Central Administrative Tribunal - Madras
Samuel C Wilson vs D/O Revenue on 29 June, 2020
© i : OA ME af ANS CENTRAL ADM INISTRATIVE TRIBUNAL MADRAS BENCH DAB LOOS02 2018 ean SARE ens tis he a Dated 29 the -- dayof TUNE Jogo PRESENT Hon'ble Mr T. dacob, Administrative Member Samuel CL Wilson £3 Superintendent of Central Excise (Retd.), 8-6, Shruthi Apartments, No.1}, 1" Avenue, Ashok Nagar, Chennai ~ 606 G83, ow Appheant By Advocate Mis. Akbar Raw Vs Union of India,rep. By i. The Chief Commissioner of Central Lixcise, (Cadre Controlling Authority) | 26/1, Mahatma Gandhi Road, © Nungambakkam, Chennai ~ 600 034.
2. the Commissioner of Service Tax Service Tex Commissionerate ~ | Newry Towers Noo 20541, 2" Avenue, Anna Nagar Chennai - 600 040. .. Respondents By Advocate Mr RK. Umesh Rao The apyNicant Gas filed this 14 Tribunals Act, E985 ary "yds direct the Responder At tp salen and pay the roe of 38 days | ayes unmithorised)y decu red Leave acco ret Be 138 days wih acerued ivereet of i: eranmum from the date af ite dae ull the date 3 award costs of the Applications and to pass sach further or other orders as deem 1] cumelances af (he case amd thas render jusiic and proper in the
2. The brief fkets af the case as submitted by the applicant are as follows:
The Applicant while working as Superintendent of Service Tax retired on superannuation wa. J1G12015. On iis retirement he had i458 days of Farmed Leave in his credit Aner deducting 9 days from his Earned Leave account for 83 days ECL availed by him daring his deputational ~ $ See tenure, the monetary component of balance of 136 days EL ought to have been ne paid to him but the 2 Respondent vide order dated O7.O2.201< oy for 98 AVS thus arb bitranily deducting 38 Applicants Leave Account. This dedaehon TERCOTERINET ATIVE 4 OA IOP of DOTS availed 38 days EL which had not been debited from his account sans any materialidecumentary ovidence. Pursuant to such presumption authorized deletions, corrections, modifications and tampering af his Service Book was carried out afer his retirement and that too without notice or intimation uy the Applicant. Even mandatory verification of the Applicant's Service Book carried out by the Pay & Accounts Officer on completion of 24 years of service ihe.
from 13.04.1978 to 31.12.2006) had not found any discrepancy with regard te the said 38 days EL or disputed the total EL. at his credit. The Applicant submitted a detailed representation to the Respondent on 17.04.2014 followed with one more representation dated 22.05.2014 and farther cansed a! egal notice on 14.09.2014 to defray payment of monetary component of 38 days of Famed Leave but nothing evoked a response fram the 2™ Respondent, Hence, the applicant has fled this G.A seeking the above reliefs interalla on the Inllowing grounds:
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i) The non payment of cash equivalent of total 136 days of Earned Leave by making unauthorized deduction of 38 days fram his Leave Account by the 2" responden is ex facie arbitrary, illegal and bad in law, u) Eis a well sett torn of law that when an adverse onder IAPS on the civil rights of the individual is passed it should be preceded with a fair opportunity which is in tune with the doctrine of natural justice but the impugned action of the 2 Respondent is blatantly violative of the principles of natural justice.
oy account is Lanlamenially flawed and im patent lransgression of B sof the pe.
ww) 'Tihe tmipagned acto 2° respondent te deduct dhe 38 dave qstruing Wiad the sam ies not been from the Berned Loss see debited for the leave availed by him in Nineties (1.6, 33 days in 1990 and S days In 199K) fs against all consideration of faets and law vi As per SR 199 "Every step in ¢ Government servant's CiTicial ( must be recorded in his Service Beek and each nested by the Head of eo dof his Offoe, or, Whe fb ead af Oc e, by his in wnedia ate superior The Hes 8 gee ice must see that all entries are doly made and atested and that the Bock conieine na erasure ar overaritiy j < vorrection being neatly made and properly attested."\ As can be seen above § is important that each entry fo the Service Book of aGuvemment servant should he attested by the He and the baek should aot contain any erasure or overwriting bul:
instant case there has Geen unauthorised deletions, ccrrectiona, modifications and lammpering of his Service Book that toc afler his he : 3 a toe gai wR Ae OE SS mlirsimcl asd WHhoul any atimation to him which is in violation of SR. SS sd} This the duty of the Head of Office to show the Service Books to the SS every Head of ee gS: ' Se Rs wee OFF vtiate seth erviee : Books fo dye Goverment servants dider s uae oa in token of a ' yop Books. A cannicaie te the © oe fC is Ss re § GA IRE of NS submitted by him to his next superior officer by the end of every September, Yhe Government servants ahall inter alla ensure before alixing their signature thet (heir services have been duly verified and certified ag such,"
The 2" Respondent in the instant case bed not adhered te the procedure defined under SR 202 for the Applicant was neither shown the Service Hook during his service nor his signature obtained of Raving Inspected the same. On the contrary the 28 Respondent seem to have made unauthorized deletions, corrections and tampering with the Serdece Register afler his retirement resulting iy monetary loss to hin by deducting 38 days EL from his leave account, This action of the 2"
respondent | ig HOt Tenable In law and suffers from the vice of illegality and arbitrariness.
win} The impagned aetion of the Ind Respondent in sua motu deda CUNY 38 days of Earned Leave fram the credit ef Applicant's Leave Account sans notioe and thereby denying the cash equivalent of his Leave Salary af 136 days is squarely violative of Articles Id, [6 and 21 of the Constitution,
ix) The impugned action af the 2° Respondent to arbitrarily debit 38 days from the applicant's Earned Leave account behind his hack on 4 unlawful Presumpiive reasoning heer mringing bis right ig draw cash equivalent of Leave Salary af 136 days on retirement is total Hc opeeesed te rplay and good conscience and Rushes, the postulates of equity, fi
x) The impugned action ef the Ind Respondent to deprive the Applicant of encashment of 38 daye Eamed Leave is dewold of ay authority or rationale thas extra legal in charseter and seould net stand ihe test OF Law o% au The impugned action of 2" Respondent to deny ogy cos & SSAC SO? oF SHES 38 days EL by arbitrarily debiting from the Apsiicant's EL account sans aotice and alsa by unauthorisedly lampering the entries in his Service Rook an post-retirement is paipubly wrong, discriminate ory in character thus untenable in law and requires the clinical intervention of this Hon'ble Court to render justice.
3. "The applicant has refed on the following citations in support of Als subniissions:
i Judgment of the Hon'ble Wish Court of Kerala in WP © No, 19724 of oy XS 2U10 dt SLOS.2011 in the case of KK Chandrika Dew Ws. Recrekiry {> Government, Genera! Education Department, Government Secretariat, Thiruveananthapuram & ors.
a. Judgment of Hon'ble High Court of Madras in WP S728 af 2019 de "1.04 2018 in the case of P-Gopalukrishnan Vs. Union of India & Ors, '
4. The respondents have filed a detgiled reply statement stating thet the 2 applicant while working in the Cilfice of the Additional Collector of Customs, G Indhira Gandhi Taternational Airport, New Delhi on deputation for the period fram TLOS.1987 ta 29.10.1990. the Earned leave for 30 days was credited in cash May advance on 1 January }090 forthe full yearcaf 1 990-fheg DEO E1990 tar | S11Z.1990] with the advance credit of 30 dave Barned Leave, the total credit balance of Rarned Leave was 136 days as on O1.01,1 990. Canceciion upon the repatriation front the aforesaid office [fe Office of the Additional en 5 OA MPol Ws Commissioner of Customs, Indira Gandhi International Airport, New Delhi on 29.10.1990, the applicant had joined in the Headquarters Office of the Madural Central Excise Commissionerate on 14.11.1890, Subsequently, aller joining in the Headguarters office, the applicant had availed Harned Leave far 33 days from [811.1990 to 21.12.1900. The entries t this effect were pasted in the column § and 9 of the leave account and after debiting the availed Famed Leave of 33 days from the corresponding portion of credit balance of 136 days, X the entry for balance of Eamed Leave 103 days was posted in column U1 of leave account at the previous office Le. Head Quarters Office, Madurai Central Excise Commisaionerate .
5. Por the first half year of 1991, Le. OLOLL991 to 30.06.1995, the advance credit of 15 days Barned Leave was posted in Column Ned of the Famed Leave account. With the advance credit of 15 day ays, the total Earned Leave at credit was erroneously posted as 151 days instead of 118 days in the Column © No.? af Eamed Leave sceount. The error in the intaling of Earmed credit was dene without taking in to account of the net balance of Earmed Leave of 105 days for the year 1990 at Column Nod] at the aforesaid previons office. The erroneous ides credn halance of Earned Leave as en O1DL.199] was continued and had cunvulative effect of additions every year ay the advance eredit till the date of retirement [Le 196 + 15<15] instead of 103 « [55 Fe on, pe fob toe aces ted tae spb oe far aa the A days in the year } 998 is concerned, the applicunt hed avaned the BS at the Head Quarters &e Ah ba & TAS 808 Io (3.035 P88 IS, TOES 199 OGOS.1998 ta URL OF IR1998 ty LLL 21988.
8. The goplicant while werking in the Sofware Techsoingey Park of India « PS8HG.2010, had avatied Extra Ordinary Poe ees s soa wR TEES ey PE PE SE SENN SPAS SESS SgeergeN SE Leave oF 95 days fram (2.02 2006 to ESOS 2008. The aforesaid periad of BOL was regularized only after retirement of the applicant. As per the Service Book, alter regularizging the ROL perind in the OMice of the Commission ie Yax on 24.12.2013, for the EOL period 1/10 of the days off oe uf Earned Leave waa made for the nef credit balance of Earned Leave OS days The es a5 tennoct a, at 23 th ipete a es & e oS % ned.
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[107 days Sdaeys : iG of EOL of 93 day WPS LLL cee hei: See ee AGMMIShation Séc net done any unauthorized correction, deletion In the leave acon: of the apmlicant, The error in the oaloulation of leave account was only rectified while 3 CEA 22 of 2GES sending the final preposal af pension fo the Pay and Aeecounts Offlee. The Respondents categorically slate that the question of misconception af the 2° respondent does nat arise in this case as there is 4 rectification af error in she caloeulation of credit balance.
7. On mandatary verifioation of the applicant's Service Book on camplenion of 25 years of service, the proposal of service verification was sent by the previous office viz, Poonamallee Division ef Chennai [VY Commissionerate on OS 23.01.2008 to the Pay and Accounts Office vide letter C.Nof1/29/1/2006-8B.
After making the verification of service the Pay and Accounts Office has made a remarks on the margin of the statement that the Earned Leave for 33 days from 19.11.1990 to 21.12.1980 debited in the leave account entry nol made in the service book The observation of the Pay and Accounts Officer itself reveals that this office had net done any correction and deletion im the leave aecount as the said remarks were made during the year 2008 Le. long before his joining in the Service Tax Commissionerate The applicant jcined in the Service Tax Commissionerate only on G9.07. 2010. The applicant was appraised of the fact of person afier his setieeeiont | His contention in the QA that 35 days and 5 days of Earmed Leave availed during the year 1990 and 198% Hself ie evidence on perusal of Service Book In person. The applicant has not brought to the notice Ro Rh PARE:
~ of ihe respondent the above fret of error in the co VS ee his wercing heuske oA R © need Sa verifying his service book, AN the entrice of he | IN UE BTEV IOUS 2 to the :, here asas delay in wetling reply { ees eo;2
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mi the previous office as the crucial records dss at UERG S._ The applicant hes filed rejoinder and the respondents have fled eaphy ic bese vet % ini 's % tat i we ae % og eS me o a XE.
an, Na a dees reiterating ihe averments made ja the meapechys 8 Heerd the learned counsel for the pleadings and documents on recor, 10, There is no dispute with regard to the service of dk The hig relirermert is entided to encash the mometar Y Component equivalent to the sccumulated Famed Leave fon his accor wt to the mosimiuny pit, :
Gy oF S00 days. According to the the Applicant at die time of retirement he had a tal of 145 days accumulated In his Rarned Leave Account, Bet he wes maid fs. ae. of the Pa 8 has eh unatadese.
days of Earned Leave in his credit, only 9 days of Rarned Leave have to be deducted for the 93 days of Extra Grelinary Leave (hereinatier as BOL) availed lament Le, STRY, ce ot gk Ber emrrany:
by him during his tenure in the erstwhile deputational estab! u OAM:
& thus the monetary component of balance of 136 days RL fe, [$8 Ge ts be paid to bim. Instead of the monetary component of 136 daws af Parned Leave to be caloulated and paid to iim, the Applicant was paid only for O8 Gays by the 2° Respondent thas aritrarily deducting 98 days Farmed Leave from Als Leave Account which was done sans any Aotice or apportunity, The contention mS af the applicant is that there has heen a wrongful presumtion by the 2"
Responsient that the 28 days of Earned Leave was taken by the applicant in the * a ':
Q Nineties (Le, 33 days in 199) and § days In (998) and has not been debited from his Leave account without any material 'documentary evidence.
* H. The applicant hes referred to Rate 92 of the CUS (Pension) Rules, 1873 which stipulates that:
1} On a Government servant completing 24 years of service or on his 'being lef with five years of service before the date of retirement whichever is earlier, the Head af OMice in conenltation with the Accounts Officer shall in accordance whith the roles for the time being in force, verily the service rendered by such a Government servant, determine the ' qualifing service and communicate him, in Form 24, the period of qualifying service so determined.
ms (2) Notwithstanding anything contsined in subrule (1) where a Government servant is transferred to another department from a :
TON secount of the closure af the department he :
had beer previcusly serving or because the past he held hed been declared surplus, the verification of his service may be done whenever such event occurs, wea (3) The verification dene under sub-rule (l) and (2) shall be treated gs final and shall not be reapened excemt when Agcessitaied by a subsequent J OSSS ae ans) . : : co go 5 Soe Eres ret bes & a3 ined , oe * ve e oe a $s a B tebe De Ly ap Pa gS pets ee A : : a 2 , a ;
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account, The availment of 33 days of EL by the applicant from 19.11.1900 te 21,12.1990 is evident from the partioular of EL farnished by the applicant ay his APAR for the period 01.06.1990 to 31.03.1991. For the first half year of 199] te, DEOL LOOT to 30.06.1991, the advance credit of 15 days EL was posted as {31 days erroneously without deducting 23 days EL availed by him instead of 118 days and was continued dll the date of retirement. As regards the § days of EL during 1998, the respondents submit. that anly the entry was not made in G3 the Service Book.
if. Following spells of EL availed by the applicant in the year 1998 and entered in the EL. account are duly reflected in the APARs submitted by the applicant for the year 1997-98 and 1996.99. (i 19.01.1998 to 23.01.1998 6S days} GH) 09.03, 1998 te 13,03 1908 ($ days) | (HE) 04.05.1998 to 08.05.1998 (5 days).
(iv) 07.12.1998 to 11.12.1998 (6 days} Hence the deduc lion of 38 days from the EL account of the ¢ applicant? swag © correctly made as per the available records.
15. Subsequently, after joining in the Headquarters office, Madurai the applicant had availed Earned Leave for 33 days from 19.11.1990 to 21.12.1990, The entries to o this effect were posted in the column 8 and 9 of the leave account and aller debiting the availed Rarned Leave of 3 3 days trom the comesponding sortion of credit balance af 136 days, the entry for balance of Barned Leave 103 p YS: ¥3 .
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- nerds ey ee ind, gene eg, hed Py ae ie ges XS f cred . 18 Gad SOP GE QUTS ae Ufo Re eould be geen on perusal af the rscords thet the servine hook of the applicant was sent ta the previous office Poonamallee Division of Chennal V1 Commissionerate on 23.01.2006 for mandatory verification of the applicant's service bopk afer completion of 28 years of servies . Afler making verification, the Pay and Accounts Office has made a remark on the margin of the slatement (inner page of the service book) that the EL for 33 dave from 18.11.1990 to 21.12.1990 debited in the leave account entry was nel made.
18. IL see no legality | inthe leave account proposal of Ub anadents, The period of leave under dispute Le. 93 days iy 1990 and § days in 1 1998 have been correctly entered in the leave account ancl corroborated in the APARs for the years 188) and 19O8 -[999 and no unauthoris od leave was made in the EL account. The applicant has also not shown that 295038 days of BL have heen deducted already. It is not the applioant's case that he kas not availed of the Jeave in question, nar that he has no opportunity to know about the inadvertent error comaoitted by the respondents ii not discounting his leave at credit by a dSbiting the extent af eave availed of by him. Again, when an error bas been committed and the same is not iremediable, inherently the administration has rher, the Inadvertent error nat permitted fa be rectificd wouk! give unintended Gnancial benefit to the apmlicant, which H permitted would mean that it is the taxpayer's money that would be consumed el ed se ets oy é even h state thal t Leta SAREE ARRAS adja RRC EET et C dp ee see EET SSNS penseee ot Seay REND