Central Administrative Tribunal - Delhi
Pradeep Kumar Modwil vs Union Of India Through Secretary on 9 December, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA 646/2009
With
OA 1728/2008
New Delhi this the 9th day of December, 2010.
Honble Mr.Justice V.K.Bali, Chairman
Honble Mr. L.K. Joshi, Vice Chairman (A)
OA 646/2009
Pradeep Kumar Modwil,
S/o Shri S.S. Saxena,
R/o 9/119, Brij Dham, Railway Harthala Colony,
Moradabad (UP) Applicant
(By Advocate Shri S.K. Gupta )
VERSUS
1. Union of India through Secretary
M/o Home Affairs, North Block,
New Delhi.
2. Director,
Intelligence Bureau,
North Block, New Delhi. Respondents
(By Advocate Shri Ravinder Kumar Sharma )
OA 1728/2008
Shri Pradeep Kumar Modwil,
S/o Shri J.S. Saxena,
R/o 9/119, Brij Dham, Railway Hartala Colony,
Moradabad (UP) Applicant
(By Advocate Shri S.K. Gupta )
VERSUS
1. Union of India through Secretary
M/o Home Affairs, North Block,
New Delhi.
2. The Director,
(Intelligence Bureau),
Ministry of Home Affairs
North Block, New Delhi.
3. Shri I.K. Koul,
Enquiry Authority/Assistant Director
C/o Director (Intelligence Bureau),
Ministry of Home Affairs, New Delhi.
4. Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi. ... Respondents
(By Advocate Shri Ravinder Kumar Sharma )
O R D E R
Mr. L.K.Joshi, Vice Chairman (A):
We are dealing with both the OAs in this common order as both are based on identical facts and relate to the same person, Shri PK Modwil, the Applicant in both the OAs.
OA number 1728 of 2008
2. Following a departmental enquiry against the Applicant, he was awarded the punishment of dismissal from service by order dated 16.09.2005 of the disciplinary authority, which was upheld in appeal by order dated 29.05.2008 of the appellate authority. The Applicant is assailing the report of the enquiry authority in the departmental proceedings and the orders of the disciplinary and appellate authorities. He is seeking directions to the Respondents to reinstate him in service.
OA number 646 of 2009
3. The Applicant had earlier been awarded the penalty of dismissal from service by order dated 13.11.2000 by the disciplinary authority, which order was set aside by the order dated 23.07.2002 of the appellate authority, as a consequence of which the Applicant rejoined duty on 12.08.2002. The Applicant had approached this Tribunal in OA number 1372 of 2008 about regularisation of this period from 14.11.2000 to 11.08.2002, whereupon this Tribunal had directed the Respondents to consider the representation of the Applicant. The competent authority passed an order dated 4.11.2008, by which it was decided that the Applicant would be paid half average pay for the said period, which would be treated to be "non-duty" for all purposes. By another order dated 22.02.2007, the period of the Applicant's alleged unauthorised absence from 06.05.1999 to 13.11.2000 has been treated as dies non. The relief sought by the Applicant is to quash and set aside the order dated 05.11.2008 and 22.02.2007.
4. Briefly, the facts are that the Applicant was holding the post of ACIO-I/G under the second Respondent, Director (Intelligence Bureau) at the relevant time. The Applicant was transferred from the IB headquarters to SIB, Jammu where he joined on 14.01.1997. Immediately after joining there, he proceeded on five days' casual leave from 21.07.1997 to 25.07.1997. Thereafter, he remained absent from duty. A Memorandum of Charge dated 15.06.1998 was served on the Applicant conveying thereby the following two Articles of Charge:
ARTICLE-I Shri P.K.Modwil joined SIB, Jammu on 14.7.97 to avail promotion as ACIO-1(G). He proceeded on 5 days CL w.e.f. 21.7.97 to 25.7.97 on the grounds of domestic work and w.e.f. 21.7.97 he continued to be absent on medical grounds. He was directed several times to resume duty but he disobeyed the orders of competent authority. He is, therefore, charged for disobedience of lawful orders of competent authority.
ARTICLE-II Shri P.K.Modwil, ACIO- I(G) despite the clear directives from the competent authority to resume duty did not obey the same and exhibited himself in most irresponsible manner unbecoming of the Govt. servant. He is, therefore, charged for his misdemeanour and indiscipline. Pursuant to the above Memorandum of Charge disciplinary proceedings were held against the Applicant culminating in order of dismissal dated 13.11.2000. The disciplinary authority mentioned in the order that the Applicant had remained on unauthorised absence with effect from 06.05.1999, on which date he had been declared medically fit. The following order was passed:
Therefore, in the facts and the circumstances of the case and keeping in view the gravity of the charges against Sh.P.K. Modwil, ACIO-1 (G) the undersigned imposes the penalty of dismissal from service to him with immediate effect. The period of his absence from duty w.e.f. 26.7.97 to 5.5.99 shall be regularised by granting him leave of the kind due/admissible and the period of his unauthorized absence from date w.e.f. 6.5.99 i.e. from the day he was declared medically fit till the date on the issue of this order shall be treated as Dies-Non. The Applicant filed an appeal before the President, which was referred to the UPSC for advice. The UPSC opined that since the period of absence has already been regularised, the first charge was not proved. It also advised that the imposition of penalty for unauthorised absence from 06.05.1999, which would be a new charge against the Applicant, he could not have been punished for that charge by the disciplinary authority. Agreeing with the advice given by the UPSC, the President set aside the order of dismissal from service with immediate effect by order dated 23.07.2002 and further observed that the disciplinary authority might proceed against the Applicant for the period of his unauthorised absence from 06.05.1999. By order dated 09.10.2002 the absence of the Applicant from 26.07.1997 up to 05.05.1999 was regularised by granting him various kinds of leave. Another Memorandum of Charge was issued against the Applicant on 05.11.2002 alleging that the Applicant remained absent from 06.05.1999 to 23.07.2002. However, on a representation from the Applicant the Memorandum of Charge dated 05.11.2002 was withdrawn. Yet another Memorandum of Charge was issued against the Applicant on 24.04.2003, by which the following charge was communicated to the Applicant:
ARTICLE-I Shri P K Modwil, ACIO-I (G) was issued a charge sheet on 15-6-1998 for his unauthorised absence. The Disciplinary Authority imposed upon him the penalty of dismissal from service with further directions to regularise the period of absence w.e.f. 26.7.97 to 5.5.99 by granting leave of the kind due. Shri Modwil preferred an appeal to Appellate Authority against the order of DA and the Appellate Authority set aside the penalty of dismissal from service and ordered his reinstatement with further directions to initiate D.E. against him for his unauthorised absence w.e.f. 6.5.1999 to 13.11.2000 (i.e. the date of issue of penalty order) as he was declared fit by Medical Board for duty w.e.f. 6.5.99 but he remained absent unauthorizedly. He is, therefore, charged for his unauthorised absence w.e.f. 6.5.1999 to the date of issue of penalty order i.e. 13.11.2000. The advice of the Medical Board, adverted to in the charge against the Applicant, as quoted above, was as follows:
Fit for duty but advised to avoid stressful work, forward bending, climbing altitude, walking on uneven surface and cold climate exposure. The Applicant, in his reply to the Memorandum of Charge, inter alia, stated that immediately after getting the advice of the Medical Board on 06.05.1999 he had requested through a telegram and also by letter sent through registered post for a change of place of posting in view of the advice of the Medical Board. He has further stated that the Respondents gave no reply to his representations. He was under the impression that his representation would be considered sympathetically by the Respondent-Director, IB. It was also mentioned that his condition took a turn for the worse and he went to Delhi for treatment at the AIIMS. The advice of the Medical Board was endorsed by AIIMS and the Applicant informed the Respondents by a telegram dated 02.08.1999 about the same and reiterated his request for transfer out of Jammu. He has further stated that there was no response from the Department to this request also. The Applicant has also stated in his reply that the second Respondent never directed the Applicant from 06.05.1999 onwards to join duty and the Applicant had been under the genuine belief that his request was being considered. The Applicant has raised the following contentions in his reply to the Memorandum of Charge:
(i) That I cannot be treated on unauthorised absence during 6.5.99 to 13.11.2000, as I had been continuously requesting the Department to change my posting on the advice of the Board. Further I was undergoing treatment at AIIMS during the same period. I also attended the DE during this period.
ii) Further I was dismissed for unauthorised absence during this period only and the same period was decided as dies-non by the then DIB himself.
iii) However, the same order was quashed by His Majesty the Honble President of India.
iv) Once the same subject matter has been decided at the highest level, further quibbling would amount to contempt of His Majesty the Honble President of India.
v) In the present case, if the DE is initiated, as per the protocol, the IO cannot differ his opinion from the earlier opinion of the then Honble DIB, who after examining all the facts and taking into consideration all circumstances, had found me guilty of unauthorised absence from 6.5.99.
vi) If the present DE is initiated, the IO is bound to go with a pre-conceived mind and give the same opinion as that of the then DIB and if the results of the DE is pre-determined, the whole DE becomes farce and goes against the principles of natural justice.
vii) Apart from all these, the present proposal to initiate DE is prejudiced as the same has been issued on 24/4/03 after I served a notice for voluntary retirement on 7/4/03 when no DE was pending against me. The Applicant appeared before the enquiry authority on 08.11.2004 only. He was not present on any other day. The brief by the presenting officer was communicated to the Applicant, who submitted his statement of defence on 17.04.2005. The report dated 06.05.2005 of the enquiry authority was thereafter communicated to the Applicant. He submitted his representation against the report of the enquiry authority on 30.05.2005. He raised several issues in his reply running into 10 pages. The Applicant was dismissed from service by order dated 16.09.2005. He submitted an appeal against the order of the disciplinary authority on 21.10.2005. While the Applicant challenged the order of the disciplinary authority, he also prayed that his request for voluntary retirement under Rule 48-A of the CCS (Pension) Rules, 1972 may be accepted and he should be retired from service voluntarily with effect from 06.07.2003. Meantime, the Applicant had also approached this Tribunal in OA number 1655 of 2006 praying that his notice for voluntary retirement dated 07.04.2003 should be declared to have become effective after expiry of three months from the date of notice. The OA was dismissed by judgement dated 05.06.2007 on the ground that the Applicant had not completed 20 years of service on the date he gave the notice for voluntary retirement. The Applicant also approached this Tribunal in OA number 1372 of 2007 complaining that his appeal against the order of the disciplinary authority has not been decided. The Tribunal directed the Respondents on 08.08.2007 to decide the appeal within three months. The appeal of the Applicant was rejected by order dated 29.05.2008.
5. The endeavour of the learned counsel for the Applicant has been to flay the procedure followed by the enquiry authority and point out various infirmities in the enquiry report and the orders of the disciplinary and appellate authorities. It was contended that the enquiry authority did not follow the provisions of Rule 14 (18) of the CCS (CCA) Rules, 1965, which reads thus:
14.(18) The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. It was argued that since the Applicant had not examined himself in the enquiry, it was mandatory for the enquiry authority to generally question him on the circumstances appearing against him in the evidence. Reliance has been placed on Ministry of Finance and another V. S B Ramesh, SLJ 1998 (2) SC 67= 1998 (3) SCC 227, in which the Honourable Supreme Court has held that if there has been no compliance with the Rule 14 (18) ibid, the entire disciplinary proceeding is liable to be set aside. The learned counsel for the Applicant would contend that in the above cited case also the proceedings were ex parte. It was further contended that the enquiry authority had wrongly mentioned in his report that the statement of defence of the Applicant had not been received till 30.04.2005, although the Applicant had sent the same on 17.04.2005. The enquiry authority was informed about this fact by letter dated 12.05.2005, placed at page 175 of the paper book, in which, inter alia, it has been mentioned that:
As regards my defence brief in the enquiry, which is pending, I have already sent the written brief dated 17.4.2005 on 18.4.2005 through registered post (copy enclosed). The same may be considered while submitting the enquiry report and I may be exonerated. It was further argued that the order of the disciplinary authority was non-speaking and none of the issues raised by the Applicant in the representation against the report of the enquiry authority were dealt with. Advertence has been made to the operative part of the order of the disciplinary authority, which reads thus:
Now, therefore, the undersigned being the Disciplinary Authority having carefully gone through the DE records and submissions made by Shri P.K.Modwil in his representation dated 30.5.2005, observe that the disciplinary proceedings have been conducted against Shri P.K.Modwil as per CCS (CCA) Rules, 1965. Despite several notices issued by the I.O. to Shri P.K.Modwil, he attended only one hearing on 8.11.2004. The charge against him has been proved during the course of inquiry. The undersigned agrees with the report of Inquiry Officer and keeping in view the gravity of the charge imposes a major penalty of Dismissal from Service with immediate effect on Shri P.K.Modwil, ACIO-I/G. Further, the period of his unauthorised absence from duty from 6.5.99 to 13.11.2000 shall be treated as Dies-non. It was contended that recording of reasons by a quasi-judicial authority was obligatory. Reliance has been placed on Mahavir Prasad V. State of Uttar Pradesh, AIR 1970 SC 1302. It would be clear from the perusal of the order dated 16.09.2005, contended the learned counsel, that no reasons whatsoever have been recorded by the disciplinary authority in his order for imposing the penalty of dismissal on the Applicant. It was argued that the Applicant had attended the hearing on 08.11.2004 and had also given his written submissions in reply to the Memorandum of Charge, brief of the presenting officer and the reply to the report of the enquiry authority. The issues raised in these documents have not been dealt with. The representation of the Applicant to the report of the enquiry authority has been placed at pages 100 to 110 and he has replied to each and every argument of the enquiry authority, while proving the charges, yet none of these contentions raised by the Applicant have been considered by the disciplinary authority.
6. It was argued on behalf of the Applicant that the Respondents had never served any notice on him after 06.05.1999 for joining duty and did not also respond to the requests of the Applicant for his transfer from Jammu, especially when the medical report was available to them specifically mentioning that he should avoid stressful work, forward bending, climbing altitude, walking on uneven surface and exposure to cold climate. The learned counsel would contend that the enquiry authority has harped in his report on the fact that the Applicant had been declared fit by the medical board and should have joined his duty without taking into account the above mentioned observations in the certificate of fitness. Although the Applicant had given his reply to the brief of the presenting officer on 17.04.2005, yet the enquiry authority recorded that the reply had not been received. It was contended that the reply had been sent by registered post and it was not received back undelivered. A copy of the slip of the Post Office showing that the registered letter had been sent to the enquiry authority on 18.04.2005, has been placed at Annex R -1. It was submitted that the enquiry authority had submitted his report on 06.05.2005. The Applicant had mentioned the fact that the enquiry authority had not considered his reply dated 17.04.2005 in his representation against the report of the enquiry authority and also in his appeal to the appellate authority, but neither the disciplinary authority nor the appellate authority considered his plea. It was contended that there were no witnesses in the enquiry, which was to be proved only on the basis of six documents mentioned in Annex III to the Memorandum of Charge and the Applicant had given his arguments taking into account these documents. It was reiterated that after considering the representations of the Applicant, the enquiry authority should have examined him generally as provided in Rule 14 (18) of the CCS (CCA) Rules, 1965. Reference has also been made to the judgement of the Honourable Delhi High Court in Union of India V. Charanjit Singh Khurana, Writ Petition (C) number 69 of 2002 decided on 07.01.2002, in which it has been held that:
"b) Failure on the part of the Enquiry officer to put question to the respondent herein with regard to the circumstances appearing in the evidence has vitiated the enquiry in view of the ratio laid down by the Apex Court in State Bank of Patiala V.S K Sharma, JT 1996 (3) SC 722."
7. The Respondents, on the other hand, have contended that the Applicant had been directed to give his representation against the brief of the presenting officer to the enquiry authority by 21.04.2005, yet it was not received by the enquiry authority till 30.04.2005 as recorded by him in his report. Therefore, the enquiry authority was justified in disregarding the same. It was also pointed out that the Applicant only attended the preliminary hearing on 08.11.2004 and after that he did not attend any other hearing in spite of notices on 09.12.2004, 22.12.2004, 17.01.2005, 25.02.2005 and 16.03.2005. It is because of this reason that the question of his examination under the Rule 14 (18) ibid did not arise. It is further contended by the learned counsel for the Respondents that the order of the disciplinary authority is a self-contained and speaking order. It was argued that there was no need to produce witnesses as the charges were to be proved on the basis of documents placed on record and if the Applicant wanted to produce any witness, he should have requested the enquiry authority in this regard.
8. We have considered the arguments of the learned counsel for the parties and have perused the documents placed before us by the parties.
9. In essence the issue to be considered is whether the procedures as laid down in the rules have been followed and if there has been any violation of the procedures, whether it has caused prejudice to the Applicant.
10. The provisions in sub-rule 18 of the Rule 14 of the CCS (CCA) Rules, 1965 mandates that the enquiry authority would generally examine the charged officer about the circumstances appearing against him in the evidence, if the charged officer has not examined himself in the proceedings. In S B Ramesh (supra) the Honourable Supreme Court held that the enquiry proceedings are likely to be set aside for non-compliance of the aforesaid rule. The said S B Ramesh was an Income Tax Officer, who was proceeded against on the charge of living with a woman out of wedlock. This Tribunal had set aside the order of punishment on the ground of dearth of evidence against the applicant and also for non-compliance of the Rule 14 (18). In this case also the proceedings had been held ex parte against the applicant. The Honourable Supreme Court approved the observations of this Tribunal in its judgement:
14. It is necessary to set out the portions from the order of the Tribunal which gave the reason to come to the conclusion that the order of the Disciplinary Authority was based on no evidence and the findings were perverse. The Tribunal, after extracting in full the evidence of SW-1, the only witness examined on the side of the prosecution, and after extracting also the proceedings of the Enquiry Officer dated 18-6-91, observed as follows :-
"After these proceedings on 18-6-91 the Enquiry Officer has only received the brief from the PO and then finalised the report. This shows that the Enquiry Officer has not attempted to question the applicant on the evidence appearing against him in the proceedings dated 18-6-91. Under sub-rule (18) of Rule 14 of the CCS (CCA) Rules, it is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued that as the inquiry itself was held ex-parte as the applicant did not appear in response to notice, it was not possible for the Enquiry authority to question the applicant. This argument has no force because, on 18-6-91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex-parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority. In the instant case the argument of the Respondents is that the enquiry authority could not have examined the Applicant under the aforesaid rule because he (the Applicant) did not appear before him (the enquiry authority) even after several notices were given, which precluded the enquiry authority from examining him under Rule 14 (18) ibid. However, the enquiry authority did not mention in its communications that the charged officer would be examined under the above said Rule. It would be seen that this act would cause prejudice to the defence of the Applicant, when considered in conjunction with the fact that the reply of the Applicant to the brief of the presenting officer was also not considered by the enquiry authority on the ground that it had not been received by the latter till 30.05.2004, although it had been sent on 17.04.2005 and the enquiry authority completed his report only on 06.05.2005. The prejudice is compounded by the fact that the disciplinary authority has passed a non-speaking order, in which none of the arguments raised by the Applicant had been considered and answered. The Applicant has raised several arguable points in his reply to the brief of the presenting officer and his representation against the report of the enquiry authority, none of which have been giving due consideration, as would be necessary in a quasi-judicial proceeding. Considered in this wider context, the non-examination of the Applicant under Rule 14 (18) ibid assumes significance. We are aware that the standard of proof required in the disciplinary enquiry is less rigorous than in a criminal case and that not following the prescribed procedure indeed does not always lead to prejudice, yet the combination of the violation of rules and procedures, as in the instant case, as pointed out above, would surely lead to serious prejudice to the charged officer as his defence has not been considered adequately and punishment has been inflicted on him without assigning any reason for that. In our considered opinion it was not sufficient for the disciplinary authority to observe that he had gone through the records of the case and the report of the enquiry authority and passed the order of punishment only on the basis of these observations. He ought to have considered the representation of the Applicant and answered the contentions raised by him. The appellate authority has also given short shrift to the points raised in the appeal of the Applicant against the order of the disciplinary authority and dismissed the appeal solely on the ground that the charged officer had not appeared before the enquiry authority in spite of the fact that several opportunities had been given to him to appear before him. The order of the appellate authority is thoroughly unsatisfactory.
11. On the basis of the above, we are of the considered opinion that the impugned orders are not sustainable and have to be set aside. The OA is allowed. The case is remitted back to the Respondents to reconsider the matter from the stage of examination of the charged officer by the enquiry authority under Rule 14 (18) of the CCS (CCA) Rules, 1965. The enquiry would be completed within six months of the receipt of a certified copy of this order. The concerned authorities are expected to pass a cogent and speaking order and keep our observations in mind, while deciding the case. We are not passing any order regarding the consequential benefits, as it would abide by the final decision taken by the disciplinary authority. We also make it clear that we have not considered the merits of the case. There will be no orders as to costs.
12. OA number 646 of 2009 As noted above challenge in this OA is to the order dated 22.02.2007, by which the period from 06.05.1999 to 13.11.2000 has been treated as dies non and also to the order dated 05.11.2008, by which the period from 14.11.2000 to 11.08.2002 has been declared as period not spent on duty.
13. As the period from 06.05.1999 to 13.11.2000 has been declared as dies non following the order of dismissal dated 16.05.2005 of the disciplinary authority and as we have already directed in paragraph 11 above that this would abide by the decision in the disciplinary enquiry as directed above.
14. The order dated 05.11.2008 has been passed following the setting aside the order of the disciplinary authority dated 13.11.2000 by the appellate authority by order dated 23.07.2002. The order dated 05.11.2008 has been quoted below in full:
Whereas, Shri P.K.Modwil, ex-ACIO-1 (G), SIB Jammu was awarded penalty of Dismissal from Service in a DE against him by the Disciplinary Authority vide Order No. 1/Vig/98 (56)-2286-90 dated 13.11.2000. Further, the period of his absence from duty 26.7.97 to 5.5.99 was regularized by granting him leave of the kind due/admissible and the period of his unauthorised absence from duty w.e.f. 6.5.99 i.e. from the day he was declared medically fit till the date of issue of the order was treated as Dies-non.
And whereas, aggrieved with the aforesaid penalty, Shri Modwil preferred an appeal to Appellate Authority (President). The Appellate authority, after considering the case, set aside the penalty of Dismissal from Service vide order dated No. 1/Vig/98 (56)-1900-4 dated 23.7.2002 with the further direction that the Disciplinary Authority may initiate disciplinary proceedings against Shri Modwil for the period of his unauthorised absence beyond 6.5.1999.
And whereas, consequent of reinstatement in service, Shri Modwil rejoined his duty on 12.8.2002.
And whereas, Shri P.K.Modwil was again charge-sheeted vide Memo No.2/PFJ/672-DE-III-2862-64 dated 24.4.2003 under Rule 14 of CCS (CCA) Rules, 1965 on the charge of his unauthorized absence from duty w.e.f. 6.5.99 to 13.11.2000.
And whereas, on conclusion of the DE, the Disciplinary Authority awarded him a penalty of Dismissal from Service vide Order No. 1/Vig/2003 (40)-1852-58 dated 16.9.2005. Further, the period of his unauthorised absence from duty from 6.5.99 to 13.11.2000 was ordered to be treated as Dies-non. His appeal was also rejected by the Appellate Authority (President) vide Order No. I/Vig/03 (40)-1324-25 dated 29.5.2008.
And whereas, on rejoining duty on 12.8.2002 Shri Modwil was again absented from duty unauthorised w.e.f. 22.10.2002. The period of his unauthorised absence from 22.10.2002 to 16.9.2005 i.e. the date of Dismissal from Service was treated as dies-non by the JDD, SIB Jammu vide order No.2/PFJ/672-DE-II-1524-31 dated 22.2.2007.
And whereas, Shri Modwil submitted a representation dated 13.8.2007 requesting for setting aside the order dated 22.2.2007 and to decide his intervening period between the date of dismissal from service and rejoining duty consequent on reinstatement in service (14.11.2000 to 11.8.2002).
And whereas, Shri Modwil also filed an OA No. 1372/2008 in the Honble CAT, Principal Bench, New Delhi praying for deciding his representation dated 13.8.2007 requesting to regularise the period from 14.11.2000 to 11.8.2002 and also from 22.10.2002 to 16.9.2005. The Honble CAT vide its order dated 8.7.2008 disposed of the OA with the direction to the first respondent (MHA) to deal with the representation of the applicant with regard to period from 14.11.2000 to 11.8.2004 and pass an order within a period of two months from the date of receipt of the certified copy of the order.
Now, therefore, in compliance with the aforesaid order dated 8.7.2008 passed by the Honble CAT, Principal Bench, New Delhi, the President being the competent authority, after carefully going through the documents, has ordered that Shri Modwil shall be paid half average pay for the intervening period i.e. 14.11.2000 to 11.8.2002 and that the said period shall be treated as non-duty for all purpose.
15. The learned counsel for the Applicant has relied on Fundamental Rule (FR) 54 (1) and instruction number 4 of the Government of India below this rule, which has been placed at Annex R-1. FR 54 (1) has been extracted below:
F.R. 54(1) When a Government servant who has been dismissed, removed or compulsorily retired is reinstated as a result of appeal or re-view or would have been so reinstated but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order-
regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty. The Government of India's instruction number 4 below the FR 54 (1) is quoted below:
Regulation of pay on reinstatement on grounds of equity or Court judgment, etc, etc.- The following questions in connection with the reinstatement of dismissed/removed/discharged Government servants on the Government servants whose service had been terminated, came up for consideration:-
(1) Whether before the Government of India decide to reinstate an individual on grounds of equity, concurrence of the Ministry of Finance should be obtained for payment of pay and allowances for the intervening period; or whether the administrative authorities, could themselves, after following the prescribed procedure, e.g., consultation with the Union Public Service Commission, etc., reinstate the person and sanction payment of pay and allowances under FR 54.
(2) Whether in cases of reinstatement on the ground of dismissal/removal/discharge from or termination of service being held by a Court of Law or by an appellate/reviewing authority to have been made without following the procedure required under Article 311 of the Constitution, payment of full pay and allowances for the intervening period is automatic and compulsory. The clauses (1) and (2) of Article 311 of the Constitution have been reproduced below:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
[(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Without any doubt the order dated 13.11.2000 of the disciplinary authority was in clear violation of Article 311 of the Constitution in as much as the Applicant was punished for unauthorised absence for the period which was different from the period mentioned in the Memorandum of Charge dated 15.06.1998 and, therefore, he had neither been informed about the charge against him nor given adequate opportunity to defend himself against that charge. The order of the disciplinary authority was set aside by the appellate authority on this ground on the advice of the UPSC.
16. The learned counsel for the Applicant would contend that in the light of the instruction number 4 of the Government of India below FR 54 (1), the Applicant would be eligible for payment of full pay and allowances for the period when he was dismissed from service and when he was reinstated. The Respondents have not been able to repel this argument.
17. In the light of the fact that the instructions of the Government of India are unambiguous, the OA is allowed to the extent of payment of full pay and allowances for the period from 14.11.2000 to 11.08.2002. The Respondents would pay the amount due to the Applicant within a period of eight weeks from the receipt of a certified copy of this order. No costs.
18. A copy of this order may be placed in both the OAs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk