Central Administrative Tribunal - Delhi
Vijay Singh vs Delhi Development Authority Delhi on 1 June, 2018
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A No.3383/2016
Reserved on:24.04.2018
Pronounced on: 01.06.2018
Hon'ble Mr. Justice Dinesh Gupta, Chairman
Hon'ble Mr. K.N. Shrivastava, Member (A)
Vijay Singh
(aged about 37 yrs.),
S/o late Sh. Chandgi Ram,
H.No. 104, St. No.2,
Vill. & PO-Palla, Delhi - 36. ...Applicant
(By Advocate: Sh. Shrigopal Aggarwal)
Versus
1. DDA through its Vice Chairman,
D.D.A., Vikas Sadan (B-Block),
1st Floor, Near I.N.A.,
New Delhi - 110 033.
2. Commissioner (Personnel),
D.D.A., Vikas Sadan (B-Block),
1st Floor, Near I.N.A.,
New Delhi - 110 033.
3. Superintendent Engineer,
Civil Circle, DDA,
Rohini Zone, New Delhi.
4. Executive Engineer,
WD-13/DDA, Kirti Nagar,
Narela, Delhi. ...Respondents
(By Advocate: Sh. Arun Birbal)
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ORDER
By Hon'ble K.N. Shrivastava, Member (A) This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:
"i). (a) to set aside the impugned orders i.e. Annexure A-1 Colly.
(b)The charge sheet is bad in law as the same is issued by the Incompetent Authority.
(ii). to stay the inquiry proceedings provisionally till the disposal of this OA as per reasons as discussed in the body of the OA.
(iii). to direct the respondents' to immediately pay Rs.1,10,893/- on account of full and final payment of GPF in terms of their Orders dated 22-6-2016.
[Pl refer Para No.5.8 of the OA]
(v). to direct the respondents to pay the applicant Pension on provisional basis to sustain his life as well as gratuity which can't be invoked/held up and to regularize leave.
(vi) to pay interest on arrears of retirement benefits as well as arrears of salary at market rate."
2. The factual matrix of the case, as noticed from the records, is as under:
2.1 The applicant retired from the service of Delhi Development Authority (DDA)-respondent organization from the post of Office Clerk (Mate) on 30.06.2016 on attaining the age of superannuation, i.e., 60 years. He had joined DDA on 01.11.1983 as a work charged Mate and was regularized w.e.f. 01.11.1983 vide Annexure A-2 order dated 01.09.2008.3
(OA No.3383/2016) 2.2 On 20.06.2016, just 10 days before his retirement he was issued impugned Annexure A-1 (colly) memorandum of charges dated 26.02.2016 for his unauthorized absence in different spells. The contents of the memorandum of charges are reproduced below:
"Shri Vijay Singh s/o Shri Chandgi Ram working as workcharged mate (OCM) has never been regular in service and perusal of the record show that he has absented himself without period intimation or sanctioned of leave during the following periods:-
Part-A- He remained absent from 1.12.1985 to 31.7.1992 (948 days) Part-B He remained absent from 1.8.1992 to 31.12.1998 Part-C He remained absent from 24.4.2001 to 15.6.2001 (53 days) 19.7.2001 to 17.9.2001 (61 days) 1.12.2002 to 31.12.2001 (31 days) 1.4.2004 to 31.7.2007 (122 days) Part-D He remained absented from 1.1.2005 to 27.1.2005 (27 days) 1.2.2005 to 10.3.2005 (10 days) 7.9.2010 to 10.09.2010 (4 days) 4.11.2010 to 10.11.2010(3 days) 5.4.2011 to 7.4.2011 (3 days) From the above, it is clear that he is absented habitually and thus violated regulation of the DDA Coduct, Disciplinary and Appeal Regulation, 1999 and by aforesaid act he is behaved of unbecoming of the employees of the Authority. He is hereby called upon to explain why disciplinary action may not be initiated against him.
His explanation must reach the undersigned latest by 25.06.2016. Please note that if no reply is received within time, action is taken as deemed fit."
2.3 The applicant replied to the memorandum of charges vide his Annexure A-10 letter dated July, 2016 primarily stating therein that 4 (OA No.3383/2016) during the period 1985 to 1998 he was intermittently getting sick and was thus constrained to remain on leave in different spells. He has also stated that on every occasion of his absence, he had applied for sanction of leave duly supported by medical certificates. The grievance of the applicant is that despite his reply to the memorandum of charges, no action has been taken by the respondents to conclude the enquiry, as a result of which he has not been given his retiral benefits. The applicant has also stated that he has been denied his legitimate benefits of ACP and MACP as well as the benefits of re-fixation of his pay in terms of the recommendations of 5th & 6th CPCs.
2.4 The applicant has stated that he had remained on medical leave and was mentally disturbed and hence was unable to discharge his duties. As a consequence thereof, he, at times, had remained absent without sanction of leave. He, however, has stated that his absence was neither intentional nor wilful.
3. Pursuant to the notices issued, the respondents entered appearance and filed reply in which broadly they have stated that the applicant had remained unauthorizedly absent throughout his service in different spells. As a matter of fact, in the year 1994, DDA was forced to publish advertisement in newspaper asking the applicant to report for duties and ultimately a notice proposing termination of his service in exercise of the powers under Rule 5 (1) 5 (OA No.3383/2016) of CCS (TS) Rules was issued. It is further stated that a termination notice indeed was issued in response to which he briefly reported for duty and again started absenting himself. It is also stated that the benefits of pay revision in terms of 5th & 6th CPCs recommendations have already been extended to the applicant.
4. In reply to para-4.12 of the OA, wherein it is alleged by applicant that although the office order dated 22.06.2016 accorded sanction of Rs.1,10,893/- towards full and final settlement of his GPF dues but the same has not been paid, the respondents have stated that a cheque bearing no.110602 dated 25.06.2016 for an amount of Rs.1,10,893/- was kept ready and the Welfare Officer of DDA advised applicant to come and collect the cheque but he failed to do so. Nevertheless, the amount has been finally paid to him.
5. The applicant has filed rejoinder to the reply filed on behalf of the respondents in which, by and large, he has reiterated his averments made in the OA.
6. On completion of the pleadings, the case was taken up for hearing the arguments of the learned counsel for the parties on 24.04.2018. Arguments of Shri Srigopal Aggarwal, learned counsel for the applicant and that of Shri Arun Birbal, learned counsel for the respondents were heard.
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7. Shri Srigopal, learned counsel for the applicant stated that the applicant indeed had applied for leave on every occasion of his absence from duty but the leave was not sanctioned. He stated that the period of absence has not been correctly mentioned in the memorandum of charges. He also stated that the memorandum of charges (Annexure A-1) dated 20.06.2016 has not been issued by the competent authority. He said that the memorandum of charges has been issued by Executive Engineer, whereas as per the DDA (Conduct) Regulations, Commissioner (Personnel) is the Disciplinary Authority (DA) for the applicant. In this regard, he drew our attention to page-51 of the paper-book.
7.1 Shri Aggarwal further submitted that for the periods of absence of applicant, his pay has been cut without any intimation to him. He also stated that the applicant is not pressing for the relief mentioned at para 8 (iv) of the OA.
7.2 Shri Aggarwal alleged that the impugned Annexure A-1 memorandum of charges dated 20.06.20-16 has been issued by the respondents basically to escape from their responsibility of settling the retiral dues of the applicant. He placed reliance on the following judgments of the superior courts to say that at this late stage, the respondents cannot issue any memorandum of charges to the applicant:
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i) Judgment of the Hon'ble Calcutta High Court in Mahendra Naraya Ghosh v. Union of India & Ors., [W.P. No.1439 of 2008, decided on 29.04.2011].
ii) Judgment of the Hon'ble Calcutta High Court in Ramanand Goswami v. State of West Bengal and others, [C.R. No.17871(W) of 1984, decided on 19.01.1989].
iii) Judgment of the Hon'ble Supreme Court in Management of M/s M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar and others, [(1990) 2 SCC 48].
8. Per contra, Shri Arun Birbal, learned counsel for the respondents submitted that issuance of memorandum of charges had become necessary as the applicant had remained absent from duty quite often and was not conforming to any official discipline.
9. We have considered the arguments of the learned counsel for the parties and have also considered the pleadings. From the impugned Annexure A-1 memorandum of charges, it is seen that the periods of absence mentioned in it, start from the year 1985 and end with the year 2011. The maximum period of absence of 948 days is pertaining to the period from 1.12.1985 to 31.7.1992. The periods of absence indicated in subsequent years are of very small durations. Naturally, the question arises as to why the respondents chose not to subject the applicant to disciplinary proceedings between the years 1985-1992 when he had indulged in prolonged period of unauthorized absence. The inaction of the respondents gives credence to the submission made on behalf of the applicant that he was indeed severely sick and thus was forced to remain absent from duty for medical reasons. Having 8 (OA No.3383/2016) countenanced this prolonged period of unauthorized absence then, it is rather surprising as to why the respondents chose to issue the memorandum of charges at the fag end of the applicant's service; just 10 days before his retirement. We, therefore, feel that the intention behind issuing the memorandum of charges on 20.06.2016 is definitely actuated with mala fide intention of harassing the applicant. We abhor such intent. It is settled law that for any alleged misconduct committed long ago (in this case almost three decades ago), disciplinary action cannot be taken after a lapse of reasonably longer period of time. The judgments relied upon by the applicant support such a view.
10. In the conspectus, we are of the view that the impugned memorandum of charges is liable to be quashed and set aside and a direction is required to be issued to the respondents to regularize the period of absence of the applicant by sanctioning appropriate leave to him. In case sufficient leaves are available to his credit then the remaining period could be regularized by sanctioning Extraordinary (EOL). Accordingly, we dispose of this OA with the following directions to the respondents:
i) The impugned Annexure A-1 memorandum of charges dated 20.06.2016 is quashed and set aside.
ii) The period of absence indicated in the Annexure A-1 memorandum of charges shall be regularized by sanctioning 9 (OA No.3383/2016) the appropriate leaves to the applicant as available to his credit.
iii) As a consequence of (i) & (ii) above, the applicant shall be paid all his retiral dues as per the DDA Rules.
iv) The directions at (ii) & (iii) shall be complied with within a period of two months from the date of receipt of a certified copy of this order.
11. There shall be no order as to costs.
(K.N.Shrivastava) (Justice Dinesh Gupta) Member (A) Chairman 'San.'