Central Administrative Tribunal - Delhi
Dev Pal (Ex-Station ... vs The Chairman on 25 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.4351/2011 New Delhi, this the 25th day of February, 2013 CORAM: HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) HONBLE MR. BIRENDRA KUMAR SINHA, MEMBER (A) Dev Pal (Ex-Station Controller-cum-Train Operator), S/o Shri Rameshwar, R/o House No.3995, Sector-23, Distt: Gurgao, Haryana ..APPLICANT (Through Mr. Amit Kumar, Advocate) VERSUS 1. The Chairman, Delhi Metro Rail Corporation (DMRC), Metro Bhawan, Fire Bridge Lane, Barakhamba Road, New Delhi 2. The Additional General Manager (R&T), Delhi Metro Rail Corporation (DMRC), Metro Bhawan, Fire Bridge Lane, Barakhamba Road, New Delhi RESPONDENTS (Through Mr. V.S.R. Krishna, Advocate) O R D E R
BY SHRI BIRENDRA KUMAR SINHA:
1. The Applicant has sought the following relief(s) in this application filed U/S 19 of the Administrative Tribunal Act, 1985:-
(a) Issue appropriate direction to the Respondents on Annex. A/1 (Colly) and quash and set aside order dt. 25/01/2010 [Annexure A-2) impugned], thereby demanding Bond amount Rs.50,000/- from the Applicant.
(b) Direct the Respondents to pay Salary of sick period from 28/12/2008 to 22/01/2009, which has not been paid till date.
(c) Direct the respondents to pay Salary of Second Medical Opinion Period from 23/01/2009 to 24/02/2009, which has not been paid till date.
(d) Direct the respondents to pay Salary of the Month December, 2009, which has not been paid, despite of Applicant was allowed to perform his duty up to 18/12/2009 though the Applicant submitted his formal resignation on 31/12/2009.
(e) Direct the respondents to pay Bonus for the period 01/04/2009 to 31/12/2009.
(f) Pass any other or further order(s)/direction(s) as this Honble Tribunal may deem fit and proper in the interest of justice.
2. The brief facts of the case of the Applicants are as enumerated as hereafter. The Applicant was recruited from the open market for the post of Station Controller-cum-Train Operator in the pay scale of Rs.5700-175-9200 [Annexure A/3]. The Applicant joined as Station Controller-cum-Train Operator after having executed a indemnity bond as required under the terms of the offer of appointment dated 6.12.2006 [A/4]. The case of the Applicant is that while on duty he fell ill on 27.12.2008 and was advised 14 days of rest by the treating Physicist w.e.f. 27.12.2008 to 9.1.2009. Again, on 10.1.2009, the Applicant was advised further rest for 14 days up to 23.1.2009. On 23.1.2009, the Applicant was examined by the CMO, Rajouri Garden, New Delhi and was declared fit to join duty, which he did on 23.1.2009. He submitted medical documents, fitness certificate along with application for sick leave (HPL+ EL) for the sick period from 28.12.2008 to 22.1.2009. The Applicant was, thereupon, directed vide the letter dated 22.2.2009 to appear before the Medical Superintendent, Dr. Ram Manohar Lohia Hospital, referred hereafter to as the RML, for a second opinion where he was examined during the period from 2.2.2009 to 18.2.2009. The examining physician at RML certified on the basis that he was fit to resume his duties while no opinion could be given relating to his past illness. When this certificate was presented it was found not to bear the seal of the certifying physician and another 8 days were spent in obtaining the seal of the concerned Medical Officer. The Applicant was assigned formal duties, thereafter, and a note to this effect was issued vide the letter dated 6.4.2009 [A/8]. The Applicant, thereafter, preferred a representation for release of his salary from 23.1.2009 to 24.2.2009 which was spent on duty and in obtaining the second medical opinion and fitness certificate from Dr. RML Hospital. When the same was not materializing, the Applicant submitted reminder to this effect. He finally served three months notice for resignation vide letter dated 19.9.2009, pursuant to which he was allowed to perform his duty till 18.12.2009. The DGM/O recorded on his representation that the Applicant had to take leave for the period under consideration and if no leave is due, it could be treated as leave without pay.
3. On 31.12.2009, the Applicant formally resigned from the service of the Delhi Metro and Rail Corporation (A/14). Thereafter, he sought relevant information relating to his leave period under the RTI, which the Applicant claims were provided to him in part. On 25.1.2010, the Respondents called upon the Applicant to pay the amount of the indemnity bond to the tune of Rs.50,000/-, treating the service of the Applicant short by 115 days. On 5.3.2010, the Applicant got a legal notice served upon the Respondents, which has not been responded to, leading to the instant O.A.
4. The learned counsel for the Applicant has advanced four arguments in support of his case. In the first instance, he submits the requirement of the period of probation is only confined to the period on duty, which comes to 240 days per year i.e. 240 days X 3 = 720 days, while the Applicant has actually rendered more than 900 days of service in terms of working days. Prior to this, he had never availed any leave and this would be evident from the Annexure 16 appended to the Rejoinder Affidavit. The second argument is that the Applicants service can be terminated at a minimum notice period of three months for resignation by the employee under the terms of Clause 8 of the letter of letter of appointment. The Applicant tendered three months notice on 19.9.2009 and his formal resignation followed on 31.12.2009. Hence, the mandatory requirement of 3 months stood complied. In the third instance, the Applicant submits, that the respondents had referred the joining of the Applicant after his return from leave. It was, however, with the decision of the respondent-Organization to send him for fresh medical test and the time spent in such medical test had to be borne by the Respondent No.2. In the fourth place, the Applicant has strongly resisted the suggestion that he was absent from duty for a period of 192 days. The Applicant had proceeded on leave under medical advice and his leave was supported by medical certificate duly issued by MCD Doctor. It has also been corroborated by the RML Hospital to whom the case had been referred in the manner discussed above. The Applicant had handed over the photo copy of the medical prescription to his concerned Satiation Manager before proceeding on leave [Para 5 of the Rejoinder Affidavit; Page 71].
5. The learned counsel for the Applicant further submits that during the training period he has not availed any other kind of leave and had never been warned on this count. Hence, the Applicant has has prayed for the reliefs as outlined in the OA.
6. The Respondents have filed a Counter Affidavit strongly resisting the submissions made in the OA. The first point raised by the Respondents relates to the maintainability of the OA. The learned counsel for the respondents have submitted strongly that the OA was not maintainable, as it has been filed with a delay of more than two years against the provisions of Section 21 of the Administrative Tribunals Act, 1985. The Respondents have further submitted that the OA is also hit by Rule 10 of the Administrative Tribunals (Procedure) Rules, 1987, referred hereinafter to as the Rules that an Application shall be based upon a single cause of action and may seek one or more reliefs provided that they are consequential to one another.
7. Coming to the principal issue, the learned counsel for the respondents strongly contended that the Applicant had remained on unauthorized leave for 192 days and, therefore, he had not completed the mandatory period of three years which runs on calendar basis. As such the Applicant has rightly been issued a Notice for deposit of the bond amount.
8. The Applicant had proceeded on leave without prior information on 28.12.2008 and returned to duty only on 23.1.2009 with fitness certificates only up to 23.1.2009. The Applicant has been rightly referred for a second medical examination, as he had been on leave for more than 15 days at a stretch as provided in the Leave Rules of the respondent organisation. At no point of time did the RML authorities certify the illness the Applicant had suffered. To the contrary, they have only held that he was fit to resume duty. The learned counsel for the respondents has further submitted that the conduct of the Applicant has been irreprehensible and that he treated the service in a most cavalier fashion; whenever he felt like he proceeded on leave at his own sweet will without even a pause to comply with the requirements enjoined upon him under law. It was strongly argued that the OA was fit to be rejected as being not sustainable and also devoid of any merit.
9. We have carefully gone through the pleadings of the rival parties as also the documents adduced and heard the arguments advanced by the respective counsels. On the basis thereof, the following facts in issue are found to emerge:-
Whether the OA is hit by Rule 10 of the Central Administrative Tribunals (Procedure) Rules, 1987?
Whether the Original Application of the Applicant is time barred?
Whether the Notice for deposit of the bond amount is sustained under the circumstances of the case?
Whether the relief no.2 relating to the regularization of the leave period can be said to be flowing out of the principal relief sought and What relief, if any, could be granted to the Applicant?
Now we proceed to examine the issues individually as under:
Issue No.(iii): Whether the OA is hit by Rule 10 of the Central Administrative Tribunals (Procedure) Rules, 1987?
11. Rule 10 of the Rules provides: Plural remedies: An application shall be based upon a single cause of action and may seek one or more reliefs provided they are consequential to one another to one another. The Rule envisages that there should be a principal relief and if collateral reliefs have been sought, they must flow out of the principal relief. The relief(s) being sought by the applicant finds elaboration in paragraph 2 of the instant order. In this Application we find that the Applicant has put together all the reliefs, which he could have imagined or he could have sought from his tenure with the Respondent-Organization. However, we could classify the remedies sought into two principal groups- the first of these pertains to the quashing of the notice for payment of the bond amount vide the notice dated 25.1.2010; the rest of the reliefs could be clubbed together under head called others. This classification has been made on the basis of the periodicity of the reliefs sought. While the latter category arises from the incidence of service the former involves a contractual obligation incurred prior to the commencement of the service period. We further find that the issue of making good the Bond amount and that of earned leave are not consequentially related and do not form part of the one and the same transaction. The other items of reliefs related to the issue of salary for December, 2009 and payment of Bonus which have no relevance with the principal relief in this case. Hence, they cannot be entertained in the same transaction. We find that while relief (i) sought by the applicant constitutes the principle relief and it cannot be barred/hindered by Rule 10. The point for consideration is that whether the rest of the reliefs are arising as a consequence of the relief (i). Clearly we find that the two sets of relief are independent of each other and are not linked by consequence affect relationship. This answers the query.
Issue No.(ii): Whether the Original Application of the Applicant is time barred?
12. We have already held in respect of the issue (i) that multiple reliefs have been sought by the applicant and that barring the principal relief in form of relief (i) the rest are barred by Rule 10. We have already held as a measure of reply to this issue that the issue (i) being the principal relief survives while we do not find other items of relief flowing from the same. Hence, relief (i) is on stand alone basis. The rest of the reliefs sought have been rendered a nullity on this account. Hence, any discussion on the touchstone of issue (ii) would be more of an academic exercise. However, we have to yet examine that the relief (i) survives the test of limitation.
13. The Applicant has filed a MA along with the application stating that there was no delay as the he had served a legal notice on the respondents on 3.5.20010 followed by a reminder on 31.7.2009. Yet, the Applicant admits a delay of 84 days which occurred on account of illness of his mother. The Applicant seeks condonation of the same as it was not willful. The law as laid down in the 1995 Supreme Court Cases (L&S) 1273 MR Gupta vs Union of India clearly prescribes that where the injury suffered has a continuing effect it shall be the cause of action shall continue to be alive. A distinction, however, needs be drawn between the cause of action which are recurring by nature and those which do have a recurring effect. The relief no (i) relating to the bond amount could be said to have a recurring effect while the others are all having an one-time effect. In the instant case on face of it does appear that payment of the indemnity bond amount is the one time transaction and cannot be said to have an continuing effect and hence the case of MR Gupta vs UoI (supra) will not apply to the reliefs sought to relief (i) or for that matter to others category as well. However, in the case appears to be different when we examine the case of the relief no.(i) for quashing of the notice for making good the amount under bond. Admittedly the Respondents had submitted an application to the CPIO seeking a reply to the questionnaire submitted [A/15; page 50]. On 25.1.2010 the Respondents served the notice for payment of the bond amount. Thereupon, the applicant served a legal notice on 5.3.2010 asking them to redress the grievances of the Applicant. When the Respondents neither replied to the legal notice nor did he redress the grievances the Applicant preferred another a reminder on 31.7.2010. Here, it clearly emerges that the Respondents have merely issued a notice and have not taken a final position after due consideration of the representation submitted and thereby the cause of action continues to be alive. Had the Respondents taken a final decision it would have become an one time transaction and the clock of limitation would have commenced ticking. This not being the case the relief no 1 is not barred by the law of limitation.
14. In this regard, we would like to rely upon a decided case of the Honble Supreme Court in Shiv Dass vs Union of India & Ors : 2007 (2) SCC (L&S) 395 in Civil Appeal No.274/2011 as decided on January 18, 2007, wherein the Honble Court has held that each day of delay has to be explained. However, the Honble Supreme Court has later made a departure from this position and has left it to the discretion of the respective courts to take a view in respect of each case instead of laying down binding guidelines in 2012 STPL (LE) 46963 SC Tukaramkana Joshi & others vs MIDC & Others:
11. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must betried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., (2009) 1 SCC 768)
12. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The court should not harm innocent parties if their rights have in fact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., AIR 1970 SC 769; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., AIR 1987 SC 1353; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., AIR 1993 SC 802; Dayal Singh & Ors. v. Union of India & Ors., AIR 2003 SC 1140; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar & Ors., AIR 2011 SC 2161).
15. In consideration of the above discussion we find that the issue (i) is not getting hit by the provisions of Section 21 (1) of the Administrative Tribunals Act, 1985. Since we also find that other issues do not flow out of the issue (i) they do not survive the test of limitation. Thus we find the above query accordingly answered.
Issue No.(iii): Whether the relief no.2 relating to the regularization of the leave period can be said to be flowing out of the principal relief sought and
16. In consideration of the above issue, we find that the notice served under the terms of contract for payment of the amount under bond appears to be a knee jerk reaction which does not have legs to stand upon. Falling ill was something over which the applicant certainly did not have control. Hence, to dub entire three year period of service unsatisfactory and a breach of contract is certainly far fetched and excessive. This answers the query.
17. However, at the same time it also stands to reason that regularisation of the leave period is one set of transactions and the issue of notice for deposit of the amount under bond is another. While one relates to the question of admissibility of leave the other relates to the overall fulfillment of the contractual liabilities and responsibilities by the Applicant. By no stretch of logic one can be said to flow out of the other. It is our considered opinion that the two are remotedly related perhaps in the sense that they arise in respect of the same person and the same service period. Otherwise the two are independent. The query stands accordingly answered.
Issue No.(iv): Whether the Notice for deposit of the bond amount is sustained under the circumstances of the case?
18. Now we take up the issue (iv). In so far as this issue is concerned, we have to meticulously look into the different conditionalities governing the execution of the bond. In this regard, Condition 9 of the offer of appointment letter dated 6.12.2006 provides:
9. You will be required to execute a bond for Rs.50,000/- (Rupees fifty thousand only) to serve this Corporation for a minimum period of 3 years (inclusive of the probation period) from the date of joining the services. The condition of 3 years service is without prejudice to the right of the Corporation to terminate your services at any time either during or after the probation period. The power to terminate your services will vest with the Management under whose authority your services are placed. From the above conditionality imposed, it is abundantly clear that the Applicant was required to execute a bond for Rs.50,000/- giving an undertaking to serve the Corporation for a minimum period of three years inclusive of the probation period from the date of joining in service. This condition does not prejudice the right of the employer to terminate his services during or after the period of probation, which vests entirely with the Management. Of course, it has not been defined anywhere as to what is the period of term minimum period of 3 years. Does it refer to a calendar year or to the number of days of service as interpreted by the learned counsel for the Applicant? For this one has also to peruse the terms of the bond itself. The Bond dated 16.12.2006 provides:
Whereas the said Company has agreed to provide the employee with a job and on such appointment having being made by the Company, on terms and conditions contained in an agreement bearing the same date with these presents and executed simultaneously, the employee has been placed for training/on the job training, at the Companies cost, in the field of operations/maintenance for a period of 4 months from the date of his joining the Company.
Now the Condition of the above written Bond or obligation is such that if the said employee abandons, deserts and/or fails to turn up and report for the duty or resigns from the job of the Company, or the service of the Employee is terminated by the Company for any kind of misconduct, within 3 years from the date of his appointment with the said Company, then the said Employee would shall forthwith tender to the Company on demand the said sum of Rs. Fifty Thousand Only, on account of expense incurred by the Company in recruiting, placing and training the said Employee.
19. It appears from the above that the Company is providing the employees with a job and is making an investment for his training/on the job training at Companys cost in the field of operations/maintenance for a period of 4 months from the date of joining of service. In lieu of this the Bond clearly stipulates that where the employee abandons, deserts and/or fails to turn up and report for the duty or resigns from the job of the Company, or the service of the Employee is terminated by the Company for any kind of misconduct, within 3 years from the date of his appointment with such Company, the employee would indemnify the Company with a Bond amount of Rs.50,000/-. From the wordings and construction of the two clauses i.e. the offer of appointment and the Bond referred to above, it does appear that the provision under reference relates to a date-to-date year comprising 365 days. One here, we would not agree with the interpretation provided by the learned counsel for the Applicant i.e. that year only refers to a minimum requirement of 240 days for which service has to be rendered.
20. Now we come to question that whether the period under bond obligation falls short by 115 days as asserted in the notice dated 25.1.2010 or there is some mitigating factor in favour of the Applicant. Admittedly, the Applicant signed the Bond on 16.12.2006 and was enrolled as an employee No.8144 on the same date. By this calculation, the Applicant should have completed his three years of service by 16.12.2009. The Applicant continued till 27.12.2008. However, as stated earlier, he fell ill on this date i.e. 27.12.2008 and was advised 28 days of rest between 27.12.2008 and 23.1.2009. On 23.1.2009, the Applicant was examined for medical fitness and declared medically fit to join duty by the CMO, Rajouri Garden Dispensary, New Delhi. However, as he was referred to the second medical opinion only on 24.2.2009 with the certificate of fitness by the Dr. RML Hospital Authorities got to be signed and he resumed his duties on 25.2.2009. Thus, we find that a further period of 32 days had been spent in getting the medical certificate from the RML Hospital. In ordinary course of action since, the reference had been made at the discretion of the Respondents, it would have been just and proper that this period were to be included as the period spent on duty. The Applicant had reported for duty on 23.1.2009 and had it not been for this reference he would have resumed duty. We also take note of the fact that the Applicant having served for three years must be having some leave accumulated to his credit. Neither the Applicant nor the Respondents have given any reference to the leave earned by the Applicant during the 3 years. One analogy that we can readily draw is that of the Indian Adminsitrative Service (Probation) Rules 1954 wherein the term construes a year comprising 365 days. It is a practice in the Indian Administrative Service that all leave period, if any, is included within the period of probation. We, however, find that nowhere the calculation of 115 days has been given because the Applicant continued to serve the Respondents till 18.12.2009 and by a simple calculation he has worked for a period of 3 years. Thus, we find that the query is answered accordingly in favour of the applicant.
Issue No.(v): What relief, if any, could be granted to the Applicant?
21. In the facts and circumstances of the case, and for the reasons stated above, this Application is partly allowed to the extent of granting relief prayed for by the applicant in clause (a) of the Relief clause as referred to in para 1 above. Accordingly, the impugned order dated 25.1.2010 at Annexure A-2 of the application, demanding Bond amount of Rs.50,000/- from the applicant is quashed and set aside. The parties are left free to bear their own cost.
(BIRENDRA KUMAR SINHA) (DR. DHARAM PAUL SHARMA)
MEMBER (A) MEMBER (J)
/pkr/