Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 2179 (PNJ)

Sukh Dayal v. Central Administrative Tribunal

2006-05-17

AJAI LAMBA, S.S.NIJJAR

body2006
Judgment AJAI LAMBA, J. 1. Petitioner has instituted the present Civil Writ Petition under articles 226/227 of the Constitution of India, for issuance of a writ in the nature of certiorari for quashing judgment dated 15.4.1998 (Annexure P-15)passed by the Central Administrative Tribunal, Chandigarh Bench (hereinafter referred to as the Tribunal) and order dated 26.8.1996 passed by respondent No.2-Indian Council of Agricultural Research, Krishi bhawan, New Delhi (hereinafter referred to as icar ). It has further been prayed that a writ in the nature of mandamus be issued directing respondents No.2 to 4 to release the petitioners pension, gratuity and retiral benefits with interest at the rate of 18% per annum. 2. The facts of the case are that the petitioner retired as an assistant from respondent No.3-National Dairy Research Institute, Haryana on 31.5.1994. The petitioner was subjected to disciplinary proceedings and was suspended w. e. f.12.2.1982, whereafter, statement of charges was served on the petitioner on 11.6.1982. It was alleged that the petitioner had failed to maintain absolute integrity, devotion to duty and acted in a manner highly unbecoming on the part of the Councils employee and had contravened Rules 3 (1) (i), 3 (1) (ii) and 3 (1) (iii) of the Central Civil Services (Conduct) Rules, 1964, as extended to ICAR employees. An Inquiry officer was appointed to go into the charges. After enquiry, the petitioner was exonerated. The petitioner remained under suspension w. e. f.12.2.1982 to 8.8.1985. The disciplinary authority (respondent No.2), however, did not agree with the report of the Inquiry Officer and, therefore, vide order dated 9.8.1985 (Annexure P-4) imposed a penalty of compulsory retirement with a further penalty of reduction of both pension and Death-cum-Retirement gratuity (hereinafter referred to as dcrg) to the extent of 1/3rd as admissible to the petitioner on the basis of service rendered by him at the institute. It was further ordered that the period during which the petitioner remained under suspension, be treated as a period not spent on duty. 3. The petitioner preferred an appeal. The Appellate Authority vide order dated 19.11.1986 reduced the penalty of compulsory retirement and 1/3rd cut in pension and DCRG into reduction of two stages in the timescale of pay for a period of two years, without cumulative effect. 3. The petitioner preferred an appeal. The Appellate Authority vide order dated 19.11.1986 reduced the penalty of compulsory retirement and 1/3rd cut in pension and DCRG into reduction of two stages in the timescale of pay for a period of two years, without cumulative effect. It was further ordered that the period of absence from duty i. e. w. e. f.9.8.1985 till the date of issue of earlier order of compulsory retirement, be treated as leave of the kind due and the said period shall not be counted for the purposes of seniority or increments but it was directed that it will count for the purposes of pension. 4. The petitioner after reinstatement, represented that his dues, if any, may be paid w. e. f.9.8.1985 to 20.11.1986. Subsequently, a request was made to respondent No.2 that the period of his suspension w. e. f.12.2.1982 to 8.8.1985 be treated on duty for all purposes but his request was turned down as unjustified on 31.8.1987. The petitioner preferred a revision petition to the President of ICAR, New Delhi against order dated 19.11.1986 i. e. order of the Appellate Authority. The revision petition was dismissed. 5. The petitioner filed Original Application bearing no.353/hr/1989 before the Tribunal challenging order of suspension dated 12.2.1982; order dated 9.8.1985 imposing penalty of compulsory retirement, with a further penalty of reduction of both pension and DCRG to the extent of 1/3rd; penalty of reduction of two stages in the time-scale of pay for a period of two years without cumulative effect vide order dated 19.11.1986 and order dated 18.11.1988 vide which the revision petition was rejected. The respondents passed order dated 31.5.1994 (Annexure P-8)vide which the respondents had directed effecting recovery of not only the subsistence allowance that had been paid to the petitioner but some other amounts which, according to the respondents, were recoverable from the petitioner. The respondents, while sanctioning pension of the petitioner, vide order dated 31.5.1994 had directed that all pensionary benefits were to be withheld pending decision/further communication. The petitioner being aggrieved by this order dated 31.5.1994 filed OA No.558/hr/1994 before the Tribunal. The petitioner also pleaded therein that he was entitled to receive DCRG, commuted value of pension and leave encashment, total amounting to Rs.94,000/-. 6. It would be in place to mention that at the time when OA no.558/hr/1994 was filed on 7.6.1994, OA No.353/hr/1989 was still pending. The petitioner also pleaded therein that he was entitled to receive DCRG, commuted value of pension and leave encashment, total amounting to Rs.94,000/-. 6. It would be in place to mention that at the time when OA no.558/hr/1994 was filed on 7.6.1994, OA No.353/hr/1989 was still pending. OA No.353/hr/1989 was decided on 15.2.1996. The findings returned by the Tribunal are in the following terms:- "6. In the instant case, we find that the proceedings have been conducted properly. The deliquent officer has been given adequate opportunity to state his defence and both the disciplinary and the appellate authority and also the reviewing authority have passed speaking orders. The authority vested with the power of modifying the orders of the disciplinary authority and has converted the compulsory retirement into reduction by 2 stages in the time scale admissible to the applicant. This being so, the relevant period of suspension cannot be treated as on duty and the applicant is not entitled to any other relief except what has been allowed to him in the form of subsistence allowance. The rule on the subject is very clear that it is only when the period of suspension is treated as on duty that the delinquent employee becomes entitled to full pay and allowances and not when he is punished. The punishment itself debars a delinquent employee from claiming any thing other than subsistence allowance paid to him. Thus taking a synoptic view of all the facts and circumstances of the case, this application fails and is dismissed, leaving the parties to bear their own costs. " OA 558/hr/1994 was decided vide order dated 16.5.1996 in the following terms:- "15. In view of all that has been held and discussed above, we are inclined to direct the respondents to pass a fresh reasoned order in place of the order dated 1.7.1995 regarding the alleged shortages and the extent of the applicants liability to make good the loss, if any. Accordingly, this O. A. is disposed of in terms of the aforesaid direction to the respondents. They shall also afford an opportunity of being heard to the applicant so as to enable him to give his version. This direction shall be implemented by the respondents within a period of 3 months from the date of receipt of a copy of this order. They shall also afford an opportunity of being heard to the applicant so as to enable him to give his version. This direction shall be implemented by the respondents within a period of 3 months from the date of receipt of a copy of this order. Needless to say that the applicant shall be free to work out his remedy in case the decision taken by the respondents in pursuance of the aforesaid direction goes against him, and, if so advised, to file a fresh O. A. in the Tribunal. " 7. It seems that subsequent to the directions given by the Tribunal in its order dated 16.5.1996 in OA No.558/hr/1994, the respondents constituted a Committee of three officers on 24.6.1996 to hear the petitioner about the recovery of amount on account of shortages etc. The petitioner submitted his version in writing to the Committee. Respondent No.3, in consultation with ICAR and taking into consideration the recommendations made by the Committee, passed order dated 26.8.1996 (Annexure P-13 ). It is an admitted fact that the stand of the petitioner was duly considered. The relevant portion of order dated 26.8.1996 passed by respondent No.3, in accordance with the directions of the Tribunal, reads as under:- "now, therefore, the undersigned in consultation with icar, New Delhi (other respondents) after taking into consideration and recommendations made by the above committee and all the material relied upon, is of the opinion that :- (i) (a) As per norms of Indian Oil Corpn. , handling benefit @ 0.20% (exceeding 601 KL and above) against handled quantity of 9,93,000 liters of HSD oil, which comes to 1986 liters, may be allowed. In this connection a statement prepared from the concerned ledgers showing the total quantity of HSD oil received in NDRI, tankers of HSD oil directed to dt Division of NDRI and balance qty. of HSD oil handled by sh. Sukh Dayal, is enclosed as Annexure R-1. (i) (b) Benefit of doubt for 41 Nos. of empty liters and 65 Nos. of empty sterlized milk bottles costing to Rs.93.91 (25.01+68.90) respectively, may be allowed being breakable items. ii) Sh. Sukh Dayal deserves the benefit of doubt in respect of recovery of Rs.9511/- towards the cost fixed for the items not handed over by him, keeping in view that no inquiry was being conducted in the past and also request made by Sh. ii) Sh. Sukh Dayal deserves the benefit of doubt in respect of recovery of Rs.9511/- towards the cost fixed for the items not handed over by him, keeping in view that no inquiry was being conducted in the past and also request made by Sh. Sukh Dayal for arranging handing over/taking over. Accordingly, (i) handling benefit of 1986 liters of HSD oil costing to Rs.6063.93 (@ Rs.30533.40 per 10,000 liters) (ii) benefit of doubt for 93.91 for breakable milk bottles and (iii)benefit of doubt in respect of Rs.9,511/- towards the cost fixed for the items not handed over, (gross totalling to Rs.15,668.84 rounded to Rs.15,669) is allowed herewith and thus holding that Shri Sukh Dayal liable for the following recoveries:-i) Difference of subsistence allowances and leave salary due to treatment of suspension-removal period as leave of the kind due (12.2.82 to 20.11.86) Rs.34,057.08 ii) a) Cost of 8550 liters of HSD oil (10536-1986 as handling benefit) Rs.26,106.06 b) Cost of 8 bags of Urea Rs.740.96 c) Cost of 5 bags of M. Postash Rs.246.80 total Rs.61,150.90 rounded to : Rs.61,151.00 thus, in supersession of order No. CF-34/81-94/e. VI (D)/ vol. III-3421-26 dated 1.7.95, an amount of Rs.61,151/- is hereby withheld and balance of Rs.15,669/- (6063.93 + 25.01 + 68.90 + 9511 = Rs.15,668.84 rounded to Rs.15,669/-) is released with immediate effect. " 8 The petitioner was still not satisfied with order dated 26.8.1996 passed as a consequence of directions of the Tribunal and rather than working out his remedy against the order, the petitioner filed OA bearing no.1128/hr/1996 impugning therein order dated 26.8.1996 as also order dated 31.5.1994. OA No.1128/hr/1996 was decided vide order dated 15.4.1998, which is under challenge in the present writ petition. 9. The argument raised on behalf of the petitioner is that order passed in OA No.558/hr/1994 dated 16.5.1996 has not been complied with by the respondents while passing order dated 26.8.1996. We have heard the learned counsel for the parties and have gone through the paper book with their assistance. 9. The argument raised on behalf of the petitioner is that order passed in OA No.558/hr/1994 dated 16.5.1996 has not been complied with by the respondents while passing order dated 26.8.1996. We have heard the learned counsel for the parties and have gone through the paper book with their assistance. On a perusal of the matter at issue, we find that the findings recorded by the Tribunal in order dated 15.2.1996 in OA No.353/hr/1989 were not challenged and, therefore, the petitioner was satisfied with the findings to the effect that the Government had the right to keep a person under suspension during the disciplinary proceedings and the period of suspension of the petitioner could not be treated as on duty unless he is exonerated. The punishment imposed upon the petitioner was upheld. While dealing with the issues involved in OA no.558/hr/1994, the Tribunal upheld the view taken in the earlier OA no.353/hr/1989 to the effect that the period of suspension could not be treated as duty unless the petitioner was exonerated. However, finding that there were discrepancies in the reports of the two Committees constituted by the respondents to effect the exact shortage and further because no material was produced before the Bench to reconcile the same, the respondents were directed to pass a fresh reasoned order regarding the alleged shortages and the extent of the petitioners liability to make good the loss, if any. Vide the order impugned before the Tribunal i. e. dated 26.8.1996, the respondents had shown a recovery of Rs.61,151/- from the petitioner. Out of this amount, a sum of Rs.34,057.08 is shown to be recoverable on account of difference of subsistence allowance and leave salary due to treating of suspension/removal period as leave of the kind due i. e.12.2.1982 to 20.11.1986, and the rest of the amount has been shown towards shortage of certain items like HSD oil, Urea and M. Postash, etc. 10. The petitioner prayed before the Tribunal to quash portion of recovery found on account of difference of subsistence allowance and leave salary by stating that the same cannot be made under Rule 54 (5) of the Fundamental rules. The Tribunal, while considering the issue, has referred to Rule 54 (4)in extensio and, thereafter, having considered the facts of the present case, it has been observed that the petitioner remained under suspension from 12.2.1982 to 20.11.1986. The Tribunal, while considering the issue, has referred to Rule 54 (4)in extensio and, thereafter, having considered the facts of the present case, it has been observed that the petitioner remained under suspension from 12.2.1982 to 20.11.1986. It has further been observed that apparently the petitioner might not have at his credit so much leave to regularise this period as leave of the kind due and, therefore, the respondents considering that the petitioner was on the verge of retirement and any adverse order may cause disruption in service affecting his pensionary benefits, had taken a lenient view by exercising their discretionary power and granted him extra-ordinary leave for the excess period. It has, therefore, been found by the tribunal in the impugned order that there is nothing illegal in ordering recovery of difference between subsistence allowance and leave salary. 11. With regard to withholding of 1/3rd pension, gratuity and other retiral benefits as a result of penalty imposed as a result of shortages, etc. , and endorsement made in the Pension Payment Order dated 31.5.1994, it has been observed by the Tribunal that the rights of the petitioner had already been adjudicated upon while the Tribunal was dealing with OA no.353/hr/1989 and OA No.558/hr/1994. Since the issues in these regards had already been adjudicated upon, the same could not have been raked up again while filing the third OA i. e. OA No.1128/hr/1996. Vide the impugned order, the Tribunal has directed the respondents to process the case for adjustment of the amount recoverable from the petitioner against the amount payable as retiral benefits and if any amount is found payable to him, to release the same within a reasonable period not exceeding four months from the receipt of a copy of the order of the Tribunal. 12. We find that there is no jurisdictional error or impropriety committed by the Tribunal while dealing with the case of the petitioner. As a consequence of order passed in OA No.558/hr/1994, certain directions were given to consider the claim of the petitioner afresh with regard to the shortages and to the extent of petitioners liability. From a perusal of order passed by the respondents as a consequence thereof i. e. order dated 26.8.1996, it stands established that a Committee was formed and the stand of the petitioner was duly considered, whereafter, the order was passed. From a perusal of order passed by the respondents as a consequence thereof i. e. order dated 26.8.1996, it stands established that a Committee was formed and the stand of the petitioner was duly considered, whereafter, the order was passed. We are of the considered opinion that the order passed in OA No.558/hr/1994 was duly complied with and, therefore, the argument of the petitioner before the Tribunal in OA No.1128/hr/1996 and before this Court that the order had not been complied with, is baseless. The petitioner was given an opportunity of controverting the matter, the matter had been actually controverted and decided by the respondents vide order dated 26.8.1996 in deference to the order of the Tribunal passed in OA No.558/hr/1994. We, therefore, find no infirmity in the impugned order. The relevant record has been considered by the Tribunal while passing the impugned order and we find no perverse finding or error of jurisdiction in the impugned order, therefore, calling for no interference in writ jurisdiction. The writ petition is, accordingly, dismissed with no order as to costs.