Ram Murat (Trollyman) vs Union Of India & Ors

Om Prakash VII, Member (J)

The present Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985 with the prayer for quashing the impugned order dated 18.10.2013 which was communicated through letters dated 21.10.2013 and 06.02.2012 and revisional order dated 28.07.2014.

The brief facts emerges from the original application are that applicant was initially appointed as Trolleyman on 8.2.1980 and his services were regularized. He was absent from duty due to serious illness, the applicant was admitted in the hospital and sent an application for granting leave to the concerned authority through UPC on 17.1.2003 for a period from 16.1.2003 to 02.03.2003. Thereafter applicant submitted fitness certificate to the concerned authority for performing the duty and sent it to the authority by the UPC on 03.03.2003 but authority concerned did not permit him to join the duty. Consequently, removal order regarding unauthorized absence w.e.f. 28.03.2003 of the applicant was issued, which was received by the applicant on 29.3.2003. Against the removal order, applicant preferred an appeal to the authority concerned disclosing the entire facts and circumstances for consideration on 30.04.2004 but after lapse of sufficient period, it was still pending for consideration. Being aggrieved for non-action of the respondents in deciding the appeal, applicant filed OA No. 1015 of 2005, which was decided by this Tribunal by way of order dated 05.09.2005 with a direction to the respondents to decide the appeal of the applicant within a period of three months. In compliance of the order of the Tribunal, the respondents rejected the appeal of the applicant on 02.12.2005. Aggrieved against the appellate order dated 02.12.2005, applicant preferred an OA No. 345 of 2006, which was decided by the Tribunal by order dated 14.10.2011, setting aside the impugned orders dated 02.12.2005 and matter was remanded back to the appellate authority for reconsideration on the question of quantum of punishment.

In compliance with the order of the Tribunal dated 14.10.2011, respondent No. 4 passed the order dated 06.02.2012 whereby order of removal from service was converted into the order of dies non from the date of removal and the date of reinstatement and also imposed punishment of reduction of two increment below for a period of two years cumulative on the same post and same grade pay. Against the aforesaid order, applicant preferred an appeal on 10.4.2012. When appeal of the applicant was not decided, applicant approached this Tribunal by way of OA No. 707 of 2013, which was disposed of on 29.05.2013 with a direction to the respondents to decide the aforesaid appeal of the applicant. In compliance of the order of the Tribunal dated 29.05.2013, respondents passed reasoned and speaking order dated 18.10.2013. Revision against the order of the appellate authority dated 18.10.2013 has also been rejected. Both these orders have been assailed in this OA.

We have heard Shri Manoj Dhrubvanshi, learned counsel for the applicants and Ms. Rachna Dubey, learned counsel for the respondents and perused the record.

Submission of the learned counsel for the applicant is that initially applicant was removed from the service and OA was filed before this Tribunal which was allowed setting aside the orders of removal passed by the disciplinary authority as well as appellate authority and respondents were directed to pass fresh order on the point of quantum of punishment. It is further argued that respondents in compliance of the direction given by the Tribunal passed the impugned order dated 06.02.2012 whereby punishment of reduction of two increment below for a period of two years cumulative on the same post and same grade pay was imposed reinstating him. Period starting from the date of removal till the date of reinstatement was treated as dies non. Learned counsel for the applicant further argued that he is aggrieved only to the extent of order passed in respect of dies non. It is further argued that due to this reason, consequential benefits have not been allowed to him. In support of his argument, learned counsel for the applicant placed reliance on the following case laws:-

(i) Gurpreet Singh Vs. State of Punjab and others reported in (2002) 9 Supreme Court Cases 492;

(ii) Ram Krushna Sahu Vs. Union of India and others reported in 2020(1) AISLJ page 297.

Learned counsel for the respondents argued that since applicant has not worked till the period which has been treated as dies non, therefore, there is no illegality or infirmity in the order. Learned counsel for respondents further submitted that due to unauthorized absence from the period of 16.1.2003 to 02.03.2003, disciplinary proceedings were initiated against the applicant. Applicant was advised to produce valid medical certificate but he did not paid heed to such advice. Irrespective of these, applicant remained absent unauthorisedly from the office very often. Learned counsel for the respondents also contended that it was not an exceptional circumstances prevailing during the period of absence under which the matter could be considered for regularization of the absence with leave or by other methods.

We have considered the rival submission of the parties and have gone through the entire record.

In the case of Gurpreet Singh (supra), the Hon’ble Supreme Court has held as under:-

“2. The Plaintiff is in appeal against the impugned judgment of the High Court of Punjab & Haryana in a second appeal. The plaintiff's services stood terminated and he filed the suit for declaring the order of termination null and void. The suit was dismissed. The lower appellate Court, however, on re-appreciation of the materials on record, came to the conclusion that the order passed by the D.I.G. must be held to be illegal and consequently directed that the plaintiff should be reinstated in service. Having directed so, the first appellate court categorically held that the plaintiff will not be entitled to any arrears of salary for the period for which he has not served. The plaintiff assailed the appellate decree by filing a second appeal claiming that he would be entitled to the arrears of salary. The High Court by the impugned order not only confirmed the decree of the lower appellate court that the plaintiff will not be entitled to any arrears salary, but also further added that the plaintiff will not get his continuity of service. The plaintiff, therefore, is in appeal before this Court.

Having heard the learned counsel for the parties and on examining the materials on record, we fail to understand how the continuity of service could be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. It is not a case of fresh appointment, but it is a case of reinstatement. That being the position, direction of the High Court that the plaintiff will not get continuity of service cannot be sustained and we set aside the part of the impugned order. So far as the arrears of salary is concerned, we see no infirmity with the direction which was given by the lower appellate court taking into account the facts and circumstances including the fact that the suit was filed after a considerable length of time. That part of the decree denying the arrears of salary stands affirmed and this appeal stands allowed in part to the extent indicated above”.

In Ram Krushna Sahu (supra), the Hon’ble Delhi High Court has held as under:-

“9. Since the respondents have been directed to comply with the order dated 14.01.2000, and in pursuance thereof the petitioner has been reinstated and directed to join his duty at unit H.Qr. i.e. at Yatri Niwas, Jawahar Tunnel, Kulgam (Jammu and Kashmir) vide order dated 12.11.2017, therefore, there appears to be no justification for treating for the purpose of consequential benefit, the period of break in service, as not spent on duty, as he has already received 50% of the pay and allowances for the entire intervening period from 16.01.1999 to 14.12.2017. If, indeed, the petitioner was being reinstated, the logical consequence of that order was, as if, there was no break in service from 15.01.1999, the date of order of removal from service.

However, the petitioner was directed to join the duty vide order dated 14.01.2000, but he has not joined the duty and approached the Orissa High Court in the year 2002 which observed that the petitioner is entitled to get the benefit of order passed by the revisional authority dated 14.01.2000, accordingly the disciplinary authority was directed to take consequential steps in pursuance to the order passed by the revisional authority. Since the petitioner did not join the service as per the order dated 14.01.2000, so this period i.e. from 14.01.2000 to 2002 when he approached the Orissa High Court deserves to be treated as period not spent on duty (DIES NON). The petitioner was deprived of consequential benefit including the fixation of MACP alongwith his batch mates. Therefore, for the aforementioned reasons, this court sets aside the impugned letter dated 07.02.2019 passed by the respondent No. 2 and the order dated 14.01.2000 r/w order dated 12.07.2000, 12.11.2017 passed by the respondent No. 3 and the order dated 01.03.2018 passed by the respondent No. 4, treating the period of absence of petitioner between January 2003 to 14.12.2017 as being on duty and direct that the said period be treated as being in service. The respondents are directed to pass consequential orders extending the benefits as a result of treating the above period as the petitioner being in service including fixation of pay and allowances, increment, seniority and continuity in service and also the benefits in the MACP at par with his batch mates. However, it is made clear that the petitioner would not be entitled to any arrears of pay or back wages for the aforementioned period”.

The Hon’ble Supreme Court in the case of Gurpeet Singh (supra) has specifically observed that continuity of service can not be denied once the plaintiff is directed to be reinstated in service on setting aside the order of termination. In this case, as per direction of the Tribunal, order of removal from service has been set aside by the Disciplinary authority and imposed punishment of dies non from the period of removal from service till the reinstatement and also reduction of two increments below for a period of two years cumulative on the same post and same grade pay.

In the case of Ram Krushna Sahu (supra), the petitioner went on sister’s marriage with leave of 7 days but fell ill and remained absent for 138 days. He has submitted medical certificate but respondents have initiated disciplinary proceedings against him and ultimately petitioner was removed from service. He preferred appeal and revision against the removal order which was dismissed. The petitioner agitated his grievance before the Hon’ble Orissa High Court and Court set aside the orders of appeal and revision and directed the respondents to reinstate the applicant on duty. Thus, in that circumstances Court treated the absence period as continuity of duty for consequential benefits.

In the instant case, the applicant was absent from duty on the grounds of illness. He informed the authority concerned through his application but respondents removed him from service on the ground of unauthorized absence. The applicant approached this Tribunal by filing OA., which was allowed and order of removal from service was set aside. Thereafter as per direction of the Tribunal, Disciplinary Authority passed the order treating the period starting from removal till reinstatement as dies non and also imposed punishment of reduction of two increments below for a period of two years cumulatively on the same post and same grade pay. Learned counsel for the applicant only presses to treat the intervening period (dies non) for the purpose of pension and pensionary benefits as the applicant has retired from service.

In view of the above deliberations, we are of the considered opinion that issue involved in the instant original application is squarely covered with the decisions of Hon'ble Supreme Court/Hon'ble High Court (referred to above), thus the same is liable to be partly allowed and is partly allowed with the following directions:

i. Impugned order dated 18.10.2013 which was communicated through letters dated 21.10.2013 and 06.02.2012 and revisional order dated 28.07.2014 are hereby set aside to the extent that dies non period will be treated in service only for the purposes of pension and pensionary benefits. Applicant is not entitled for back wages for that period.

ii. We have not commented any opinion on second part of punishment i.e. punishment of reduction of two increment below for a period of two years cumulatively on the same post and same grade pay as applicant did not press any relief against the aforesaid punishment

Accordingly, Original Application is partly allowed. No costs. All associated MAs are disposed of.