Central Administrative Tribunal - Delhi
Smt. Sonal Sharma vs Union Of India on 21 July, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2726/2008
New Delhi this the 21st day of July, 2009
Honble Shri N.D. Dayal, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Smt. Bimlesh Upadhyay,
Widow of Late Ravindra Kumar Upadhyay,
Ex-GDS Branch Postmaster, Narora (Etah),
Distt. Etah (UP)
Shri Yatendra Upadhyay,
S/o Late Ravindra Kumar Upadhyay,
Ex-GDS Branch Postmaster, Narora (Etah),
R/o Village and Post- Narora,
Distt. Etah (UP)
Smt. Sonal Sharma,
D/o Late Ravindra Kumar Upadhyay,
Ex-GDS Branch Postmaster, Narora (Etah),
W/o Shri Devendra Swaroop Sharma,
Village and Post-Chawali,
Distt. Agra
...Applicants
(By Advocate : Shri D.P. Sharma )
versus
1. Union of India
Through Secretary, Ministry of Communication and I.T.
Department of Post,
Dak Bhawan-Sansad Marg,
New Delhi
2. The Postmaster General,
Agra Region,
Agra (UP)
3. The Superintendent of Post Office,
Etah Division- Etah (UP)
(By Advocate : Shri R.N.Singh)
O R D E R
Dr. Dharam Paul Sharma, Member (J) :
The Legal Representatives of Late Ravindra Kumar Upadhyay, Ex-GDS Branch Postmaster, Narora (Etah) have filed this application challenging the correctness and legality of the communication dated 08.08.2008, bearing Reference No.F-4/1/91-92, a copy of which is Annexure A-1. The said communication is a reply to the legal notice sent to Respondent No.3 by the counsel of the applicants claiming allowances for put off duty period. In the said reply, the Respondent No.3 has, inter alia, has stated that the allowances from the date of dismissal from service dated 24.01.2000 to the date of death 12.09.2006 have been paid to the legal heirs of the deceased treating him as duty. It is not possible under rules to make payment of allowances for the put off duty period from 20.01.92 to 23.01.2000 treating the same as duty period.
2. The applicants feel aggrieved of the respondents stand that the rules do not permit payment of put off duty period.
3. Late Ravindra Kumar Upadhyay, Ex-GDS Branch Postmaster, Narora (Etah) was placed under put off duty on 20.01.1992 in contemplation of disciplinary proceeding against him. He was granted ex-gratia payment @ 25% under the rules on 13.01.1997. The same was enhanced @37 =% on 13.04.1997 as the delay in completion of disciplinary proceeding was not attributable to Shri Upadhyay. On completion of disciplinary proceedings, he was dismissed from service. His appeal and revision against the order of dismissal were also dismissed whereafter he filed OA No.1823/2006 in this Tribunal. During the pendency of this application, Shri Upadhyay expired and his legal representatives were brought on record. The said OA was allowed on 02.03.2007 and the Tribunal ordered to treat the deceased applicant as deemed reinstated in service with all consequential benefits together with terminal benefits to deceased employee. The respondents have paid the pay and allowance from the date of dismissal till the death of Shri Upadhyay with all terminal benefits. However, as regards the allowances of put off duty period, the same were declined, as referred to above, for the reason that it was not possible under rules to make payment of allowances of the put off duty period treating it as duty period.
4. In their application as well as at the hearing, it has been contended on behalf of the applicants that as this Tribunal vide order dated 02.03.2007 has quashed and set aside the order of dismissal from service and ordered deemed reinstatement in service of the deceased employee from the date of dismissal from service, with all consequential benefits, the past period of put off duty before the date of dismissal is unjustified and is required to be treated as duty for the payment of arrears of back wages as the consequential benefit also includes the arrears of back wages for the period during which Late Shri Upadhaya was put off duty. It has been further contended that after quashing of dismissal from service, the employee stood exonerated of all the charges and under Sub-Rule (3) of Rule 12 of GDS (Conduct and Employment) Rules,2001, the put off duty period was required to be treated with full admissible allowances. Since the employee concerned expired during the pendency of the judicial review, the put off duty period ought to have been treated as duty period with all admissible allowances in view of DG Posts No.17-37/2004 GDS dated 9.12.2005, a copy of which is Annexure A-10. The learned counsel for the applicants thus strongly urged that the applicants are entitled to get full allowances from 20.01.1992 to 23.11.2000 after adjusting ex-gratia payments which have already been made to the deceased employee.
5. The learned counsel for the respondents opposed the application by referring to the case of U.P. State Textile Corporation Ltd. Vs. P.C. Chaturvedi and others (AIR 2006 SC 87) wherein the order of punishment was challenged, inter alia, on the ground that the report of Inquiry Officer was not furnished to the delinquent employee. While disposing the appeal, the Honble Supreme Court observed that If the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
6. We do not find the above ruling relevant for the purpose of deciding the issue involved in this case. Whether the rules prohibited the payment sought by the applicant? The learned counsel for the respondent was asked to clarify as to how it was not possible under the rules to make payment of the allowances claimed by the applicant or it was a case where the authority had the discretion to decide if the amount claimed ought to be paid in the facts and circumstances of a case and in exercise of that power, had declined the claim for any valid reason.
7. We have carefully gone through the provisions contained in Rule 12 of the GDS (Conduct and Employment) Rules.
8. The second proviso to Sub Rule (3) to Rule 12 provides that in the event of a Sevak being exonerated, he shall be paid full admissible allowance for the period of put off duty. In other cases, such allowances for the put off duty can only be denied to a Sevak after affording him an opportunity and by giving cogent reasons. Such an opportunity cannot be afforded to the Sewak in question for the reason that he has already expired. Therefore, such allowances cannot be denied to the applicant in terms of this proviso.
9. The claim of the respondents has been that the order of punishment was quashed on technical grounds and, therefore, it cannot be said that the deceased was exonerated on merits. Sub Rule (5) to Rule 12 of GDS (Conduct and Employment) Rules deals with such an exigency which provides that where a penalty of dismissal or removal from employment imposed upon a Sevak, is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against the Sevak on the allegations on which the penalty of dismissal or removal was originally imposed, the Sevak shall be deemed to have been put off his duty by the Appointing Authority from the date of original dismissal or removal and shall continue to remain on put off his duty until further orders.
Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.
10. Since the respondents claim is that the order of dismissal was set aside on technicalities and not on merits, a further inquiry could have been held had Shri Upadhyay not expired during the pendency of the application. In such a case if the concerned employee had expired before the proceedings are so completed, the departmental instructions contained in G.I. Dept. of Posts, Lt. No.17-37/2004-GDS, dated 02.05.2006, read with DGs letter No.17-37/2004-GD, dated 09.12.2005 would be applicable. These instructions provide that where a Gramin Dak Sewak put off from duty dies during the pendency of a disciplinary case, penalty prescribed under the GDS (Conduct and Employment) Rules,2001 cannot be imposed and it was provided that such disciplinary proceedings shall cease immediately on the death of such GDS and the period between the date of put off duty and the date of death shall be treated as duty and the family of such deceased GDS shall be paid full allowances for that period to which he would have been entitled had he not been put off duty, subject to adjustment of put off duty allowance already paid. It has been further clarified that the Gramin Dak Sevaks who have been put off duty even prior to that date but who died on or after 9.12.2005 before completion of disciplinary proceedings, would only be covered under the provisions of the said letter dated 9.12.2005. Admittedly, Shri Upadhyay died in 2006 and as such his family would be entitled to allowances for the put off duty period in the event of his death before completion of disciplinary proceedings.
11. From the aforesaid, it appears that even if it is taken that the deceased employee was not exonerated by the Tribunal on merits, nevertheless denial of put off duty period allowances would have been required an opportunity to show cause thereagainst in terms of proviso, referred to above. Since such an opportunity is not feasible in this case, it is not legally open to the respondents to deny the same. While order of dismissal was under challenge, the disciplinary action did not attains finality and still continued to be pending. Even if, it is open to the respondents to hold further inquiry in view of Rule 12(5) of GDS (Conduct and Employment) Rules, the deceased employee would have been entitled to put of duty allowances before completion of those proceedings. Admittedly, there does not seem to be an express provision providing for the case in hand. Nevertheless, in the totality of the facts and circumstances of the case and the rule position, referred to above, the applicants would be entitled to put off duty period allowances in terms of second proviso to Rule 12 (3) on one hand and Rule 12(5) read with the administrative instructions contained in the letters, referred to above. We are of the considered view that the respondents ought to have extended the benefit under the aforesaid provisions in applicants favour subject to adjustment of ex-gratia allowances that have already been paid to the deceased employee for the period in question.
12. The original application is accordingly allowed. No order as to costs.
(Dr. Dharam Paul Sharma) (N.D. Dayal)
Member (J) Member (A)
/usha/