UNION OF INDIA Vs. CENTRAL ADMINISTRATIVE TRIBUNAL

JUDGEMENT

(1.) The writ jurisdiction of this Court has been sought to be invoked to set at naught the judgment and order dated 17.3.2011 passed by the learned Central Administrative Tribunal, Jodhpur Bench at Jodhpur (for short, hereafter referred to as "the Tribunal") allowing the concerned Original Applications and thereby, amongst others directing the petitioners-herein to treat the periods of the respondent No. 2's suspension with effect from 3.6.1993 to 31.8.1995 and absence from duty due to dismissal from 1.9.1995 to 22.2.2005 to be spent on duty with all consequential benefits. The disciplinary proceedings initiated against the respondent No. 2 vide memo dated 6.12.2007 and inter alia the orders dated 22.1.2008 and 7.2.2008 passed therein were also annulled. The service of notice on the respondent No. 2 though effected and accepted on 24.12.2012, no representation on his behalf has been made. No prayer for adjournment also has been made today.

(2.) We have heard Mr. Kuldeep Mathur, learned counsel for the petitioners.

(3.) The facts, briefly stated for the purpose of present adjudication, are that the respondent No. 2 was initially appointed as Sales-man-cum-Clerk in the Air Force Canteen at Jodhpur by the petitioner No. 3 on 30.9.1982. He was placed under suspension on 3.6.1993 and was issued a memorandum of charge asking him to explain the financial irregularities referred to therein as well as the imputation of manipulation of figures with a deliberate intention to commit fraud in the Unit Run Canteen (for short, hereafter referred to as "the URC"). Eventually, on the conclusion of the departmental enquiry, he was dismissed from service by the order dated 31.8.1995. His departmental appeal having failed, he approached the learned Tribunal with OA No. 103/1996, which was allowed on 12.10.2001 and the penalty of dismissal from service was set aside with a direction to conduct a fresh enquiry by affording full opportunity to him to offer his defence. According to respondent No. 2, inspite of this determination, he was not reinstated in service. Neither he was placed under suspension nor paid any salary or subsistence allowance. However, the enquiry was proceeded against him and on the basis of the enquiry report, penalty of dismissal from service was again imposed on him vide order dated 6.5.2002. His appeal before the departmental authority failed and he again turned to the learned Tribunal with OA No. 251/2003, which was disposed of on 5.10.2004 with the finding that the departmental proceedings were vitiated for non-payment of subsistence allowance and a direction for his reinstatement was also issued. The records disclose that the challenge made by the petitioners before this Court against this decision of the learned Tribunal also failed, whereafter, the respondent No. 2 was reinstated in service as Salesman and not Salesman-cum-Clerk vide order dated 22.2.2005. Pursuant thereto, he joined the post. As inspite of his representation, the periods of his suspension i.e. 3.6.1993 to 31.8.1995 and his absence from 1.9.1995 to 22.2.2005 due to the imposition of penalty of dismissal from service were not construed to be spent on duty, he preferred OA No. 221/2007. The petitioners initiated a fresh departmental enquiry on the same charges and also passed consequential orders to further the same. The respondent No. 2 thus laid challenge to this freshly instituted disciplinary proceedings in OA No. 41/2008 and prayed for the reliefs as outlined hereinabove. The petitioners in the written statement raised a preliminary objection of want of jurisdiction of the learned Tribunal in view of the decision of the Hon'ble Apex Court dated 28.4.2009 passed in Civil Appeal No. 3495/2005 R.R. Pillai (Dead) through LRs v. Commanding Officer HQ. SAC & others, 2010 AIR(SC) 188 to the effect that the employees of URCs are not Government servants. They also pleaded that as in none of the earlier adjudications, the learned Tribunal had quashed the charges as frivolous and unfounded, a fresh departmental enquiry was valid. The learned Tribunal, however, negated the preliminary objection on the ground that as meanwhile, the determination made in OA No. 251/2003 between the parties had attained finality, the petitioners could not be allowed to take advantage of the subsequent decision R.R. Pillai (Dead) through LRs v. Commanding Officer HQ. SAC & others, 2010 AIR(SC) 188 . This is moreso, according to it, as at the time of its scrutiny in OA No. 251/2003, the employees of the URCs were reckoned to be Government servants in view of the decision of the Hon'ble Apex Court rendered in Union of India and others v. Mohd. Aslam and others, 2001 AIR(SC) 526. The reliefs, as prayed for, were granted following evaluation of the cases of the parties on merits.