Central Administrative Tribunal - Allahabad
Munna Lal Jaiswal vs M/O Defence on 6 March, 2024
RESERVED ON 28.02.2024
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 06th day of March 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 330/00882 of 2015
Munna Lal Jaiswal aged about 70 years, S/o Late Ayodhya Prasad
Jaiswal, Resident of Plot No. 38 Sher Gill Estate Shiv Katra Road,
Kanpur 208007.
...........Applicant
By Adv: Shri Vinod Kumar/Shri Shiv Mangal
VERSUS
1. Union of India through Defence Secretary, Ministry of Defence
Govt. of India South Block, New Delhi - 110011.
2. Director General Ordnance Services (OS-8C), Army Headquarters,
DHQ PO New Delhi 110011.
3. Commandant, Central Ordnance Depot, Chheoki, Allahabad.
4. The Controller of Defence Accounts, Central Command,
Lucknow.
5. The Senior Area Accounts Officer, 1 Ashok Marg, Allahabad.
. .Respondents
By Adv: Shri Saurabh
ORDER
The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) To issue a writ order or direction in the nature of certiorari to quash the impugned order dated 25.05.2009 (Annexure A-1 to Compilation No.1) passed by respondent No. 5 and order dated 21st Oct. 2005 (Annexure A-1
(a)) passed by respondent No. 3 be also quashed.
(ii) To issue a writ, order or direction in the nature of mandamus directing the respondent No. 3 to resubmit the claim of applicant to respondent No. 5 for audit and to pass the claim and respondent NO. 5 be directed to pass the claim of the applicant and also directions may be issued to the 2 respondents to pay the eligible amount along with interest @ Rs. 18% p.a from the date of due amount to the date of actual payment is made.
(iii) to issue another writ, order or direction in favour of the applicant as deem fit and proper in the circumstances of the case.
(iv) Award the cost of application in favour of the applicant".
2. The brief facts of the case are that the applicant was serving as Upper Division Clerk in the office of respondent No. 3 since 09th June 1964. On 25.11.1989 while he left his residence by his scooter for attending his duty at COD Chheoki (respondent No.3), when he reached the E.C.C College Gate at about 0730 hours, a jeep number (not known) hit his scooter from the front side and he fell down sustaining serious compound fracture injuries in his right leg. Immediately his family had informed the concerned authority about the aforesaid accident. Thereafter he was taken to CGHS Dispensary No. 3 by his family members, wherefrom his case being serious nature was referred to S.R.N. Hosptal, Allahabad but due to serious condition, applicant was admitted to Jeevan Jyoti Hospital, Allahabad for his treatment. He was under regular treatment of the Hospital w.e.f. 25.11.1989 to 31.12.1990. Court of inquiry was conducted to investigate into the circumstances under which the applicant met with an accident and sustained injuries. Applicant was issued a letter dated 20.04.1990 for appearance before the Court of Inquiry. In response to the above letter, applicant submitted an application dated 24.04.1990 regarding his inability to appear before the Inquiry. Inquiry Officer conducted the enquiry and submitted inquiry report. As per inquiry report, it was held that applicant was on bona fide Government duty at the time of accident and injury sustained by him was not due to his negligence or fault and also the injury was attributable to the Government service. Thus, on the basis of inquiry report, applicant was granted accident leave from 25.11.1989 to 31.12.1990. He was not completely fit to resume the duty, thus he was re-admitted in Jeevan Jyoti Hospital, Allahabad on 14.2.1991. He remained under treatment for the same accidental injury till 10.04.1994 continuously for which requisite medical certificate and application were submitted to respondent NO.3. While the above process of treatment was continuing 3 in respect of the applicant owing to his utter bad luck he again met with an accident on 19.09.1995 at about 1400 hours in the Depot premises itself where the applicant was on bona fide Government duty. Applicant informed the concerned authority about the above accident. According to medical report, applicant's case was referred to the orthopedic surgeon. Accordingly, applicant contacted to the SRN Hospital Allahabad, who referred the case of the applicant to Bombay Hospital. Applicant was admitted at Bombay Hospital on 5.10.1995 where he was under
treatment till 5.1.1996. Applicant joined his duty w.e.f 07.07.1997 and submitted his medical certificate and other relevant papers to the respondents for further necessary action. Again Court of inquiry was conducted to investigate the circumstances under which the applicant met with an accident. Report of Court of inquiry was submitted to respondent No. 3 by inquiry officer. Inquiry Officer has held in its enquiry report that injury is attributable to government service and his absence from duty from 20.09.1995 to 5.7.1997 suffixing 6.7.1997 being Sunday be regularized under the Rules as recommended by the Medical authorities and thereafter he was granted hospital leave for the above period. After grant of Hospital leave to the applicant a lot of correspondence were exchanged between the Respondent No 3 and Audit authorities regarding admissibility of the said leave to the applicant Ultimately the Respondent No 3 submitted a Supplementary Pay and Allowances Bill bearing No 245/P&A/CI-Fin dated 3 November 1999 for a sum of Rs. 1,05,385.00 to the Senior Area Accounts Officer, Allahabad for pre-audit and release of the payment. Audit authority i.e. respondent No 5 did not pass the claim of the applicant and made objections. The claim of the applicant was submitted several times to the audit after removing the objections, but it could not be passed and paid to the applicant. Relevant correspondence between the Respondent No 3 and Respondent No 5 regarding passing of the claim of the applicant up to July 2003 were continued. On 07 July 2003 applicant was shown the relevant correspondence and reason for not passing the claim of applicant in spite of several efforts made by them. Earlier applicant filed OA No. 1486 of 2003. The aforesaid OA was allowed with direction to the respondents to reconsider the whole 4 matter according to the recommendation made by Depot Authority and pass reasoned and speaking order.
3. I have heard Shri Vinod Kumar, learned counsel for the applicant and Shri Saurabh, learned counsel for the respondents and perused the record.
4. Submission of the learned counsel for the applicant is that applicant sustained injuries while on duty and all the formalities of Inquiry were completed by which claim of the applicant was found genuine by Respondent No 3 and Hospital/Stoppage leave was granted to him by Respondent No 3. Claim of the applicant was submitted to Respondent No 5 which was not passed. Action of the Respondent No 5 is arbitrary and illegal. He further submitted that Hospital/Stoppage leave was granted to the applicant applying Article 291 of CSR which has been settled by this Tribunal as well as by Hon'ble Allahabad High Court. Denial of Hospital /Stoppage leave on account of accident while on duty to the applicant is against the provisions of law applicable on the subject matter. He also submitted that Respondent No. 5 passed order dated 25- 5-2009 without applying his mind on the decisions of this Tribunal as well as decision of Hon'ble High Court in the case of similarly situated person and as such while passing the impugned order, Respondent No 5 violated the provision of Article 14 and 16 of the Constitution of India. Learned counsel for the applicant next contended that Respondent No 3 passed order dated 21 Oct 2005 without show cause notice to the applicant violating the principles of natural justice. Therefore order dated 21 Oct 2005 is liable to be quashed on this ground alone. Learned counsel for the applicant placed on record the order of this Tribunal in the case of Smt. Nirmal Sharma Vs. Union of India and others passed in OA No. 405 of 1999 on 24.03.2003. Learned counsel further referred the case law which was filed by another similarly situated person before the Tribunal and it was allowed by order dated 3.7.2001. Against the order dated 3.7.2001, respondents filed writ petition No. 34554 of 2001 Union of India and others Vs. Shri Vishwanath and another before Hon'ble Allahabad High Court. The aforesaid writ petition was 5 dismissed by order dated 4.3.2003. Thus, the order of the Tribunal has attained finality.
5. In rebuttal, learned counsel for the respondents submitted that at the time of accident of the applicant on 25.11.1989, He was an employee of COD Chheoki as Upper Division Clerk and was performing the duty of clerical nature. However, on reporting the accident, he was provided all possible assistance whatsoever applicable in the office of the respondents as per Rules. Learned counsel further submitted that since the person employed in clerical capacity do not fall under the category of workmen in terms of section 2(1)(N) of item no. (i) & (iii) of schedule II of Workmen's Compensation Act 1923, no Court of inquiry was required to be constituted to examine the nature of accident and declaration of the applicant as "on bonafide Government duty" at the time of accident. Learned counsel also submitted that on perusal of Court of Inquiry proceedings, it has been noticed that the accident took place at busy road in public area which comes under Nagar Nigam Allahabad. But the applicant did not lodge any FIR about the accident in concerned police station and claimed compensation as per the Motor Vehicle Act. Moreover, since the applicant being class III clerical staff does not fall under Workmen's Compensation Act 1923. Mere conducting of Court of Inquiry does not divulge any right to the applicant to litigate against the respondents as the respondents cannot go and act beyond the rules and give benefit of the Court of Inquiry to the applicant by going outside the purview of relevant rules. He next argued that as per the Accident Report dated 19.09.1995, the Inquiry Officer conducted a Court of Inquiry on 22.09.1997 and submitted its proceedings in which the cyclist who allegedly dashed to the applicant from his back side was also an employee of COD, Chheoki but he was not called for before the Court of Inquiry to bear his testimony/witness. The applicant was on duty at the time of second accident and hence the Court of Inquiry had declared the applicant was "on bona fide Government duty" at the time of accident but it does not mean that he is entitled to get hospital/accident leave for absence period during medical treatment in terms of Leave Rule 46 of FRSR Part III. Thus, the injury caused due to accident is not attributable 6 to Government service and his absence period w.e.f. 20.09.1995 to 06.07.1997 to be regularized by leave in terms of above leave rules is not tenable.
6. I have carefully considered the rival submissions advanced by the learned counsel for the parties and gone through the record.
7. From the perusal of impugned order, it is evident that earlier Commandant COD Chheoki, Allahabad sanctioned hospital leave to the applicant for the period of 656 days. Again applicant met with an accident on 19-09-1995 in the depot premises but respondents observed that injury was not due to performance of hazardous task. A court of inquiry was conducted and the Court of Inquiry opined that leave for 656 days from 20-09-1995 to 05-07-1997 (suffixing 06-07-1997) may be regularized under the existing rules. The COD Chheoki regularized the leave as hospital leave from 20-09-1995 to 06-07-1997 for 656 days. But as per objection of Audit Authority applicant was not entitled for hospital leave in accordance with Rule 46 of FRSR Part-III i.e. an employee of clerical cadre, whose duties do not involve handling of dangerous machinery, explosive material, poisonous drugs and performance of hazardous task are not entitled for hospital leave. Based on the audit objections, hospital leave sanctioned to the applicant was found irregular and disallowed. In compliance of direction of the Tribunal passed in OA No. 1486 of 2003, the matter has been reconsidered in the light of Rule 46 of FRSR Part-III read with decision No.2 and item 1 (b) of article 291 of CSR Vol-I and decision No.2 issued there under states that "The authority competent may grant hospital leave to such class III government servant whose duties involve the handling of dangerous machinery, explosive, poisonous of drugs and the like or the performance of hazardous task". As per provisions of section 2 (1) (N) of item (i) &
(iii) of schedule II of workmen's compensation Act 1923, person employed in clerical capacity do not fall under the category of workmen.
78. Observations of audit authority recorded in the impugned order are not acceptable as according to Article 291 (ii) of CSR, hospital leave will be given to all employees. In this regard, I may refer Article 291 (ii) of CSR, which clearly mentioned that "The provisions of Article 291 CSR which cater for subordinate employees including temporary or extra employee are applicable not only to those who may come within the purview of the Workmen's Compensation Act but also to all categories of staff other than gazette officers, and in their cases also, combination of any other kind of leave as indicated in para (1) above with the injury leave provided for in that Article, is permissible". The above proviso clarified that hospital leave is permissible to all employee including temporary or extra employees'. Since applicant is regular employee of the department, thus as per above rules applicant may be granted hospital leave for the aforesaid period.
9. In the case of Smt. Nirmal Sharma (supra), which is relied upon by the applicant has specifically held that:-
"From the aforesaid, it is clear that all categories of staff are covered under the scheme provided under Article 291 and it is not correct to say that only those who were covered for the provision of Workman's Compensation Act 1928 only could be entitled for the benefit of hospital leave".
10. In view of verdict of this Tribunal in the case of Smt. Nirmal Sharma (supra), it is crystal clear that applicant is entitled to be granted hospital leave for the aforesaid period.
11. On the basis of above facts, I am of the view that since the applicant met with an accident in the premises of Depot and when applicant was coming to attend the office and as per provision of 291 (ii) of CSR, all category of employees are entitled for hospital leave, thus applicant is also entitled for grant of hospital leave.
12. It is also notable here that recovery from the retired Government employee could not be made. As applicant was retired from service since 8 long and in view of observation of State of Punjab and others Vs. Rafiq Masih and others reported in (2015) 2 Supreme Court Cases (L&S) 33, in which Hon'ble Supreme Court has held that no recovery could be made from the retired employee, thus recovery from retired government servant could not be made. Finding of the Tribunal also find support this fact that respondents initially themselves have allowed the hospital leave and paid the salary in lieu thereof, thus there is no fault on part of the applicant. If there is no fault or misrepresentation on part of the employee concerned, he could not be fastened with liability for excess payment or overpayment/wrong payment.
13. In view of the above deliberations, the OA is allowed. Impugned orders dated 25.05.2009 and 21.10.2005 are hereby quashed and respondents are directed not to recover any amount from the applicant and if any amount has been recovered, the same shall be refunded to the applicant with simple interest of 6% per annum from the date of receipt of a certified copy of this order. Respondents are also directed to grant hospital leave to the applicant in the light of Article 291 (ii) of CSR and to grant all consequential benefit. No order as to costs. All associated MAs are disposed of.
(JUSTICE OM PRAKASH VII) Member (J) Manish