Wednesday, November 7, 2012

OA No.209/2011 on ??????-2012



DATED THIS THE                 DAY OF .............. ,  2012

HON'BLE Dr. K.B. SURESH          ...         MEMBER(J)

HON'BLE SMT LEENA MEHENDALE                 ...         MEMBER(A)

Sri N.K. Mohan Ram,
S/o N. Krishna Iyengar,
Aged about 60 years,
Deputy Director (Programs),
(IRLA No.9467),
Doordarshan Kendra, Bangalore-560 006,
(Now retired on superannuation),
R/at No. GF-8, Atria Villa,
Palace Gutthalli Main Road,
Malleswaram, Bangalore – 560 003.        ...                                 Applicant

(By Advocate Shri Vishnu Bhat)

1. The Union of India,
   Rep. by its Secretary,
   Ministry of Information and Broadcasting,
   Govrnment of India, Shastri Bhavan,
   Dr. Rajendra Prasad Road,
   New Delhi – 110 001.

2. The Chief Executive Officer,
   Prasar Bharthi, (Broadcasting Corporation of India),
   PTI Buildings, Sansad Marg,
   New Delhi – 110 001.

3. The Director General,
   Doordarshan, Doordarshan Bhavan,
   Copernicus Marg, New Delhi – 110 001.          ...                     Respondents

(By Advocate Shri M.V. Rao, Sr. Central Govt. Standing Counsel)


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

            This OA filed on 26.5.2011 under Section 19 of the Administrative Tribunals Act, 1985, is against the order of Respondent No.2 dated 29.3.2011 Annexure-A/5, under which a period from 24.7.2009 to 30.4.2010 (about 9 months) has been treated as dies-non.

2.         The brief facts of the case are that the applicant, who has since retired on 31.05.2010, was working as Deputy Director (Programmes) at Doordarshan Kendra, Calcutta (DDK-C) and vide order dated 25.07.2008, he was transferred as Deputy Director at Doordarshan Kendra, Bangalore (DDK-B).  He was relieved at DDK-C on 31.07.2008 and reported at DDK-B on 4.8.2008.  At this juncture, the Director at DDK-B issued a Memorandum No.14(3) 2008-A/7694, dated 4-8-2008, directing the applicant not to attend the office and to wait till the vacancy position was clarified by the Director General, Doordarshan (DG-DD), New Delhi.  Applicant claims that he was physically restrained from entering the office premises of DDK-B.  On not hearing anything till September, 2008, he filed OA No.350/2008 in this Bench of the Tribunal seeking the direction to the Respondents to facilitate the applicant's peaceful performance of duties at DDK-B.   The OA was allowed by this Tribunal's order dated 9.6.2009 as seen at Annexure-A/1.  It is pertinent to quote from paras 10 and 11 of the judgment as below:
"10.     .....       We hold that the impugned Memorndum No.14(3)2008-A/7694, dated 4.8.2000 of Doordarshan Kendra Bangalore (Annexure-A/4) has been issued without any authority contrary to the terms and conditions of the transfer order dated 24.7.2008 at Annexure-A/1 and is not sustainable under law.  Hence, we have no hesitatikon to quash and set aside the same.  ....  The resondents are directed to allow the applicant to join his duties as Deputy Director in DDK Bangalore in accordance with the transfer order dated 24.7.2008.

11.         ...............  We hope and trust that Respondent Nos.1 to 3 shall take suitable action against Respondent No.4 for having not obeyed the orders of the superior authorities and also for issuing the impugned Memorandum dated 4.8.2008.  We feel this is a fit case for imposing costs and order costs of Rs.5000/- to be paid by Respondent No.4 to the applicant for having disobeyed the orders of the superior authorities and for lingering the matter.  The said costs shall be paid by Respondent No.4 within one month from the date of receipt of this order."

3.         It is also pertinent to note that during the pendency of OA No.350/2008, Respondents issued his transfer order to All India Radio (AIR), Bangalore, by order dated 18.02.2009, which order, he had challenged in a separate OA No.95/2009. 

4.         On receiving Tribunal's order dated 9.6.2009 in OA No.350/2008, the respondents filed Writ Petition No.20075/2009,in the High Court of Karnataka, against the decision of the Tribunal in OA No.350/2008.  This was disposed of by directing:-
(i)  the applicant to report at DDK, Bangalore, pursuant to transfer order dated 24.7.2008 for the purpose of record of compliance of order;

(ii) his duty report should be accepted and simultaneously a relieving order could be given to him pursuant to transfer order dated 18.2.2009.  He should accept it and get himself relieved;

(iii) the acceptance of the relieving order by the applicant shall be without prejudice to his contentions urged in OA No.95/2009, which was then pending before the Tribunal for consideration........

5.            Thus, the applicant was to report at DDK-B and also get himself relieved so as to complete the formalities pursuant to the first transfer order dated 24.7.2008.  However, he did not report at AIR, Bangalore, pursuant to the second transfer order dated 18.2.2009, but, decided to wait till the outcome of OA No.95/2009.  The OA was allowed vide this Tribunal's order dated 30.4.2010.  At te end of very next month, the applicant superannuated on 31.5.2010.

6.         After several representations for getting his dues for the period between his coming to Bangalore and his date of retirement, finally, the impugned order at Annexure-A/5 was issued by Prasar Bharthi (Respondent No.2) dated 29.3.2011, stating as below:
"Sh. N.K. Mohanram, DDP (Retd.) was to report for duty at DDK, Bangalore as per Hon'ble High Court Order dated 24.07.2008 but hedid not comply the order.  The period of absence from 24.07.2008 i.e., the date of Judgment of Hon'ble High Court till 30.04.2010 may be treated as Dies-non condoning break in service, as there is no direction from the Hon'ble Court on consequential benefits."

7.            It can be seen that this order has two parts and two consequences. The first part is that from 24.07.2008 till 30.04.2010 (nearly 9 months), he is treated as Dies-non and hence, would not get any salary.  The second part is that this Dies-non is accompanied by condonation of break in service, which means, that it will be treated as a continuous service for the pensionary benefits.  This order has been issued on the ground that the applicant, Shri Mohan Ram, who was under the High Court order to report at DDK-B and then get himself relieved, remained absent, did not report at AIR, Bangalore, and did not comply the order of the High Court.

8.         We find from Annexure-A/7, dated 17.8.2007, that it is a letter from the applicant to the DG, DD, requesting the DG to issue necessary directions to all the concerned for the purpose of compliance of the High Court order.  Herein, he has drawn the attention of the DG that as per the reply dated 30.1.2009 filed by the DG in OA No.350/2008 as well as vide memorandum dated 19.2.2009 filed by the DG in the same OA, a statement has been made by the DG that they are in possession of the CTC (Charge Taking Certificate) dated 4.8.2008 submitted by the applicant to the DDK-B, is a legal and valid document to infer that he has joined at DDK-B and that he was drawing his pay and allowances against the DDK-B.  The transfer order from DDK-B to AIR, Bangalore, also reads as under:
"........ Shri N.K. Mohan Ram, Dy. Director of Programmes, DDK, Bangalore is hereby transferred.....".

No reply has been given to this Annexure-A/7, nor has it been denied in the reply statement of the present OA.  At Annexure-A/6, we find another representation dated 25.8.2009, to DG, DD, claiming that the applicant went to DDK-B on 18th, 19th and 20th August,2008, but, was stopped at the main gate by the security staff and was told by them that they had strict instructions from the Director, not to allow him to enter the office.  Even this has not been replied by the respondents to the applicant, but, we find that it has been denied in the reply statement at para 15.  However,           considering a long chain of animosity between the Director, DDK-B and the applicant, as has been narrated in detail while deciding OA No.95/2009, the credibility of this denial by respondents is not very high.

9.         Coming to the direction of the High Court passed in Writ Petition No.20075/2009, we find that the High Court has directed the applicant to report at DDK-B so as to complete the formal compliance of the first transfer order from DDK-C to DDK-B and then get himself relieved.  Further he was directed to proceed to join at AIR, Bangalore, while his OA No.95/2009 against the 2nd transfer order was still pending in CAT, Bangalore.  Thus, we find that the applicant had no other choice , but, to forego his claim for the post of Deputy Director at DDK-B atleast for a temporary period.  Thereafter, he had to choose between two alternatives. First was to join at AIR, Bangalore, thus, weakening his claim in OA No.95/2009 to a certain degree despite a clear wording of the High Court that such a joining should not be construed as an interfeence with the proceedings in OA No.95/2009.  Another choice was not to join at AIR, Bangalore, but, to await the final outcome of OA No.95/2009.  He has exercised the second choice, which, according to the respondents, may be construed as jeopardising his own claim of getting any pay for the interim period.  However, it has also been brought out in the order passed in OA No.95/2009 that
"suffice it to note that the transfer order of the applicant seems  to have been passed not on public interest but on such extraneous grounds which are not available in the realm of rule of law.  No authority has the right to consider his office as personal feefdom and his own empire.  Therefore, Annexure-A-20 dated 18.2.2009 is hereby quashed.  The OA has been allowed as above."

Thus, it has been commented in both the judgments passed by this Tribunal that once the applicant had been relieved from DDK-C, the Director of DDK-B had no authority to hold him back from working at DDK-B.  The High Court had made it clear that their order at para 7.(iii). was without any prejudice to the outcome of OA No.95/2009.  By implication, it would also not create any prejudice against the applicant if he would not proceed to join AIR-B as directed at para 7(ii).  Applicant is however, under obligation to do as directed at para 7 (i) which he has done in terms of his CTC further supported by Annexure-A/6.   We therefore, do not agree with the logic of the respondent No.2 in withholding his salary for 9 months by declaring the period as Dies-non.
10.       In conclusion, for the ultra-vires action of their high ranking subordinate, the Prasar Bharthi which is Respondent No.2, must face the consequences and hence, they have to take the blame for the applicant remaining without work for 9 months.  We consider the imugned order passed by them at Annexure-A/5 as  unjustified in so far as it seeks to take away the salary of the applicant for that period .

11.       Hence, we allow this OA and quash Annexure-A/5 to the extent of dies-non, retaining the other part condoning break.  We also direct the respondents to settle all the consequential claims of the applicant within a period of two months from the date of receipt of a copy of this order.  No order as to costs.

                  (LEENA MEHENDALE)                                    (K.B. SURESH)
                          MEMBER (A)                                               MEMBER (J)


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