Friday, November 2, 2012

OA No. 305 OF 2009 on ????? -12- 2010





HON'BLE SHRI V. AJAY KUMAR           ..        MEMBER (J)

H.C. Vijaykeerthi,
S/o H.A. Cailas Kumar,
Aged 40 years, Working as
Cameraman Grade-II, Doordarshan,
(now dismissed from service),
R/at No.1201, E-23, 3rd Cross,
1st Block, HAL III Stage,
New Thippasandra Post,
Bangalore – 560 075.                                      ...                                             Applicant

(By Advocate Shri A.R. Holla)


1.  Union of India,
    By Secretary,
    Ministry of Information and Broadcasting,
    Shastri Bhavan, New Delhi – 110 001.

2.  Director General,
    Mandi House, Copernicus Marg,
    New Delhi – 110 001.

3.  Director,
    Doordarshan Kendra,
    Bundar Road, Ponnamthota,
    Vijayawada (A.P.)                                       ...                                             Respondents

(By Advocate Shri S. Prakash Shetty,
Addl. Central Govt. Standing Counsel)


Hon'ble Smt. Leena Mehendale, Member (A) :

            This OA is filed on 7.7.2009 under Section 19 of the Administrative Tribunals Act,
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1985.  In the present OA  In the present OA, the applicant is seeking the following reliefs at para 8:
(i)                  (a) To direct the respondents to extend the benefit of pay revision to the applicant with effect from 1.1.1996 and subsequently from 1.1.2006,
(b)        annual increments from 26.4.2000 till the date of his dismissal on 8.10.2007,
(c)        the DA instalments released from time to time as given to other Central Government employees, in pursuance of his representation dated 7.9.2007 (Annexure-A/7)
(d)        all these with interest at 12% from the respective dates from which the same became due till the actual date of payment.
(ii)  To grant such other relief deemed fit, having regard to the facts and circumstances of the case.

2.         Briefly, the applicant who was working as Cameraman Gr.II in Doordarshan was absent from duty from 16.6.1995 to 26.4.2000.  He was taken back to duty 26.4.2000 and his salary was fixed at the minimum of pay scale i.e., Rs.6,500/-.  A disciplinary action was initiated against him on 12.11.2004 for his said absence and thereafter he was dismissed from service on 8.10.2007.  The dismissal order was set aside by this Tribunal in OA No.435/2007 and the applicant was ordered to be reinstated on the ground that no reasonable opportunity was given to the applicant to defend his case during enquiry. However, the matter was taken up before the Hon'ble High Court of Karnataka by the Respondents in WP No.14361/2009.

3.         The applicant reports in the OA that:
"The Hon'ble High Court by an order dated 12.6.2009, disposed of the WP modifying the order of this Tribunal, by giving liberty to the respondents herein to hold a fresh enquiry into the charge against the applicant and conclude the proceedings within 6 months".

Based on this direction the respondents have started the disciplinary proceedings and the same is still pending.

4.                  The learned counsel for the applicant further submits that when the applicant is
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taken back on duty on 26.4.2000 and has continued to work in the post upto 8.10.2007, he is entitled to annual increment, but was not granted any, pending disciplinary proceedings initiated against him.  He submits that whatever may be the outcome of the disciplinary proceedings, the applicant is entitled to all the financial benefits like, fixation of pay, grant of annual increments, etc. because he has performed the duty without any interruption.  Hence, he prays that the OA be allowed and the reliefs prayed for may be granted to him.

5.         On the other hand, the learned counsel for respondents submits that the applicant was on unauthorised absence from 16.6.1995 to 25.4.2000 and a departmental enquiry was started against him vide charge memo dated 12.11.2004 for this misconduct and based on the enquiry report, the applicant was awarded the punishment of dismissal from service vide their order dated 8.10.2007.  Hence, he is not entitled to any financial benefit.  This Tribunal in OA No.435/2007 set aside the order of dismissal and ordered reinstatement of the applicant into service forthwith, also giving liberty to the respondents to complete the proceedings under FR 17A to take a suitable decision in respect of the unauthorised absence of the applicant.   

6.         The respondents also urged at para 4 of the reply statement, that the applicant has tried to mislead the Tribunal by saying that
"the Hon'ble High Court, by an order dated 12.6.2009  disposed of the WP No.14361/2009 modifying the order of this Tribunal, by giving liberty to the respondents herein to hold a fresh enquiry into the charge against the applicant and conclude the proceedings within 6 months."

In fact, the Hon'ble High Court of Karnataka by its order dated 12.6.2009 has not modified but has set aside the Tribunal's order dated 23.1.2009 including the order for reinstatement of the applicant.  However, the High Court appreciated the findings of the Tribunal that no proper opportunity was given to the applicant while holding the disciplinary enquiry and directed the respondents herein to take further disciplinary action in accordance with the
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Rules and pass final orders strictly in accordance with law within a period of six months. 

7.         The High Court has also mentioned that the applicant herein is also at liberty to raise all his defence including the one based on the medical certificates.  As per the directions of the Hon'ble High Court,  a new Inquiry Officer and Presenting Officer have been appointed and the inquiry is in progress.  In view of the pendency of the enquiry proceedings against the applicant, his request for fixation of pay, annual increments, etc. Cannot be considered at this stage.  The respondents further submit that since the applicant was on unauthorised absence from duty for nearly five years, i.e., from 16.6.1995 to 25.4.2000, he is not entitled for any benefits of increment, etc. for this period.  However, benefits for the other periods when he was on duty, could be considered only after the completion of the pending enquiry and the decision ordered therein regarding how to treat the period.

8.         Heard Shri A.R. Holla, learned counsel for the applicant and Shri S. Prakash Shetty, learned Addl. Central Govt. Standing Counsel for respondents and perused the records.

9.   As rightly pointed by the respondents, we find that the Hon'ble High Court in its order dated 12.6.2009, has not modified the order of this Tribunal as stated by the applicant in para 4(v) of the OA, but has set aside the order directing the respondents herein to reinstate the applicant into service forthwith.  The applicant has suppressed this fact by stating that the Hon'ble High Court has modified the order of the Tribunal  by giving liberty to the respondents herein to hold a fresh enquiry and conclude the proceedings within 6 months.  Further, we are of the view that for the period when the applicant is on unauthorised absence, there cannot be any grant of annual increments, to the applicant.  For the period when he was taken on duty from 26.4.2000 to 8.10.2007, his pay was fixed at the minimum of the pay scale, but the the issue of his increment and other benefits will
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be subject to the final outcome of the disciplinary proceedings.

10.       We would like to mention specifically that since the applicant is taken on mimimum pay in 2000, whereafter the revision has become applicable on 1.1.2006, the order should specifically mention about the same.

11.        In view of the above, we are not inclined to grant any relief to the applicant at this stage and the same is accordingly dismissed.  No order as to costs.

            (V. AJAY KUMAR)                                                   (LEENA MEHENDALE)     
                  MEMBER (J)                                                                MEMBER (A)


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