CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH, BANGALORE
ORIGINAL APPLICATION No.209/2011
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)
Vs.
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)
O R D E R
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)
psp.
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