Central Administrative Tribunal - Gauhati
Shri Raju Bora vs M/O Information And Broadcasting on 29 August, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH Original Application No. 040/00318/2016. Date of Order: This, the 39 Day af August, 2077. THE HON'BLE MOHD. HALEEM KHAN, ADMINISTRATIVE MEMBER SH Raju Bora, C/o Mr Dhiren Kumar Hazorika, R/O Rouse No.26, near Shiv Mandir, Kharghull, P.O. Sharghull, PS. Latasi, Guwahall-78 1004.
Dist. Kamrup, Assam. -
Ne By Advocate Mr G. Baishya
-Versus-
1. The Union of India '. Represented by the Secretary to Govemmen? of india, Ministry of information & Broadcasting. Shost Bhawan, New Delhi~ 170001.
2 The Director General, Doordarshan, : Doordarshan Bhawan, Copernicus Marg, New Delhi-P 10007.
3. The Deputy Director General (North East} ~. Doordarshn Kendra, Guwahat, 8.G.Baruah Road, Guwahatl-781024,
4. The Station Director {E} Doordarshan Kendra, Dibrugarh, Dibrugarh, Assam. Pin - 786003.
By Advocate Mr R. Hazarika, Addl, C.G.5.C. Date of Hearing : 26.07.2017 Date of Order :
the Administrative Tr unals Ac! 1985 seeking following reliefs :
PC _ whie working as. Graphic Arist in DDK, Q the applicant he was placed under suspension vide order dated 07.02 2003 , 1G{2} of fhe. CCS(C | above order was sil representation date with this <O.A. Acc applicant went ic rasoondent Now, Le. Station Director, DOK, Dibrugarh he Oo suomi an affidavit stating that the apolcant is one. o sd in G.R Case which is pending for disposal in the Court of Chief Judicial Magistrate, Karmrup (M) and also the fact that the applicant was not engaged in any business, service or profesion during the suspension period. Accordingly, the applicant on 27, 04, 2011 submitted an. affidavit with a representarion far grant of subsistence allowance. According fo the applicant on 3.6.201)] the app icant was granied subsisience allowance in which 1 was ibntionsa that the same has been sanctioned on the basis of fhe undertaking and the letter submitted on 27.04.2031. According to the applicant even after passing of the order dated 9.5.201] no payments were made. The applicant had jo submi another represaniation 28.06.2011 for grant of subsistence allowance from 04.12.2002 onwards The applicant further submitted that on 31.10.2011 he was paid ;
"subsistence allowance with effect fromm 21.10.2011 amounting to Re) 2.087 /--only. The applicant further submitted that the subsistence allowance remained illegally stopped in the year 2013 and consequertly he approached the Permanent Lak Adalat, Kamrup (M}, Guwahati vide petition PLA No.j09/2013. The respondent authority appeared and fled written slatement,. in which they annexed O.M. No.ODK/DIB/911 }/94-A. dated 27.02.2013 by which the applicant was directed to stay at the Headquarter and shouicl not leave the same without prior permission, failing which the subsistence allowance will be stopped. According fo the applicant he did not receive the Memorandum dated 27.02.2013. The applicant further submitied that he came to know about that Memorandum only ofter filing of the ee TR written statement by fhe respondents. The sai sic case was wilhdrewn by |
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No NJ \ Ne a view to approach before the appropriate forum.
ihe aoplicant w applicant also - eminded the authorily by representation dated : lance of the order of the Tibunal dated 25.03.2014. the applicant moved the Tibunal again by Nic 00/2014. The Tabunal by order dated sonal appearance of the respondent No.3 'raspondent No.3 did not appear before the 33 recoiled by the Thbunal on 23.03.2015. The Tribunal vide order dak : 30.04.2015 directed the authorities for review n order. The suspension order was reviewed and ; y order dated 7.52015 revoked fhe suspension order cordingly the applicant joined Doordarshan : 2015. In view of the order of revocation of setition was closed on 4.6.2015.
"~
3. oplicant on 17.08.2015 he submitted a respondents with a request fo pay the arrear subsistence allowance erms of the Tiunal's order dated 25,038,201 4.
LE Lae order dated 17.03.2015 issued o ballable the scid respondent. However, the said | ey letter dated 10.09.2015 the respondents informed the applicant that no orreor of subsistence allowance is payable to the applicant as the app icant did not furnish any Non-Employment Cerificate fo the yespondiént for the period of suspension. According to the applicant he | wos put under suspension with effect fram 05.12.2002. But no subsistence allowance was paid fil 2011. In response to the letter dajed 25.4.2011 issued by the fesporident the applicant duly subrnited an af dovit stating therein that he was nol engaged in any business or profession. Thereafter, the respondent authority had never issued any _ documents orders whatsoever for submission of non employment | cert = Therefore, denial of subsistence allowance on the qround of non submission of non-employment cerfiicate is highly Hegal and arbi Hrary, According io the opplicant itis the duly of the respondent guthorty fo make payrrient of subsistence allowance. The applicant hoo also fled one Misc.Application bearing No,040/00158/2015 before ine Thounal praying for execution of the order dated 25,3.2014 passed in 10. A. (040/0000106/2014 The said M.A was dismissed with liberty to ine | a cant to approach the Tribunal in case of failure of the respondents . in grant ing the subsisience allowance as per rules, Relevant portion of the aforesaid O.A is reproduced below :
"In my view, present case is not a case of imposition of _ penalty and suspension is. a measure of punishment and nal for -- pendency of discinlinary proceedings. Hf is becduse of the _ pendency of a ciminal case. 1 is the bounded duty of the | amployer. to olve subsistence ollawarce 'lo employee ike - another of present, As the matter is long pending case, leljustice _ be clone by directing the applicant fo submit the present Original Application {O.A) before dhe dopropriate autharity within a. peviod of 15: (Filteen)-days fram the date of receipt capy_af iis :
fFreati 4 adjudiagis ihe same 'and oass necessary order fo release the nce a fowance | in accordance with jaw, within a period denis fled the written stalement denying the in the O.A. In the wriffen statement the respondents been registere associated wit infiyence ame the jeamed Sub-Divisional Judicial Magistrate uwaohal, it may be menfioned here thal the applicant has never informed about his arrest and defention fo the concemed authority during the relevant period. However, on coming fo learn about the same, the applicant was placed under deemed suspension with effect fom 05.12.2002 under Rule 102) of the CCS (cca) Rules, 19465 vide order dated 07,02. 2003 passed by the Station Director/Doordarshan Kendra, Dibrugarh, His fo be nofed that he left the Headquarters on 14,02,2001 without any infermation and/or permis ion from the competent authority and he had remained absent from duty Unauthorsediy since then and fil the date of his suspension :
without any communications with the concemed authority during the relevant period. Thereafter, two telegrarns were sent ta him at his home _ ders gs recorded in the official documents on 23.02.2001 and 2, 04. 2001 respectively, directing him to reporr for duty Immediately, However, both the telegrams could not be delivered to him by the | Postal department and they have returned the same with the remark , thal the addressee is unknown. The applicant was without pay and unauthorised absent from duty on the date of his suspension. The gppican was Granied. supsistence allowance when he appeared before the concerned ouihority on 26.04.2011 offer a period of more than 0 {fen) years and prayed for grant of subsistence allowance to him, Then he was directed fo furnish an affidavit to the effect that he was not engaged in any business, service or profession during the relevant period asa mandatory requirement and that he would remain in the Headquarter during the period of his suspension. Accordingly, subsistence allowance granted vide order dated 09.08.2011 on the _ basis of the applicant's application and affidavit dated 27.04.2011, However, in he: said order dated 09.05.2011 HH was specifically mentioned thai the applicant was required fo slay at the Headquarters:
(Dibrugarh) ck ng whe entire period for which he would receive the subsistence ci swones and that he would not leave the Headquarter without prior permission of the Head of Office. é The resp ndents also denied the confention of para 4.4, 4.7 and 48 of the O.A and submited thaf subsistence allowance was paid to the appiican! sf from 01.05.201) after submission of necessary documents. The rescondents however, clarified that the authorities considered each and svery fact while considering the subsistence allowance po ent and found that the applicant was without pay on fhe date o "suspension and wes absent from Headduarter 2 unauthorisedly 25.03.2014 In appropriate 17.06.2014 fo therefore aske nol fo leave | quihoriy. Acc e respondents the letter was duly sent af his residential ad brugarh, namely, C/o Asom Siralaya, New Markel, Oop.
Market, Dibrugarh, Assam as mentioned In hi sian application dated 17.06.2014 through an office peon on 08.07.2014, The Peon retumed fhe Jetter undelivered, which was again sant by registered poston 09.07.2014 and the same was also refurned by postal authority on 14.07.2014 with the remark "Not known, redirector fo sender.' Accarding fo the respondents it was therefore concluded thai he has submitted a false address and was not living at the address of 3 Q 8 : Dibrugarh shown In his application. The respondents however, submitted = iy iy that the apdicant also did not appear before the competent auiharty, personally so that subsistence allowance could be paid fo him. According fo the respondents whenever ihe applicant completed the formaiities, subsistence allowance was paid fo him as per rules relating to subsistence allowance under FR 53(2} of the FR & SR. The respondents also highighted that the appicant anpeared before the authority on 26.04.201 lafter a period of more than 10 years and prayed for grant of subsistence diiewance to him. [ff was also emphasised by the respondent that they have sent several letters to the applicant but no response was received from him and further submitted that the oppiicant was on unauthorised absent from duty with effect from 14.02.2001. The respondents submitted that in view of the non compliance of the formaitias the subsistence allowance could not be paid io the applicant as the order of fhe Hon'ble Tribunal dated 26.03.2014 has directed for payment of subsistence allowance in accordance with law. The respondents also quoted the order of this THlounal passed in M.A.158/2015 in which the Tribunal has dismissed the application by order dated 03.08.2016. Since the applicant has never :
fled a non-emp yrnent certificate the subsisience allowance cannot be paid. The res dent's also highlighted thal though the order of the Hon'ble Tribuns apdlicant to fk which as per ru) .
&. The app submissions ma applicant Med 5 a subsistence oa not act and employment subsistence a ordered for complied wif a, The ole 05.04,2017. the hearing could not fake place ond subsequently & :
counsel for fi counsel soug fixed for hear 2017; On this date ine loomed counsel for the applicant rai ihgie coat an with regard fo the competence of the Sing} RS = Bench iO adjudicate the matter, Accordingly following orders were passed :
"Mr, G. Baishya, lsamed counsel for the applicant and Mr R. Hazarika, leamed Addl. CGSC for the respondents are present.
This court has been seized in the matter on YONMOQUS : eccasions and in order dated 03.08.2016 In M.A. No. 040/001 58/2015, the following decision had bean faker: To conclude the vexatious litigation, the petition is being. dismissed. On submission of 'Non Employment Certificate', if the resoondenis do not pay the subsistence allowance, the petifioner will have liberty to approach this Tribunal again."
Now at this stage, recurrence of the issue thot the Single Bench Court canno? decide in Subsistance Allowance basically fo keep the matier pending, However, for the end of justice, both the partes ore directed fo submit their writen argument both in the matter of law and in the matter of fact by 10.07.2017 failing which If will be presumed that the parties have nothing mare to say beyond the pleadings and the case will be decided on the basis of material on record, Fix the matter on 10.07.2017."
The matter was again taken up on 26.07.2017 as fixed. The learned Addl.C.G.8.C filed o written argument. However, no written argument was filed by the learned counsel for the applicant, in view of the above chronological development of the case the court reserved the matter for orders as enough time was given to both the parties for argument,
10. in view of the reluctance of the leamed counsel for the applicant for particloating In the hearing and written argument submitted by the leamed AGA. C.GS.C the case fs decided on the basis of the rival pleadings, materials filed by both the parties ond also taken into account the written atgument filed by the respondents, Learned / SE OOO NOES CEN COGS inf did not cooperate in hearing because counsel for the appl according fo him the condition for payment of subsistence allowance the relevant DOPT tg Ll ee Memorandum as the matter. Th sought by the beginning of constitutional subsisience ollaw employee jor ary profession cettificate. The assumed, The | of Safe of M.P vs BR.
pleadings. The isarn Tribunal has cis M.A.NO.158/2014 vide orcler dated 03.08 39076 With the observ he respondents do not pay fhe subsistence allawance, the H Have liberty fo apnroach this Tribune again and reli exure-19 of the ©.A318/2016 filed by the applicant. Acc Addl.C.G.S.C the applicant should have _ compl ed with condition as laid down in the order dated 03. 08.2014 in M. A, 188/20) 5 and submitted the non employment certificate, The app cant has not subrnitied the non employment certificate and again came before this Tribunal with O.A and accordingly ©.A. is borred by resjudicate. The learned Addl.C.G.S.C justified the order dated } 0.09.2018 passed by Director, DDK, Dibrugarh, which is exiracted below Prosar Bharti india's Public Service Broadcaster Doordarshan Kendra: Dibrugarh No.DDR/DIB/9 {1} /94-A/2731-83 september 10.2015 subrClarification on fixation af pay & arrears of subsisience qlowarnce, in reference fo ihe two applications both dated 17.8.15 by SH Raju Borah, Gragthic Artist, DDK Dibrugarh regarding his payment of sclary as per present rate and arrears of subsistence allowance the clarifications are as mentioned below:
Ee His pay has already been fixed as per the 6 CPC waa, s.15. As he was on unavthorized absence from 14.2.0) followed is deemed suspension from §.13.02 and later on revocation of his suspension he rejoined duty on 7.6.15 only, he has not eamed any increment during the entire period from 14.29.01 fo 645.15. Consequently, he is drawing lesser pay than hls juniors. How fhe perlod of suspension shall be freated wil be decided only oftier the conclusion of the criminal case against him in the Hon'ble Court of the CJM, Kamrup, Guwahati and the ovicome of the disciplinary proceedings which is contemplated against him.
2. No arrears of subsistence aflowonce is payable fo him as he did not furnish any non employment cerfificate to the office during mast of the period of suspension. Subsistence al lowance con be paid only if the suspended official furnishes o Cerificate avery month thal he was not engaged in any oiner employment, business, profession or vocation. Further, there was no direction from the Hn''bie CAT. Guwahati Bench also for payment of arrears of subsistence allowance as claimed in his application, He had already been paid subsistence allawance for the period for which, he had furnished non-employment certificate as per rule.
Renna lies "y Ql {K.Merang} DIRECTOR(E}"
12. Inview of the submissions made by the rival parties, pleadings and materials onr i} His not No.S0/2002.u
i) His also vide order a CSICCAS Rules 1965 on being under detention for more the leffer No.DIB/DDK/9(1)/94-5/2143 dated hich is extracted below :
erence to his leave application dated 24.7.1995 31 ohic Arist of this Kendra, is hereby informed that he before going on leave. # seems thal he does no} ficial rules ane regulations. in number of occasions . He Is hereby warned not fo repect this in fufure. "
DIRECTOR"
Thereafter.
memos were issued to the applicant for his misconduct o orlsed absence from duty.
SE
13. The respondents also annexed leer No. DIB/DDK/9{1]/94-A/6557_ Lika LEE dated 22.2.1996, The same is reproduced herein below -
"Maemo "Shri Raju Bara Graphic Arist was absent from duty on 5-)1- | 7S and 16-11-95. But he has marked. his presence jin the attendance registrar which amounts jo misconduct on his part, He has alse bean absenting himself from duty from 13-01-94 and | requesied for leave from 17.1.96up Jo 37.1.98 on the ground of | ness. He has not produced meciical certificate in support of his. Hness and joining report so far.
Ley He is asked fo explain his conduct on the above points and _ submit MC and joining report immediately failing which/will be _ freated as unauthorised absence from duty without further. nolice to him.
Director"
in the above latter it was mentioned thal the applicant was absent from | os duty on 5.11.95, 16.11.95 and also fom 13.1.%6 on medical ground but _ o without any medical certificate. The respondents also annexed letter No. DIB/DDK/9(1]/96-A dated 17.10.1996 asking the applicant fa show cause why his period of absence may not be declared as unauthorised absence from duty. They have also annexed the 3 different telegrams dated F.OS.1997, TLALI997 & OF,05.2001 sent to the appticant asking | him fo resume his duly immediately, falling which disciplinary action wil be taken against him, 14, in View of the above position it Is difficult for this court fo aecept the contention of the applicant tha? he has discharged his duties to the ful satisfaction of the authorities.
15. in the rejoinder filed the applicant he has net been able fo controvert the submission made by the respondents about his 2h shennan a tne area Reet! been denied subsistence allowance, even clear direction fo pay subsistence dlowance nt rules with regard fo payment of subsistence a "produced below :
auring suspension :
der suspension is regarded as sublect io all fons of senice dpplicable fo Government cannot, therefore, leave his headquarters Pbor permission. The station of posting before his suspension will be the 3 of the suspended officer, The form of order provides for prescribing the headquarters of nf servant during suspension.
nt authority can charige the headavarters nent servant under suspension if fis in public dividual under suspension fequesis for a eqdaquarters, there is no objection to the uihorily changing ff if If is satisfied that such MW not put Government to any extra ike grant of travelling allowance, efe., or ations like creating difficully in investigation g the discipiinary proceedings.
OF headquariers during suspension of a nf servant enlarge on bail wil be subject to the Court may impose on his rnovernan} i ihe ball, 2 At Certificate : .
ent servant under suspension continues fo the provisions of CCS {Conduct} Rules, 1944. refore, for supplementing hls subsistence ge himself in any employment business, cation, without the prior permission of the ory. Further, under FR 53 {2}, the payment fawanee is sublact to jhe Goverment | suspension furnishing a cerificate in. the » Svery month fo the effect that he was not other employment, business, profession or.
rennet SS .
i?
_ vocation. The certificate does no} require the counter signature of any authority. :
Irs view of the above the court does not find the impugned order of the authority suffering from malice in low,
16. The affidavit fled by the applicants reproducea below "AFFIDAVIT |, SHRI RAJU BORAH, son of Late Makhon Bora, aged about 34. years. by. religion Hindu, by occupation Service, fasidant of. Doordarshan Kendra, Milan Nooar. B.S. and District Dibruqarh, ASSOM, do hereby solernniy affirm cand deciare on oath as follows:-
i. Thatham the resident of ihe above mentioned place.
2. Thal far-on employee of Doordarshan Kendra, Dibrugarh.
3. That] have been accused in GR: Case which Is bending for disposal _ __ in the Court of the lsatned Chief Judicial} Magistrale, Guwahati, -
we & That for the aforesaid reason, | have been suspended by the. a | Authority of Doordarshan Kendra, Dibrugarh
5. That] have been falsely implicated in the aforesaid case arid gi the Offences alleged to be committed by me is the result of mis- undersianding and mis-represeniation of the circumstances. And | am in nO manner involved the said case for which | will be- aequitted.
é& That ft am fully aware ond understand that my service wil be
- ferminatedsf i found guilty by the feamed court,
7. That | have been facing lols of trouble ond financial crisis since ihe | day of my suspension and my family is at fhe verge of dying in starvation. . 4
8. That! applied for subsistence afowance which is yet lo be granted,
9. That} am not SNgaged In any business, service of profession since -- the date of My suspension and | pramise that | shall not engage © myself in ary business service or profession in future, :
10. That i shall stay af Dibrugarh continuously from 12 of May, 2011 for _ grant of subsistence allowance, iL. lswear that this my declaration is rue, that it canceals nothing, and thal no part of if is false . so, helo me Goa, DEPONENT"
From the affidavit fled by the applicant OS reproduced above, tis clear that the applicant has given his resicdentic! address. as Doordarskan a PS. and Distict Dibrugarh, Assam which is the 4S serial No.10 of the said affidavit the applicant has at *! shail stay at Dibrugarh continuously from 1 of May, 2011 for ¢ ont of subsistence allowance." The words and phrases quoted above re icient fo corroborate the contention of the respondents that the applicant was not ving at Dibrugarh during the suspension pen
17. In view matter of fact to costs.