HONOURABLE SRI JUSTICE P.NAVEEN RAO
&
HONOURABLE SMT JUSTICE P.SREE SUDHA
WRIT PETITION NO.20521 OF 2005
Date: 30.11.2021
Between:
The Union of India, rep.by the Secretary to
Government, Department of Posts,
Ministry of Communications, Dak Bhavan,
New Delhi and two others.
..... Petitioners
And
Sri Wajid Ali, s/o. Yavar Ali,
Ex-Mailman, Hyderabad Sorting,
R/o. H.No.17-38-589, Chandranagar,
Yakutpura, Hyderabad.
.....Respondent
The Court made the following:
PNR,J & PSS,J WP No. 20521 of 2005 2 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NO.20521 OF 2005 ORDER: (per Hon'ble Sri Justice P.Naveen Rao) Heard Mr. N.Rajeshwar Rao, learned Assistant Solicitor General for petitioners.
2. Respondent initially entered into service as Contingent Employee in Hyderabad Sorting Division. Later he was appointed as Extra Departmental Mailman (EDMM) (now it is called Gramin Dak Sevak Mailman) on 31.03.1994. Alleging that he was unauthorizedly absent from 01.06.1994, his services were terminated on 21.04.1995. According to the respondent, for valid reasons he was absent from duty and when he reported to duty on 01.09.1995, he came to know for the first time the order of termination from service. Aggrieved thereby, he preferred appeal. The Appellate Authority affirmed the decision of the disciplinary authority. In the revision preferred by the respondent, by order dated 29.01.1996, the Revisional Authority set aside the order of removal. The Revisional Authority treated the period from 21.04.1995 as on put-off duty and ordered for enquiry under Rule 8 of the Extra Departmental Agents (Conduct & Service) Rules, 1964.
3. Accordingly, enquiry was held. In the enquiry, charge was held proved and based on the findings, the punishment of debarring the respondent from promotion for a period of three years with loss of seniority was imposed. However, the Revisional PNR,J & PSS,J WP No. 20521 of 2005 3 Authority suo motu reviewed the punishment and by order dated 26.03.1997, imposed punishment of removal.
4. Challenging the order of the Revisional Authority, respondent filed O.A.No.1714 of 1998 in the Central Administrative Tribunal, Hyderabad Bench. Said O.A. was dismissed by order dated 31.01.2000. However, the Tribunal observed that punishment was disproportionate to the delinquency alleged and proved. Aggrieved by the order of Tribunal dismissing the O.A.No.1714 of 1998, respondent filed W.P.No.20663 of 2000. Said writ petition was disposed of by order dated 18.01.2001 with a direction to consider imposing less severe punishment than removal. However, the Senior Superintendent, Railway Mail Service, again affirmed the punishment of removal vide his orders dated 29.03.2001.
5. Challenging the same, respondent filed O.A.No.182 of 2002 before the Central Administrative Tribunal, which was dismissed by order dated 10.04.2002. Aggrieved thereby, respondent preferred W.P.No.13240 of 2002. During the pendency of the above W.P, by order dated 21.08.2002, the Senior Superintendent, Railway Mail Service, modified the punishment of removal to that of debarring the respondent from appearing in the recruitment selections for the post of Postman/Male Guard and from being considered for recruitment as Postal Assistant/Sorting Assistant for a period of three years from the date of the said order. In view of these orders, W.P.No.13240 of 2002 was disposed of by order dated 26.08.2002.
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6. On 09.12.2002 the respondent submitted representation to the Senior Superintendent for payment of back- wages. Said representation was rejected by order dated 08.01.2003. Challenging the order of rejection, respondent filed O.A.No.574 of 2003 before the Central Administrative Tribunal. The Tribunal observed that during pendency of the disciplinary proceedings, the status of the respondent was treated as on put-off duty from 25.01.1995 to 22.08.2002, and the respondent could not perform duties because of the pendency/currency of the disciplinary proceedings/punishment awarded to him. The Tribunal therefore observed that respondent was entitled to back-wages and accordingly allowed O.A.No.574 of 2003 setting aside the rejection order dated 08.01.2003, and direction was issued to pay back- wages to the respondent for the period from 21.4.1995 to 22.08.2002 within three months from the date of receipt of the order.
7. Though notice was served, no appearance is entered on behalf of the respondent. However, learned counsel Mr. Siva was requested to assist the Court on entitlement of the Extra Departmental Mailman for allowances for the period treated as on put-off duty. Learned counsel has vividly explained the Rules governing the service. The Court appreciates his assistance.
8. Learned counsel representing the Assistant Solicitor General vehemently contended that as respondent was unauthorizedly absent, disciplinary proceedings were validly initiated and appropriate punishment was imposed. During the relevant period, respondent never served the Organization and, therefore, is not PNR,J & PSS,J WP No. 20521 of 2005 5 entitled to back-wages for the said period. The principle of no work no pay is applicable. As the respondent was not regular Central Government Employee, payment of wages for the period of put-off duty does not arise. It is further contended that in view of the orders of this Court in W.P.No.13240 of 2002, it is no more open to respondent to ask for grant of back-wages. She placed reliance on the decision of Rajasthan High Court in Union of India and others vs. Om Prakash (D.B.Civil Writ Petition No.1710 of 2012, dated 02.03.2012) to contend that respondent is not entitled to back-wages.
9. Dealing with last contention, it is noticed from the prayer sought in W.P.No.13240 of 2002 that respondent challenged the order of the Tribunal dismissing O.A.No.185 of 2002 and the order of punishment vide Memo No.PF/ED/WAJID/ALI/2000, dated 29.03.2001. During the pendency of the said writ petition, the punishment was modified. In view of the same, it was represented to the Court that cause in the Writ Petition does not survive. Recording the same, Writ Petition No.13240 of 2002 was disposed of. Payment of wages for the period of put-off duty was not the issue raised and decided by the Court. Consequent to reinstatement into service, it is open to respondent to claim wages for the period of put-off duty. Therefore, this objection is rejected.
10. The Extra Departmental Employees of the Postal Department are governed by the Department of Posts, Gramin Dak Sevaks (Conduct and Employment) Rules, 2001 (for short, Rules, 2001). Rule 12 of the Rules, 2001 deals with Put-off duty and allowance payable for the period of put-off duty. This Rule is analogous to PNR,J & PSS,J WP No. 20521 of 2005 6 FR-54. While FR-54 deals with payment of subsistence allowance and regulation of period of out of employment, Rule 12 of the Rules, 2001 deals with payment of allowances when the Extra Departmental Postal employee is kept on put-off duty. In various contingencies, an employee can be kept on put-off duty. According to the Sub-rule (3) of Rule 12, an employee is entitled to ex gratia determined at the rate of 25% of his/her Time Related Continuity Allowance together with admissible Dearness Allowance. It also envisages periodical review of the allowance as stipulated in Sub-rule (3) of Rule 12. According to the clause (i) of sub-rule 3 of Rule 12, if an employee is kept on put off duty beyond 90 days, he is entitled to revision of ex gratia to that of 50% and can be enhanced further upto 75%.
11. In the instant case, the employee is deemed to be kept on put-off duty from 01.09.1995 consequent to setting aside the order of termination. The authorities are silent on payment of ex gratia for the period of put-off duty.
12. Rajasthan High Court judgment in Om Prakash (supra) concerns an employee working as Branch Postmaster. Said post was governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965, whereas in the instant case, respondent was Extra Departmental Mailman governed by the Rules, 2001. Rules 2001 envisage payment of compensatory allowance- ex gratia whenever employee was kept on put-off duty. In the facts of this case, the judgment relied by the learned counsel for petitioners do not come to the aid of the petitioners.
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13. While deciding the O.A.No.574 of 2003, the Hon'ble Tribunal proceeded in general terms to hold that respondent was entitled to full back-wages from 21.04.1995 to 22.08.2002, the Tribunal has not considered the scope of Rule 12 of the Rules, 2001.
14. Having regard to the provision in Rule 12 of the Rules, 2001, learned counsel Mr. Siva submitted that respondent be granted 75% of the allowance for the period treated as on put-off duty. According to the learned counsel, for no fault of respondent, he was kept on put-off duty for very long time and, therefore, he is to be compensated at least by giving him 75% of the allowance as stipulated in Sub-rule (3).
15. We appreciate the fair submission of learned counsel Mr. Siva. However, from the record of the case, it is noticed that, it is not a case of clean acquittal granted to the respondent on merits. The respondent was found guilty of unauthorised absence and though earlier grave punishment was imposed, the same was subsequently modulated and less severe punishment was imposed. Respondent also admitted his absence from duty, but only seeks to justify his absence. Having regard to peculiar facts of the case, we need to balance the interests of the Union of India and the respondent. In the facts of this case, the history of litigation and ex gratia scheme, as prescribed in Sub-rule (3) of Rule 12 of the Rules, 2001, we are of the opinion that 50% of the Time Related Continuity Allowance together with admissible Dearness Allowance as ex gratia is just and equitable. Though the order of termination was 21.04.1995, even according to the respondent, he was absent from duty from 01.06.1994 and reported to duty only on PNR,J & PSS,J WP No. 20521 of 2005 8 01.09.1995. Therefore, for the period from 21.04.1995 to 31.08.1995, he is not entitled to ex gratia. Thus, the ex gratia at the rate of 50% shall be paid only for the period from 01.09.1995 to 22.08.2002 duly taking note of periodical revision of Time Related Continuity Allowance together with admissible Dearness Allowance. The respondent is not entitled to any other monetary benefit payable to Extra Departmental Postal employee when on actual duty.
16. Writ Petition is accordingly disposed of. Pending miscellaneous petitions if any shall stand closed.
___________________________ JUSTICE P.NAVEEN RAO ___________________________ JUSTICE P.SREE SUDHA Date: 30.11.2021 Kkm PNR,J & PSS,J WP No. 20521 of 2005 9 HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SMT JUSTICE P.SREE SUDHA WRIT PETITION NO.20521 OF 2005 Date: 30.11.2021 kkm