1. By this OA, the applicant has challenged the non payment of put off duty allowance for the period from 27.10.92 to 16.4.96 and has further sought a direction to the respondents to pay full salary to the applicant for the said period alongwith 18% interest thereon.
2. As per the applicant's case, he was put off duly vide order dated 23.10.92 and was denied put off duty allowances as per Rule 9(3) (which is already declared ultra vires by the Bangalore Bench). He was reinstated vide order dated 22.3.96 w.e.f. 23.3.96. However, since he was not paid any allowances, he approached the respondents through an Advocate's notice on 7.5.98 and since the same was not acceded to, therefore he is challenging the said decision by filing this OA on 28.8.2000. The applicant has also filed an application for condonation of delay on the ground that after his dismissal was set aside by Appellate Authority on 22.3.96 he requested for payment of subsistence allowance but that was not paid. He approached the Advocate and sent a notice on 7.5.98 which was replied vide letter dated 18.5.98 stating that there was no rule for payment of put off duty allowance and therefore he would not be entitled for any amount for the said period.
As far as circular dated 13.1.97 is concerned, it was said to be prospective and would have no application in the case of the applicant.
He has further stated that the Advocate had informed him to approach the Tribunal but the letter did not reached him in time and due to financial constraints, he could not approach the Tribunal. He met local M.P., who took up the matter with the department and he was hopeful to get the reliefs. However, ultimately, he approached the Advocate who informed him that he has to file the OA. He further stated that he is low paid employee and a said incident had taken place in the family therefore he could not approach the Tribunal immediately thereafter, he has submitted that technical objection of delay is required to be condoned in the interest of justice and in view of the judgment reported in AIR 1987 SC 1352.
3. The Counsel for the applicant submitted that after the Bangalore Bench had held Rule 9(3) to be ultra vires, the said judgment was stayed by the Hon'ble Supreme Court but ultimately when the matter was decided by the Supreme Court in its judgment dated 10.7.1995, the Hon'ble Supreme Court also held Rule 9(3) to be ultra vires and directed the respondents to consider framing new set of rules and consider each case for passing appropriate orders. He submitted thereafter the respondents had issued circular dated 13.1.97 modifying Rule 9(3) and provided 25% of the allowance in case an employee was put off duly. Therefore, according to him, his cause of action arose from the stage this circular was circulated in the office i.e. 22.1.97.
Thereafter the applicant had sent Advocate's legal notice 7.5.98, which was replied by the respondents on 18.5.98 denying the relief. Therefore the cause to file the present OA arises only thereafter and since there is a little delay in approaching the Court, the applicant has already filed application for condonation of delay explaining the delay.
Therefore, according to him, the OA needs to be decided on merits rather than rejecting the same on technical ground of delay. He has relied on following judgment: 4. Respondents on the other hand have opposed the maintainability of OA itself on the ground that the OA is hopelessly barred by limitation and no sufficient cause has been shown in the application to condone the delay. Learned Counsel for the respondents has stated that actually the cause of action had started from the day the applicant was put off duty in 1992 as he was informed specifically at that time itself that he would not be entitled for any put off duty allowance. Therefore if the applicant had any grievance, he ought to have approached the Court at that relevant time but he had not raised any such objections. On the contrary he participated in the inquiry and at no stage he requested that he be paid the allowance obviously because there was no such provision for allowance and therefore it cannot be said that any prejudice was caused to him. Ultimately, the applicant was dismissed vide the order dated 28.2.95 and therefore there was no question of giving any subsistence allowance or salary as claimed by the applicant.
He has further submitted that Appellate authority only modified the penalty from dismissal to censure on the ground that penalty was too disproportionate and the order itself clarified that the period of absence since dismissal shall be treated as period not spent of duty.
The appellate authority's order for ready reference reads as under: I have considered the appeals I find that inquiry officer has correctly followed the procedure and reasonable opportunity was accorded to the official at each state. I also find that inquiry officer has very logically and convincingly concluded that charges levelled against the official are proved. I however, find that considering the magnitude of the misconduct, the penalty imposed is very much disproportionate. I therefore modify the same to the extent of censure, the period of absence since dismissal shall be treated as period not spent on duty but shall not, repeat not be treated as break in service for any purpose.
Therefore, according to the respondents, the applicant is not entitled to any allowances or salary atleast for the period from 28.2.95 to 15.4.96 as the applicant never challenged the said Appellate Authority's order and the same has attained finality. Respondent's Counsel has further submitted that the applicant was reinstated on 16.4.96 but even at that stage, he did not request for put off duty allowance or salary therefore his conduct clearly shows that he had accepted the position therefore, he cannot now be allowed to make any grievance regarding put off duty allowances. He further explained that on 13.1.97 ex-gratia payment was introduced but that was with prospective effect only. Thus, the applicant cannot get any benefit as per the circular dated 19.1.97 nor can it be said to have given him a fresh cause of action to approach the Tribunal because the applicant has not challenged this circular in the present OA wherein it is clearly mentioned that it will take effect from the date of issuance.
Moreover the respondents Counsel submitted that even after this circular was introduced, the applicant did not take any action and for the first time sent legal notice through an Advocate only on 7.5.98 which was replied immediately thereafter i.e. 18.5.98 but yet chose to file the present OA at his own convenience on 28.8.2000 only i.e. after two years and three months that two without filing an application for condonation of delay. The M.A. was filed subsequently in the year 2001 when the respondents took strong objection in their reply, this M.A. is only an after thought. Even in the said MA also, averments are absolutely vague because he has not given any details nor has specified when the said incident had taken place and what was the incident. Thus, according to the respondent's Counsel this M.A. is not at all maintainable and the OA is liable to be dismissed on this ground alone.
Respondent counsel submitted that power to condone the delay should be used in deserving cases only where atleast some plausible and sufficient cause is shown by the applicant. In the instant case, since the applicant has made vague averments in the application for condonation of delay the said M.A. is liable to be rejected accordingly, the O.A. is also liable to be dismissed on the ground of limitation.
5. We have heard both the Counsel and perused the pleadings as well. We had also directed the respondents to produce the original files as basic document was also not produced by either side. It is seen from the file that after the applicant was reinstated on 16.4.96 pursuant to order passed by Appellate Authority, the period of absence from 28.10.92 to 15.4.96 (1266) was ordered to be treated as period not spent on duty vide memo dated 24.4.96. However, this order has neither been annexed with the reply nor referred to in the reply therefore, we are not sure whether this order was served on applicant or not.
However, perusal of file further shows that in the initial order passed on 23.10.92 when the applicant was put off duty even at that time he was specifically informed that he would not be entitled to any put off duty allowance. Therefore, the respondents' Counsel is right to the extent that the applicant's first cause of action arose in 1992 and if he was aggrieved he ought to have challenged the same within one year thereafter but admittedly the applicant did not challenge the same. He participated in the inquiry and never made any request about non payment of put off duty allowance. Therefore it cannot be said that any prejudice was caused to the applicant. In the inquiry held, charge of misappropriation of Government money against the applicant was proved so after affording an opportunity, the disciplinary authority passed an order on 28.2.95 dismissing the applicant from service. Therefore naturally the question of granting full salary and allowance for this intervening period did not arise till this stage. However, subsequently the Appellate Authority vide its order dated 22.3.96 reduced the punishment from dismissal to censure after agreeing with the disciplinary authority that charges were proved against the applicant on the ground that penalty was very much disproportionate. It is relevant to note that in this order itself the appellate authority had made it absolutely clear that the period of absence after dismissal will be treated as period not spent on duty. This order has not been challenged by the applicant at all. Therefore it has attained finality as such from 28.2.95 to 16.4.96 i.e. date on which the applicant was reinstated. Obviously the applicant would not be entitled to any amount. This was the second stage when the applicant could have prayed for the put off duty allowance but once again he did not take any action and kept sleeping over the matter. On 10.7.95, the Hon'ble Supreme Court while deciding the matter finally held Rule 9(3) to be ultra vires. Therefore if the applicant was aggrieved he ought to have filed a case within one year atleast from this date but as stated above, no challenge was made by the applicant at all. This was the third stage. On 13.1.97, when the respondents issued circular modifying Rule 9(3), it was specifically written in the said circular that it would come into effect from the date of issuance meaning thereby, that it was to be applied prospectively. Once again the applicant did not challenge this circular at all, on the contrary, he claimed the allowance on the basis of this circular which was not applicable to him at all and this notice was sent through an Advocate on 7.5.98 which was replied by the respondents immediately vide reply dated 18.5.98 and once against the applicant did not raise any issue within the stipulated period and kept sleeping over the matter and filed the OA only on 28.8.2000. The applicant's Counsel has relied on numbers of judgment to buttress his arguments and said that matter should not be dismissed on technical ground of limitation. We find the latest view taken by the Hon'ble Supreme Court on the point of limitation is absolute different. In 1995 Supp (3) Supreme Court Case 231. The Hon'ble Supreme Court quashed and set aside the order passed by the Tribunal since the OA was barred by limitation. Similarly in (1999)8 Supreme Court Cases 304 in the case of Ramesh Chand Sharma v. Udham Singh Kamal and Ors.. The Supreme Court have categorical held while dealing with Section 19(1), 20(2)(a), 21(1)(a) and 21(3) of Administrative Tribunals Act, 1985, i.e. the Administrative Tribunal could not admit the application and dispose of the same on merits.
Since it was filed beyond limitation. Similarly there are number of other judgment given by the Supreme Court on question of limitation in the recent years but without going into such controversy, even if we take a lenient view in the matter and treat 18.5.98 to be a fresh cause of action for the applicant to challenge the decision of the respondents, still the OA has been filed beyond stipulated period of one year and it is clearly barred by limitation therefore, we would have to examine whether applicant has made out sufficient cause so that the limitation may be condoned. We find that averments made in the application for condonation of delay are absolutely vague as no details are given as to when the applicant actually came to know about decision, conveyed to the Advocate by the respondents nor he has mentioned what was the nature of the sad incident and when did it lake place, nor we are satisfied with the ground that he could not approach the Court because he was low paid employee as the applicant had been reinstated as back as in 1996 and was getting his salary through out.
Therefore, we hold no plausible or sufficient cause has been shown by the applicant so as to condone the delay. In fact, according to us, this MA seems to be an after thought as it was filed much later, some time in March, 2001 while OA had been filed in August, 2000. Since we are not satisfied with the grounds mentioned in his application, MA/264/2001 is rejected. Since the application for condonation of delay is rejected, the OA could also have been dismissed on the ground of limitation alone. However, since we have heard this matter at length and find that this matter is fully covered by the Hon'ble Supreme Court judgment, we do not wish to reject this OA on the ground of limitation alone as such we feel it would be in the interest of justice to decide the matter on merits as well.
6. Before we deal with the case on merit, it would be necessary to give little background of EDA Rules. Rule 9 of the EDA rules initially read as follows: (1) Pending an enquiry into any complaint or allegation of misconduct against an employee, the appointing authority or an authority to which the appointing authority is subordinate may put him off duty: Provided that in cases involving fraud or embezzlement an employee holding any of the posts specified in the Schedule to these rules may be put off duty by the Inspector of Post Offices, under immediate intimation to the appointing authority.
(2) An order made by the Inspector of Post Offices under Sub-rule (1) shall cease to be effective on the expiry of fifteen days from the date thereof unless earlier confirmed or cancelled by the appointing authority or an authority to which the appointing authority is subordinate.
(3) An employee shall not be entitled to any allowance for the period for which he is kept off duty under this rule." 7. However, Rule 9(3) was challenged in the Bangalore Bench and vide its judgment dated 15.7.1988 reported in 1989(1) ATJ 138 (Bangalore Bench)=1988(3) SLJ 407 (CAT-Bangalore) in case of Peter J.D.' Souza and Anr. v. Superintendent of Post Office, Udupi and Ors.. It was held as under: (i) We strike down Rule 9(3) of the 1964 Rules, as violative of Article 14 of the Constitution of India. But, notwithstanding the same, the Government of India is directed to re-examine the matter ion its entirely and frame a new set of Rules providing for payment of Subsistence Allowance, with due regard to the unique nature of the EDA service and all other relevant matters, and make payment thereof to the applicants in conformity with those Rules. We grant a period of four months to the Government of India to frame the new set of Rules and 3 months thereafter to make payment to the applicants in conformity with those Rules.
(ii) We direct the respondents concerned, to ensure, that reasonable opportunity is afforded at the earliest, to the applicants in Set-1 of applicants to engage a DA, to enable them to substantiate their defence, in the disciplinary proceedings in progress against them.
(iii) The applications are disposed of, in the above respective terms. (iv) No order as to costs.
8. The Judgment given by the Bangalore Bench was challenged by the department in the Hon'ble Supreme Court and the Hon'ble Supreme Court upheld Rule 9(3) to be ultra vires but modified the other relief(s) granted by the tribunal as under; "(1) We declare Rule 9(3) of the Rules as violative of Article 14 of the Constitution of India.
(2) We leave it open to the Government of India to re-examine the matter and if it so chooses from a new set of Rules substituting Rule 9(3).
(3) It would be open to the Union of India to examine each case to reach the conclusion as to whether the individual is entitled to the salary for the period when he was kept off duty under Rule 9( 1) of the Rules. In the event of any of the respondents being exonerated/reinstated in the disciplinary proceedings. The salary for the off duty period can only be denied to him after affording him an opportunity and by giving cogent reasons.
(4) We direct the appellants concerned to afford reasonable opportunity to the respondents in the disciplinary proceedings which arc pending or in progress against any of them. This may be done as directed by the Tribunal in J. D'Souza's case.
We make it clear that the directions we have given above shall substitute all the directions given by the Tribunal in the individual cases.
The appeals and special leave Petitions are disposed of in the above terms. No costs." Pursuant to this judgment, the department took out circular dated 13.1.97 modifying Rule 9(3) but made it clear that this will come into force with effect from the dale of issuance. The new Rule 9(3) now reads as under: (1) The appointing authority or any authority to which the appointing authority is subordinate or any other authority empowered in that behalf by the Central Government by general or special order may put an employee off duty: (a) where a disciplinary proceeding against him is contemplated or is pending; or b) where a case against him in respect of any criminal offence is under investigation, enquiry or trial.
Provided that in cases involving fraud or embezzlement, the employee holding any post specified in the Schedule to these rules may be put off duty by the Inspector of Post Offices or the Assistant Superintendent of Post Offices of the Sub-Division under immediate intimation to the appointing authority.
(2) An order made by the Inspector of Post Offices or the Assistant Superintendent of Post Offices of the Sub-Division under Sub-rule 9(1) shall cease to be effective on the expiry of 15 days from the date of such order unless earlier confirmed or cancelled by the appointing authority or the authority to which the appointing authority is subordinate.
(3) An ED Agent shall be entitled per month for the period of put off duty to an amount of compensation as ex gratia payment equal to 25% of his/her Time Related Continuity Allowance together with admissible DA on such 25% of Time Related Continuity Allowance.
Provided that where the period of put off duty exceeds 90 days, the authority which made the order of put off duty shall be competent to vary the amount of compensation for any period subsequent to the period of first 90 days as follows: (i) The amount of compensation as ex gratia payment may be increased by a suitable amount, not exceeding 50% of such compensation admissible during the period of the first 90% days, if in the opinion of the said authority the said period of put off duty has been prolonged, for reasons to be recorded in writing, not directly attributable to the Extra Departmental Agent.
(ii) The amount of compensation as ex gratia payment may be reduced by a suitable amount not exceeding 50% of such compensation admissible during the first 90 days, if in the opinion of the said authority the period of put off duty has been prolonged due to reasons to be recording in writing directly attributable to the Extra-Departmental Agent." 9. From the facts narrated above, it is clear that though the Tribunal had directed the respondents to re-examine the matter and frame new rules for payment of subsistence allowance and make payment to the applicant in conformity with those rules within a stipulated period but the Hon'ble Supreme Court modified the second part of relief with regard to payment and left it open to the Union of India to examine each case to reach the conclusion as to whether the individual is entitled to the salary for the period when he was kept put off duty under Rule 9(1) of the Rules and further when the persons were exonerated and reinstated in the disciplinary proceedings, the salary for the put off duty period could be denied only after affording an opportunity and giving cogent reasons. Therefore the demand of the applicant that he be granted salary from 27.10.92 to 16.4.96 is absolutely misconceived and not tenable because if the Hon'ble Supreme Court had intended to give allowance/salary in all the cases, they would not have modified the relief with regard to the payments of allowances as directed by Tribunal nor would have left it open to the Union of India for deciding in each case. The very fact that Hon'ble Supreme Court has itself upheld Rule 9(3) to be ultra vires and had yet given liberty to Union of India to pass appropriate orders after examining each case itself which shows that salary/allowances were not required to be given as matter of right in each case as directed by the Bangalore Bench of Tribunal. The applicant's Counsel had relied on 2000(2) Scale 9 H.N.P. Page 24 to claim full salary but since the Hon'ble Supreme Court has already dealt with the case where Rule 9(3) itself was in question and yet had left it open to the Union of India to decide each case. We do not think that reference by the applicant's Counsel to some other judgment would be of any use to him as this point is fully covered by the Hon'ble Supreme Court. All that is required is to examine the applicant's case and pass appropriate order for the period from 28.2.95 to 23.3.96.
10. It is thus made clear that as far as the period after dismissal is concerned, the Appellate Authority had specifically held in its order itself that the period shall be treated as not spent on duty and since this order was never challenged by the applicant, it has attained finality. Therefore, the applicant would not be entitled to anything for the period from 28.2.95 to 23.3.96 because ultimately the applicant was not exonerated in the disciplinary proceedings but has been penalised. As far as the period from 22.10.92 to 27.2.95 is concerned, we have seen that though the respondents have passed the order in files but since it is neither annexed by the respondents with their reply nor any reference of same has been made in their reply, it would be better to direct the respondents to pass an appropriate order for the period from 22.10.92 to 27.2.95 in accordance with the directions given by the Hon'ble Supreme Court and communicate the same to the applicant within a period of six weeks from the date of receipt of a copy of this order.
11. With the above direction, the OA stands disposed of. No order as to costs.