Central Administrative Tribunal - Ernakulam
Sasidharan Pillai vs M/O Health And Family Welfare on 14 June, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00400/2016
Wednesday, this the 14th day of June, 2023
CO RAM:
Hon'ble Mr. Justice Sunil Thomas, Judicial Member
Hon'ble Mr. K. V. Eapen, Administrative Member
Sasidharan Pillai,
Safaiwala, Ayurveda Research Institute for
Mother and Child Health Care,
Poojappura, Thiruvananthapuram. - Applicant
(By Advocate: Mr. George Varghese Perumpallikuttiyil)
VERSUS
1. Union of India represented by Secretary to the
Ministry of AYUSH, AYUSH Bhawan,
B Block, GPO Complex,
New Delhi - 110 023.
2. Director General, Central Council for Research in
Ayurvedic Sciences,
Jawaharlal Nehru Bharathiya Chikitsa Avum Homeopathy
Anusadhan Bhavan No.61-65,
Institutional Area, Opposite D Block,
Janakpuri, New Delhi - 110 058.
3. Research Officer,
Ayurveda Research Institute for Mother and Child Health
Care, Poojappura, Thiruvananthapuram - 695 012. - Respondents
(By Advocate: Mr. P. G. Jayan, ACGSC)
This Original Application having been heard on 09 th June 2023, the
Tribunal on 14th June, 2023 delivered the following: -
ORDER
Per: Justice Sunil Thomas, Judicial Member The applicant was employed as Safaiwala under the 3 rd respondent. While so, a sum of Rs.26,252/- allegedly paid to him during the period from September 1991 to October 2003 was sought to be recovered from him. Proceeding was initiated against him for the recovery. He approached 2 Hon'ble High Court of Kerala in WP(C) No.37259/04 challenging the recovery proceedings. The Hon'ble High Court by Annexure A1 order found that proceedings were initiated against him without proper notice and hence the authorities were directed to reconsider the matter afresh after giving a reasonable opportunity of being heard to the applicant. Thereafter the applicant was heard and by Annexure A2 order dated 11.05.2011, the respondents resolved to forego the recovery of excess amount of Rs.26,252/-.
2. The applicant has now approached this Tribunal contending that he was not paid the increment during the period of September 1991 to October 2003. He had submitted a representation seeking annual increment, which was replied by Annexure A6 holding that the unauthorised period of the applicant was not regularised as it was treated as absence from duty. Hence the question of grant of increment had not arisen. Aggrieved by the above, the applicant has approached this Tribunal seeking to declare that he was entitled to two salary increments effected during the period September 1991 to October 2003 for his services.
3. Respondents appeared and filed detailed reply statement traversing the above allegations and claim. Heard learned Counsel for the applicant and the learned ACGSC.
4. It is an admitted fact that there was an issue of unauthorised absence. According to the applicant, the unauthorised absence was regularised and a due drawn statement was issued to him. Learned Counsel for the applicant relied on Annexure A4, which was a copy of the affidavit filed by the respondents in W.P(C) No.37259/2004. It was stated in paragraph 5 of 3 Annexure A4 that the applicant had complained to the Parliamentary Standing Committee and based on it his unauthorised absence was regularised and recasting of the account of due drawn statement of pay and allowance was prepared and issued. Annexure A3 is the due drawn statement. Learned Counsel also invited our attention to paragraph 4 of the reply statement wherein it was stated that for the benefit of the applicant, different spells of unauthorised absence (period of absence without leave) caused by the applicant during the period from September 1991 to October 2003 have been commuted and treated as Extra Ordinary Leave as per Rule 32(6) of the CCS (Leave) Rules, 1972 which provided that the authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave. Based on the above materials, it was contended by the learned Counsel for the applicant that admittedly the period of unauthorised absence stood regularised. Consequently, the respondents were not justified in denying him the increment legally due to him.
5. Denying the above claim, learned ACGSC invited our attention to Annexure A6 reply wherein it was stated that the unauthorised absence was not regularised as it was treated as absence from duty. It seems that according to the respondents, under Rule 32(6) of CCS (Leave) Rules, 1972, the authority competent to grant leave was entitled to commute retrospectively periods of absence without leave, into extraordinary leave. The stand of the respondents was that they commuted period of absence of applicant as extraordinary leave on private affairs so that he would not have been in a disadvantageous position of forfeiture of his past services as per 4 provisions of Rule 27 (2) of CCS (Pension) Rules, 1972. It was stated that since the applicant did not produce any medical certificates, the extraordinary leave granted to the applicant was treated as extraordinary leave on private affairs. It was contended that in case of extraordinary leave on private affairs, the applicant was not entitled for increment for the period of absence as per the Fundamental Rules 26(b)(ii), 1922.
6. Learned ACGSC invited our attention to FR 26(b)(ii) which provided that all leave except extraordinary leave taken otherwise than on medical certificates and the period of deputation out of India shall count for increment in the time-scale applicable to the post. It was held that any spell of absence treated as Extra Ordinary Leave otherwise than on medical certificate shall not count for grant of increment. Evidently, the spell of absence was treated as Extra Ordinary Leave for the benefit of the applicant to ensure that there was no break of service as provided under Rule 27 of CCS (Pension) Rules, 1972. However, since medical certificates were not available, it could not have been considered as leave on medical grounds. Consequently, it was treated as Extral Ordinary Leave on private affairs. It is evident that such leave cannot be counted for the purpose of increment. This was supplemented by OM No.13026/3/2012-Estt(Leave) dated 28 th March 2013. Under note (d) of the above OM referring to Rule 32(6) of the CCS (Leave) Rules, 1972 it was provided that though the authority competent to grant leave was permitted to commute retrospectively periods of absence without leave into extraordinary leave, such power shall be exercised judiciously. It was clarified that the period of absence so regularised by grant of extra ordinary leave shall normally not count for the 5 purpose of increments and shall be regulated by FR 26(b)(ii). Evidently in the case at hand, though it was converted as Extra Ordinary Leave, the applicant was not entitled to reckon it for the purpose of increment.
7. Having appreciated the contention of the applicant in the above perspective, we find no reason to interfere with Annexure A6. Accordingly, the O.A fails and is dismissed. No costs.
K. V. Eapen Justice Sunil Thomas
(Administrative Member) (Judicial Member)
bp
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List of Annexures
Annexure A1- A true copy of judgment dated 10.06.2009 of the Hon'ble High
Cour tin WP(C) 37259/04.
Annexure A2- A true copy of communication No.F3-17/2004-CCRAS/Vig dated
11.05.2011 of the 1st respondent.
Annexure A3- A true copy of due and drawn statement consolidated upon the
regularisation and recasting of applicant's leave account. Annexure A4- A true copy of counter-affidavit filed by the 4 th respondent in W.P(C) 37259/04.
Annexure A5- A true copy of representation dated 31.05.2012 filed by the applicant before the 2 respondent.
nd Annexure A6- A true copy of communication No.FNo.2-10/2012- ARIMCHC/Tvpm/456 dated 26.09.2012 of the 2 respondent.
nd Annexure A7- A true copy of representation made before the 1st respondent. Annexure R1- The true copy of the extract of Rule 27 (1) and (2) of CCS (Pension) Rules, 1972 and Rule 32 (6) of the CCS (Leave) Rules, 1972 and Fundamental Rules 26(b)(ii), 1922 of Government of India.
Annexure R2- True copy of the order of Hon'ble High Court dated 10.06.2009. Annexure R3- True copy of the Memorandum dated 18.06.2012 issued by the respondent No.2.
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