Central Administrative Tribunal - Hyderabad
J Prasad Babu vs Dept Of Posts on 21 January, 2022
OA/393/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
OA/020/393/2020 & MA/020/914/2021
HYDERABAD, this the 21st day of January, 2022
Hon'ble Mr. B.V. Sudhakar, Admn. Member
J. Prasad Babu, Gr. A
S/o. Late Balakrishna,
Aged about 56 years,
Occ: Superintendent,
Railway Mail Services,
RMS 'V' Division,
Visakhapatnam - 530 017.
.... Applicant
(By Advocate : Sri Dr. A. Raghu Kumar)
Vs.
1. Union of India rep. by its
Secretary, Ministry of communications & IT,
DakBhavan, SansadMarg, New Delhi - 110 001.
2. The Chief Postmaster General,
AP Circle, Vijayawada - 520 013.
3. The Postmaster General,
Visakhapatnam Region, Visakhapatnam.
4. The Director of Postal Services,
O/o. Postmaster General,
Visakhapatnam Region,
Visakhapatnam.
... Respondents
(By Advocate: Sri M. Venkata Swamy, Addl. CGSC.)
---
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OA/393/2020
ORAL ORDER
(As perHon'ble Mr. Mr. B.V. Sudhakar, Admn. Member) Through Video Conferencing:
2. The present O.A. is filed seeking conversion of dies non imposed for the period of absence of 355 days as leave of any kind. The following reliefs are sought by the applicant:
".....to call for the records pertaining to the 3rd respondent Lr. No.ST/7-21/JPB dated 07.01.2019 and2nd respondent Lr. No. Vig-VP/JPB/PA(SRM)/VSP/2019 dated 25.07.2019 and quash and set aside the same as illegal, arbitrary and violative of article 14 and 16 of the Constitution of India and rules on the subject matter and consequently declare that the applicant is entitled for conversion of the period of dies-non for the period (1) 29.01.2001 to 02.06.2001 of 125 days, (2) 28.07.2001 to 30.09.2001 of 95 days and (3) 01.10.2001 to 29.11.2001 of 60 days as leave of any kind with all consequential benefits in the interest of justice, and be pleased to pass such other order or orders as this Hon'ble Tribunal deem fit and proper in the circumstances the case."
3. The applicant has submitted details of the period which was treated as dies non, in the O.A. as under:
Sl.No.1 Period of dies non No. of days
13.05.1985 to 14.05.1985 2
1
25.10.1985 to 17.11.1985 24
2
19.06.1987 to 23.06.1987 5
3
01.02.1991 to 02.02.1991 2
4
18.05.1996 to 24.05.1996 7
5
17.07.1998 to 24.07.1998 8
6
19.06.2000 to 27.06.2000 9
7
27.07.2000 to 10.08.2000 15
8
29.01.2001 to 02.06.2001 125
9
28.06.2001 to 30.09.2001 95
10
01.10.2001 to 29.11.2001 60
11
24.02.2004 1
12
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OA/393/2020
29.09.2005 1
13
20.08.2008 1
14
Number of days of absence is 355 days. The applicant contends that the respondents have imposed dies non without following the rules formulated under CCS (Leave) Rules and CCS (CCA) Rules and also the DG & PT Orders in Lr. No. 6/28/70-Disc.I(SPB-I) dated 05.10.1975, annexed under Rule 11 of CCS (CCA) Rules.
4. In response, the respondents stated in the reply statement that the applicant was absent without even submitting a leave letter. Therefore, the competent authority had to impose dies non and the relevant memos were issued in August,1998, September, 2001 & April, 2002treating the period of absence as dies non.
5. Heard the learned counsel for the parties and perused the pleadings on record.
6(I). The issue pertains to imposition of dies non on the applicant for absence of 355 days and the said period is split into different parts as shown in the table above. Rule 32 of the CCS (Leave) Rules, 1972, extracted hereunder, provides for granting of Extraordinary Leave in respect of unauthorized absence by the competent authority.
"32 Extraordinary Leave (1) Extraordinary Leave may be granted to a Government servant (Other than a military officer) in special circumstances -
(a) When no other leave is admissible
(b) When other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave.
(2) Unless the President in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not a permanent employee or quasi-permanent employee, shall be granted extraordinary leave on any one occasion in excess of the following limits:-Page 3 of 9
OA/393/2020
(a) three months;
(b) six months, where the Government servant has completed one year's continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months' extraordinary leave under Clause (a) and his request for such leave is supported by a medical certificate as required by these rules;
(c) Deleted.
(d) Eighteen months, where the Government servant who has completed one year's continuous service is undergoing treatment for -
(i) Pulmonary Tuberculosis or Pleurisy of tubercular origin, in a recognized sanatorium' NOTE.- The concession of extraordinary leave up to eighteen months shall be admissible also to a Government servant suffering from Pulmonary Tuberculosis or Pleurisy of tubercular origin who receives treatment at his residence under a Tuberculosis Specialist recognized as such by the State Administrative Medical Officer concerned and produces a certificate signed by that Specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended.
(ii) Tuberculosis of any other part of the body by a qualified Tuberculosis Specialist or a Civil Surgeon or Staff Surgeon; or
(iii) Leprosy in a recognized leprosy institution or by a Civil Surgeon or Staff Surgeon or a Specialist in leprosy hospital recognized as such by the State Administrative Medical Officer concerned;
(iv) Cancer or for mental illness, in an institution recognized for the treatment of such disease or by a Civil Surgeon or Staff Surgeon or a Specialist in such disease.
(e) twenty-four months, where the leave is required for the purpose of prosecuting studies certified to be in the public interest, provided the Government servant concerned has completed three years' continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months' extraordinary leave under Clause (a). (3)(a)Where a Government servant is granted extraordinary leave in relaxation of the provisions contained in Clause (e) of sub-rule (2), shall be required to execute a Bond in Form 6 undertaking to refund to the Government the actual amount of expenditure incurred by the Government during such leave plus that incurred by any other agency with interest thereon in the event of his not returning to duty on the expiry of such leave or quitting the service before a period of three years after return to duty.
(b)The Bond shall be supported by Sureties from two permanent Government servants having a status comparable to or higher than that of the Government servant.
(4) Government servants belonging to the Scheduled Castes or the Scheduled tribes may, for the purpose of attending the Pre-Examination Training Course at the centres notified by the Government from time to time, be granted extraordinary leave by Head of Department in relaxation of the provisions of sub-rule (2).
(5) Two spells of extraordinary leave, if intervened by any other kind of leave, shall be treated as one continuous spell of extraordinary leave for the purposes of sub-rule (2).
(6)The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave. 33. Leave to Page 4 of 9 OA/393/2020 probationer, a person on probation and an apprentice (1)(a) A probationer shall be entitled to leave under these rules As can be seen from the above Rules, in case of unauthorised absence, there is discretion to the competent authority to grant any leave available to the applicant, if not, then grant of Extraordinary Leave can be considered for certain period of time.
(II) I have gone through the DG & PT Orders in Lr. No. 6/28/70-
Disc.I(SPB-I) dated 05.10.1975, which is relied upon by the applicant in his OA, and the relevant portion is extracted hereunder:
"(iii) xxxxxxThe question whether the break should be condoned or not and treated as dies non should be considered only after conclusion of the disciplinary proceedings and that too after the Government servant represents in this regard.
2. It is made clear that a Government servant who remains unauthorisedly without proper permission should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32 (2)
(a) of the CCS (Leave) Rules, 1972. However, the disciplinary authority should consider the grounds adduced by the Government servant for his unauthorised absence before initiating disciplinary proceedings. If the disciplinary authority is satisfied that the grounds adduced for unauthorised absence are justified, the leave of the kind applied for and due and admissible may be granted to him." Thus, as seen from the above, for imposition of dies-non, disciplinary action has to be taken. Though the said rule has been relied upon by the applicant, the same has not been answered by the respondents. In the instant case, we find that the respondents have not initiated any disciplinary action before imposition of dies-non nor they did issue any notice as required under principles of natural justice before taking the decision for imposing dies non. Any action not in consonance with the Principles of Natural Justice would be arbitrary and unlawful. On a perusal of the Memos cited by the respondents, the period of absence was treated as dies non, straightway without following the procedure mentioned supra. Page 5 of 9
OA/393/2020 Further, Mumbai Bench of this Tribunal vide its verdict dt. 06.11.2017 in OA No. 794/2013 examined the issue involved in a similar case in the light of the DG, P& T letter dt. 05.10.1975 cited supra, and held as under:
"23. So far as the impugned order of treating the period of absence as Dies- non is concerned, the same is covered under the provisions of Rule 27 of CCS (Pension) Rules, which states about effect of interruption in service. It is stated that such interruption will entail forfeiture of past service. Certain exceptions are also mentioned therein. In the present case according to respondents leave was not sanctioned to the applicant and still he remained absent. The above Rule 27 is referred in Fundamental Rule 17-A(iii) which reads as under:-
"F.R.17-A. Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence-
(i) .........
(ii) .........
(iii) in the case of an individual employee, remaining absent
unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi- permanency and eligibility for appearing in departmental examination, for which a minimum period of continuous service is required.
EXPLANATION 1.-......
EXPLANATION 2.-In this rule, the term "Competent Authority" means the "Appointing Authority"."
24. Although impugned orders do not result in subjecting the applicant to double jeopardy, as stated and discussed earlier, still for passing the order of Dies-non, a procedure is prescribed as mentioned in DGP&T letter dated 05.10.1975. As mentioned earlier, there is nothing on record to show that before passing the order of Dies-non, show cause notice was issued to applicant calling his explanation as to why period of his absence should not be treated as Dies-non i.e. break in service and not to count the said period as qualifying service for pension. It is obvious that straightaway the impugned order is passed without making any inquiry. The preliminary inquiry in fact relates to the charge of misconduct/ misbehavior by the applicant, which culminated in filing minor penalty charge-sheet against him. Further the impugned order of Dies-non has been passed without waiting for a decision of disciplinary proceeding initiated against the applicant. We are, therefore, satisfied from record that the impugned order of Dies-non has been passed in violation of the above referred provisions of the circular dated 05.10.1975. Further in this respect it may be mentioned here that although impugned order of Dies-non would not affect pensionary benefits, except that it will not count as qualifying service meaning thereby the period of absence will be treated as break in service. Hence there is material ambiguity in the impugned order. For this reason also, the impugned order of Dies-non does not meet the test of judicial scrutiny."
Xxx Page 6 of 9 OA/393/2020 "27. It is obvious from record that in the present case regular departmental inquiry was not initiated to hold the applicant guilty of unauthorized absence from duty, resulting in passing the order of Dies-non, which is held to be a major penalty. The inquiry proceeding pertaining to misconduct has nothing to do with the punishment of Dies-non. The term Dies-non is also explained in the aforementioned decision of High Court of M.P. as continuity of service but the period is not to be counted for leave, salary, increment and pension. Perhaps for this reason Dies-non was held to be a major penalty which cannot be imposed without holding a regular departmental inquiry. As stated earlier the respondents should have deferred passing of the order of Dies-non, till the conclusion of the inquiry initiated against the applicant for misconduct in which there is reference about his absence from duty. However, without waiting for its decision the impugned order of Dies-non has been passed without giving any chance to the applicant to show cause. Hence principles of natural justice are badly violated in this case. For the above reasons also the impugned order of Dies-non is liable to be set aside." Xxxx "In the result, the O.A. is partly allowed.
The impugned order dated 31.05.2012 (Annexure A-3) of treating the period of absence of the applicant from 12.05.2012 to 19.05.2012 as Dies- non is set aside."
The above decision of Coordinate Bench of this Tribunal squarely applies to the present case.
(III) Another relevant aspect which requires mention in regard to the decision of the respondents is that when the applicant has represented for grant of appropriate leave, the same was rejected for reason of delay in making the said request. However, in the reply statement, the reasons given are multiple which are not being covered in the impugned order. As per the judgement of the Hon'ble Supreme Court in United Air Travel Services Through its Proprietor A.D.M. Anwar Kkhanvs. Union of India, through Secretary, Ministry of External Affairs dt. 7 May, 2018, WP (Civil) No.631 of 2016, reply statement cannot improve the impugned order. The relevant portion is extracted here under:
"11. Learned counsel for the petitioner has, thus, rightly drawn our attention to the Constitution Bench judgment of this Court in Mohinder Singh Gill v. Anr. v. The Chief Election Commissioner, New Delhi & Ors.4 to submit that such a plea cannot be accepted. We may note that Page 7 of 9 OA/393/2020 this is a well settled legal position in many judicial pronouncements of this Court, but it is not necessary to revert to the same. In para 8 of the aforesaid judgment, V.R. Krishna Iyer, J, in his inimitable style states as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older."
(IV) Further, the applicant has submitted that he has filed medical certificate as and when he has gone on leave. However, those medical certificates are not enclosed to the O.A. Learned counsel for the respondents pleads that no such certificates have been submitted by the applicant. Nevertheless, it is not explained by the learned counsel for the respondents as to why the respondents failed to take any disciplinary action and called for the explanation of the applicant whenever he remained unauthorizedly absent. There is lapse even on behalf of the respondents in taking appropriate action at the relevant point of time. The period of absence, as is seen from the facts, pertains to the years between 1985 and 2008. As such seeking medical certificate or any other relevant document at this juncture of time, may not be reasonable and since the respondents have not followed the prescribed rules viz., Rule 32 of CCS (Leave) Rules Page 8 of 9 OA/393/2020 &Rule 11 of CCS (CCA) Rules, the intervention of this Tribunal on his behalf is necessitated.
(V) Keeping in view the fact that the impugned orders dated 07.01.2019 &25.7.2019 does not contain reasons as stated in the reply statement and also there has been violation of the CCS (Leave) Rules & CCA (CCA) Rules and the DG P & T orders stated supra, the Tribunal is in concurrence with the submission of the learned counsel for the applicant and, therefore, the relief sought has to be considered. As the respondents' action is not as per rules, the impugned order dated 07.01.2019 & 25.07.2019 are set aside. Consequently, respondents are directed to grant leave of any kind admissible/ available to the applicant and if not, Extraordinary Leave to the extent eligible as per rules/law so that regularization of his absence would facilitate proper working out of his pension and release thereafter. The above exercise shall be completed within four months from the date of receipt of a copy of this order.
With the above observation, the O.A. is allowed.
MA/914/2021 shall stand closed. There shall be no order as to costs.
(B.V.SUDHAKAR) ADMINISTRATIVE MEMBER /pv/ Page 9 of 9