The Union Of India By Secy.To ... vs Sri Wajid Ali, Hyderabad
2021 Latest Caselaw 3985 Tel

           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

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

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.

PNR,J & PSS,J WP No. 20521 of 2005

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

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

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.

PNR,J & PSS,J WP No. 20521 of 2005

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

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

HONOURABLE SRI JUSTICE P.NAVEEN RAO & HONOURABLE SMT JUSTICE P.SREE SUDHA

WRIT PETITION NO.20521 OF 2005

Date: 30.11.2021 kkm