Central Administrative Tribunal - Delhi
Davender Singh (Staff No.Mk-1726) vs Union Of India Through on 20 September, 2011
Central Administrative Tribunal Principal Bench O.A.No.2955/2011 New Delhi, this the 20th day of September, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) Davender Singh (Staff No.MK-1726) Technician, Department of Telecom r/o H-33, Masaroval Park Shahdara, Delhi 110 032. Applicant (By Advocate: Shri Rajiv Kumar Tiwari) Versus Union of India through The Secretary Department of Telecommunications 20, Ashoka Road, Sanchar Bhawan New Delhi 110 001. The General Manager, Telepnone Maha Nagar Telephone Nagar Limited (MTNL) B-Block Market, Dilshad Garden Shahdara, Delhi 92. The Divisional Engineer (Telecom) Maha Nagar Telephone Nagar Limited (MTNL) Dilshad Garden Exchange Shahdara (East) Delhi 92. Respondents O R D E R By Shailendra Pandey, Member (A):
This is the 5th round of litigation.
2. In the previous OA No.2801/2008, filed by the applicant, he had made a prayer to be allowed to resume his duties as Technician and grant him pending salary and back-wages as well as other benefits. The Tribunal had observed as under:
2. It seems that the applicants case had received consideration by the Tribunal initially in 2005 when by order dated 11.03.2005 passed in OA 566/2005, he was allowed to submit a representation to be considered within a stipulated period of time. He had stated that he was an employee of DoT, which had the jurisdiction to deal with the matter and the OA was entertained. Subsequently when he again came to the Tribunal in OA 50/2006, the OA was dismissed as not maintainable as it was found that the order challenged had been issued by MTNL. Subsequently, the applicant came in review, which was also dismissed. He then went to the Honble High Court of Delhi but withdrew the application with liberty to file an appropriate petition. Thereafter, he came to the Tribunal in OA 2514/2008, which was dismissed as withdrawn with liberty. Now the applicant has filed the present OA challenging the order dated 17.08.2005 at Annexure P-12 passed by MTNL rejecting his claim. Since service disputes of MTNL are now within the jurisdiction of the Tribunal, this case has been taken up.
3. Learned counsel for the applicant points to the various documents placed on record to establish that he was working with the respondents. Learned counsel for the respondents has submitted that they would consider the applicants case upon verifying the original records in relation to the documents annexed with the OA. It is stated at the Bar that DoT is the competent authority. In this connection, learned counsel for the applicant submits that the applicant would be satisfied if the present OA is disposed of asking the respondents to consider his prayer, treating the OA as a supplementary representation, within a reasonable period of time. and had disposed of the OA on 31.07.2009 with the following directions:
3. This matter is, therefore, disposed of with a direction to the DoT to consider the prayer of the applicant made in this OA, treating it as a supplementary representation, and pass appropriate orders within a period of two months from the date of receipt of a certified copy of this order. No costs. In compliance of the above directions, the respondents have passed order dated 31.03.2010 wherein they have stated as under:
The matter has been examined in consultation with MTNL.
Whereas Shri Devender Singh was transferred to GM(East), MTNL, Delhi on 30/03/1994 and resumed duties under GM (East) on 09/05/1994. Further he was posted to DE (FRS), MTNL, Shahdara. However he never, joined DE (FRS) office, Shahdara. There is no record indicating that he ever visited the office of DE (FRS) office Shahdara. He has also not submitted/furnished any documentary proof of having approached the office for joining his duties and thereby the office of DE (FRS), Shahdara refused him to join his duties. Hence his claim to have approached the office for joining his duties is not correct.
Since Shri Devender Singh, Technician has not performed any duties from 10/05/1994 to 15/03/2010, there is no question of making payment to him for the period of his unauthorized absence Shri Devender Singh Technician has now resumed duties in MTNL w.e.f. 16/03/2010.
This issues with the approval of competent authority.
3. It is stated by the applicant that the respondents have passed a cryptic order dated 31.03.2010, without considering and deciding the issues raised in the OA on the basis of his service records, and although they have allowed him to join, this is on a lower post. He has challenged the order dated 31.03.2010 and also the subsequent order passed by the respondents on 13.10.2010, vide which his pay has been fixed in a lower rank by showing his designation as Phone Mechanic instead of Technician, and has sought the following reliefs in the OA filed by him:
quash the order dated 31.03.2010.
quash the letter dated 13.10.2010 of AO (P&A) TY justifying fixation of wrong and incorrect grade and pay scale. direct the respondent to grant admissible promotion/ACP and scale up-gradation to the applicant. direct the respondent to grant all pending back wages along with applicable interest and all other admissible benefits and amenities, as per the applicable rules.
4. The aforementioned relief(s) have been sought on the following grounds:
a) that the decision of the respondent to deny the applicant backwages on the ground that he was unauthorizedly absent from 10.05.1994 to 15.03.2010 is unjustified and ex-facie erroneous being against the documents available on record. In this connection, it is submitted that the applicant had placed on record his medical leave application dated 21.01.1999 which was duly acknowledged by the concerned official in DE (FRS) office in Shadra, and had been forwarded by him to the competent authority for necessary action. Thus it is on record that the applicant was performing his duties in DE (FRS) office Shahdara. Further, the applicant had made several oral requests and written representations to the respondents, and had also approached this Tribunal on various occasions starting from the year 2005 till the order of this Tribunal on 31.07.2009.
b) That in absence of relevant records and documents, it is not open to the respondents to make an inherently contradictory claim that the applicant was not employed with them or he was on unauthorized leave.
c) That the applicant has been made to join in the rank of Phone Mechanic which is lower even than the post of Technician on which the applicant had started his career in the department, and thus the compliance of the Tribunals order dated 03.07.2009 is only partial.
d) That assuming, without admitting, that the applicant remained on aunauthorised absence for the period between 10.05.1999 to 15.03.2010, still he cannot be denied the benefits of promotions, special allowances, special pay and other admissible amenities etc.
5. We have heard the learned counsel for the applicant and have been through the OA.
6. At the outset, we find that the applicant has sought multiple reliefs in the OA viz. to grant him back wages for the period from 10.05.1994 to 15.03.2010, admissible promotion/ACP, set right the wrong fixation of pay which is alleged to have been made in a wrong and incorrect grade and pay scale, scale upgradation and other admissible amenities. This is not permissible under Rule 10 of the Central Administrative Tribunal (Procedure) Rules, 1987.
However, instead of dismissing the OA on this ground and asking the applicant to file fresh OAs, we have decided to restrict the relief in this OA to the two reliefs mentioned in the Tribunals order dated 31.07.2009 in OA No.2801/2008 on which directions had been issued by this Tribunal (refer para 2 above). As regards the other reliefs prayed for in the present OA, we give liberty to the applicant to agitate the same separately in accordance with law, and make it clear that we have expressed no opinion on the same and have left open all aspects, be it merits or legal aspects, such as limitation.
7. In para 1 of this Tribunals order dated 31.07.2009, passed in OA No.2801/2008, the Tribunal has stated that the prayer of the applicant in the OA was to be allowed to resume his duties as Technician and grant him pending salary and back-wages as well as other benefits. With regard to the relief of being permitted to resume his duties, we find from the order dated 31.03.2010 (Annexure P-1) that the applicant has been allowed to resume his duties w.e.f. 16.03.2010. Thus, this relief has become infructuous. Of course, the applicant has stated that although he has been permitted to join, he has been made to join the post of Phone Mechanic, which is lower than the post of Technician to which he had been initially recruited. On the other hand, it is seen from the order dated 13.10.2010 (Annexure P-2) that the respondents have stated that the salary is being drawn w.e.f. 16.03.2010 in appropriate scale of Technician/TK in Central Pattern and that the designation is shown as Phone Mechanic because there is no process made in the WFMS System to show the Cadre of Technician TK for Central Scale, but that a letter has been sent to WFMS (H.Q.) for making provision of Technician in the Central Scale. It is also stated that a change of Basic Pay may be made if the Last Pay Certificate/Service Book of the period present/last duty performed by the applicant, of which there is no information in the office, is obtained. It thus appears that there is a difference in nomenclature only of the post that the applicant has joined, and that action with regard to re-fixation of pay will be taken on procuring LPC/SB of the applicant. We, therefore, feel that the applicant should pursue the matter with the respondents and only thereafter, if necessary, he can seek recourse to any legal remedy with full supporting data/documents.
8.1. We come now to the relief relating to grant of back-wages. We find from the order dated 31.03.2010, passed in compliance of this Tribunals directions, that the respondents have categorically stated that the applicant has not submitted/furnished any documentary proof of having approached the office for joining his duties and that the office of DE (FRS), Shahdara did not allow him to join his duties and, therefore, it is stated that his claim that he approached the office for joining his duties on 09.05.1994 is not correct. It is further stated the applicant has not performed any duties from 10.05.1994 to 15.03.2010 and, therefore, there is no question of making payment to him for the period of his unauthorized absence.
8.2. The applicant has opposed the above submission of the respondents by contending that he had submitted adequate documents to establish that he had joined duty at Shahdra and had been working there. However, we do not find this contention of the applicant to be tenable. The applicant in support of this contention has stated that he had submitted an application on 21.1.1999 to the SDE (FRSD), Dilshad Garden Extension, Shahdara for grant of medical leave for 11 days from 10.01.1999 to 20.01.1999, and thereafter on 2.06.1999 another letter to the higher authority, i.e., AGM (Telephones), Preet Vihar, Delhi requesting him to take him on duty as he had reported to join duty on 21.01.1999 but SDE refused to take him on duty, followed by letters addressed to GM, Preet Vihar, Delhi on 12.11.1999 and reminders to AGM and GM on 3.07.2000 and 15.01.2001 respectively, and a representation dated 19.11.2001 to the CGM (Telephones), Connaught Place, Delhi (to help him to join duty) and yet another representation on 21.10.2002 to GM, after which he filed OA No.566/2005 and OA No 2801/2008. However, a perusal of the aforesaid letters and representations stated to have been submitted to the concerned authorities shows that there is no documentary proof attached (by way of endorsement on these letters or otherwise) that they were received by the authorities concerned. Only his leave application of 11 days dated 21.01.1999 contains an endorsement, but this in no way establishes that he had joined duty at Shahdara or that he was not allowed to join. He has also given no reasons why he had not approached this Tribunal within a reasonable time from 1999 to 2004 in the matter. The onus would, therefore, now be on him to prove with supporting documents that he had in fact joined at Shahdra.
8.3 In any case, the respondents have now allowed him to join duty on 16.03.2010, and the question of back-wages would have to be decided as per the rules on the subject. It is well settled that back-wages cannot be claimed as a matter of right and have to be decided by the competent authority based on the facts and circumstances of each case. The same have been denied to him by an order of the respondents on the ground that he was unauthorisedly absent from 10.05.1994 to 15.03.2010 and did not perform any duty.
As already observed, the applicant has not produced any documentary proof etc. to show that he had worked in the office of DE (FRS), Shahdara during the period for which he is claiming back wages nor of refusal to allow him to join. In our view, the applicant has failed to make out any case for the relief sought by him of grant of back-wages.
9. In view of the above discussion, the OA is dismissed in so far as the relief of back-wages is concerned. No costs.
However, as regards other reliefs, the applicant is given liberty to take up the matter with the competent authority and agitate the same in accordance with law. It is reiterated that we have not expressed any opinion on the other reliefs and are leaving all aspects, including that of limitation open.
(Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/