the date of 10.05.2010, the payment of 25% of the ex gratia compensation has already been granted to the applicant but the remaining 25 th per cent ex gratia compensation for the period of 20.03.2012 to the date of 22.01.2020 is legally required to be paid to the applicant in accordance with law, as he was again suspended from his office on 19.12.2011 and till date, he was not reinstated and thereafter, he was removed from his service on
23.01.2020, hence after expiration of 90 days, from the date of 20.03.2012 to the date of 22.01.2020."
23. Apart from the above, the applicant as well as the learned counsel for the respondents have also filed their written argument. In his written argument, the applicant has reiterated that he is legally entitled for 50% ex gratia compensation because he was put off from duty for more than 90 days. On the other hand, learned counsel for the respondents reiterating the facts has stated that the applicant is misleading the Court with ulterior motive. He has filed the instant original application 26 contrary to the provisions of Section 20 and 21 of the Administrative Tribunals Act 1985. As already stated that since the applicant did not prefer appeal to the competent authority as required vide DG P&T letter No. 18/1/65-Disc. 04.05.1965, as such the instant original application is liable to be dismissed.
24. I have carefully considered the rival submissions and have also gone through the entire pleadings on record.
25. From the pleadings on record, it is very evident that the prayer has been made to get the applicant additional 25% of ex gratia compensation for the period 20.03.2012 to the date of 22.01.2020. Clearly respondents concede to the applicant alternative remedy before them. It is evident from record that there is a plethora of litigation, which has already happened in this case and most of the averments are related to the details of those cases and may not be directly relevant in the present case. In the letter No. 17-31/2016-GDS dated 26.06.2019 (Annexure- 2 of OA) issued by the Government of India, Ministry of communications, Department of Posts (GDS Section), Rule 12 of GDS (Conduct and Engagement) Rules 2011 for all categories of GDS is reviewed. Para 3 of the said letter is reproduced below: -
"3. A Sevak shall be entitled to an amount of compensation as ex-gratia payment equal to 25% of his/her Time Related Continuity Allowance together with admissible Dearness Allowance per month for the period of put off duty.
Provided that where the period of put of duty exceeds 90 days, the Engaging Authority or the authority to which the Engaging Authority or any other authority empowered in this behalf, as the 27 case may be, who made the order of put off duty shall be competent to vary the amount of compensation for any period subsequent to the period of first 90 days as follows: -
(i) The amount of compensation as ex-gratia payment may increased by a suitable amount, not exceeding 50% for such compensation admissible during the period of the first 90 days, if in the opinion of the said authority the period of put off duty has been prolonged, for reasons to be recorded in writing, not directly attributable to the Sevak.
(ii) The amount of compensation as ex-gratia payment may be reduced by a suitable amount not exceeding 50% of such compensation admissible during the first 90 days, if in the opinion of the said authority, the period of put off duty has been prolonged due to reasons to be recorded in writing directly attributable to the Sevak."
26. A bare reading of the above, it is clear that 50% increase is not a matter of right and routine and to be given in every case. Authorities have the discretion and in specific cases, it can be given if the conditions provided in the said letter are met. It is not clear from the averment and the arguments of the applicant under which specific provision, he considered himself eligible for extra 25% ex-gratia compensation.
27. Moreover, as contended by the respondents that there was alternative remedy within the department, which the applicant has not exhausted, as this impugned order was only in the first appeal. Averments made in the rejoinder and in written arguments do not shed light on this point.
28
28. Considering the above facts, without going into the merits of the case, saving liberty to the applicant to file appropriate application before the authority, who is the competent, as averred by the respondents, to exhaust the alternative remedy available within the department before coming to this forum.
29. With the above direction, the OA is disposed off. No costs.
(Dr. Sanjiv Kumar) Member (A) Anand...