Central Administrative Tribunal - Jabalpur
Santosh Kumar Vyas vs Union Of India on 5 September, 2013
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH, JABALPUR ORIGINAL APPLICATION No. 480 of 2010 and 314 of 2011 Jabalpur, this Thursday, the 5th day of September, 2013 HONBLE MR. JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER HONBLE MR.G.P.SINGHAL, ADMINISTRATIVE MEMBER OA.480/2010: Santosh Kumar Vyas Sub Divisional Engineer (A/T) Bharat Sanchar Nigam Limited, Sagar R/o 15-16, Gajanan, Vaishali Nagar Shivaji Ward, Sagar (MP) 470001 - Applicant (By Advocate Shri Sapan Usrethe, proxy to Shri Rahul Rawat) V e r s u s 1. Union of India, Through The Secretary, Dept. of Telecom Sanchar Bhawan, 20 Ashoka Road New Delhi 110001 2.Bharat Sanchar Nigam Ltd. Through Chairman and Managing Director Bharat Sanchar Bhawan Harish Chandra Mathur Lane Janpath, New Delhi 110001 3. Shri R.K.P. Hinduja Chief General Manager, Telechom BSNL, BSNL Bhawan, Hoshangabad Road, Bhopal 462015 4.Shri Ziaul Hasan General Manager (Network Operation-CFA) o/O Chief General Manager Telecom MP Telecom Circle, BSNL, BSNL Bhawan Hoshangabad Road, Bhopal 462015 5. Shri S.K. Rai Dy. General Manager (Network Operation) o/O Chief General Manager Telecom MP Telecom Circle, BSNL, BSNL Bhawan Hoshangabad Road, Bhopal 462015 6.Shri Pankaj Gupta Telecom District Manager Bharat Sanchar Nigam Limited, Main Telephone Exch. Building Cantt. Sagar (MP) 470001 7. Shri Harish Paul Divisional Engineer (A/T) o/O Chief General Manager Telecom MP Telecom Circle, BSNL, BSNL Bhawan Hoshangabad Road, Bhopal 462015 8.Shri D.C. Jain The then DE(Admn.), o/o Telecom Dist. Manager BSNL, Sagar, now R/o House No.59 Shanti Residency Colony, Jabalpur Road Makronia, Sagar (MP) 470003 9.Shri Man Mohan Singh The then DE(A/T), BSNL, Bhopal (MP) 462001 Now r/o B-55, New Minal Residency JK Road, Bhopal (MP) - Respondents (By Advocate Shri Bhagwan Singh Thakur) (Date of reserving the order: 05.08.2013) and OA.314/2011: Santosh Kumar Vyas Sub Divisional Engineer (A/T) Bharat Sanchar Nigam Limited, Sagar R/o 15-16, Gajanan, Vaishali Nagar Shivaji Ward, Sagar (MP) 470001 - Applicant (By Advocate Shri Sapan Usrethe, proxy to Shri Rahul Rawat) V e r s u s 1. Bharat Sanchar Nigam Ltd. Through Chairman and Managing Director Bharat Sanchar Bhawan Harish Chandra Mathur Lane Janpath, New Delhi 110001 2. Shri R.K.P. Hinduja Chief General Manager, Telechom BSNL, BSNL Bhawan, Hoshangabad Road, Bhopal 462015 3.Shri Ziaul Hasan General Manager (Network Operation-CFA) O/o Chief General Manager Telecom MP Telecom Circle, BSNL, BSNL Bhawan Hoshangabad Road, Bhopal 462015 - Respondents (By Advocate Shri Bhagwan Singh Thakur) (Date of reserving the order: 05.08.2013) ORDER
By G.P.Singhal,AM.-
These two Original Applications have been filed by the same applicant and relate to same incident in regard to which he is seeking two different reliefs. Therefore, the OAs are being decided by this common order.
2 The applicant is seeking the following reliefs in OA.480/10:
a. Summon the entire relevant record from the possession of the respondents, pertaining to the present issue.
b. Quash the order dated 16.3.2009 passed by the respondent no.5.
c. Direct the respondents to release the salary of the applicant withheld with them along with 14% interest.
d. To pass appropriate orders against the respondent who had malafidely acted against the applicant.
e. To quash the impugned order dated 08.02.2010 passed by respondent No.4.
f. Pass any other orders and directions as this Court may deem fit and proper in the facts and circumstances of the case.
3 In OA.314/11 the relief sought by the applicant are as given below:
a. Summon the entire relevant record from the possession of the respondents, pertaining to the present issue.
b. That, it is therefore prayed that this Tribunal may be pleased to quash the impugned order dated 12.11.2010 passed by respondent No.2 and also the order dated 30.10.2009 passed by respondent No.3 c. To pass the appropriate orders against the respondent no.2 & 3 who had malafidely acted against the applicant.
d. Any other order/relief which the applicants may kindly also be granted by this court.
3 The brief facts, common to these OAs are that, the applicant, while working on the post of Sub Divisional Engineer (A/T), Sagar under DE(A/T), Circle office, Bhopal, was transferred and posted under TDM, Sagar vide order dated 13.9.2007 (Annexure A-8). By this order, he was replaced by Shri Ajay Kumar, JTO (A/T), Circle Office, Bhopal, who joined on the post on 17.9.2007. However, according to the applicant, he did not get the transfer and relieving orders and continued to perform his duty there up to 3.10.2007. Thereafter, the applicant applied for medical commuted leave for the period from 4.10.2007 to 28.12.2007 (13 occasions) except for 15.12.2007 and 16.12.2007. His leave applications were not accepted and sanctioned by the DE (A/T), Bhopal, who forwarded them to TDM, Sagar, to decide them as leave sanctioning authority. Later, the said transfer was modified and applicant was again posted as SDE (A/T), Sagar, vide order dated 14.1.2008. In consequence, he joined as SDE(A/T), Sagar, on the same day. The leave case of the applicant was sent by TDM, Sagar, to DGMO, MP Circle, Bhopal, who vide letter dated 16.3.2009 (Annexure A-15) ordered that, the applicants absence from duty for the period from 17.9.2007 to 13.1.2008 will be considered as willful absence and has to be treated as dies-non without break in service.
4 The applicant had challenged the said order dated 16.3.2009 before this Tribunal by filing OA.803/2009, which was disposed of by order dated 17.12.2009 (Annexure A-29) with the following observations:
Since it is the positive case of the Applicant that his representation under Annexure A/14 dated 08.04.09 is still pending un-disposed, without any waste of time, this case is disposed of by remitting the matter to the Respondents, who should consider the grievances of the Applicant (as raised in his representation dated 08.04.09) and pass a reasoned order by end of Feb. 2010 under intimation to the Applicant. While doing so, the stand taken by the Applicant in the present OA should also be taken into consideration by the Respondents. 5 In compliance of these directions of this Tribunal, Respondent No.3 has considered the representation filed by the applicant as well as stand taken by the applicant in OA.803/09 and have passed detailed and reasoned order dated 8.2.2010 (Annexure A-1) with the following observations:
a. The four days commuted medical leave of Shri Vyas be accepted for the period from 11.12.2007 to 14.12.2007.
b. Shri Vyas may apply for other leave due to him except commuted medical leave for the remaining period from 17.09.2007 to 13.01.2008 to the leave sanction authority to regularize the period of absence. The leave sanctioning authority shall decide such leave case with reasoned order.
c. Any payment/claim due to Shri Vyas for the period from 17.09.2007 to 13.01.2008 shall be paid to him/settled as per entitlement and rules applicable. Shri Vyas may apply for the same.
Aggrieved by this order, the applicant has preferred OA.480/10.
6 The applicant was also issued charge memorandum dated 9.6.2009 under Rule 35 of BSNL (Conduct, Discipline & Appeal) Rules, 2006 (in short, 2006 Rules). In this charge memorandum, 4 Articles of charges were imputed against the applicant, which were all related to the incident of his transfer and his absence from duty thereafter. Since these were proceedings for minor penalty, the applicant was asked to file representation against the charge memorandum. Therefore, the applicant filed detailed representation dated 26.8.2009 (Annexure A-10). The respondent No.3 after considering this representation passed the punishment order dated 30.10.2009, by which penalty of censure has been imposed on the applicant. The applicant filed appeal against this order, which has been rejected by the Respondent No.2 vide order dated 12.11.2010 (Annexure A-1). Therefore, the applicant has preferred OA.314/11.
7. The applicant has challenged the two sets of orders, impugned in these OAs, mainly for the following reasons:
i) The impugned order dated 16.3.2009, by which the period of absence has been declared as dies-non, has been passed without providing any opportunity of hearing and thus, deserves to be quashed. The applicant submitted that the order of dies-non is stigmatic in nature causing civil consequences. Therefore, principles of natural justice are to be followed before passing such order. Besides, the dies-non is a major penalty, which cannot be imposed, without holding the inquiry under Rule 14 of CCS (CCA) Rules (Reliance is placed on judgments of Honble MP High Court in the cases of Mahesh Kumar Srivastava Vs. State of MP and others, reported in 2007 (3) MPST 362 and Dr. Anil Kumar Verma Vs. State of MP, 2005 (1) MPST 24 (NOC).
ii) The respondents, have not complied with the directions of this Tribunal in OA.No.803/09, as in the order dated 8.2.2010 of the Appellate authority, instead of deciding the leave case, applicant has been directed to approach the leave sanctioning authority, who passed the original order in his leave case.
iii) After treating the period of absence as dies-non, punishing the applicant further with the penalty of censure is like punishing him twice for same incident, which is not permitted under the law.
8. The applicants claim is that, he performed duty for the period upto 03.10.2007. Thereafter, he was on medical leave from 4.10.2007 up to 14.12.2007, regarding which, he had submitted medical certificates. He presented himself before the Medical Board on 15.12.2007, which found him medically fit. Thereafter, on 16.12.2007 it was Sunday, and therefore, he should be presumed to be on duty on that day. He remained on medical leave again from 17.12.2007 to 28.12.2007. Thereafter, he has been performing his duty regularly after joining duty on 29.12.2007. Thus, he deserves to be sanctioned medical commuted leave for his period of absence for which he has duly submitted medical certificates, and should be treated on duty for the period from 18.9.2007 to 3.10.2007 as well as from 29.12.2007 to 13.1.2008.
9. The applicant further submitted that, since he has already been punished, vide order dated 16.3.2009, by which his period of absence from duty, has been treated as dies-non, imposition of another penalty of censure after that is not permissible in law, as it will amount to double punishment for the same act. The applicant has not violated any instructions/rules/regulations of the department in this case. Since the transfer order dated 13.9.2007 was not received by him, he continued to work on the same post till 3.10.2007. After that he was on medical leave, for which he duly submitted leave applications, supported by medical certificates from time to time. When the respondents asked him to appear before Medical Board, he appeared before the Medical Board on 15.12.2007, which found him fit for duty on that day. Thereafter, due to some health problem, he again went on medical leave from 17.10.2007 to 28.12.2007 and on completion of this leave, joined duty on 29.12.2007. Thus, he has not violated any of the instructions of department and therefore the disciplinary proceedings against him, are without any basis.
11. The applicant has also alleged malafides against some of the officers on the ground that since he was associated with the Employees union and in that capacity questioned certain actions of them, these officers had grudges against him. Therefore, the entire action of respondents, involving his transfer, declaration of period of absence as dies-non, as well as imposition of penalty of censure on him, is to settle the scores with him.
12. The respondents, in their reply, submitted that the applicant was relieved from duty w.e.f. 17.9.2007, on joining on that post by Shri Ajay Kumar, on that date. Both the transfer order dated 13.9.2007 and relieving order were available in the office of A/T unit, Sagar. The applicant deliberately avoided receipt of these orders and after some time went on leave on medical grounds for this purpose. His period of absence from duty has been declared as dies-non vide order dated 16.3.2009 by DGMO, MP State Telecom Circle, Bhopal (Annexure A-8, of OA.314/11) in the capacity of leave sanctioning authority, and this is an action under the Leave Rules. As against this, the punishment has been imposed on him under the 2006 Rules, by the Disciplinary authority. Thus, it is not a case of punishing the applicant twice for the same act as has been alleged by him.
13. In regard to the applicants claim that he did not get the transfer orders till 3.10.2007, respondents submitted that when Mr. Ajay Kumar, who was reliever of the applicant had joined duty on 17.9.2007, the applicants name was struck off from the strength of office. Thus his claim of not receiving the transfer and relieving orders up to 3.10.2007, is without any basis and shows his willful disobedience of the orders of superior officers. Further, the applicants claim of joining duty on 29.12.2007 is also not sustainable as he had already been relieved from that place w.e.f. 17.9.2007 and could not have joined duty any where except at his new place of posting, which he did not do. Therefore, the leave sanctioning authority, which in his case was, TDM Circle, Sagar, as it was his new place of posting, has rightly decided his leave period vide the order dated 16.3.2009. On the other hand, the impugned punishment order has been passed by the Disciplinary authority, on account of disobedience of valid orders of superior authorities. In these circumstances, these OAs, being without any merit deserve to be dismissed.
14. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith.
15. We first take up the relief sought in OA.480/10, which is in regard to regularization of period of absence from duty of the applicant. The leave sanctioning authority i.e. Deputy General Manager (O), MP Telecom Circle, Bhopal, vide his order dated 16.3.2009, has declared the entire period of absence from 17.9.2007 to 13.1.2008 as dies-non without break in service, on the ground that the applicant remained absent from duty without prior sanction of leave, during this period. The reasons for such an order have been mentioned in para 1, 2, and 3 of this order, which are reproduced as under:
1) Shri S.K. Vyas, SDE (A/T) was relieved and struck off from the strength of Circle A/T Team w.e.f. 17.9.2007 by letter No.DE/AT/70-04/CH-1/53 dated 13.9.2007, to join at your office. The information relating to transfer and struck off of the officer, was also communicated over telephone by Shri Man Mohan Singh, the then DE (A/T), MP Circle.
2) The registered letter containing transfer and struck off orders sent to his residential address returned back undelivered, although several other communications were sent and received from the same address and it is his own house. This attitude of the office shows that he was deliberately avoiding receipt of transfer order.
3) Shri S.K. Vyas has joined his duty as SDE (A/T) Sagar under DE (A/T) MP Circle on 14.01.2008 in compliance of Circle Office letter No.ST-03/31/43/IDT-XIV/Supply-II/II/71 dated 14.01.08.
16. The applicant has contended that no opportunity of hearing was given to him before passing such order. However, it is apparent from his application dated 14.1.2008 (Annexure A-34), which is addressed to Divisional Engineer(Administration), Sagar, that the applicant had applied for regularization of his period of absence and submitted necessary documents with this application. Thus, the order dated 16.3.2009 was in response to the applications filed by the applicant himself for regularization of his period of absence.
17 However, the applicant challenged this order by filing OA No.803/2009 before this Tribunal. In compliance of direction of this Tribunal in O.A. No.803/2009, the applicants case was considered in detail by the Appellate authority, who has responded to each and every point raised by the applicant in his representation as well as OA.803/09 in his detailed and reasoned order dated 8.2.10 (Annexure A-1). The appellate authority has given the following decision/ direction in this order:
a. The four days commuted medical leave of Shri Vyas be accepted for the period from 11.12.2007 to 14.12.2007.
b. Shri Vyas may apply for other leave due to him except commuted medical leave for the remaining period from 17.09.2007 to 13.01.2008 to the leave sanction authority to regularize the period of absence. The leave sanctioning authority shall decide such leave case with reasoned order.
c. Any payment/claim due to Shri Vyas for the period from 17.09.2007 to 13.01.2008 shall be paid to him/settled as per entitlement and rules applicable. Shri Vyas may apply for the same.
18. Thus dies-non order of the leave sanctioning authority has been modified by the Appellate authority, as according to his order dated 8.2.2010, now, the leave sanctioning authority has to pass orders for regularization of period of absence by granting leave, in place of dies-non for the period. The only restriction imposed by him for sanctioning of leave is in regard to grant of commuted medical leave. Thus, the applicant has to apply for regularization of his period of absence from 17.9.2007 to 3.10.07 to the leave sanctioning authority, who has to sanction appropriate leave for regularizing this period and decide his leave case with a reasoned order.
19. The applicants contention that he had worked for the period from 17.9.2007 to 3.10.2007 and thereafter from 29.12.2007 to upto 13.1.2008 has been duly dealt with in para 2n of the order dated 8.2.2010 of the appellate authority, which is reproduced as under:
2n. Shri Vyas claimed that he worked for the period from 17.09.2007 to 03.10.2007 and for the period from 29.12.2007 to 13.01.2008 as SDE at Sagar as transfer and relieve order were not made available to him. Since shri Vyas was found relieved from the post of SDE at Sagar and this fact was also well known to Shri Vyas, the dispute over receipt and dispatch of the transfer and relieve order is immaterial once the fact is known. Shri Vyas has not approached for the receipt of these orders. It was the duty of Shri Vyas to obtain these orders which he did not. Therefore claim of Shri Vyas that he worked for the period from 17.09.2007 to 3.10.2007 and from 29.12.2007 to 13.1.2007 is not acceptable under such circumstances. Shri Vyas had no authority to work during these periods. Thus, the claim of the applicant for treating him on duty for this period has not been accepted by the Appellate authority.
20. As far as the relief sought in OA.314/11 is concerned, the main ground of challenge to punishment order by the applicant is that since the period of absence has been ordered to be treated as dies-non, the applicant cannot be punished twice for the same act/ incident. However, the respondents have vide their order dated 8.2.2010 effectively nullified the die-non order. Thus, the challenge to punishment order on the ground of double punishment is no more relevant. As far as contention of the applicant pertaining to non-receipt of transfer / relieving order by him is concerned, this has been duly addressed in the punishment order dated 30.12.2009 as well as in the order of Appellate authority. Even otherwise, it appears strange that when the reliever of the applicant had joined duty on 17.9.2009, how come the applicant remained oblivious of his transfer order till 3.10.2007, particularly when he is an employee of a Telecom organization where the messages are promptly delivered and accepted on phone. In this regard, it is specifically mentioned in the order dated 16.3.2009 of the leave sanctioning authority that the applicant was informed on phone by Shri Man Mohan Singh, the then DE (A/T), MP Circle.
21. Thus, we are of the considered opinion that, the applicant was willfully absent from duty after 17.9.2007 on wards to avoid communication of transfer order to him. Therefore, the respondents cannot be faulted in passing the punishment order dated 30.10.2009 as well as the order dated 12.11.2010 on his appeal. As far as regularisation of his period of absence is concerned, we find that the impugned order dated 8.2.2010 of the Appellate authority has effectively nullified the dies-non order dated 16.3.2009 of leave sanctioning authority and now the applicant may get his period of absence from duty regularized by filing appropriate application before the leave sanctioning authority, as directed by the Appellate authority.
22. In view of the aforesaid, we do not find any justification for interfering with the impugned orders of the respondents in this case. As directed in the order dated 8.2.2010 (Annexure A-1), the applicant may file suitable application afresh, for grant of leave for the period of absence, before the leave sanctioning authority, who shall decide such leave application, with a reasoned and speaking order, within a period of 60 days from the date of receipt of such application.
23. Thus, the OAs are, disposed of with the above observations. No order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member sk ??
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