Central Administrative Tribunal - Ernakulam
Sheela T I vs The Commissioner Kvs New Delhi And ... on 16 November, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00281/2022
Thursday, this the 16th day of November, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Sheela T.I., aged 66 years, W/o. John K. George,
Assistant, Kendriya Vidyalaya Sangathan,
Regional Office, Ernakulam (Retd.),
Residing at House No. 32/2879-D,
Kulathungal Bava Road, Thammanam PO,
Kochi - 682032, Mob.8547015334,
email:[email protected] ..... Applicant
(By Advocates : Mr. S. Radhakrishnan, Mr. S. Rajmohan and
Mr. Aditya Thejus Krishnan)
Versus
1. The Commissioner, Kendriya Vidyalaya Sangathan,
No. 18, Institutional Area, Shaheed Jeet Singh Marg,
New Delhi - 110 016.
2. The Additional Commissioner, Kendriya Vidyalaya Sangathan,
No. 18, Institutional Area, Shaheed Jeet Singh Marg,
New Delhi - 110 016.
3. The Joint Commissioner (Admn.),
Kendriya Vidyalaya Sangathan,
No. 18, Institutional Area, Shaheed Jeet Singh Marg,
New Delhi - 110 016.
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4. The Deputy Commissioner,
Kendriya Vidyalaya Sangathan,
Regional Office, Ernakulam-682020. ..... Respondents
(By Advocate : Mr. K.I. Mayankutty Mather)
This Original Application having been heard on 20.10.2023, the
Tribunal on 16.11.2023 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant was working as an Assistant Superintendent in Kendriya Vidyalaya No. 1, Kochi. She was transferred to KVS, Chennai and was relieved on 18.2.2008. The above transfer was challenged by her by preferring OA No. 553/2008. An interim stay was granted and she continued at Kochi, notwithstanding the orders of transfer. Ultimately, the OA was dismissed and she joined the Chennai office on 7.7.2008. The order dismissing OA No. 553 of 2008 was challenged by the applicant by filing Writ Petition No. 6682 of 2009. While so, she is stated to have fallen ill on 15.11.2009 and was under treatment till 19.12.2009. On 1.12.2009 she applied for Child Care Leave on the premise that her son was preparing for class-XII board examination. She reported for duty on 21.12.2009 along with a medical certificate. She was directed to report 3 before the Medical Board and was not permitted to join. The Medical Board approved her illness and the medical certificate and she claims to have reported for duty on 24.12.2009. It seems that in the meanwhile, on 23.12.2009 WP© No. 6682 of 2009 was disposed of directing the respondents to consider the Child Care Leave application dated 1.12.2009. According to the applicant, however, no order was passed and she was directed to report on 8.2.2010. On the same day proceedings were initiated against her under Article 81(D)(1) of the Education Code of Kendriya Vidayalaya Sangathan, alleging voluntary abandonment of job.
2. The above action was challenged by her in OA No. 143/2010. An interim stay of the proceedings under Article 81(D)(1) was granted. By an interim order the respondents were directed to reconsider the application for Child Care Leave. On 20.10.2010 the applicant sought permission to rejoin duty. While so, OA No. 143 of 2010 was disposed of on 26.10.2010 setting aside the rejection of the Child Care Leave application and directing the respondents to reconsider the application for Child Care Leave in the light of DoP&T orders and further directed that if they 4 propose to proceed under Article 81(D)(1) of the Education Code, it shall be done only after the disposal of the Child Care Leave application. Later this application was rejected by communication dated 4.11.2020 which stated that her "request regarding joining duty at KVS RO, Chennai does not arise till the case is disposed of by the 1st respondent. On the outcome of the disposal, further action will be initiated by this office. In the nutshell, the stand taken by the undersigned is that further proceedings as deemed fit purely in accordance with law will be considered if necessary only after issue of the speaking order by the 1st respondent".
3. Pursuant to order in OA No. 143 of 2010 an order was passed on 13.1.2011 by the 3rd respondent by which the applicant was granted Child Care Leave from 29.12.2009 till 26.3.2010. The applicant was further informed by the said communication that proceedings under Article 81(D)(1) of the Education Code has become inoperative. Applicant was directed to join duty pending regularization of leave period from 27.3.2010. By Annexure A4 communication dated 17.1.2011 the applicant was directed to join duty immediately. He joined KVS, Chennai on 27.1.2011. Since the period from 27.3.2010 to 26.1.2011 was not regularized, the applicant submitted a representation dated 12.3.2012 5 requesting to treat the above period as on duty. By Annexure A6 dated 20.11.2013, the Administrative Officer, Kendriya Vidyalaya Sangathan, New Delhi informed the 4th respondent, Deputy Commissioner of Kendriaya Vidyalaya Sangathan, Ernakulam that the said period may be regularized by granting any kind of leave due to the applicant. Since no orders were passed, applicant approached this Tribunal again by filing OA No. 991 of 2014 seeking a direction to treat the period from 27.3.2010 to 26.1.2011 as "compulsory waiting for posting". It was rejected by Annexure A7 communication dated 30.11.2015, holding that there was no prompt attempt on the part of the applicant to join duty by initiating appropriate judicial proceedings. Annexure A7 order was challenged in OP (CAT) No. 122 of 2016 which was dismissed by the Hon'ble High Court by Annexure A8. While so, the applicant retired on 5.4.2016. Though the benefits were paid to her it was found that the period from 23.3.2010 to 26.1.2011 was not regularized and it was not treated as service for the purpose of increment, pension and retirement benefits. After long delay, by Annexure A14 dated 1.9.2021 the Deputy Commissioner, KVS, New Delhi informed the Deputy Commissioner, KVS, Ernakulam that the competent authority had decided to comply 6 with the order dated 30.11.2015 in OA No. 991/2014. On the basis of Annexure A14, the Deputy Commissioner, Kendriya Vidyalaya Sangathan, issued Annexure A1 dated 6.10.2021 rejecting the application submitted by the applicant to regularize the leave. This order is under challenge in the present OA. The main reliefs sought in the OA were to declare that the applicant was entitled to count the period from 27.3.2010 and 26.1.2011 regularized by grant of leave, to direct the respondents to grant extra ordinary leave for the above period and to regularize the remaining period by grant of half pay leave from 27.10.2010 to 26.1.2011, to set aside Annexure A1 order rejecting the request of the applicant to grant her leave and to direct the respondents to grant her annual increment due in July, 2011 with all consequential benefits including revision of salary, retirement benefits and pension.
4. Respondents have filed a detailed reply statement which was traversed in the rejoinder. Heard both sides and examined the records.
5. Basic facts are not in dispute. The short question that arises is whether the period from 27.3.2010 to 26.1.2011 is liable to be regularized.
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6. Supporting Annexure A1, the learned counsel for the respondents advanced two specific contentions. Firstly, it was contended that the Original Application was barred by limitation in so far as the applicant approached this Tribunal much belatedly challenging the decision of the respondents. Secondly, it was contended that this Tribunal by order in OA No. 991/2014 had held that the applicant had remained absent from duty without any justification for nearly 10 months and hence the principle of no work no pay applies. This was confirmed by the Hon'ble High Court vide its judgment in O.P (CAT) No. 122/2016. Thus, the applicant is not entitled for regularisation of the period during which the applicant was unauthorisedly absent.
7. Vehemently advancing the first contention on the question of limitation, the learned counsel for the respondent pointed out that the period between 27.3.2010 to 26.1.2011 was sought to be regularised by the applicant. The applicant had in fact worked at Chennai only till 5.9.2011. Thereafter, she was transferred to Kochi. She reported for duty on 12.3.2012. After joining Kochi office, she submitted a representation dated 12.3.2012 requesting to treat the above period as compulsory waiting period. Though this representation was not replied, the applicant 8 did not approach this Tribunal seeking the reliefs. She retired on 5.4.2016. Even thereafter, she continued to submit representations reiterating the claims made in application dated 12.3.2012 during the period 27.3.2017 to 19.7.2021. It emerges that during the above period, the applicant had been consistently making representations only. Ultimately, the Original Application was filed only on 3.6.2022. Hence, it was contended that the Original Application was highly belated and liable to be rejected on that ground alone.
8. It was contended by the learned counsel for the applicant that though the cause of action arose sometime during 2011 and thereafter she was transferred to 2012 to Kochi, the Original Application was filed in 2022, several years after her retirement in the year 2016. However, it seems that the applicant had been making representations seeking to regularise leave. The applicant has specifically pleaded that she came to know about the non-regularisation of the said period only after her retirement and when the entire retirement benefits due to her were not paid. This fact is not seen seriously disputed. Though applicant had been consistently making submissions, no relief was granted. Her representations were neither allowed nor dismissed and kept in abeyance. 9 Hence she was waiting for an appropriate decision. The learned standing counsel for the KVS was justified legally in contending that after reasonable time and within the limitation period provided under the CAT Rules, the applicant ought to have approached this Tribunal and the applicant is not entitled to revive the cause of action or the limitation by periodically submitting representations, as held by the Hon'ble Supreme Court. The facts seem to be distinct in the case at hand. It seems that the applicant had approached this Tribunal on few occasions earlier. Hence it cannot be said that the applicant was hesitant to move the Tribunal. It is also pertinent to note that applicant has been consistently making representations. However, her representation was ultimately dismissed only on 6.10.2021 by Annexure A1 which is under challenge in the present Original Application. The OA is seen to be filed on 3.6.2022, within the time after the rejection of the representation. There is nothing on record to show that the grievance of the applicant had become stale during the above period. On the other hand, the applicant seems to have been earnestly pursuing her grievances repeatedly, one after another in various proceedings.
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9. There is yet another reason to hold that the application is not hit by the limitation period. It is specifically pleaded in the rejoinder that after the retirement, the applicant was suffering from brain infection. She had to undergo a major brain surgery on 25.6.2017. Another surgery had to be performed on 18.7.2017. Annexure A15 is the discharge summary evidencing the treatment given to the applicant in a hospital. It also indicates that the applicant was undergoing treatment even thereafter.
10. Having considered the entire facts in this perspective, I am inclined to hold that the application cannot be said to be palpably belated and liable to be rejected on the ground of limitation alone.
11. Advancing the second limb of argument that in the light of the order in OA No. 991/2014, the applicant was not entitled to relief, the learned counsel for the respondents took this Tribunal to various materials on record. It was contended that the applicant was not at all regular in the school. She used to remain absent without permission and without waiting for leave sanction. After her transfer to Chennai, she remained on leave during the period from 19.2.2008 to 4.7.2008 till the dismissal of O.A No.553/2008. After joining, she left Kochi notwithstanding the 11 specific directions given that she shall not leave the station. After reaching Kochi, she applied for leave from 15.11.2009 to 20.12.2009. It was later treated as commuted leave on medical grounds. It was pointed out by the learned counsel that the applicant remained absent for 829 days in her three years service at Chennai. Frequent absence of the applicant had affected functioning of the accounts section of the Regional Office, Chennai. Thereafter, she requested permission to join duty on 29.3.2010, which was not permitted, since O.A No.143/2010 was pending. Hence she was under unauthorised leave during the above period. After the disposal of OA No.143/2010, applicant was granted Child Care Leave for 88 days from 29.12.2009 to 26.3.2010. Though she was asked to join duty, she joined only on 27.1.2011. She was not sanctioned any leave during the said period. Accordingly, during the period from 27.3.2010 to 26.1.2011, the applicant was unauthorisedly absent. She is not entitled for regularisation of the said period nor entitled for any relief with respect to the above period of absence. It was contended that this is all the more so in the light of the order in OA No.991/2014, wherein this Tribunal had specifically held that "no work, no pay" principle was applicable to the facts of the case. This was confirmed in O.P (CAT) No. 122/2016. 12 Virtually, she was seeking salary, increment and all other service benefits without doing work, it was contended. Seeking a relief indirectly, which was specifically declined in OA No.991/2014 cannot be accepted, it was contended.
12. Records reveal that OA No.991/2014 was filed challenging the orders dated 20.11.2013 and 5.6.2014. By Annexure A6 order dated 20.11.2013, it was directed that the period of absence of the applicant from 27.3.2010 to 26.1.2011 shall be ordered to be regularised by grant of kind of leave due to her on post as per the leave rules.
13. In the light of the above, a request was made by the applicant to treat the above period as compulsory waiting period for posting which was rejected by the competent authority and confirmed by order dated 5.6.2014. It was contended that right of the applicant to treat the absence period as compulsory waiting period for joining was under challenge in OA No.991/2014. The premise on which the claim was set up was that the applicant had expressed her willingness to join duty on 27.3.2010 and that was not permitted by the respondents.
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14. On merits, the Tribunal held that the 1st respondent was justified in not permitting her to join duty on 27.3.2010 and it was held as follows:
"9. ...........Had the applicant been permitted to join duty on 27.3.2010 based on the application submitted by the applicant then it would in-directly amount to accepting the case of the applicant that she was entitled to CCL applied for by her from 29.1.2010 to 26.3.2010. Therefore, the applicant cannot find fault with the respondents for not allowing her to join duty on 27.3.2010. OA No. 143/2010 was disposed of by this Tribunal only on 26.10.2010. If the applicant wanted to join duty on 27.3.2010 immediately after the expiry of the CCL applied for by her there was no difficulty for her to file an application before this Tribunal in OA No. 143/2010 seeking interim direction permitting her to join duty on a day specified by this Tribunal. That was cleverly not done in order to abstain from duty the learned counsel for the respondents submits. It is not at all stated why the applicant did not seek direction from this Tribunal to join duty immediately after the expiry of the CCL applied for by her. It is also pertinent to note that at the relevant time the proceedings initiated against her under article 81(d)(1) of the Education Code was also pending. It was only later that the said action was set aside by this Tribunal. Therefore, the respondents were perfectly justified in not allowing the applicant to join duty on 27.3.2010..............."
15. On merits, the Tribunal affirmed that 1st respondent was justified in not permitting her to join duty on 27.3.2010. It was held that had the applicant been permitted to join duty, it would have indirectly amounted to accepting the case of the applicant that she was entitled to CCL applied for by her during the relevant period.
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16. The learned counsel for the applicant in the course of hearing of OA No. 991 of 2014 had contended that no work, no pay was not always the rule. To buttress the said argument before the Tribunal, the learned counsel for the applicant relied on two decisions; Commissioner, Karnataka Housing Board v. C. Muddaiah [(2007) 7 SCC 689] and the decision of the Hon'ble Supreme Court in State of Bihar and Ors. v. Kripa Nand Singh and Anr. [(2014) 14 SCC 375]. These two decisions though referred to were not accepted by the Tribunal. The Tribunal arrived at a conclusion that the principle of no work no pay applies in the facts and circumstances of that case.
17. The Tribunal ultimately concluded that the applicant was guilty of latches and that the applicant was consistently absent. Though this observation appears to be true from the records and her leave records do not appear to be appreciable, I feel that it was not the crucial factor involved in adjudication of the issue involved in the present case.
18. The short question that arise was whether the period from 27.3.2010 to 26.1.2011 was liable to be regularised by grant of kind of leave due to her as per the leave rule. It is pertinent to note that the 15 conclusion of the respondents that the period of absence of the applicant during the disputed period was liable to be regularised by the grant of leave as per the rule was not under challenge in the O.A. No. 991 of 2014. The direction that the applicant was entitled to have the leave regularised was neither questioned nor was an issue of challenge before the Tribunal. The only question that came up before the Tribunal in that OA was whether the said period was liable to be treated as compulsory waiting period. While declining the relief and negativing the reliance placed on the decisions placed by the learned counsel for the applicant, the Tribunal observed that the applicant was on leave unauthorisedly, that hence the principle of no work no pay would apply and that she was not entitled for the reliefs. It was an observation made by the Tribunal to decline the prayer that period of absence may be treated as compulsory waiting period for posting. Tribunal did not hold that the period of absence was not liable to be regularized.
19. In the light of the above facts, it is clear that the decision in OA No. 991/2014 cannot be set up to reject the claim of the applicant to regularize the absence from duty by grant of leave due to her as per rules on the premise that the principle of no work no pay was upheld by the Tribunal 16 which was confirmed by the Division Bench of the Hon'ble High Court by Annexure A8 judgement in OP CAT No. 122/2016.
20. The basic question as to whether the applicant was entitled to have the leave regularised was not in dispute. The short question that came up before the Tribunal as correctly formulated by the learned Tribunal in paragraph 8 of the order in OA No.991/2014 was whether the applicant was entitled to treat the period from 27.3.2010 to 26.1.2011 as compulsory waiting for postings/as duty on leave. It was in that context, the learned Tribunal made an observation, relying on the decisions placed by the applicant that the principle of "no work no pay" applies. That does not in any manner lead to a conclusion that Tribunal had held that the applicant was not entitled to have the leave regularised.
21. In this context, there is no doubt that there is clear finding by the Tribunal that the applicant was at fault. It may be that the applicant may be highly irregular in her work. However, it is to be noted that no disciplinary proceedings were initiated against her. Her leave applications were not rejected. Dies-non was not imposed on the applicant leading to break in service. In the light of the above, it is too late at this time for the 17 respondent to contend that the claim for regularisation is hit by the order in OA No. 991/2014.
22. Annexure A6 clearly conveys the decision of the competent authority to treat the absence period of the applicant from 27.3.2010 to 26.1.2011 to be regularised by grant of kind of leave due to her as per the rules. That decision remains. The respondent cannot be permitted to retract from this under the guise of the order in OA No.991/2014 which only declined the prayer of the applicant that period of absence may be treated as compulsory waiting period for joining. Rejection of that request cannot displace the observation made by the Tribunal earlier that the period of leave was liable to be regularised. The respondents were wrong in holding that the order in OA No. 991/2014 precludes respondents from regularising her absence.
23. In Annexure A12, the applicant had given the details of the leave available to her. Having held that the respondent is bound by the decision in Annexure A6, notwithstanding the order in OA No. 991/2014, respondents are bound to regularise the period of absence of the applicant from 27.3.2010 to 26.1.2011 as per the leave rules by appropriately 18 reckoning the leave. Appropriate decision shall be taken and orders issued within a period of two months from the date of receipt of a copy of this order. The benefits, if any, due to her, after adjusting the leave shall be released to the applicant during the said period.
24. The Original Application is allowed to the above extent. No costs.
(JUSTICE SUNIL THOMAS) JUDICIAL MEMBER "SA"
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Original Application No. 180/00281/2022 APPLICANT'S ANNEXURES Annexure A1 - True copy of memorandum No. F 31029/2017- 18/KVS RO (EKM)/7498 dated 6.10.2021.
Annexure A2 - True copy of letter F.17065/171/OA143/10- KVS(CHER) issued by Assistant Commissioner, KVS RO Chennai, dated 4.11.2010.
Annexure A3 - True copy of memorandum F. 17029/66/2009-KVS(E-
III) dated 13.1.2011.
Annexure A4 - True copy of memorandum No. F.17098/TIS-
ASST/2009-KVS (CHER) dated 17.1.2011.
Annexure A5 - True copy of the letter F.31/Service regu/2013- 14/KVS/RO/EKM/4229 dated 8.10.2013.
Annexure A6 - True copy of letter F. 17029/66/2009-KVS(E-III) dated 20.11.2013.
Annexure A7 - True copy of the order dated 30.11.2015 in OA No. 991/2014.
Annexure A8 - True copy of the judgment passed by the Hon'ble High Court of Kerala in OP(CAT) No. 122/2016 dated 5.4.2016.
Annexure A9 - True copy of letter No. 17029/66/2009-KVS(E-
III)/6609 dated 5.6.2014.
Annexure A10 - True copy of letter No.
F.31/Leave/KVSRO(EKM)/2013-14/9365 dated
13.6.2014.
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Annexure A11 - True copy of the request dated 27.3.2017 submitted by the applicant to the Deputy Commissioner, KVS, Ernakulam.
Annexure A12 - True copy of the application dated 28.3.2017 submitted by the applicant.
Annexure A13 - True copy of the letter No. F. 31029/2017- 18/KVSRO(EKM)/359 dated 25.5.2017.
Annexure A14 - True copy of letter 11-E-3029(31)/1/2019- Estt.III/1384-85 dated 1.9.2021.
Annexure A15 - True copy of the discharge summary issued by Aster Medcity dated 4.8.2017.
RESPONDENTS' ANNEXURES Nil
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