Central Administrative Tribunal - Ernakulam
Sosamma John vs The Superintendent Of Post Offices on 23 October, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A.NO. 737 OF 2007 Thursday, this the 23rd day of October, 2008. CORAM: HON'BLE Mr. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE Dr. K.S.SUGATHAN, ADMINISTRATIVE MEMBER Sosamma John Gramin Dak Seval Mail Deliverer Moolamattom Idukki Postal Division. ...Applicant (By Advocate Mr. P.C.Sebastian ) vs. 1. The Superintendent of Post Offices Idukki Division Thodupuzha - 695 584 2. The Sub Divisional Inspector (Postal) Thodupuzha Sub Divisional Thodupuzha 3. The Union of India represented by Secretary to Government of India Ministry of Communications Department of Posts,New Delhi ... Respondents (By Advocate Mr. TPM Ibrahim Khan, SCGSC The application having been heard on 23.10.2008, the Tribunal on the same day delivered the following: O R D E R
HON'BLE Mr. GEORGE PARACKEN, JUDICIAL MEMBER This is the second round of litigation by the applicant. Earlier she had filed OA 219/07 before this Bench seeking the following reliefs:
"1. To declare to treat her service as GDSMD, Moolakad during the period from 3012.98 to 16.5.02 as duty with all consequential benefits.
2. To issue appropriate orders to the respondents to issue necessary orders treating applicant's absence from duty from 30.12.98 to 26.4.2000 as leave without allowance in view of her leave application and the period from 27.4.2000 to 16.5.2002 during which period she was kept out of service in view of the disciplinary action be treated as duty for all purposes with all consequential benefits including arrears of allowances due to her during the said period."
2. Vide Annexure A11 dated 06.08.2007 this Tribunal directed the respondents to consider her representation made in this regard and to take appropriate decision and to communicate the same to her. It is in compliance of the aforesaid direction that the respondents have now issued the impugned Annexure A-12 letter dated 22.10.2007. In the said letter, the first respondent has stated that there was no dispute that leave upto 29.12.1998 was granted to the Applciant. However, since the extension of leave sought by the applicant for the subsequent period was not in the prescribed proforma and the signature of the nominee was also not available in the application, the SDI, Thodupuzha vide letter dated 09.02.99 asked the applicant to submit the application for leave in the prescribed proforma but there was no response from her. Thereafter, the SDI, Thodupuzha on 16.03.99 directed her to join duty immediately and informed her that if she failed to do so, action will be taken to terminate her service. The said letter was received by the Applicant on 17.03.1999. Since she did not rejoin duty, departmental enquiry was initiated against her and finally she was removed from service on 23.07.2001. As regards the order of the Appellate Authority to reinstate the applicant in service is concerned , the 1st respondent has submitted that it was only an order for reinstatement and there was no order to treat the period of her absence as duty. As regards the applicant's submission that she had reported for duty on 27.04.2000 was concerned, according to said respondent, when she was not permitted to join by the BPM, she should have contacted the higher authorities for remedial action.
3. The applicant was appointed as Gramin Dak Sevak Mail Deliverer (GDSMD) at Moolamattam Post Office with effect from 13.10.2005. During the period from 14.03.97 to 29.12.98 she had availed herself of leave without allowance on medical grounds. She again requested for extension of leave from 30.12.98 to 27.04.2000 on medical grounds. Her request was not granted by the 2nd respondent and by letter dated 16.3.99 she was directed to rejoin duty or face termination from service. According to the applicant, since her condition was continued to be very bad she remained absent but sent application for leave together with medical certificates covering the aforesaid period of absence. Later on 27.4.2000, vide Annexure A-9 letter of the same date she reported for duty with the fitness certificate. However, she was not permitted to join duty by the BPM, Moolakad Branch Office because she has not been present in the office so far and her joining report along with the fitness certificate was forwarded to the SDI, Thodupuzha By then the 2nd respondent had already initiated disciplinary action against the applicant under Rule 8 of P&T ED Agents(Conduct and Service) Rules on the charge that she remained unauthorisedly absent from duty with effect from 30.12.1998. After an enquiry was held in the matter she was awarded the punishment of removal of service vide memo No.ADA/ASP/01/2001 dated 23.07.01. Against the aforesaid punishment she made an appeal to the 1st respondent on 12.10.2001. After considering the facts and circumstances of the case first respondent vide Annexure-A1 order dated 15.5.2002 set aside the disciplinary authorities order and ordered for her reinstatement forthwith. While passing the aforesaid order the Appellate Authority has observed as under:
" I have gone through the case file and the records of the enquiry. From the files of the case I see that the applicant had represented on 6.3.2000 to the SDI, Thodupuzha Sub Division that she was under prolonged treatment in connection with her confinement and illness of her new born baby, requesting her to permit her to rejoin duty on terminating the disciplinary proceedings already initiated. I also find a series of medical certificates in support of her claim of illness. According to Rule 5 it is immaterial whether the application for leave was sent in time and was in proper form, the medical certificate was from such and such medical officer whether leave was got granted promptly, etc. The stand taken by the I.O and ADA is limited to the finding that the article of charge has been proved. In view of the discussion above, I find that the article of charge does not constitute a violation of rule and there was no good and sufficient reason for initiating action against the applicant for violation of Rule 5 of ED Conduct and Service Rules".
4. Based on the Appellate Authority's order, the applicant was reinstated as GDSMD on 17.5.2002 vide Annexure A-2 letter. Thereafter, she made Annexure A-3 representation in July 2002 to the second respondent requesting to sanction the leave already applied for from 30.12.98 to 26.04.02 and to pay the allowances for the period from 27.4.2000 to 16.5.2002. Since no action was taken on her representation, she sent another representation dated 15.1.2005 (Annexure A-4) which was followed by Annexure A-5 representation dated 23.5.2005. Since there was no response from the respondents she sought information under the Right to Information Act, 2005 as to why her requests were not granted. Then she was informed by Annexure A-7 letter dated 17.01.2007 that her representation dated 15.01.2005 was not received by the Superintendent of Post Offices., Idukki Division but a copy of the same was received by the SDI, Thodupuzha on 27.05.2005 and the same was forwarded to the PMG, Central Region for necessary action. Thereafter, she had approached this Tribunal vide OA 219/07 (supra).
5. In the reply statement also the respondents have reiterated their contentions made in the Annexure A-12 impugned order.
6. We have heard Mr.PC Sebastian, learned counsel for applicant and Mr.TPM Ibrahim Khan, Learned SCGSC. There is no dispute that the applicant was granted leave upto 29.12.1998. The dispute is regarding the period from 30.12.1998 to 26.4.2000 and 27.4.2000 to 16.5.2002. The reason given by the first respondent in not regularizing the aforesaid two spells cannot be accepted in view of the Annexure A-1 order of the Appellate Authority dated 15.5.2002, setting aside the punishment order and directing the applicant to be reinstated forthwith and the Annexure A-2 order dated 17.05.2002 reinstating her in service with effect from 17.05.2002. The Appellate Authority has clearly stated in its order that it has seen a series of medical certificates submitted by the applicant issued in support of her illness. The only objection now raised by the respondents is that the applications were not in the prescribed proforma. It is nothing but a technical objection. We do not find any other reasons for the respondents to deny her the leave without allowance on medical grounds for the period from 30.12.1998 to 26.04.2000. We, therefore, direct the Applicant to submit the leave application in the prescribed proforma within a period of two weeks from the date of receipt of this order. On receipt of the same, the Respondents shall regularize the period of leave from 30.12.1998 to 26.04.2000 as leave without allowance on medical grounds. Next is the question regarding the period from 27.04.2000 to 16.05.2002. From the Annexure A-9 letter of the applicant it is seen that she had reported for duty on 27.04.2000. It was the BPM, Moolakad who did not permit her to join duty on the ground that she has not been present earlier and forwarded the joining letter alongwith the fitness certificate to the SDI for necessary action. The SDI also did not take any action in the matter and the disciplinary proceedings initiated against her on 23.02.2002 finally culminated in her termination from service with effect from 23.07.2001. However, the Appellate Authority has set aside the order of punishment and directed to reinstate the applicant in service. She was accordingly reinstated. Once the punishment order has been set aside by the competent authority, no adverse consequences of the said punishment order can continue any further. It is very much on record that the applicant had reported for duty on 27.04.2000. Even though the departmental enquiry was pending against her, the Respondents could have permitted her to join duty and continued with the disciplinary proceedings. As the applicant was prevented from performing her legitimate duty for the period from 27.4.2000 to 16.05.2002 i.e. the date of her rejoining duty till she was reinstated on the orders of the Appellate Authority, she cannot be denied the allowances which she was entitled to draw during that period. It is clear the applicant was willing and ready to serve from 27.04.2000 but it was only because the respondents did not permit her to join, she could not perform her duties. Therefore, the applicant cannot be held responsible for not having worked during that period.
7. In the above facts and circumstances of the case, we allow the OA and declare that the applicant shall be treated as on leave without allowance for the period from 30.12.1998 to 26.04.2000 and on duty for the period from 27.04.2000 to 17.05.2002 and she shall be paid the TRCA which should have been paid to her as if she had been working during that period. The necessary orders in this regard shall be issued by the respondents within a period of two months from the date of receipt a copy of this order. There shall be no order as to costs.
Dated, the 23rd October, 2008.
Dr. K.S.SUGATHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs