Kamal Prasad vs President Secretariat And Ors

The applicant has filed the present OA, seeking the following reliefs:-

"(i) direct the Respondent No.1 to consider the case of the applicant in accordance with the provision of FR 56(b)(II) which permits the consideration of His Excellency and direct the Respondent department of Delhi Police to treat the extra ordinary leave taken by the applicant was beyond his control and release all his due increments in the interest of fair play, equity and justice.

(ii) any other order direction this Hon"ble Tribunal may deem fit in the interest of justice, may also be passed."

It is the case are that while posted at Sub Inspector at PS Bara Hindu Rao, Delhi, the applicant was wrongly dismissed from service by the department vide the impugned order No.2091-2190/HAP-N dated 12.04.1990 on the false allegation of extortion of money from one Harpal Singh while performing his official duties. The applicant has pleaded that he had challenged the said impugned order dated 12.04.1990 before the CAT vide OA No. 1891/1990 and the Tribunal, vide its order dated 05.03.1993, directed the respondents to reinstate him with immediate effect with liberty to the department to proceed with the departmental enquiry against him and finalize the DE proceedings within two months from the date of the order. The applicant has alleged that failing to complete the department proceedings within the stipulated period of two months, the respondents again approached the Tribunal vide MA seeking extension of time to complete the proceedings, but the said prayer was rejected by the Tribunal and consequently, the departmental proceedings against the applicant was dropped due to lack of evidence. Thereafter the applicant was promoted to the rank of Inspector w.e.f. 18.08.1994 and retired on 31.08.2007 on attaining the age of superannuation. When the applicant came to know that the department had deducted Rs.80,895/- from his retirement gratuity, he filed another OA No. 3619/2019 in which a direction was issued to the department to issue notice to the applicant and decide the matter in the interest of justice. In compliance to the order of the Tribunal, the department passed an impugned order on 06.12.2010 stating that the applicant was correctly paid Rs.1,30,822/- as retirement gratuity. Aggrieved by this order of the department, the applicant again approached the Tribuanl vide OA No.4144/2011. The Tribunal, vide their order dated 02.05.2012 although allowed refund of Rs.80,895/- deducted illegally from his retirement gratuity from the applicant, however, his basis pay was treated as Rs.9100/- per month instead of Rs.9,700/- per month as on 01.07.2012. The applicant has again filed a RA No. 316/2012 in OA No. 4144/2011 wherein the Tribunal had observed in their operative part of the order dated 30.01.2013 as under:-

"3. ....However, to secure the ends of justice, it is clarified that the present order would not stand in the way of the applicant to seek relief under proviso to FR, i.e. the President may in case, if he is satisfied that extra ordinary leave was taken for a cause beyond the control of the Government servant, direct that extra ordinary leave be counted for the increment under sub-clause (i) or (ii) of the said rules."

In view of the above, the applicant has submitted that the Tribunal had granted liberty to him to approach the President of India in the interest of justice. Accordingly, he filed a representation dated 15.07.2013 (Annexure-9) following by reminder on 11.06.2018 but to no avail. Finding no response, he had filed another OA No. 3467/2018 in which a liberty was granted by the Tribunal to the applicant to file a better drafted representation to the respondents, giving all the facts of the case. Pursuant thereto, the applicant filed another representation dated 15.10.2018. Finding no response, the applicant has filed the present OA.

In reply to the above, the respondents have taken the preliminary objection in their reply that the present OA is hopelessly barred by time as the Review Petition was decided on 30.01.2013 wherein the applicant was granted liberty to approach His Excellency, the President of India. They have further contended that however, the applicant made a representation on 15.07.2013 but the applicant preferred the present OA on 08.03.2019 and the previous one, i.e. OA 3467/2018 was also preferred on 11.06.2018, i..e, after the inordinate delay of 5 years. The respondents have also drawn our attention to Para 5 of their CA in which they have contended that the representation submitted by the applicant was sent to PHQ vide Office Memo No.29875/Estt./PC/SB dated 18.12.2013 and further forwarded to Ministry of Home Affairs vide PHQ letter No.18484/CR-IV(Upper)/PHQ dated 24.12.2013 and the decision on the same is awaited. They have also contended that during the intervening period, the applicant had also filed another OA No. 3467/2018 to grant increment but on his request, the Tribunal had dismissed the said OA as withdrawn on 14.09.2019 at the admission stage with liberty to file fresh OA in case his grievance is not redressed by the respondent. They have also submitted that copy of representation dated 15.07.2013 along with his rejoinder dated 11.06.2018 was received from PHQ vide No.11962/CR-IV/PHQ dated 13.09.2018 and the respondents have apprised PHQ of all the facts vide Office Memo No.976Q/CR-I/SB dated 26.09.2018 which had been forwarded to MHA vide PHQ letter No.14592/CR-IV/PHQ dated 05.11.2018. They have also conceded the fact that another representation addressed to the Hon"ble President of India was also sent to PHQ vide this office Memo No. 11654/CR-1/SB dated 13.12.2018 and the decision of the competent authority on this representation is pending.

The respondents have also made the contention on merits of the case that in the case of extortion of money against the applicant, a DE was ordered and finally after proper proceedings, he was dismissed from service by DCP/North Distt. Vide Order No.2091-2190/HAP/N dated 12.04.1990 and in pursuance of judgment of the Tribunal in OA No. 1891/1990, he was reinstated in service and his dismissal period from 12.04.1990 to 04.03.1993 was decided as period of leave without pay. Hence, no EOL was sanctioned to the applicant and the period from dismissal to reinstatement of the applicant was decided as Leave without pay by the competent authority. They have submitted that at the time of retirement of the applicant, it was found that his pay was stepped up inadvertently and it was reduced on the basis that his dismissal period was dismissed as period leave without pay. Hence, they have taken the action as per rules in this matter and prayed for dismissal of the OA.

After hearing both the parties and perusing the record, it is also noticed that pursuant to the liberty granted by the Tribunal in the RA No. 316/2012 to the applicant to seek relief under proviso to FR 26, he had submitted representation dated 15.07.2013 (Annexure-9) followed by reminder on 11.06.2018. The respondents have themselves conceded that the said representation followed by reminder were received from PHQ Vide No. 11962/CR-IV/PHQ dated 13.09.2018 and the PHQ were appraised all the facts on the same vide office memo no.976Q/CR-I/SB dated 26.09.2018 which were also forwarded to MHA vide PHQ"s letter No.14592/CR-IV/PHQ dated 05.11.2018 and decision on the same is pending. It is also noted that the applicant had further filed a better drafted representation dated 15.10.2018 in pursuance of the liberty granted by the Tribunal in another OA No. 3467/2018 filed by him which, too, is admittedly pending with the respondents. Hence, in view of the factual position, the preliminary objection regarding delay in filing the present OA is overruled and the respondents are directed to take a final decision on the representations filed by him on 15.07.2013 (Annexure A-9) and 15.10.2018 (Annexure A-1) by passing a detailed and speaking order thereon within a period of 90 days of receipt of a copy of this order.

With the above directions, the OA stands disposed of. No order as to costs.