Central Administrative Tribunal - Delhi
Uttam Kumar Tewari vs Union Of India Through on 13 September, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 875/2013
New Delhi this the 13th day of September, 2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Uttam Kumar Tewari
(aged about 25 years)
R/o A/100, Patpar Ganj Village,
Delhi-110091. Applicant
(By Advocate: Shri N.S. Rana with Shri. Yogesh Sharma)
Versus
1. Union of India through
The General Manager,
Northern Railway, HQ,
Baroda House,
New Delhi-110001.
2. Chief Personnel Officer
Northern Railway, HQ,
3rd Floor, Annexe-1,
Baroda House,
New Delhi-110001.
3. Principal Chief Engineer,
Northern Railway, HQ,
4rd Floor, Annexe-1,
Baroda House,
New Delhi-110001.
4. Shri A.V. Mittal
Dy. Chief Engineer-T.P./H,
Room No,.432, 4th Floor, Annexe-1,
(Engineering Branch),
Baroda House,
New Delhi-110001.
5. AEN (G)
Northern Railway, HQ,
Baroda House,
New Delhi. Respondents
(By Advocate: Shri P.K. Yadav)
ORDER
Shri G. George Paracken:
Applicant is a Telephone-cum-Dak Attendant (TADK for short) (previously called Bungalow Peon/Khalasi) and he has been posted at the residence of Shri A.V. Mittal, Dy. Chief Engineer, TP, HQ (Respondent No.4). His grievance is that the said Respondent has not been allowing him to perform his duties with effect from 21.12.2012. Consequently, he is not being paid his salary from that date.
2. The background of this case as narrated by the Applicant is that he was appointed as a TADK vide Annexure A-2 letter dated 09.07.2010 and according to Annexure A-3 letter of the same date, he reported for duty at the residence of Respondent No.4 on the same date. Later on, he was granted temporary status vide Annexure A-4 letter dated 30.08.2011.
3. According to the Annexure A-5 procedure issued by the Northern Railway, Junior Administrative Grade Officers and above are entitled for services of Bungalow Peons at their residence to meet with official work arising out of Railway Operation at their residence also. Bungalow Peons are engaged specifically to perform the following duties:-
(i) To Carry official files/Dak to the Bungalows of the Officers to whom they are attached.
(ii) To attend to official telephone calls at the Officers Bungalows.
(iii) To deliver urgent messages to other officers.
(iv) To accompany the officers on tour at short notice.
(v) To carry telegrams in case of accidents.
(vi) To carry papers to officers Bungalows and bring them back to the office on the next date.
(vii) Any other item of work as directed by the concerned Officers to facilitate and in furtherance of official work.
However, the Respondent No.4 gave an unsigned list containing the following duties to be performed by the Applicant on daily/weekly basis:-
Daily Weekly/Twice a week
1.Breakfast/Morning Herbal Tea 1.Changing Bed sheets twice a week
2.Sweeping & Moping twice a day 2. Buying vegetables
3. Lunch 3. Buying Grocery
4. Clothes washing 4. Bathroom tiles cleaning
5. Ironing 5. Changing papers
6. Dinner 6. Cleaning spider web
7. Washing Utensils 7. Cleaning fans/tube lights
8. Dusting 8. Cleaning cup boards
9. Cleaning ward robes In addition to the above duties, he was also verbally asked to take his son, aged about 13 years to bus stand at about 6.00 a.m. for going to his school in morning, bring him back in the afternoon at about 2.00 p.m. from bus stand, on return from his school, take him to Railways Karnail Singh Sports Stadium in the evening at about 5.00 p.m. and bring him back in late evening at about 7.30 p.m. To perform the aforesaid duties, the Applicant was required to report at the residence of Respondent No.4 at 5.30 a.m. daily on all seven days of the week without any weekly rest. As normal routine, after serving dinner and washing the utensils on all days, he was allowed to leave only at 9.30 p.m. But on days when the Respondent No.4 has guests, he will have to be available up to 11.00 p.m. He was also not allowed to avail any national holidays on 26th January, 15th August and 2nd October. For attending his duties on those national holidays, no enhanced wages were also paid.
4. According to the Applicant, the Respondent No.4 used to harass him purposely by marking him absent in the attendance register so that he does not get temporary status after the minimum 120 days work, as per rules. Thus, though he was entitled to get the temporary status with effect from 09.1.2010, he was granted temporary status only from 30.08.2011 as the Respondent No.4 purposely delayed the requisite certificate that he was performing his duties satisfactorily. He gave the said certificate only on 25.08.2011. However, after the Applicant got the temporary status, the Respondent No.4 started harassing him with the mala fide intention to remove him from service and started issuing him warning letters. But at the same time, the Respondent No.4 ordered him not to give any replies to those letters. Unfortunately, he suddenly fell ill on 24.02.2012 and he applied for 3 days leave from 24.02.2012 to 26.02.2012 (Annexure A-19). Again on another occasion, he applied for 4 days leave from 19.6.2012 to 20.06.2012 and from 24.06.2012 to 25.06.2012. As a result, the Respondent No.4 and his wife intensified their harassment towards the Applicant. The wife of Respondent No.4 even used to beat him but he tolerated her behaviour in order to save his job. But the things reached the extreme situation when Respondent No.4 slapped him 3 times on 24.12.2012 and tried to strangulate him alleging that he did not wash his underwear properly. The Applicant has, therefore, lodged a complaint to the SHO Police Station, Barakhamba Road, New Delhi against Respondent No.4. According to the aforesaid complaint, he has been working in Flat No.116-B, Babar Road as TADK allotted to Respondent No.4 for the last 3 years and three months. Further, he has stated that in addition to his duty prescribed under rules, he was forced to perform sweeping and dusting, washing clothes, preparing breakfast and carrying his son on cycle to the bus stop at Shankar Market to board him on the bus of DPS, R.K. Puram where he is studying. He was also asked to go to the market to purchase vegetables for daily use and cook dinner for the night. In spite of performing all those work, the wife of Respondent No.4 Mrs. Anjali Mittal always used to scold him, abused him, beat him with her chappals as if he was a beast. Respondent No.4 used to treat him badly and support his wife in abusing him. He has also stated he got freed from the clutches of Respondent No.4 and rang up the police at Telephone No.100. He has also requested the police authorities to medically examine him.
5. Accordingly, the police took him to Dr. Ram Manohar Lohia Hospital, New Delhi and his medical examination was held on the same date. According to the report submitted by the doctors, he was physically assaulted and there were linear abrasions in his body. However, according to him, the Respondent No.4 got frightened when the matter reached the police and he pleaded with him and his relatives for a compromise. Finally, the Applicant agreed to compromise the matter and both of them signed a compromise note. The Applicant also withdrew his complaint from police.
6. However, according to the Applicant, when he went back to the residence of Respondent No.4 to do his duty, he was not allowed to enter the premises. Instead, on 25.12.2012, the Respondent No.4 made a counter complaint to the SHO Police Station, Barakhamba Road, New Delhi stating that the Applicant has been working in his house as TADK and he was instrumental in getting the railway job for him. Initially he was working well and obeying his instructions but for the last one year or so his attitude has become very offensive and he has become arrogant. Whenever his mistakes were pointed out to him, he felt very offensive and instead of making amendments, he was entering into altercation with him. He becomes very stubborn. Further, it was stated in the said complaint that on 21.12.2012 when his mistake was pointed out, he became very offensive and made a fake call and lodged a false complaint against him. The Applicant himself made bruises on his neck and complained that they were inflicted by him. Later on, he withdrew his complaint in the presence of his father, grandfather and his office staff Mr. Chhibber. Again, on 24.12.2012, he came to his house and entered into verbal arguments with his wife but she told him to meet Respondent No.4 in his office. However, when he insisted to allow him enter the house but when the same was refused, he began to abuse her and warned her of severe consequences. He again told her that he will lodge fake complaint against him and other family members and threatened to teach them a lesson. Further, according to Respondent No.4, they fear that he may take undesirable steps. He also alleged that his grandfather had visited his house earlier and told him that unless he is not transferred from his residence, he will commit suicide in his house. He has also stated that as a result, he and his wife got mentally disturbed and they are suffering from fever and mental depression because of the arrogant behaviour of the Applicant.
7. A reply on behalf of all the Respondents including respondent No.4, i.e., Shri A.V. Mittal was filed by the Dy. Chief Personnel Officer (HQ), Northern Railway Hqrs. New Delhi. According to him, the Applicant has not been attending the duty daily and regularly since 21.12.2012. As per record also, he has not been attending his duty from the said date. They have also stated that they have written many letters to the Applicant to return for duty but they were in vain. Further, according to them, the absence of the Applicant from duty is causing hardships and inconvenience to Respondent No.4 with whom he was deputed. Further, the learned counsel for the Respondents submitted that if the Applicant is willing to join duty, there will be no objection for the Respondents to allow him to perform his duties.
8. We have heard the learned counsel for the Applicant Shri N.N.S. Rana and Shri Yogesh Sharma and the learned counsel for the Respondents Shri P.K. Yadav. In our considered view, it is not for this Tribunal to go into the controversy and adjudicate whether the Applicant is at fault or the Respondent No.4 is at fault. However, it is a matter of record that the Applicant has made a complaint to police against Respondent No.4 on 21.12.2012 and he was medically examined on the same date when it was found that he was physically assaulted. But the contention of Respondent No.4 is that those injuries are self inflicted by the Applicant. The said dispute also cannot be adjudicated by this Tribunal. However, there was a written compromise note signed by both the Applicant and the Respondent No.4 and on that basis the Applicant withdrew his complaint before the police. Later on, the Respondent No.4 himself made a complaint to the SHO Police Station, Barakhamba Road, New Delhi against the Applicant. It is not understood why the Respondent No.4, an officer working under the Respondent-Railways had to enter into a compromise with the Applicant who is a TADK (Bungalow Khalasi) working in his residence and the Applicant later on withdrew his complaint against him. Further, on the one hand the Respondents are saying that the Applicant has not been attending his duties from 21.12.2012 and because of his absence, the Respondent No.4 is greatly facing inconvenience, but on the other hand what the Respondent No.4 says in his complaint made to the police against the Applicant on 25.12.2012 is something different. It is quite strange to see, if the Applicant was wilfully absenting himself from duty from 25.12.2012, as to why the Respondents did not issue him any warning or direction to him to return to duty. But the factual position is available in the complaint made by the Respondent No.4 to the police itself. Respondent No.4 himself has admitted in the said complaint that when the Applicant reported for duty at his residence on 24.12.2012, he was not allowed to enter into the premises. It is not necessary to go into this aspect also by this Tribunal any further as it is for the official respondents to look into it.
9. However, since the contention of the Respondents is that it is the Applicant himself who is absenting from duty and if he is willing to perform his duty, they have no objection to allow him to do so, we direct the Applicant to report for duty to the Assistant Personnel Officer (HQ), Headquarters Office, Baroda House, New Delhi with a copy of this order. Since the allegation of the Respondent No.4 is to the effect that the Applicant is threat to himself and his wife and he himself has refused him permission to enter his house to perform his duties, the Applicant shall not be posted with him. As stoppage of salary of an employee without the sanction of any authority and without following due process amounts to depriving his livelihood, we also direct the Respondents to release his uptodate salary from 2.12.2012 immediately but in any case within 15 days from the date of receipt of a copy of this order. However, if the Respondents are of the view that the Applicant was unauthorizedly absenting himself from duty and the said act being a misconduct, they are at liberty to take appropriate action against him under the relevant rules.
10. Before we part with this order, we are constrained to observe that the engagement of Bungalow Khalasis now being given the glorified designation of TADK is a matter to be re-looked by the Respondent-Railway Board. It is understood that no rules or regulations are being followed in their appointments. The Respondents have neither framed any Recruitment Rules for the said post nor they notify the vacancies. Their appointments are made in an arbitrary manner by the officers concerned. Even in this case, Respondent No.4 has been boasting in his complaint to the police that he was instrumental in getting him employed as TADK. When the Apex Court in a number of judgments has frowned upon the administration to stop backdoor entries into the Government, the appointments of TADKs through the officers concerned are still going on at the whims and fancies of the officers. Further, it is observed that the Respondent No.4 in this case is only a Dy. Chief Engineer, which is comparatively of a very lower level post. Such officers are also allowed to engage their own Bungalow Khalasis without even considering the fact whether there is no sufficient accommodation available with them. In this case, the Respondent No.4 is not in possession of any Bungalow allotted by the Railway but only a lower type of accommodation in Babar Road. Therefore, in our considered view, such uncontrolled freedom to the officials to appoint TADK on their own and later leaving the burden upon the Railways to grant them temporary status and regular appointment cannot be allowed.
11. We, therefore, direct the Registry to send a copy of this order to the Chairman, Railway Board, New Delhi to look into this matter so that if at all it is necessary to appoint TADKs, such appointments shall be made in accordance with the rules and not according to the whims and fancies of the officials concerned as in the present case.
12. With the aforesaid directions and observation, this OA stands disposed of. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh