The Union of India and Others vs V. Manjunatha Reddy

Mohan M. Shantana Goudar, J.—The order dated 20th September 2013 passed by Central Administrative Tribunal, Bengaluru Bench, Bengaluru in Original Application No. 276/2011 is called in question in this writ petition.

By the impugned order, the Tribunal has set-aside the order passed by the Revisional Authority and directed the Department to reinstate the respondent into service as Grameena Dak Sevak employee (GDS). While rendering the order, the Tribunal has made it clear that the principle of "no work no pay" would apply to this case and consequently, the respondent is not entitled for pay, for the period for which he has not worked.

The records reveal that the respondent while working as Grameena Dak Sevak at Marath Halli Colony Post Office, Bengaluru, remained unauthorisedly absent from 01.09.2007 to 10.11.2008. The respondent was issued with memo of charges by Disciplinary Authority alleging unauthorised absence from duty for over one year and two months with effect from 01.09.2007. The respondent admitted the charges and explained the reasons for his long absence contending that he was unwell. The Disciplinary Authority issued an order of termination from service having held that the charge leveled against the respondent is proved. On appeal by the respondent, the Appellate Authority modified the order of removal and ordered the Department to take back the respondent to duty. However, the Appellate Authority reduced the penalty by deferring the respondent from appearing for the Departmental examination for a period of one year. The 3rd petitioner being the Revisional Authority, suo motu exercised revisional powers. After notice to the respondent, the Revisional Authority set-aside the order passed by the Appellate Authority and imposed penalty of removal from service against the respondent. Questioning the order of Revisional Authority the respondent approached the Central Administrative Tribunal in OA No. 276/2011 which came to be allowed by the impugned order.

The only ground on which the Central Administrative Tribunal set-aside the order passed by the Revisional Authority is that the Revisional Authority did not have jurisdiction to exercise revisional powers after six months from the date of the order passed by the Appellate Authority. The Tribunal relied upon the judgment of the Apex Court in the case of Union of India (UOI) and Others Vs. Vikrambhai Maganbhai Chaudhari, for coming to the said conclusion.

The judgment of the Apex Court in the case of Union of India and Others v. Vikrambhai Maganbhai Chaudhari, cited supra, is not applicable to the case on hand, inasmuch as the Apex Court in the said judgment had decided the powers of Revisional Authority contemplated under Rule 29 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. The matter on hand is not governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965, but it is governed by Rule 19 of the GDS (C & E) Rules, 2001. Rule 19 of GDS (C & E) Rules, 2001 which differs with Rule 29 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 in material particulars. Therefore, the Tribunal ought to have been referred to Rule 19 of GDS (C & E) Rules, 2001 which is relevant rule to be considered while deciding the matter on hand. Rule 19 of GDS (C & E) Rules, 2001 (relevant portion) reads as under:

"19. Revision

(1) Notwithstanding anything contained in these rules -

(i) the Head of the Circle, or Region

(ii) any other authority immediately superior to the authority passing the orders; or

(iii) any other authority specified in this behalf by the Government by general or special order, and within such time as may be specified in that general or special order;

may, at any time, either on its own motion or otherwise call for records of any enquiry or disciplinary case and revise an order made under these rules, reopen the case and after making such enquiry as it considers necessary, may

(a) confirm, modify or set aside the ordering

Or

(b) pass such orders as it deems fit:

Provided that no such case shall be reopened under this rule after expiry of six months from the date of the order to be revised except by the Government or by the Head of Circle or by the Postmaster - General (Region) and also before the expiry of the time - limit of three months specified for preferring an appeal under Rule 14:

Provided further that no order imposing or enhancing any penalty shall be made by any Revisionary Authority unless the Sevak concerned has been given a reasonable opportunity or making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in Clauses (v) and (vi) of Rule 9 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, no such penalty shall be imposed except after the enquiry in the manner laid down in Rule 10, in case such enquiry has already been held.

(2) No application to revise an order made on an application for a revision or order passed or made on a revision shall be entertained".

The 1st proviso to Rule 19 states that the case shall not be re-opened under Rule 19, after expiry of six months from the date of the order to be revised. However, exception is carved out in favour of Government or Head of Circle or the Postmaster-General (Region). In other words, Government or the Head of the Circle or the Postmaster-General (Region) may exercise revisional jurisdiction even after six months. In the matter on hand, the Revisional Authority has exercised revisional jurisdiction after 8 months from the date of the order of the Appellate Authority which means the Revisional Authority has exercised its revisional jurisdiction after two months from the period prescribed, which is permissible under the 1st proviso to Rule 19 of GDS (C & E) Rules, 2001. In view of the said proviso to Rule 19, it is clear that the 3rd petitioner i.e., the Chief Postmaster-General has jurisdiction to exercise revisional powers within the reasonable period after six months. Accordingly, the order of the Tribunal is liable to be quashed only on the said sole ground. However, the 2nd proviso to Rule 19 further makes it clear that no order imposing or enhancing any penalty shall be made by Revisional Authority unless GDS employee concerned has been given a reasonable opportunity of making a representation against the penalty proposed etc., It also makes clear that no such penalty is imposed except after making the enquiry in the manner laid down in Rule 10, in case if such an enquiry has already not been held. Since the procedure as contemplated under Rule 10 r/w. Rule 19 of GDS (C & E) Rules, 2001 is not followed while imposing penalty of removal from service as contemplated under 2nd proviso to Rule 19 of GDS (C & E) Rules, 2001, the matter has to go back to the Revisional Authority for conducting enquiry as contemplated under Rule 10. Accordingly following order is made:

"i) Impugned order passed by the Central Administrative Tribunal dated: 20.09.2013 in Original Application No. 276/2011 stands set-aside.

ii) The matter is sent back to the Revisional Authority.

iii) The Revisional Authority shall conduct enquiry in the manner laid down in Rule 10 keeping in mind the 2nd proviso to Rule 19 of GDS (C&E) Rules, 2001.

iv) Enquiry shall be completed as early as possible but not later than the outer limit of five months from the date of receipt of this order.

v) The interim order granted by this Court in this writ petition is continued till the completion of the enquiry and till passing of the order by the Revisional Authority.

vi) We make it clear that the observations made by the Tribunal that respondent is not entitled for pay during the period for which he has not worked (no work no pay) stands confirmed."